Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R

Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R - [2016] NSWCCA 202 - NSWCCA 2016 case summary — Zoe

[10]

Judgment

BEAZLEY P: I have had the advantage of reading in draft the judgments of R A Hulme J and Adamson J. I agree with the reasons of Adamson J and the orders her Honour proposes. I also agree with the additional observations of R A Hulme J.
In agreeing with their Honours' reasons, I have reviewed the evidence, including the CCTV footage, and independently have come to the view that it was not open to the jury to be satisfied of the guilt of Mr Hristovski or of the guilt of Mr Bubanja.
R A HULME J: I have had the considerable advantage of having read in draft the judgment of Adamson J. In particular I am grateful for her Honour's thorough review of the evidence, the submissions of counsel and the summing up by the trial judge.
I agree with Adamson J for the reasons she has given that grounds 1 and 2 of Mr Hristovski's appeal (Shepherd direction) should be rejected.
I also agree that the various grounds otherwise challenging aspects of the trial judge's summing up should be upheld for the reasons her Honour has provided. (Mr Popovic's Grounds 1, 2 and 3; Mr Koloamatangi's Grounds 1 and 2; Mr Bubanja's Grounds 2, 3 and 3A; and Mr Hristovski's Ground 3). I confirm that in assessing the balance of the summing up, I have had regard to its overall effect rather than examining the impugned passages piecemeal. Viewed in isolation, some of those passages might not be of great significance but it is the cumulative effect that gives rise to a miscarriage in my view.
One theme permeated the summing up; that is, there were suggestions made to the jury about how they might assess the evidence in a manner that might favour the Crown that had not been raised by the prosecutor in his closing address. But, as was conceded by the Crown at the hearing in this Court, there were no matters favouring the applicants that had not been raised in their counsel's addresses. This is not to say that a judge cannot point out matters that have not been raised in addresses that might assist a jury's assessment of the evidence. But, of course, great care is required to maintain balance and to avoid putting to the jury anything of such significance that there is unfairness in the inability of defence counsel to respond. Regrettably, in this case there was such unfairness.
The unreasonable verdict grounds (Mr Bubanja Ground 1 and Mr Hristovski Ground 4) should be upheld as well. I am in general agreement with the reasoning of Adamson J in relation to this but wish to clarify my view in the light of my own assessment of the evidence.
First, however, it is worth noting that some fundamental propositions in relation to an appellate court's treatment of a ground of appeal asserting that a verdict of guilty returned by a jury is unreasonable or cannot be supported were very recently restated by the High Court of Australia in R v Baden-Clay [2016] HCA 35 at [65]-[66]. They included: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable"… is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'."
I accept that in this case there is a difficulty in having regard to the "advantage enjoyed by the jury" when that advantage was potentially impacted adversely by the manner in which it was suggested they might assess the evidence of key prosecution witnesses whose credibility was seriously in issue. This is particularly so in relation to the trial judge's suggestion that they examine reasons "why would they lie?" which implicitly carried with it that the evidence of those witnesses might be more readily accepted if the jury could not identify a particular reason. It was, of course, fundamental that it was for the Crown to persuade the jury that they were telling the truth in the essential aspects of their evidence.
Mr Taylor's credibility and reliability were very important matters in the assessment of the case against Mr Hristovski. I am not so troubled about matters of time, the sequence of events and the colour of the gun. In large part, such matters were naturally open to imprecision: timing and sequence of events because of the long period that had elapsed between the events in question and when Mr Taylor first reduced his version to written form (5 years) and when he gave evidence (7 years); and the colour of the gun because of the less than ideal circumstances (poor lighting and the brevity and trauma of the event) in which the witnesses at the nightclub had in which to see and recall the appearance of the weapon. These matters did not inspire confidence in Mr Taylor but I would place less weight on them than the applicants' counsel did in submissions in this Court, and their trial counsel did in address to the jury, as being destructive of his credibility and reliability.
The one thing that particularly gives rise to a reasonable doubt about the guilt of Mr Hristovski in my mind is the seeming impossibility of Mr Taylor's account of the collection of the gun from Mr Hristovski at Warrawong. (See the analysis by Adamson J under the headings "The sequence of events on the evening of 7 and 8 September 2007" and "The fact and timing of the visit to Mr Hristovski's on 7-8 September 2007".) It was a critical element in the case against Mr Hristovski but the evidence is such that there must be a grave doubt that it occurred at all. And the simple fact is, if there is a doubt about that, there is a doubt about Mr Hristovski's guilt. This assessment may be made without recourse to the jury's advantage, even if that was appropriate.
I cannot add anything useful to the review of the case against Mr Bubanja provided in the judgment of Adamson J. It was a case that was significantly dependent upon acceptance of particular aspects of the evidence of two indemnified witnesses who will be referred to in these reasons as Messrs Taylor and Radz. Mr Taylor's evidence was problematic in a number of respects and the example I have referred to in relation to the collection of the gun is damaging in relation to his credibility generally. Mr Radz's evidence was, on my assessment, of even more dubious credibility. The remainder of the case against Mr Bubanja was not enough to restore confidence in those men's evidence.
I am mindful of the Crown's submissions as to the importance of having regard to the combined force of all aspects of its case. In particular, the telephone evidence certainly provided the Crown with a powerful basis to argue for a joint enterprise being pursued by each of the applicants given the flurry of communications and attempted communications in which they were involved, and the sequence of them, in the critical period leading up to the shooting. The problem, though, is the absence of evidence as to the content of such communications which left the Crown cases in respect of Messrs Hristovski and Bubanja heavily dependent upon the evidence of Messrs Taylor and Radz to fill the gap.
Accordingly I have reached the same conclusion as Adamson J that the verdicts of guilty in respect of the applicants Hristovski and Bubanja are unreasonable.
I agree with the orders proposed by Adamson J.
ADAMSON J: On 29 May 2014, after a trial by jury, Tevi Koloamatangi, Dalibor Bubanja, Zlatan Popovic and Jason Hristovski (the applicants) were found guilty of the murder of Dragan Sekuljica on 8 September 2007. On 30 May 2014 the applicants were found not guilty of shooting Robert Gyles with intent to murder him.
The Crown case was that the deceased was shot a number of times by a single gunman, Mr Koloamatangi, just after 3am on Saturday 8 September 2007 as he was leaving Splashes night club in the Wollongong Novotel Hotel to cross the road to get into a taxi. He ran back inside and was followed by the gunman, who shot him again at close range and also shot Mr Gyles, a security guard who was nearby. The gunman fled to a vehicle driven by Peter Taylor. The deceased died at the scene. Mr Gyles survived.
The Crown case was that Mr Popovic had arranged the murder following a feud between Zoran Bubanja, the father of Mr Bubanja, and the deceased. The Crown case was that Mr Hristovski had supplied the gun (which belonged to Johnny Radz but was being held by Mr Hristovski for safekeeping) earlier that evening to Mr Koloamatangi and Mr Taylor for the purpose of its being used in a murder that night; and that Mr Bubanja acted as the lookout at Splashes on the night of 7-8 September 2007.
Mr Koloamatangi was sentenced to a term of life imprisonment commencing on 1 June 2023; Mr Popovic to a term of 34 years imprisonment comprising a non-parole period of 26 years commencing on 21 September 2012 with a further term of 8 years; Mr Bubanja to a term of 34 years imprisonment comprising a non-parole period of 26 years commencing on 1 February 2014 with a further term of 8 years; and Mr Hristovski to a term of 29 years imprisonment comprising a non-parole period of 22 years commencing on 25 July 2014 with a further term of 7 years.
The applicants apply for leave to appeal against their respective convictions for the murder of the deceased. Mr Bubanja seeks leave to appeal against his sentence.

[11]

The grounds of appeal

Mr Popovic, seeks leave to appeal on the following grounds: 1. A miscarriage of justice was occasioned by the trial judge's directions to the jury to consider, and as to matters to take into account in considering, whether Mr Taylor had lied in his evidence (Summing Up (SU) 106, 107, 114, 117); 2. A miscarriage of justice was occasioned by the trial judge's directions to the jury as to matters they should consider in relation to an argument put by the applicant (SU 119, 120-121); and 3. A miscarriage of justice was occasioned by the failure of the trial judge to discharge the jury (SU 121).
Mr Koloamatangi, seeks leave to appeal on the following grounds: 1. The trial judge erred in failing properly to warn the jury regarding the unreliability of evidence of: 1. A witness criminally concerned in the events giving rise to the proceedings (Mr Taylor); and 2. A prison informer (Mr Radz); and 1. The judge's summing up caused a miscarriage of justice.
Mr Bubanja, seeks leave to appeal on the following grounds: 1. The verdict was unreasonable within s 6(1) of the Criminal Appeal Act 1912 (NSW). 2. The trial judge erred in inviting the jury to consider what reason the Crown witness, Peter Taylor, would have for lying, particularly in the absence of a direction that rejection of any proposed motive did not justify a conclusion that his evidence was truthful; 3. The trial judge erred in failing to direct the jury adequately, as required by s 165 Evidence Act 1995, about the possible unreliability of the evidence of the Crown witness, Peter Taylor, in particular by inviting the jury to consider what reason the witness would have for lying, particularly in the absence of a direction that rejection of any proposed motive did not justify a conclusion that Taylor's evidence was truthful; and 4. The trial judge's summing up occasioned a miscarriage of justice in that it failed to present a balanced account of the conflicting cases (ground 3A, added with leave).
Mr Bubanja also seeks leave to appeal against his sentence on the basis of a "justifiable sense of grievance" in light of the sentences imposed upon Mr Hristovski and Mr Popovic (ground 4).
Mr Hristovski, seeks leave to appeal on the following grounds: 1. The trial judge erred in not directing the jury that before they could convict the applicant they must be satisfied beyond reasonable doubt that he provided a firearm to the shooter; 2. In the alternative, the trial judge erred in not directing the jury that before they may use the alleged provision of a firearm to the shooter as a circumstance from which to consider the drawing of the inference of guilt, they needed to be satisfied beyond reasonable doubt that it had occurred; 3. The summing up as a whole failed adequately to convey to the jury the degree of scrutiny required regarding Mr Taylor's evidence and tended on this issue to reverse the onus of proof; and 4. The verdict is unreasonable or cannot be supported, having regard to the evidence.
Although the applicants' grounds of appeal are expressed in different ways, there is considerable overlap between them. The two principal challenges to the convictions are, in the case of Mr Hristovski and Mr Bubanja, that the verdict was unreasonable; and, in the case of each applicant, that the summing up was so unbalanced as to deprive him of a fair trial. The second challenge also incorporates other grounds, some of which are confined to a single applicant, such as Mr Hristovski's complaint that a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573 (the Shepherd direction) was not given.
Because the grounds concern the summing up and the reasonableness of the verdicts (in the case of Mr Hristovski and Mr Bubanja) in light of the evidence at trial, it is convenient to set out the Crown case at trial and the evidence before turning to the summing up in order that it can be seen in context.

[17]

In the weeks before the killing

One night in August 2007, Mr Hristovski and Amy Ewen, his then girlfriend, went out with friends to Mamma's Pizza in Lower Crown Street, Wollongong before going to the Steelers Club. Mamma's Pizza was run by Mr Popovic's mother who employed Mr Taylor, who was also known as "Herbie", as a driver in her business.
When they arrived home that evening to Mr Hristovski's parents' place in Warrawong where they lived, Ms Ewen went to bed and fell asleep but Mr Hristovski went out again. Ms Ewen said that it was not uncommon for Mr Hristovski to go out without her. On his return he threw something heavy on the bed which hit her legs and woke her up. She sat up and saw that it was a gun, which she thought was a revolver. The light from the window was sufficient for her to see that part of the gun was silver. She saw the gun, or a similar gun, again on many occasions. Sometimes it was kept under the bottom drawer in the bedside table and sometimes in their wardrobe.
Mrs Sekuljica gave evidence that about a fortnight before the killing the deceased rang to ask her to pick him up from the North Wollongong Hotel (also known as the North Gong Hotel) and take him to Mamma's Pizza. He went inside and came out again a minute later. He asked her to take him to get a kebab from a shop in Figtree. On the way to Figtree, the deceased received a phone call from Mr Popovic, in the course of which the deceased called him both a "trader" [traitor] and "Izdanica", after a Serbian leader who had given up the Serbian people by swapping sides. Mr Popovic told the deceased to meet him at the bushland at Mt Keira. The deceased agreed that he would do so. By the time the deceased and his wife arrived at the kebab shop it was still daylight. Mrs Sekuljica estimated that they arrived there before 6pm.
The Crown tendered footage of the beer garden in the grounds of the North Wollongong Hotel on 31 August 2007 which showed the deceased, Zoran Bubanja and Mr Bubanja speaking together for almost half an hour. At times the three were separate from other acquaintances but at other times they were joined by others. The footage shows that they were generally on good terms but there were a few minutes when there was apparent conflict, or at least disagreement, between the deceased and Zoran Bubanja, as manifested by each man sticking out his chest and some slight shoving between them, although there is no evidence of any blow being struck. The timing of the footage is consistent with its having been taken on the same afternoon on which Mrs Sekuljica collected the deceased from the hotel and before the heated conversation between the deceased and Mr Popovic referred to above.
Mr Taylor's evidence was that he had met "Doc" (Mr Koloamatangi) and Mr Bubanja a couple of weeks before the shooting. He already knew Mr Hristovski and the deceased. Mr Taylor's evidence was that, about two to three weeks before the shooting, he overheard Mr Popovic talking to Mr Bubanja and Mr Hristovski in the Woolworths car park, across the road from Mr Popovic's unit, which was empty at the time. Mr Taylor said that he heard a reference to "Dragan" (the deceased) and "Dusan" (a friend of the deceased). Mr Bubanja ("Daki") said that they were dogs and were speaking to police.
Mr Taylor's evidence was that, a week before the shooting, he and Mr Popovic were conversing at the front of Mr Taylor's unit in Angel Street, Corrimal. Mr Popovic told him: "it is war" and asked him: "are you with me?" to which Mr Taylor responded, "Yes".
On 2 September 2007 Mrs Djuraki returned from a trip overseas. When the deceased visited her at home between 2 September and 7 September 2007 he told her that Zlatan [Popovic] was the biggest traitor in Serbian history.
Ms Ewen recalled an occasion a few days before the shooting when Mr Hristovski left his home at Warrawong for Wollongong between 7pm and 10pm. On his return, he told her that he had been to see "friends" at Mamma's Pizza. He made specific mention of Mr Bubanja and Mr Popovic and may have mentioned "Dragan" [the deceased].
Mr Taylor gave evidence that a day or two before the shooting (which was confirmed by a register to be the day before, 6 September 2007) he went to the Collegians Rugby Club by himself. While he was there he joined Mr Koloamatangi and his girlfriend Emma; Mr Bubanja; and Mr Popovic and his fiancée, Emily. He said that he stayed only for half an hour. Mr Taylor accepted in cross-examination that he was only able to be precise about matters such as the date on which he attended the Collegians Rugby Club because detectives had taken him through the register that he had signed on entry.

[19]

Mr Taylor's evidence about the events of 7-8 September 2007

Mr Taylor said towards the end of his evidence in chief that he and Mr Popovic had gone to Mr Hristovski's place at Warrawong together between lunch and the evening on 7 September 2007 for the purpose of Mr Taylor knowing where Mr Hristovski lived. In cross-examination Mr Taylor admitted that he had never made a statement to that effect before including it in his evidence in chief on 10 April 2014. He adhered to his evidence that this visit had occurred although he could not remember what else had occurred during the day on 7 September 2007 and ultimately said that he might have been shown the way to Mr Hristovski's place the previous day.
On the evening of 7 September 2007 there was a dinner at Kings Chinese restaurant in Wollongong which was attended by Mr Popovic and his fiancée, Emily; one of Mr Popovic's cousins and his girlfriend; Mr Taylor; and Mr Koloamatangi and his girlfriend, Emma. In cross-examination Mr Taylor said that the dinner started between 6 and 7 and finished about 8 or 8.30pm. He said that it was not possible that they were still there at 10pm.
Mr Taylor gave evidence in chief that, after the dinner, he had driven Mr Koloamatangi and Emma back to Sydney and dropped Emma somewhere near the Harbour Bridge before driving back to Wollongong with Mr Koloamatangi.
According to Mr Taylor, on their return to Wollongong they went to Mr Popovic's unit. He estimated that they arrived there at about 10.30pm or 11pm. Mr Taylor accepted in cross-examination that the whole of his evidence (about time) was predicated on his being back in Wollongong by 10.30pm or 11pm. Mr Taylor said in evidence in chief and confirmed in cross-examination that he stayed for about an hour at Mr Popovic's unit before leaving for Mr Hristovski's house.
Mr Taylor's evidence was that Mr Popovic sat down with him and Mr Koloamatangi. Mr Taylor did not catch all of their conversation as Mr Popovic and Mr Koloamatangi were whispering to each other. In cross-examination, Mr Taylor agreed that he said in three statements to police (4, 6 and 12 June 2012) that he had been told by Mr Popovic during that visit that the deceased was at the "North Gong Hotel". Mr Popovic asked Mr Taylor to go to Mr Hristovski's house to pick something up. There was also mention that they were going to go and see Dragan (the deceased) afterwards. Mr Taylor said originally in his evidence in chief that they left at about midnight but later said, also in chief, that they arrived at Mr Hristovski's place between 11pm and midnight. Mr Taylor estimated that it took about 15 minutes to get from Mr Popovic's unit in George Street, Wollongong, to Mr Hristovski's place in Warrawong.
Mr Taylor confirmed in cross-examination that he was in the Wollongong CBD by about 12.49am on 8 September 2007.
Mr Taylor's evidence was that he and Mr Koloamatangi drove from Mr Popovic's unit to Warrawong and parked in the cul-de-sac outside Mr Hristovski's house in Blaxland Avenue and waited for him to come out. Ten minutes later, Mr Hristovski came out with an old cream coloured bag with a short revolver with six bullets, stamped "Astra" which was silver with a black handle. According to Mr Taylor, Mr Koloamatangi said, "What the fuck is this. What am I going to fucking do with this?" to which Mr Hristovski responded, "That's all I have." Mr Taylor asked Mr Hristovski what they were going to do to Dragan (the deceased) and Mr Hristovski motioned with his hand in the shape of a gun.
Mr Taylor, who accepted that he had a rough idea by this time that someone was going to be shot, spoke with Mr Koloamatangi about what clothes would be needed. According to Mr Taylor, he and Mr Koloamatangi went from Warrawong to Mr Taylor's unit in Corrimal (which was 25-35kms north of Mr Hristovski's house and took about twenty minutes) to collect black pants, gloves and a beanie. Mr Taylor gave Mr Koloamatangi the dark blue hoodie he had been wearing that night and Mr Koloamatangi cut holes in the beanie to turn it into a balaclava. Mr Taylor confirmed in cross-examination that in his statement of 9 July 2012 he told police that he was in his own home for about 20 minutes.
Mr Taylor said that about this time they spoke on the phone to Mr Popovic who told them to go to Splashes.
Mr Taylor parked in the car park near Splashes and sat in the car smoking. He said that he turned his phone off so that no one could track his whereabouts. In cross-examination, he confirmed that he was sitting in the car for an hour and a half to two hours while Mr Koloamatangi waited outside.
Mr Taylor heard about five gunshots, started the car and drove to the exit to the car park. Mr Koloamatangi jumped in the back seat of the car and confirmed that he had done what he had to do. Mr Taylor then drove him back to Sydney.
According to Mr Taylor, on the way back to Sydney, Mr Koloamatangi asked him to call Mr Popovic about Mr Koloamatangi's money. Mr Taylor's evidence was that he used Mr Koloamatangi's phone to make the call (having earlier been shown his own telephone records which did not show that such a call had been made from his phone). Mr Popovic told Mr Taylor to come and see him "tomorrow". Mr Taylor drove Mr Koloamatangi to Mascot before returning home to Corrimal.

[20]

The telephone records of communications on 7 and 8 September 2007

Exhibit G comprised a schedule of telephone communications, or attempted telephone communications, both by voice call and SMS, which were relied upon to identify the approximate location of certain persons as well as to show communications between relevant persons. For present purposes it is sufficient to set out the conversations relied on by the parties with an indication, where applicable, of their forensic significance. The entries from Exhibit F, the CCTV footage are also included where relevant. Date Time Length Caller Location Recipient Location of Forensic significance in '07 (sec-onds) of caller (if relevant) recipient (if indicated) 7.9 19.47.21 62 (call) Popovic Figtree-1 Tara Wilton, who lived with Mr Taylor Popovic and others at Kings Chinese restaurant 7.9 21.05.31 14 (call) Koloa-matangi Brokers Point Tara Wilton Koloamatangi and Taylor on way back to Sydney after dinner at Kings 7.9. 21.43.41 36 (call) Koloa-matangi Engadine-V Popovic Wollongong CBD-1 Ditto 7.9. 21.51.44 17 (call) Koloa-matangi Kirrawee-V Popovic Wollongong CBD-1 Ditto 7.9. 22.16.32 52 (call) Koloa-matangi Mascot-V Ditto 7.9. 22.29.21 43 (call) Koloa-matangi Alex-andria-V Ditto 7.9 23.27.39 Bubanja, Petrovic and Milisic arrived at Splashes 7.9. 23.48.53 111 (call) Koloa-matangi Newtown-V Koloamatangi and Taylor still in Sydney after about 2 hours since reached Engadine 7.9. 23.58.19 32 (call) Not known Taylor Rockdale Koloamatangi and Taylor heading south from Sydney towards Wollongong 8.9. 00.14 87 (call) Taylor Loftus-2 Ditto 8.9. 00.17.47 24 (call) Buban-ja Thirroul Hristovski Last call made by Bubanja before deceased arrived at Splashes at 12.30am 8.9 0.30.31 Deceased arrives at Splashes with 3 males and one female 8.9 00.46.44 57 (call) Taylor Wollongong-1 Koloamatangi and Taylor back in Wollongong 8.9. 00.49.58 27 (call) Koloa-matangi Wollon-gong CBD Popovic Wollongong CBD-3 (tower does not cover Warrawong area) Inconsistent with Taylor's evidence that call was made outside Hristovski's place 8.9 00.50.56 18 (call) Popovic Wollon-gong CBD-3 Bubanja 8.9. 00.52.21 49 (call) Popovic Ditto Koloa-matangi Inconsistent with Taylor and Koloamatangi being at either Popovic or Hristovski's place 8.9 00.54.54 3 DVM Popovic Ditto Bubanja Thirroul Unsuccessful attempt to contact 8.9 00.55.17 Ditto Popovic Ditto Bubanja Ditto 8.9 00.55.46 0 UC Popovic Ditto Hristovski Ditto 8.9 00.55.51 39 (call) Taylor Wollongong CBD-2 8.9 00.59.55 3 DVM Popovic Ditto Bubanja Thirroul Unsuccessful attempt to contact 8.9 1.00.16 46 (call) Popovic Ditto Taylor North beach-1 Location of Taylor 8.9 1.00.23 3 DVM Popovic Ditto Bubanja Thirroul Unsuccessful attempt to contact 8.9 1.00.50 3 DVM Popovic Ditto Bubanja Ditto 8.9 1.02.18 38 (call) Taylor North-Beach-1 Hristovski relied on this to show that Taylor's phone was on in the car park: challenge to his credit 8.9 1.03.07 72 (call) Popovic Ditto Koloa-matangi 8.9 1.06.52 58 (call) Popovic Ditto Bubanja Successful attempt to contact 8.9 1.08.20 26 (call) Popovic Ditto Hristovski 8.9 1.09.24 25 (call) Popovic Ditto Koloa-matangi 8.9 1.15.18 9 (call) Koloa-matangi Crown St Mall Popovic Wollongong CBD-3 8.9 1.19.43 4 DVM Popovic Wollon-gong CBD-3 Bubanja Unsuccessful attempt to contact 8.9 1.20.30 13 (call) Emily Martin- fiancée of Popovic Hristovski Crown said Popovic made the call using Emily's phone 8.9 1.23.36 3 (call) Hristo-vski Wollon-gong CBD Bubanja Hristovski said that this showed that he had already left home. 8.9 1.28.50 4 DVM Hristo-vski Ditto Bubanja Unsuccessful attempt to contact 8.9 1.29.15 3 DVM Hristo-vski Ditto Bubanja Ditto 8.9 1.29.41 4 DVM Hristo-vski Berkeley Bubanja Ditto 8.9 1.29.53 3 DVM Hristo-vski Ditto Bubanja Ditto 8.9 1.30.55 3 DVM Hristo-vski Ditto Bubanja Ditto 8.9 1.31.16 3 (call) Hristo-vski Ditto Bubanja Successful attempt to contact 8.9 1.31.59 3 DVM Hristo-vski Ditto Bubanja Unsuccessful attempt to contact 8.9 1.36.38 3 DVM Popovic Wollon-gong CBD-3 Bubanja Ditto 8.9 1.48.50 49 (call) Koloa-matangi Brokers Point 8.9 1.50.29 3 DVM Hristo-vski Berkeley Bubanja Unsuccessful attempt to contact 8.9 1.50.50 3 (call) Hristo-vski Dapto Bubanja Successful attempt to contact 8.9 1.53.55 3 (call) Hristo-vski Wollon-gong CBD Bubanja Ditto 8.9 1.54.05 2 DVM Hristo-vski Ditto Bubanja Unsuccessful attempt to contact 8.9 1.58.19 4 DVM Hristo-vski Thirroul Bubanja Ditto 8.9 1.58.44 3 (call) Hristo-vski Brokers Point Bubanja Successful attempt to contact 8.9 1.59.52 107 (call) Hristo-vski Ditto Popovic Wollongong CBD-3 Ditto 8.9 2.02.08 2 (call) Hristo-vski Ditto Bubanja Ditto 8.9 2.02.19 3 DVM Hristo-vski Thirroul Bubanja Unsuccessful attempt to contact 8.9 2.02.43 3 DVM Popovic Wollon-gong CBD-3 Bubanja Ditto 8.9 2.03.27 91 (call) Popovic Ditto Hristovski 8.9 2.08.56 45 (call) Hristo-vski Thirroul Popovic Wollongong CBD-3 8.9 2.16.31 29 DVM Koloa-matangi Brokers Point Taylor 8.9 2.28.50 13 (call) Hristo-vski Brokers Point Popovic Wollongong CBD-3 8.9 2.29.27 4 DVM Popovic Wollon-gong CBD-3 Koloa-matangi 8.9 2.29.41 0 DVM Popovic Ditto Taylor 8.9 2.30.10 3 DVM Popovic Wollon-gong CBD-2 Koloa-matangi 8.9 2.30.38 24 (call) Popovic Wollon-gong CBD-3 Hristovski 8.9 2.57.59 71 (call) Hristo-vski Brokers Point Popovic Wollon-gong CBD-3 8.9 2.59.05 75 (call) Dec-eased Thirroul Taxi Cabs Wollong-ong Deceased deciding to leave Splashes 8.9 2.59.28 3 DVM Popovic Wollon-gong CBD-3 Koloa-matangi 8.9 3.01.03 Deceased walks down stairs towards footpath outside Splashes; has phone in his hand 8.9 3.02.37 Deceased shot and killed at Splashes Nightclub (Ex F- CCTV footage) 8.9 3.11.53 20 (call) Koloam-atangi's phone Brokers Point Popovic (Crown) Gunman reporting to organiser 8.9 3.13.06 51 (call) Popovic Wollon-gong CBD-3 Hristovski 8.9 3.30.44 1 Hristo-vski Berkeley First call made by Hristovski from Berkeley area since 1.50.29. 8.9 4.16 76 (call) Koloa-matangi Mascot-V Taylor has driven Koloa-matangi back to Sydney 8.9 5.03 76 (call) Koloa-matangi Rosebery-V Taylor Blakehurst Taylor has dropped Koloamatangi in Sydney and is returning to Wollongong 8.9 5.29.16 65 (call) Koloa-matangi Randwick North Taylor Garrawarra Ridge-3 Ditto 8.9 11.00.46 12 (call) Bubanja Saddle-back Mountain Hristovski The first call made by Bubanja since 0.17.47 (before deceased arrived at Splashes) 8.9 11.43.58 55 (call) Bubanja Wynyard West Popovic Wollongong CBD-3 8.9 19.26.14 29 (call) Popovic Cringilla-2 Taylor Brokers Nose-2 Taylor still in Wollongong 8.9 21.25.56 124 (call) Taylor Darkes Forest-2 Taylor on the way to Sydney 8.9 22.23.12 89 (call) Taylor Surry Hills East-2 Taylor in Sydney (on Crown case, possibly to pay Koloa-matangi)

[22]

The other evidence of what occurred at Splashes night club on the night of Friday 7 September 2007 and early morning of Saturday 8 September 2007

A number of prosecution witnesses who were in and around Splashes at that time gave evidence about the lighting, the weather, the clothing of the gunman and the colour of the gun. Although there were some variations in their evidence, each of them identified the weapon carried by the gunman as being a dark colour.
The evidence of Timothy Berry, an expert witness, was that the bullets (recovered from the deceased's body and Mr Gyles' body) indicated that the gun was a revolver rather than a pistol and could have been either a 38 special firearm or a 357 Magnum calibre firearm. The rifling effect of the firearm could have been created by many other weapons, including Astras.
CCTV footage from cameras outside Splashes established that Mr Bubanja arrived at the night club from 11.27pm with his friends Miodrog Milisic (Big Mickey) and Stanko (Stan) Petrovic. The deceased arrived with others at 12.30am. Mr Bubanja and the deceased, who already knew each other, had contact in the bar of the club and also in the toilets. Mr Harris, an off-duty security guard, heard parts of their discussion and understood that there was a problem that needed to be fixed. There was evidence of the interaction between the two men from witnesses, some of whom did not observe any conflict between them and others who did. Witnesses gave evidence of poor telephone reception inside the night club which necessitated people stepping outside to make and receive calls. The number of calls which were made to Mr Bubanja that night which are recorded as "DVM", or divert to voicemail is consistent with the poor reception inside Splashes.
At about 3am on 8 September 2007 the deceased left Splashes with Mr Bubanja and Big Mickey. Mr Bubanja said in his Electronically Recorded Interview of a Suspected Person (ERISP) that they intended to catch a taxi to a brothel. The deceased made a call to a taxi at about this time. Just outside the premises, the deceased was shot by a man wearing a black balaclava. The deceased ran back inside Splashes and was followed by the gunman. Mr Gyles, a security officer, approached the gunman to restrain him and was himself shot in the elbow. The gunman then shot the deceased a further three times. The deceased died soon afterwards. The gunman left the premises and was driven away by Mr Taylor who was parked nearby.
Witnesses spoke of Mr Bubanja being distressed after the shooting.

[24]

The aftermath

On Saturday 8 September 2007 Ms Ewen heard Mr Hristovski's brother, Daniel, telling him that he had been at Splashes the previous night and had seen Mr Bubanja there. Mr Hristovski told his brother that he had picked him up from Splashes and taken him home. Later that morning, as a result of a television news bulletin, Ms Ewen first discovered that there had been a shooting in Wollongong. She learned from the television news on Monday 10 September 2007 that the deceased had been shot dead at Splashes in the early hours of Saturday morning.
According to Mr Taylor, later that same day, on Saturday 8 September 2007, or the following day, Mr Taylor collected money from Mr Popovic and drove to Sydney to deliver it to Mr Koloamatangi who complained that it was "short". On several occasions Mr Taylor delivered money to Mr Koloamatangi from Mr Popovic. Mr Taylor said that he was not paid for his involvement in the shooting or for his collecting money and delivering it to Mr Koloamatangi. There was no indication in the evidence of why Mr Taylor had been willing to participate in the murder.
Either a couple of days, or a week, after the shooting, Mr Popovic said to Mr Taylor, "Go get the gun and toss it into a pond" in front of "Dusan's" house. Dusan was a friend of the deceased. When Mr Taylor passed on this message to Mr Koloamatangi he said that he had already disposed of it in a bin at a location in Surry Hills which he referred to as the "Projects".
According to Mr Taylor, he saw Mr Bubanja a week or two after the shooting but there was no conversation about it at that time. Later Mr Popovic and Mr Bubanja visited Mr Taylor at home and took him for a drive in Mr Popovic's white BMW. Mr Popovic and Mr Bubanja were mostly speaking Serbian, which Mr Taylor did not understand. At one point, Mr Popovic, referring to Mr Taylor, said, "Herbie did it." Mr Bubanja responded, "You're a sick fuck" and shook his hand. This conversation was relied on by the Crown to prove that Mr Popovic was involved in the killing and that Mr Bubanja was glad that the deceased had been killed.
Some time after the shooting, Ms Ewen got a job in the kitchen at Mamma's Pizza where Mr Taylor was still working as a delivery driver.
Not long after Mr Radz was released from gaol in October 2007, he attended Mr Popovic's wedding to Emily. Later he visited Mr Popovic with his own wife and newborn daughter. According to Mr Radz, he and Mr Popovic went for a walk in the park opposite the cinemas in the Wollongong CBD in the course of which Mr Popovic told him that an Islander called Doc (who Mr Radz said he knew from 2000) [Mr Koloamatangi] had done the job and that "Herbie" [Mr Taylor] was driving and that Mr Bubanja was the one to make the call for Doc to strike and that he was following the deceased to Splashes. Mr Popovic also told him that Zoran Bubanja paid him $250,000 to arrange it and "Doc" $40,000 to do the job.
It was put to Mr Radz by Mr Popovic's trial counsel that this conversation was a lie and that Mr Radz knew all the details which he had allegedly been told by Mr Popovic from either the prosecution brief or from the newspaper. Mr Radz accepted that he had heard from his wife about the murder but that he did not like reading and only read the headlines. He said the whole incident (at Splashes) did not concern him.
The Crown tendered recordings of telephone intercepts made on 23 October 2007 and in particular a conversation in which Mr Hristovski phoned Mr Popovic, who put him on to Mr Radz, who was with him at the time. The purpose of the tender was to show that Mr Radz, Mr Hristovski and Mr Popovic were on good terms, which was consistent with the Crown case that Mr Radz had entrusted his gun to Mr Hristovski and that Mr Popovic had been prepared to discuss the murder with Mr Radz.
In early 2008 Ms Ewen's relationship with Mr Hristovski ended.
In July 2008 Mr Radz was imprisoned again and remained in custody until his release on 27 April 2009. He gave evidence that while he was at Parklea Correctional Centre (Parklea) he saw Mr Koloamatangi who was on the other side of a wire fence which separated sections of the prison. According to Mr Radz, Mr Koloamatangi told him that he was in the car park with the balaclava and the gun and that when he got the call he ran up to Splashes, shot the deceased outside and then followed him inside, chased him inside and finished him off, by shooting him in the head and the chest and also shot the security guard too, by accident. According to Mr Radz, Mr Popovic had not paid him what he owed him for the job.
In about August 2008 Ms Ewen formed a relationship with Mr Taylor. She told him about the single gun, or similar guns, she had seen in Mr Hristovski's possession when she was living with him. On 17 April 2009 Ms Ewen was still in a relationship with Mr Taylor when he was assaulted, apparently by Mr Hristovski or his associates. Ms Ewen accompanied Mr Taylor to the police station to report the assault. After he was taken to hospital she made a statement to police about the events relating to the shooting. This was the first statement she had made regarding the shooting. The police told her that Mr Hristovski was angry about Mr Taylor starting a relationship with her. At about this time Ms Ewen and Mr Taylor had a further conversation about the gun she had seen in Mr Hristovski's possession.
Some time between Mr Radz's release from gaol on 27 July 2009 and his going overseas in 2010, he dined with Mr Bubanja and others at a restaurant in Wollongong. According to Mr Radz, Mr Bubanja told him that he was the one who followed the deceased into Splashes and made the phone call for "Doc" to strike, to which Mr Radz said, "you are a sick cunt", which were said to be words of congratulations or approval.
Some time after 2009 Mr Radz went with Mr Bubanja to Zoran Bubanja's farm to visit Mr Popovic. According to Mr Radz, Mr Bubanja bragged that he was the "man for the whole operation and that if it wasn't for him it wouldn't have happened and that the shooter and driver were moved in from what he was telling him and that his father paid for the whole thing and Zlatan [Mr Popovic] organised the whole thing, the shooter, the weapon and the car."
According to Mr Radz, he saw Mr Koloamatangi in Parklea Gaol in about September or October 2013. They were together with an opportunity to speak for "a good five minutes", during which time Mr Koloamatangi told Mr Radz that he had not been paid yet for the murder although he had confronted Mr Popovic.
According to Mr Radz, he also saw Mr Popovic in Parklea in 2013. Mr Popovic told him that "Herbie" [Mr Taylor] had "turned dog" against him for the "Splashes murder".

[27]

Challenges to Mr Taylor's credibility

Substantial challenges were made by all defence counsel to Mr Taylor's credibility. He admitted that he had been involved in drug dealing, as a result of which he was in fear for his life from a drug dealer called Simon De Witt, whom he used to drive to and from Sydney once or twice a week to purchase ice.
Mr Taylor had been given the following indemnity: "TO PETER TAYLOR Indemnity under Criminal Procedure Act 1986, section 32 If you actively co-operate in criminal proceedings pending against: Zlatan POPOVIC, Dalibor BUBANJA, Tevi KOLOAMATANGI and Jason HRISTOVSKI for the offences of murder and shoot with intent to murder; AND if your evidence there is the truth, the whole truth and nothing but the truth, I grant you indemnity from prosecution for: 1. Murder of Dragan Sekuljica on 8 September 2007; 2. Shoot at with intent to murder Robert Gyles on 8 September 2007; 3. . . . 4. Any associated offence in respect of matters relevant to the proceedings and covered by your evidence in the proceedings."
Mr Taylor's credibility was challenged on the basis of differences between what he told Detectives Ritchie and Santivalle on 1 June 2012 (as recorded in a file note prepared after the interview) and his evidence. The principal differences relied on were: 1. Mr Taylor was recorded as having told the officers on 1 June 2012 that he had collected the gun from Mr Hristovski before driving to Sydney to drop off Mr Koloamatangi's girlfriend, whereas in his evidence he said that he collected it after they returned to Wollongong; and 2. In the notes of the interview on 1 June 2012 there is no record of Mr Taylor mentioning that he returned to his home to supply clothing for Mr Koloamatangi.
Mr Taylor agreed that he had never, before giving his evidence in chief in April 2014, suggested that he had driven with Mr Popovic to Mr Hristovski's place before the killing and had realised when giving his evidence in chief that he must have known where it was when he went there later that evening. Mr Taylor asserted that it was only when he saw the paper the next day that he realised that the person who had been shot dead at Splashes was the deceased.
Mr Taylor was cross-examined about being approached by police on a number of occasions prior to 2012 when he decided to answer their questions. Mr Taylor confirmed in cross-examination that at the committal hearing in May 2013 he had an independent recollection of the times of the dinner and the trip to Sydney and the return to Wollongong on the night of 7 September 2007.
Mr Ramage QC, trial counsel for Mr Popovic, put to Mr Taylor that in his statement of 14 June 2012 he had said that between the time he left Mr Popovic's unit to collect the gun from Mr Hristovski until he spoke to Mr Popovic after the killing he did not have any other conversations with Mr Popovic. Mr Taylor responded that he thought that he had included in his statement the call from Mr Popovic telling him to go to Splashes night club.
Mr Taylor confirmed in cross-examination by Ms Davenport SC, trial counsel for Mr Koloamatangi, that there were no calls recorded on Exhibit G which indicate that Mr Taylor made any telephone calls during the whole of 7 September 2007 or the morning of 8 September 2007 apart from an unconnected call to the phone of Tara Wilton, being a friend for whom he regularly obtained drugs. She put that the absence of record was inconsistent with what he had said in his police statement of 9 July 2012 that he rang Mr Popovic from outside Mr Hristovski's place to ask him to ring Mr Hristovski to tell him that they had arrived. Mr Taylor identified the call at 00.49.58 in Exhibit G as being the one in which Mr Koloamatangi had phoned Mr Popovic to tell him that they were outside Mr Hristovski's house.
Trial counsel for Mr Koloamatangi cross-examined Mr Taylor about his evidence in chief that, on the way back to Sydney after the shooting, Mr Koloamatangi asked him to call Mr Popovic about Mr Koloamatangi's money and that Mr Taylor used Mr Koloamatangi's phone to make the call. Mr Taylor agreed that his first version could have been that he had used his own phone but that it may have been pointed out to him that this did not fit with the phone records (which did not show that he had made any such call). Mr Taylor accepted that the police had gone over "the time line" with him and pointed out that some of the statements he had made did not fit with some of the other evidence they had.
Mr Taylor agreed in cross-examination by trial counsel for Mr Bubanja that he only mentioned the gathering in the Woolworth's car park in his induced statement of 4 June 2012 and that in that statement he had not mentioned that anyone had referred to "Dragan". He agreed that he referred to "Dragan" as being a name he had heard mentioned in the fortnight prior to the shooting and had not put it in context of the gathering in the car park. Mr Taylor agreed that there was no mention in his statement of 4 June 2012 that Daki or Dalibor Bubanja had been at the Collegians on 6 September 2007.
Mr Taylor agreed in cross-examination by Mr Hristovski's trial counsel that he had been the victim of an attempted kidnapping on 17 April 2009 as a result of which he was assaulted and hospitalised. Shortly after Mr Taylor had provided a statement to police on 17 April 2009 about the assault, he was interviewed by Detectives O'Donohoe and Noble from the Homicide Squad regarding the death of the deceased. Detective O'Donohoe suggested to Mr Taylor that Mr Hristovski might have been involved in the assault because he was angry that Mr Taylor was having a relationship with Ms Ewen.
Mr Taylor did not provide the detectives with any information about the killing when he was interviewed on 17 April 2009 about the assault on that day; on 1 July 2009 when he was contacted by Detective Chambers (the officer in charge of the murder investigation); or indeed at any time prior to 1 June 2012. At the time Mr Taylor made the induced statements in 2012 he was no longer in a relationship with Ms Ewen.

[29]

Challenges to Mr Radz's credibility

The indemnity granted to Mr Radz by the Attorney-General was tendered in evidence and provided in part: "TO Johnny Radz Indemnity under Criminal Procedure Act 1986, section 32 If you actively co-operate in criminal proceedings pending against: Zlatan POPOVIC, Dalibor BUBANJA and Tevi KOLOAMATANGI for the offences of murder and shoot at with intent to murder on 8 September 2007; [four other unrelated incidents involving murder or shooting were listed] … AND if your evidence there is the truth, the whole truth and nothing but the truth, I grant you indemnity from prosecution for: 1. Fire firearm at dwelling house and reckless disregard for safety 17 October 2012; 2. Discharge firearm with intent to cause grievous bodily harm on 9 February 2013; 3. Use unauthorised pistol on 9 February 2013; and 4. Knowingly deal with proceeds of crime, namely $11500 cash on 18 February 2013."
Mr Radz accepted that he had been involved in organised crime and gangs for at least part of his adult life. At times he had held weapons for the purposes of providing them, when required, for an outlaw motor cycle gang. He was cross-examined about his criminal history, which began when he was 17. He accepted that in 1996 and 1998 he committed offences of robbery with aggravation, stealing and two assaults but disagreed that these met the description of "organised crime". Mr Radz agreed that in 2000 he was initially charged with attempted murder, damage property by fire, possess and use unregistered firearm and shoot at persons with intent to inflict grievous bodily harm and two counts of malicious wounding and was ultimately sentenced for shooting at a person with intent to inflict grievous bodily harm, with three counts of malicious wounding, damage property by fire and the possession of an unregistered firearm taken into account. He agreed he told police the shooting involved discharging the "full clip" of a Beretta pistol towards a person in a car but maintained the person was not badly injured. He was sentenced to nine years with a minimum of six years imprisonment. Mr Radz agreed that on 5 July 2001 he was also convicted of possession of a knife in a public place.
When Mr Popovic's trial counsel put to Mr Radz that he made up the admissions attributed to the applicants because he wanted to gain from the reward of $200,000 offered for information about the murder, he said that he only became aware of the reward when he was half way through his statement and that he would not put his life in danger for $200,000. Mr Radz agreed that he had gone to prison in 2000 for a crime that involved kneecapping and that he had been charged with the same crime in 2013. He agreed that he knew when he was arrested in February 2013 that he could get a reduction in his sentence if he gave assistance to the police because the police talked to him about it on the night he was arrested.
Mr Radz was cross-examined extensively about previous statements he had made to the Crime Commission which he accepted were untrue. Counsel for each of the applicants cross-examined Mr Radz extensively on his credibility, largely on the basis of his prior inconsistent statements. Mr Radz agreed that he had prepared a time line of events to assist his recollection and that there was no mention of Mr Hristovski or of his nickname of Pigeon in the time line for 2007.
Mr Radz gave evidence that Mr Bubanja told him many times in 2006 that he could not wait until the deceased was released from gaol (which took place in May 2006) so that he could put a bullet in his head and that seeing him (Mr Radz) was a "dream come true". Although Mr Radz said that there were 100 witnesses, this appeared to be an exaggeration, particularly as Mr Radz could not name one.
He was cross-examined by Mr Hristovski's trial counsel about why he would have given the gun to Mr Hristovski whom he hardly knew and whom he did not pay to come and collect the gun.

[33]

Evidence generally relied upon in support of the Crown case

The Crown summarised the events relevant to its case against all of the applicants by referring to the following: 1. the falling out between Zoran Bubanja and the deceased over the construction of a block of units at some stage prior to 2006; 2. the approach in May 2006 by Zoran Bubanja, Mr Bubanja and Marko Bubanja and Mr Radz to the deceased's unit (shortly after the deceased was released from gaol) requesting that he come outside; 3. the meeting on 31 August 2007 at the North Wollongong Hotel between Mr Bubanja and his father and the deceased where they appeared to be engaged in a heated exchange, following which there was a telephone call between the deceased and Mr Popovic in which the deceased called him a traitor; 4. the presence at the North Wollongong Hotel on 7 September 2007 of the deceased and Mr Bubanja at different times in the course of the afternoon and evening; 5. the dinner at Kings Chinese restaurant on the evening of 7 September 2007 which was attended by Mr Popovic and his fiancée; Mr Koloamatangi and his girlfriend; a cousin of Mr Popovic and his girlfriend; and Mr Taylor; 6. the return of Mr Taylor and Mr Koloamatangi from Sydney to Wollongong accompanied by phone contact with Mr Popovic to whom a visit was paid, followed by the collection of the gun from Mr Hristovski's residence and the journey to Mr Taylor's place to collect clothes; 7. the arrival of Mr Taylor and Mr Koloamatangi at Splashes and their lying in wait for the deceased during a period where there was considerable contact between Mr Popovic, Mr Hristovski and several attempts to contact Mr Bubanja, which were, on occasion, successful; 8. the departure of Mr Hristovski from his residence in the middle of the night while Ms Ewen was asleep and his subsequent return in the early hours of the morning; 9. the interchange between the deceased and Mr Bubanja in the toilet at Splashes; 10. the shooting of the deceased shortly after he had called a taxi on the way out of Splashes; 11. the flurry of telephone calls shortly prior to 3am on 8 September 2007; 12. Mr Taylor driving Mr Koloamatangi back to Sydney from Wollongong shortly after 3am on 8 September 2007.
The Crown addressed the jury on its case with respect to each of the applicants in turn.

[35]

Evidence relied upon in respect of the Crown case against Mr Hristovski

As against Mr Hristovski, the Crown relied on "two separate pieces of evidence": first, the supply of the gun that was used to kill the deceased and to shoot Mr Gyles; and, secondly, Mr Hristovski's presence in the vicinity of Splashes in the early hours of the morning leading up to and surrounding the time of the shooting and the number of telephone calls to which he was a party. The Crown said that the first piece of evidence would be sufficient for a conviction if the jury was satisfied that the gun was supplied with the intention that it be used in the murder. The Crown continued: "The second piece of evidence, the involvement by leaving his home and going to the vicinity of Splashes Nightclub, either alone or together, with the evidence of the supply of the gun, if you are satisfied that that was done with a view to assisting those that were intending to carry out the shooting, by means of being a conduit to the information as to the whereabouts and movements of the intended victim, then that would give rise to liability by way of participation in that common enterprise, provided of course you were satisfied that he was a participant in that enterprise." [Emphasis added.]
The Crown referred to Mr Radz's evidence of supplying a gun to Mr Hristovski and his evidence that he had seen the gun at the workshop of Mr Hristovski's family business. He also referred to Ms Ewen's evidence about the gun in the bedroom as well as the different descriptions of the gun by eyewitnesses at Splashes (that it was black) and by Ms Ewen (that it was silver) and Mr Radz (that it was silver, old and 20-25cms long). The Crown relied on Mr Taylor's evidence of going to Mr Hristovski's place with Mr Koloamatangi to collect the gun.
The Crown referred to Detective Ritchie's note of the informal interview which took place with Mr Taylor on 1 June 2012 and suggested that he might have recorded events in a different order from the way they had been related to him by Mr Taylor. The Crown contended that the version recorded in the note, that they had collected the gun before going to Sydney to drop off Mr Koloamatangi's girlfriend, was unlikely and could be explained by Detective Ritchie having recorded the events in the wrong order.
It is not necessary to detail the evidence relied on by the Crown against Mr Koloamatangi or Mr Popovic in addition to the general evidence referred to above as neither applicant sought leave to appeal on the ground that his verdict was unreasonable or not able to be supported.
The Crown referred to Mr Taylor's credibility in the context of the telephone records in the following terms: "So, you have this combination of events where Peter Taylor says, look, I was the driver. I drove Doc to Sydney to drop his girlfriend off. I drove back to Wollongong afterwards with Doc. We know Doc is back in Wollongong. He is using his phone. The Splashes events occur. The phone is used to ring Zlatan Popovic. Peter Taylor says that is the call where Doc asked for money. Then the calls go back to Sydney to around the Mascot area and then Peter Taylor makes his way back to Wollongong. I might say this Peter Taylor you remember, became a witness for the plaintiff in 2012 and his statement details the events shortly before and the night of the shooting murder of Dragan Sekuljica. He would not have known that the phone records tracked him in the way that they did. He would not know that the phone records tracked phone calls made by Doc and phone calls made by him and tracked the movements that various people also made. The reason I mention that is because if Peter Taylor were making this up, if he were not involved and not involved as the driver for Doc that night at the request of Zlatan Popovic, how could he know about the events of that night in sufficient detail to be able to describe those movements and those telephone calls taking place. As it turns out, they support his figment of imagination, fantasy if that is what you were to be asked to regard it as. He might be in error as to some of the timing, some of the details of the timing, and that is not difficult to understand given that he made his statement in 2012, about events five years before. It is important to remember that. I'm not saying that is an excuse for inaccuracy but it is accuracy where accuracy counts where you are being asked to say - Well that couldn't have happened because he has made a mistake about the time. Now he could not have known that the police had the records of these phones, that they have or been able to do the analysis of phone records that they have and, they wouldn't match up unless he had been involved as the driver of Doc that night."
The Crown also referred to the calls involving Mr Hristovski which indicate (by reference to the various towers) that he had travelled through Wollongong CBD and to Brokers Point and Thirroul (which cover the area where Splashes is located) and also in the Berkeley area (which covers Warrawong, where he lived).

[36]

Address on behalf of Mr Hristovski

Mr Corish replayed video footage and cross-referenced it to the phone records. He submitted that the Crown had not excluded an innocent explanation: namely, that Mr Hristovski was out with friends on a Friday night and communicated from time to time on the phone with them and others.
Mr Corish also relied on the proven falsity of the following aspects of Mr Taylor's evidence: 1. that the call made by Mr Koloamatangi at 00.49.58 was made outside Mr Hristovski's house, in light of the evidence that: the tower through which it passed was north of the area within which Warrawong was located; and no call at a relevant time was made by Mr Taylor or Mr Koloamatangi through the tower that covered Warrawong; and 2. that he had switched off his phone while he was in the car park outside Splashes when Exhibit G recorded a call at 1.02.18 on 8 September 2007 which was made from his phone.
Mr Corish submitted that Mr Taylor and Mr Radz were both skilled liars. He relied on Mr Taylor's motive to harm Mr Hristovski by reason of the assault on him that took place in April 2009, which he and Ms Ewen believed was as a result of her former relationship with Mr Hristovski. Mr Corish relied on the inconsistency between Detective Ritchie's note of the informal interview on 1 June 2012 and Mr Taylor's evidence at trial as to the sequence of events on 7 and 8 September 2007. He also relied on the disparity between the descriptions of the gun given by the eye witnesses at Splashes (that it was dark); Ms Ewen's evidence (that it was a silver revolver); Mr Taylor's evidence (silver gun); and Mr Radz's evidence of the gun he handed over (old silver revolver 20-25cms in length). Mr Corish also referred to examples of inconsistencies in Mr Taylor's evidence.
Mr Corish read out extracts from the evidence of Mr Radz in support of his submission that he was a skilled liar and submitted that Mr Radz's evidence was so unreliable that it could not support Mr Taylor's evidence or the Crown case.

[37]

Address on behalf of Mr Bubanja

Mr Austin, trial counsel for Mr Bubanja, referred to CCTV footage of the incident at North Wollongong Hotel on 31 August 2007 and replayed parts of the footage at Splashes around the time of the murder. Mr Austin submitted that there was nothing about Mr Bubanja's conduct that evening that indicated that he was aware that there was about to be an attempt to shoot and kill the deceased.
Mr Austin relied on the fact that the last call recorded as having been made (as opposed to received) by Mr Bubanja on 8 September 2007 was made at 00.17.47, which was before the deceased arrived at Splashes and therefore could not have been the call to tip off Mr Koloamatangi that the deceased was either there or was leaving. The next call initiated by Mr Bubanja was not until 11.00.46 on 8 September 2007.
Mr Austin submitted that, even if Mr Bubanja had told Mr Popovic that the deceased was at Splashes during the 18-second call initiated by Mr Popovic at 00.50.56, more was required to establish that he was part of a joint criminal enterprise. Mr Austin also referred to the fact that Zoran Bubanja, with whom the deceased was alleged to have a disagreement, had not been charged and that it was Zoran Bubanja who was said to owe money to the deceased. Mr Austin submitted that bad blood between the men could not reliably be inferred from the CCTV footage taken at the North Wollongong Hotel since the body language may have reflected no more than a transient disagreement.
Mr Austin described Mr Radz's evidence of admissions said to have been made by Mr Bubanja as "an evil concoction" by a man with every reason to lie. He also relied on the disparity between Mr Radz's evidence of the content of the admissions and the objective facts, including that, according to Mr Radz, Mr Bubanja said that he followed the deceased to Splashes and called Mr Popovic to tell him that the deceased was there, when the evidence established that Mr Bubanja arrived at Splashes before the deceased and that Mr Bubanja did not call Mr Popovic at all from Splashes. Mr Austin told the jury that there was not enough evidence against Mr Bubanja unless they accepted Mr Radz's evidence, which was so exaggerated and unreliable that they could not safely accept it.
Mr Austin referred to Mr Taylor's evidence and submitted that the evidence of "Dragan" being a "dog" in a conversation involving Mr Bubanja was too vague to be reliable as a motive, as was the evidence of the gathering in the Woolworth's car park. Mr Austin said that the conversation in which Mr Popovic was said to have told Mr Bubanja that "Herbie [Mr Taylor] did it" cannot be a reference to the deceased's murder since Mr Taylor obviously did not do it. Furthermore Mr Austin submitted that the conversation did not support Mr Bubanja's involvement in the murder.
Mr Austin submitted that the CCTV footage from Splashes showed that the deceased and Mr Bubanja were on good terms and that it appeared that Mr Bubanja was going to leave with the deceased in a taxi.

[40]

The directions of law and warnings

At the beginning of the summing up the trial judge gave a number of directions and warnings, including a direction relating to multiple accused. At SU 3, the trial judge said: "I will add an eighth direction. . . . Here there are four accused, and in effect four trials, and you have to consider the situation of each of them. Obviously there are some matters and evidence common to all of them, but it is important to recognise that you have to consider the situation of each accused individually, and decide whether in the case of that individual your verdict should be guilty or not guilty."
The trial judge, after giving the standard directions of law including those regarding onus and standard of proof, gave the jury a document setting out the elements of the offence and what is required to establish a joint criminal enterprise. His Honour then gave four warnings, the first three of which were given in response to the requests made by defence counsel referred to above. His Honour prefaced these warnings with the following words (SU 13): "Because of the nature of the evidence or some of the evidence the Crown relies upon the law requires that I give you certain warnings."
The first warning was in relation to Mr Taylor's evidence. The trial judge said in part (SU 14): "The warning is that the evidence to which I am about to refer may be unreliable and you need to exercise caution before deciding to accept it or place weight upon it. In the case of Mr Taylor, the Crown relies upon the evidence of someone who has admitted to being criminally concerned in the events giving rise to the present proceedings. . . . Such a person may want to shift the blame from himself on to others and to justify his or her own conduct. In the process the witness may construct untruthful stories which tend to play down his or her own part in the crime and play up the parts of others, even going so far as to blame quite innocent people. He may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility. He may be motivated to give false evidence in order to qualify for reduction in any sentence he may be facing, or, in Mr Taylor's case, to obtain immunity from prosecution of himself. Experience has shown that once a witness has given a version to police inculpating someone else the witness may feel locked into that version even if it contained inaccuracies or even if it is substantially untrue. Of course there may be other reasons which an accused or Court does not know. There is no onus on an accused to establish such reasons. The important thing for you to recognise is the need for caution."
The second warning was in relation to Mr Radz's evidence. The trial judge said (SU 15): "In the case of Mr Radz, he also may be motivated to give false evidence in order to secure his immunity from prosecution, or, at least originally, to increase his chances of obtaining bail. Again, once having given a version to the police or Crime Commission inculpating an accused he may feel locked into that version even if it contained inaccuracies or was substantially untrue. It is relevant for you to bear in mind Mr Radz's criminal past and that people like Mr Radz are liable to the be affected by the standards and culture of prison or criminal society where respect for the law and telling the truth may not be valued in the way as is commonly the case outside prison. And of course in his case also there may be other reasons which the accused or the Court does not know. As I said, there is no onus on an accused to establish such reasons. Again recognise the need for caution."
The third warning was a further warning about Mr Radz's evidence in which his Honour said (SU 15): "A further reason for caution in the case of Mr Radz is that much of his evidence against the accused consists of admissions said to have been made by them. This is another area where evidence may be unreliable. It is very easy to assert that in the course of conversation between two persons one made some sort of confession to a crime and it is difficult to prove such statements false."
The fourth warning, the giving of which had not been raised with counsel earlier, was sought neither by defence counsel, nor by the Crown. It was in the following terms (SU 15-16): "A fourth area where caution is required is that portion of evidence that consists of hearsay evidence. An example of hearsay evidence is what the police or the crime scene investigators say that Mr Taylor or Mr Radz have said out of court. That evidence suffers from the disadvantage that it is second hand. What was said originally was probably given in circumstances less formal than those here and so much care may not have been given as we commonly expect in courts and when the listener may not have correctly heard or understood or remembered what was being said. Of course in this case notes were generally taken at the time or soon afterwards, but the potential for inaccuracies still exists. Bear that in a mind and as I have said, exercise care. I will say more about it when I come to it, but you may remember that one of the police officers who prepared the investigator's notes of conversations with Mr Taylor which occurred on the 1st of June said in relation to two of those paragraphs, dealing with the order in which Mr Taylor said he went to Sydney and the picking up the gun occurred, the investigator said, 'I may have those paragraphs around the wrong way', or words to that effect. You have got the note. You don't know here, as you didn't hear what Mr Taylor said to those investigators. You have their record. You have what Mr Taylor says now that he said. And if you compare what he said now with what is Taylor in the notes there is an inconsistencies. The problem of hearsay evidence is you don't know often how an inconsistency or the problem arose."
The substance of the fourth warning was reiterated later in the summing up (SU 104).
The trial judge informed the jury about issues that may arise with recollection and the process of drawing inferences. His Honour said (SU 21): "Another suggestion I would make is that when you incline to a conclusion on a particular topic, you then consciously set about considering what arguments are there to the contrary, or what reasons are there why you might be wrong. Again, I come to an example in this case. It is suggested that Mr Taylor and Mr Radz have concocted much of what they have said, with a view to obtaining benefits such as immunity, or such as a reward, and clearly, that is something which you have to take into account. But do examine it. All right, if Mr Taylor is going to concoct a completely cock and bull story, why has he put in all the things he has? Why mention North Wollongong Club? He knew the murder occurred at Splashes. Why even mention North Wollongong, and then have to work out some way of change of address? Wouldn't it have been simpler if he just said, "I was told to go to Splashes". I only illustrate it by saying, before you draw a conclusion, look to see what arguments you can think of that are against that conclusion."
At the conclusion of the first day of the summing up, in the absence of the jury, counsel for Mr Koloamatangi submitted that the warning regarding Mr Radz was inadequate in that it did not warn the jury of the potential unreliability of evidence given by prison informers of admissions made by accused persons (SU 23).

[48]

Return to the telephone evidence

When the jury came back, the trial judge took the jury through the evidence of phone calls at particular times to indicate where Mr Taylor and Mr Koloamatangi were. He also referred to the timing of calls between Mr Taylor and the applicants. The trial judge then linked this evidence to the evidence of Mr Taylor (SU 60) as follows: "Can I then take you to another aspect of exhibit G.? I think you will have sufficient memory of what Mr Taylor said in this area for me not to have to go to it at the moment. Can I invite your attention to 8 September in exhibit G, at 00.49. This is the call which, when Mr Taylor was being cross-examined and he had a copy of exhibit G in front of him, he was being questioned about whether there had been a call to Mr Popovic or Mr Hristovski, I think to Mr Popovic, in effect to arrange Mr Hristovski to come out with a gun. Mr Taylor suggested that the 00.49 call seemed to fit. Now, I might note that that was a call on Mr Koloamatangi's phone to Mr Popovic. Three minutes later, two and a half minutes later, Mr Popovic speaks again to Mr Koloamatangi, there are a couple of attempted calls to Mr Bubanja and then Mr Popovic tries to ring Mr Hristovski at 0.55.22 seconds. That was apparently unsuccessful. Then at 1.03, Mr Popovic then calls Mr Koloamatangi. He calls Mr Bubanja at 1.06. Again calls Mr Hristovski at 1.08, this time getting through. At 1.09, he then calls Mr Koloamatangi and gets through. At 1.15, Mr Koloamatangi calls Mr Popovic, and at 1.20 Emily calls Mr Hristovski. Emily, you will remember, was the name of Mr Popovic's girlfriend. Now, it is entirely a matter for you, but does that pattern of calls reflect a request from Mr Taylor and Mr Koloamatangi, "Tell Hristovski we're there, we're nearly there", an attempt to tell Mr Hristovski that, unsuccessful, another call between Mr Koloamatangi and Mr Popovic, finally contact is made with Mr Hristovski and some acknowledgment of that. We do not know the content of the calls. There is no direct evidence, rather, of the content of the calls, but you have the pattern of calls. It is a matter for you what you make of that pattern and whether they support or accord with any other evidence in the case, in particular, that of Mr Taylor. The point was made that the location of Mr Koloamatangi, in particular, his call having been routed through Wollongong CBD, indicates that he was not down at Warrawong waiting outside Mr Hristovski's place at the time as Mr Taylor said he was. You are entitled to take account of the fact that sometimes people ring in advance when they think they are going to be somewhere in 5 minutes or 10 minutes, or they're on the way or whatever. You are entitled to take into account your general experience of the world in reaching the decisions you make, but I invite your attention to that pattern of calls."

[49]

Exchange between Bar and Bench during adjournment

Mr Ramage (trial counsel for Mr Popovic) asked the trial judge to withdraw the comment about the scenario about people calling in advance since it was not based on any evidence.
Ms Davenport (trial counsel for Mr Koloamatangi) raised the issue of the summary of the telephone calls in the following terms (SU 64): "My next position is this: Your Honour took the jury through a series of phone calls between- I think it was 1.12am and- sorry, 1.12am and 00.49.58 seconds through to the Emily Popovic call at 1.19, and your Honour suggested to the jury that on the evidence in this trial they could come to the view that that was a series of phone calls in relation to the picking up of the gun from Jason Hristovski. What your Honour did was to completely ignore the evidence of Mr Taylor that when he came back to Wollongong, which clearly cannot have been between quarter to 1 in the morning, he and Mr Koloamatangi went to Mr Popovic's house and spent approximately- what he said, in fact, one hour, he was adamant that it was an hour, and that was after that hour had elapsed that he was told to go to Jason Hristovski's house to pick something up. So the series of phone calls that your Honour has pointed to cannot on the evidence of Mr Taylor possibly relate to them travelling towards or to Mr Hristovski's house to pick up the gun because, on Mr Taylor's evidence, in that period of time they are at Mr Popovic's house. So in my submission your Honour should withdraw that range of possible phone calls as falling into the category of possible connections in relation to the picking up of the gun from the jury because it is simply not available on the evidence of the one person who they can look at to see what time that could have occurred. It could not have occurred at that time."
Ms Davenport submitted that the trial judge was seeking to undermine the defence submission that there was a number of inconsistencies between Exhibit G (which was relevantly objective incontrovertible evidence) and Mr Taylor's evidence (SU 65). She continued (SU 65): "What your Honour is doing is in fact addressing these issues in a way the Crown never did. Your Honour is putting forward a prosecution case that was never addressed by the Crown, and that means, that we are in a position of having addressed on the basis of what the Crown said his case was and now your Honour is putting a different possibility before the jury. The Crown never said to the jury Mr Taylor might be wrong. Mr Taylor might have mistaken it by one hour. The Crown never said that. The Crown just ignored the one hour and went on to put a version of events that excluded the possibility of any time within that."
Mr Corish (trial counsel for Mr Hristovski) asked the trial judge to withdraw all that he had said about Exhibit G and start again. He reminded the judge that Mr Taylor had identified the call at 00.49.58 as "100 %" the call which was made from Blaxland Avenue, Warrawong (where Mr Hristovski lived). Mr Corish accused the judge of "rehabilitating the witness" and engaging in "an exercise in resurrection" (SU 66).
On Monday morning, in the absence of the jury, the question of the adequacy of the prison informer warning was revisited. Ms Davenport submitted that, since the only interaction between Mr Radz and Mr Koloamatangi occurred in prison, it was necessary that a particular warning be given about the reasons why evidence of those particular conversations may be unreliable. She added: "That is, because all a prison[er] has to do is name another prisoner that he was in custody with, create a conversation, and that is the simplicity of it."
Mr Ramage (trial counsel for Mr Popovic) adopted Ms Davenport's submissions and submitted that the trial judge ought not to have rolled up the two warnings (criminally concerned and prison informer) into one. Mr Ramage also complained about the fourth warning (set out above) and said (SU 76): "But to roll up as a fourth error [sic, area] a caution as to that portion of the evidence which consists of hearsay evidence in a way which in fact seeks in turn rather to diminish what Mr Taylor first said to the two officers when he was interviewed on the 1st of June is in my respectful submission inappropriate."
The trial judge informed counsel that, although he indicated that he had told them that he would tell the jury that if they did not accept Mr Taylor's evidence about picking up the gun from Mr Hristovski that they should acquit, his Honour said that he had changed his mind on the basis that such a direction would be "too adverse to the Crown".

[50]

Resumption of the summing up in the presence of the jury

The trial judge informed the jury that what he had said about people ringing in advance was not a direction of law. His Honour said (SU 83): "It's been suggested you may have understood what I said in that passage, or part of it, to be a direction of law. I doubt that, but to make it perfectly clear, there was no direction of law. In the first part of what I said, it is correct to say you are entitled to take into account your general experience of the world, and it follows from that, that if you have any experience of people ringing in advance, then you are entitled to take that into account. But those remarks by me were purely a commentary on the evidence, and nothing more. You can take what note of them that you see fit."
The trial judge referred to the inconsistency between Exhibit G and Mr Taylor's evidence about being at Mr Popovic's for one hour. His Honour also referred to the absence of any calls involving Mr Taylor or Mr Koloamatangi to indicate that they had been in Warrawong (which was covered by the Berkeley tower (SU 85) on the night of 7-8 September 2007.
His Honour then said, of Mr Taylor's evidence (SU 85-86): "Now let me go to Mr Taylor's evidence. There is no doubt his evidence requires a detailed study by you and this for a number of reasons. These include the importance of his evidence to the Crown, what he says his involvement in the offence, the terms of his immunity and because of the inconsistencies in some aspect of his evidence between his evidence here and what he said in some of his statements to the police. How you regard his evidence is entirely a matter for you, but can I suggest that in your consideration you recognise at least the following possibilities and then see how the evidence fits into one or more of them. One possibility is that his whole account or alternatively his whole account of the involvement of one or more of the accused is a cock and bull story without any significant elements of the truth on which you can rely. But the other extreme in its essential ingredient is his evidence is wholly correct. A third possibility is that the inconsistencies in his evidence and your impression of him lead you to the view that you are just not prepared to place reliance on anything he said. A fourth is that the inconsistencies relate to matters of detail and don't throw doubt on the substance of his account."
The trial judge summarised Mr Taylor's evidence before saying (SU 93): "From the point of view of the Crown there are three and three only vital bits of evidence in what Mr Taylor had to say. The first is that he and Mr Koloamatangi obtained the gun from Mr Hristovski. The second is that the provision of the gun was on the instruction or pursuant to an arrangement of Mr Popovic. The third was that he drove Mr Koloamatangi to Splashes, waited for him and drove him away. Now, the evidence of those three things was as you might expect accompanied by a great deal of detail. That detail is important because obviously if there are doubts about it, those doubts are liable to impinge on your views of the three vital matters. However, recognise this detail, or if you prefer surrounding circumstances for what they are. Now, relevant also to an assessment of Mr Taylor's evidence are a number of matters not directly concerning the events of the 7th and 8th of September but bearing on his credibility. Even if there were no inconsistencies in Mr Taylor's evidence on the three vital matters which I referred or in the detail accompanying them, this further group of matters that I am about to come to would need to be taken into account by you in assessing whether you accept the substance of what Mr Taylor had to say."
In this context the trial judge continued the summary of evidence before turning, at SU 102, to Mr Taylor's evidence of the incident in the Woolworth's car park. The trial judge said: "There was some inconsistency in Mr Taylor's account of being present, and it is appropriate for the defence to make whatever they could of this inconsistency. But it is also appropriate to bear in mind that Mr Taylor's first account of this incident was in 2012, five years after it was said to have occurred. As I think I said at the outset of the summing-up, try to imagine some event which occurred to you five years ago, and then try and remember all the details, and so how confident you are that you have absolutely everything correct."
His Honour also referred to the defence "attack" on Mr Taylor's evidence on the basis of two matters: first, his evidence that he spent an hour at Mr Popovic's place on the evening of the killing; and, secondly, that he had told investigators on 1 June 2012 (three days before he had made a formal statement on which his evidence at trial was based) that he and Mr Koloamatangi had collected the gun before the first trip to Sydney on that evening. As to the second matter, the trial judge reminded the jury that Mr Taylor had denied the statement recorded in Detective Ritchie's note about the timing of the collection of the gun. The trial judge read out Detective Ritchie's evidence of his note which recorded: "After the meeting at Kings Cross [sic, Kings, in Wollongong] restaurant the source [Mr Taylor] accompanied Tevi (Doc) and drove to Jason Hristovski's premises at Warrawong. At this location the source was present when Jason Hristovski handed Koloamatangi a revolver handgun. Source described the handgun as a snub nosed 32 or similar. The source then drove to Mascot with Tevi (Doc) Koloamatangi and Emma Barber. He has not stated if Barber was present when the transaction with the hand gun took place."
The trial judge then read out the cross-examination of Detective Ritchie in which the witness raised the question whether the paragraphs ought be switched around. The trial judge continued (SU 104): "Now the witness had earlier himself raised the possibility that the last two paragraphs I quoted should be reversed. Now that evidence from Detective Ritchie is hearsay. Something said out of court and repeated in court. It has, it is liable to have all the problems of hearsay evidence. Was that what Mr Taylor actually said? Did Detective Ritchie hear it accurately? Did he record it accurately? Those sorts of questions. In one sense you can't answer because you weren't there to hear what Mr Taylor said. You have to rely on Detective [Ritchie's] recollection at the time he made his notes. You have to rely on his reservations about whether he recorded things in the right order. However, it is in evidence here and you can rely on it, if you think it appropriate as a version, as evidence of what in fact occurred on the night. I must however add that cross-examined about what was contained in the investigator's note Mr Taylor firmly adhered to his account that the first trip to Sydney preceded going to Mr Hristovski's and obtaining the gun. It is a matter for you what you make of the conflict. As I pointed out earlier, it has the problems of hearsay evidence and hearsay evidence was one of the topics about which I gave you a warning a long time ago."
At SU 105, the trial judge referred to Mr Taylor's evidence that the call at 00.49 was made from outside Mr Hristovski's house, which was challenged on the basis that the call was made at a time when Mr Taylor and Mr Koloamatangi were still in the Wollongong CBD area (according to Exhibit G), which does not provide coverage to Warrawong. The trial judge addressed Mr Taylor's evidence in that context at some length. His Honour's remarks are set out below in full because of the reliance placed on them in support of the ground that the summing up was unbalanced. His Honour said, at SU 105: "Now relying on the entry in Exhibit G this call was recorded as having passed via the Wollongong CBD tower, Mr Corish described this evidence as a lie. That is, a deliberate untruth. When I earlier took you through parts of Exhibit G, I dealt with the possibility Mr Koloamatangi may in fact have been near Mr Hristovski and even if Mr Taylor's choice of this call was wrong, the circumstances in which he came to select the call do raise the question whether any untruthfulness was deliberate. Ms Davenport also attacked Mr Taylor's evidence at spending an hour at Mr Popovic submitting as a practical matter he couldn't have spent that time and the time he spent doing other things and I'll return to her attack. Another aspect of Mr Taylor's evidence concerning the events of the night is his evidence that at Mr Popovic's, at around midnight he was told that Dragan was at the North Gong Hotel and that later he or Mr Koloamatangi received a phone call saying that Dragan was at Splashes. Now it is entirely a matter for you, but there is certainly something to be said for the view that this evidence is not only wrong, but inexplicable or it is almost so. It seems clear beyond argument that Dragan was not at the North Wollongong Hotel at any time that night, and had not been there for hours. One could speculate, and that is what it would be, that there might have been some conspiracy that Dragan might have been taken there but there is no evidence whatsoever in favour of that theory. Equally there is no apparent reason for Mr Taylor to make this up. Mr Sekuljica had been killed at Splashes and you might think an inevitable inference that at the times Mr Taylor was speaking to the police he knew that. Why would he complicate his account, whether the substance of the account be true or a lie, by saying he had been told that Dragan was at the North Wollongong Hotel I suspect will always be a mystery. However, his evidence is there. You must make of it what you will."
His Honour then turned to the colour of the gun which was described as "the next matter of detail" (SU 106). The trial judge continued (SU 106-107): "Mr Taylor's evidence concerning the colour of the gun could theoretically be the truth, a mistake, or a lie. Why should he lie? If he were indulging in a complete fabrication to gain an indemnity why take the risk of nominating something that might be shown to be wrong. Why not simply say- Doc received the gun in a calico bag. The car was dark. I, Mr Taylor, did not see its colour. Now I want to make it clear I am not suggesting what you should find in this area. However, I am suggesting as I did right at the outset of this summing-up that you give critical consideration to all possibilities and before you come to a conclusion on any significant matter you look at the arguments against the conclusion. Were things a deliberate lie? Hang on, why would that lie be told? Now, when I say 'that lie' I am not saying anything was a lie. I am just saying if you think something was look and say- Hang on that is a possibility, are there arguments against it?"
The trial judge also referred to Ms Davenport's argument about whether there was time for Mr Taylor to do what he said he did and referred to the evidence of waiting in the car park as "another matter of detail" (SU 107). The trial judge, at SU 109, referred to Ms Davenport's attack on Mr Taylor's evidence of events and times and said: "You may think that Ms Davenport's maths is correct. However, her conclusion depends on the accuracy of Mr Taylor's having done all of the things he said he did, and, in his estimates of times. And although he said in his drive around with police confirmed his travel time estimates you are entitled to consider how reliable his evidence of time spent at stops along the way, Mr Popovic's, Mr Hristovski's, and looking for clothing. Of course if indeed Mr Taylor had collected the gun from Mr Hristovski before his first trip to Sydney as was recorded in the investigator's notes of the interview on the 1st of June then that attack from Ms Davenport based on all the times he said he spent this weekend then perhaps fails."

[52]

Resumption of the summing up

When the jury returned the following morning (Tuesday 27 May 2014), the trial judge referred to what he had said at 106-107 SU: "'Mr Taylor's evidence concerning the colour of the gun could theoretically be the truth, a mistake, or a lie. Why should he lie?' There is of course no onus on the accused to offer any explanation for any such conduct, if it occurred, on the part of Mr Taylor or to explain why he might have done so. I raise it solely as I have suggested to you earlier that before you reach any conclusion on any significant matter in the case, you address the argument against that conclusion."
The trial judge referred to the defence submission that Mr Taylor was a skilled liar and continued (SU 119-120): "Why, if he was telling a, making up a fabricated story for the purposes of financial reward or for the purposes of being not charged himself he should insert in his account matters which were in no sense vital to that account, such as the colour of the gun, such as the reference to North Wollongong Hotel, is a matter to take into account. Again of course there is no obligation on the accused to prove anything but I mention that because when you come to consider the submissions that have been made, take those sorts of things into account. The other argument that I want to mention is this, and it relates to Mr Taylor's statement that he was told by Mr Popovic to go to Hristovski's and 'pick up something'. It was submitted that Mr Popovic clearly wouldn't have said 'something' as distinct as a 'gun'. Well you might in considering that argument bear these things in mind. Your general experience of the world would teach you I withdraw that- on the 20th of October the police were clearly bugging Mr Popovic's phone. You might think that that possibility is something which might have occurred to Mr Popovic, he had, as the evidence shows, been in gaol. He was friendly with the drug dealing Mr Taylor, and friendly with the kneecapping Mr Radz."
Mr Ramage (trial counsel for Mr Popovic) interrupted the summing up to apply for a discharge on the basis that there was no evidence that Mr Popovic had been in prison before 2013 when he had been charged with the murder of the deceased. He also relied on the reasons the trial judge had given for suggesting that Mr Popovic might ask Mr Hristovski to "get something" in support of a submission that the trial judge had raised bad character. His Honour refused the application.
When the jury came back, the trial judge told them that he had made a mistake and that there was no evidence at all that Mr Popovic had ever been in gaol before the current charge, in 2013 (SU 127). His Honour directed the jury to put out of their minds the "argument" that Mr Popovic's time in prison may have been a factor in his using the term "something" rather than "gun" (SU 127-129).
His Honour then summarised the evidence of Mr Radz.
The trial judge commenced the next section of the summing up by saying, "Let me just briefly summarise the cases." In the following two pages of the summing up, the trial judge summarised the Crown case against each applicant.
The trial judge said that the case against Mr Koloamatangi depended on the phone calls; the physical location of his phone; and the fact that he made two trips to Sydney on the night of 7 or 8 September 2007. His Honour said further: "There is Mr Taylor's evidence. There is Mr Radz's evidence. All but the fact of the phone calls and physical location of Mr Koloamatangi's phone and when the calls were made was in dispute."
The trial judge identified the evidence against Mr Popovic as being the evidence of the deceased's widow and another witness who had deposed to the deceased referring to Mr Popovic as a traitor; and the evidence of the number of phone calls between Mr Popovic and other persons on the night of 7 and 8 September 2007, including Mr Koloamatangi, whom the Crown submitted was the gunman. His Honour said further: "There is Mr Taylor's evidence, including the statement that he attributes to Mr Popovic, of the latter having said 'it's war'. There is Mr Taylor's other evidence of being told by Mr Popovic to pick up 'something' and then later go to Splashes. There is Mr Radz's evidence of what Mr Popovic said to him."
The trial judge identified the evidence against Mr Bubanja as comprising: "the visit to the unit and the banging on the door"; "the incident in the North Wollongong Hotel"; "the incident in the toilet on the 7th of September"; and "the fact of the phone calls".
The trial judge summarised the Crown case against Mr Hristovski in the following terms: "In the case of Mr Hristovski there is Mr Radz's evidence of the supply of a gun. There is the fact and location of phone calls, and the Crown relies on that connection on what it says is a peculiarity, that Mr Hristovski, despite his numerous calls to Mr Bubanja, neglected to actually go into Splashes, despite being, as the Crown submits, hanging around the area."
Because of its brevity, I propose to set out in full the trial judge's summary of the applicants' cases (SU 155-156): "Now the defence case is shortly this. A number of phone calls, even in the middle of the night prove nothing. At least with the possible explanation of the location of the phones at the time of the call. It is submitted that the location of the phones in any event says nothing about the accused's involvement in Mr Sekuljica's death. Secondly, it is submitted you can't rely on the evidence of Mr Taylor both because he is or has been a drug addict, a drug dealer, a liar, probably a murderer for his confessed involvement in the death of Mr Sekuljica or if not probably at least possibly a murderer, and his evidence concerning the accused and their suggested involvement in the death of Mr Sekuljica is in many respects demonstrably wrong, inconsistent and at the very least unreliable. The third aspect of the defence case is the evidence of Mr Radz is even more unreliable. His criminal past leads to the conclusion that what he says cannot be relied on. He has given evidence as the price of avoiding prosecution and gaol for himself. Also, the possibility of financial reward and even in that situation he has given inconsistent accounts. In that connection the evidence of Mr Tuckerman and Durant is relied on. Mr Radz's evidence is inconsistent with that of Mr Hristovski's brother. Now remember, that the accused start off with the presumption of innocence. They are not required to explain anything and any silence on their part cannot be used to strengthen the Crown case."
Before the jury was sent out to deliberate, but in their absence, the trial judge invited counsel to make any objections in the absence of the jury. Ms Davenport (trial counsel for Mr Koloamatangi) submitted that the summing up was unbalanced because of the amount of time (which Ms Davenport estimated, as recorded at SU, 159, to be fewer than five minutes) devoted to summarising the defence cases. The other trial counsel adopted and expanded on these submissions. His Honour brought the jury back and made some factual corrections. His Honour said at SU 178: "I should remind you also though I doubt it is necessary, that you heard lengthy submissions by counsel for the accused and of course you should take those submissions into account in your deliberations. If you wish to be reminded of them or any part of them, you have only to ask but they are clearly something to reflect on as of course are the Crown's."
After the jury was sent out to deliberate, counsel made further submissions about the summing up (the utility of which was questionable having regard to the timing), to which the trial judge responded in the following terms, presumably for the benefit of counsel and in defence of his Honour's approach to the summing up, since the jury had already commenced its deliberation: "The other thing I wanted to say was this, and it arises out of the submissions yesterday seeking some redirections. The approach adopted in some of what was said yesterday by counsel seems to me to involve a misapprehension of the role of an entitlement of a judge in summing-up. In the matter of Tsigos v R, which is unreported, but the subject of note in 1965 39 ALJR 76, the High Court held that it was permissible for a judge to say: 'On the evidence before the Court it is my duty to tell you that you will be flying in the face of the oath you took, namely, to return a verdict on the evidence if you were to return a verdict of acquittal because on the evidence I can see no escape from the verdict of murder or manslaughter.' Tsigos was referred to without any criticism in RPS in the High Court. It was followed by the Queensland Court of Criminal Appeal in the R v Dee [1985] 19 A Crim R 224. If a judge is entitled to say what was said in Tsigos, then surely a judge can make the far more moderate criticism of an argument advanced by counsel, or bring to the jury's attention his experience, analytical or otherwise, in considering the issues. Of course I don't suggest the judge, under that guise, can bring in further evidence."

[55]

Whether the trial judge was obliged to direct the jury that they needed to be satisfied beyond reasonable doubt that he provided a firearm to the shooter

Ms Rigg SC, who appeared on behalf of Mr Hristovski, contended that there were two primary facts of which the jury needed to be satisfied beyond reasonable doubt before it could convict Mr Hristovski: first, that he supplied a firearm to Mr Koloamatangi, within hours prior to the shooting, in the presence of Mr Taylor; and, secondly, that, in the hours before the shooting he had extensive telephone contact with Mr Bubanja and Mr Popovic at the times set out in Exhibit G. She submitted that the trial judge ought to have given the jury a Shepherd direction.
It is accepted that Mr Hristovski's trial counsel sought a Shepherd direction with respect to Mr Hristovski's provision of the gun to Mr Taylor. The trial judge, after having given a preliminary indication that he would give it, subsequently decided that it would be too adverse to the interests of the Crown to give such a direction.
It was common ground that the Crown principally relied on two evidentiary bases for its case against Mr Hristovski: the supply of the gun; and his presence in the vicinity of Splashes leading up to and surrounding the time of the shooting, evidenced by Ms Ewen's evidence of his leaving home in the early hours of the morning and the telephone records indicating his location and communications with the other applicants. Although the Crown accepted that either category would not be sufficient of itself, it submitted that the two could support each other but that the first category need not be proved beyond reasonable doubt, since Mr Hristovski's involvement was not dependent on his having supplied the gun, although the Crown case was that he had.
Whether a Shepherd direction ought be given arises for consideration where it is necessary for the jury to reach a conclusion as an "indispensable intermediate step" in the reasoning process. The metaphor used in Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par. 412-414 for such a step is that it is a "link in the chain" and is to be distinguished from a "strand in a cable", which is a fact which need not be proved beyond reasonable doubt because the reasoning does not depend on its being made out, although it may assist the drawing of an inference. The distinction between the elements of the offence, each of which must be proved beyond reasonable doubt, and the relevant facts relied upon to prove each element, which need not be proved beyond reasonable doubt, is subject to a qualification that some facts (which are not elements of the offence) need to be proved beyond reasonable doubt because of their status as "indispensable intermediate steps".
In Shepherd v The Queen Dawson J said at 585: "Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful."
The distinction was confirmed in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [52] (per French CJ, Bell, Keane and Nettle JJ) where a Shepherd direction was described as a principle of law which must be applied in a trial by judge alone, although it need not be expressed in terms in the reasons.
Ms Rigg contended that this Court ought apply the test approved in Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199 at [126]-[128]: namely, what is the effect on the Crown case of removing the fact said to be an indispensable intermediary step? She submitted that if one removes the provision of the gun, all one has is that Mr Hristovski was in the vicinity of Splashes at the relevant time and communicated with some of the other applicants throughout the evening, which would be insufficient to permit the jury to be satisfied that the hypotheses consistent with innocence (such as that he was simply out with friends on a Friday night) had been excluded. By contrast, if the jury was satisfied that the gun was supplied, the evidentiary significance of Mr Hristovski's location and communications with him at relevant times is substantial.
The Crown contended that although the provision of the gun was one way in which the jury could have drawn an inference of guilt to the requisite standard, it was not the only way in which they could infer that Mr Hristovski was playing an active role in assisting the other participants in the enterprise in the vicinity of the murder scene. Accordingly, it contended that the trial judge was correct to refuse to give the direction, on the basis that it would be adverse to the Crown's interests.
I am not persuaded that the provision of the gun was an intermediate indispensable fact or that, even if it was, a Shepherd direction needed to be given. It is not enough that the Crown case would be substantially weakened if the relevant fact was removed; or whether there would be a case to go to the jury without it (R v Davidson [2009] NSWCCA 150; 75 NSWLR 150 at [74] per Simpson J) or that a verdict without the evidence of provision of the gun would be unreasonable.
Although I am not persuaded that the giving of a Shepherd direction would have been confusing or adverse to the interests of the Crown, the question whether such a direction is appropriate is a matter for the trial judge to assess. I am not satisfied that the trial judge was in error in not giving the jury a direction that they needed to be satisfied beyond reasonable doubt that Mr Hristovski provided the gun to Mr Taylor. As Spigelman CJ said in R v Davidson at [19]: "… the emphasis always given to the Crown's obligation to prove guilt beyond reasonable doubt will often be adequate, in a particular case, with respect to a matter which the jury may reasonably regard as an indispensable intermediate fact."
I am satisfied that the trial judge directed the jury sufficiently as to the onus and standard of proof such that the direction was not required in any event.

[57]

Hearsay warning (Mr Bubanja's ground 3) and the adequacy of the trial judge's warnings regarding Mr Taylor's evidence and Mr Radz's evidence (Mr Koloamatangi's ground 1)

It was accepted that a request had been made for warnings in respect of Mr Taylor's evidence, on the ground that he was criminally involved, and in respect of Mr Radz's evidence, on the ground that he was a prison informer and that his evidence comprised admissions and hearsay. Accordingly, the trial judge was obliged to give warnings under s 165(1)(a) and s 165(1)(d) in respect of Mr Taylor's evidence and under s 165(1)(a) and (e) in respect of Mr Radz's evidence.
Section 165 of the Evidence Act provides in part: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, . . . (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, . . . (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. . . ."
Each of the applicants relied on the trial judge's warning relating to Detective Ritchie's evidence as an error which was relevant to the general ground that the summing up was unbalanced. It was identified as a ground only by Mr Bubanja. The passages from the summing up in which the warning was given (SU 15-16 and 104) are set out above.
The evidence the subject of the warning was Detective Ritchie's note in which he had recorded that Mr Taylor had said, on 1 June 2012, that he had picked up the gun from Mr Hristovski's place before driving to Sydney with Mr Koloamatangi and his girlfriend to drop her off before returning to Wollongong with Mr Koloamatangi on the evening of 7/8 September 2007. Although no order was made to limit the use of the evidence to its non-hearsay purpose, the evidence was not relied on by the Crown (or any of the applicants) at trial for the hearsay purpose.
There were several reasons why the Crown did not contend for the truth of the version recorded by Detective Ritchie that Mr Taylor had collected the gun before the first trip to Sydney. First, it was inconsistent with Mr Taylor's evidence that they had collected the gun after he and Mr Koloamatangi after they had spent an hour at Mr Popovic's place following their return to Wollongong from Sydney. Secondly, the possibility of such a visit had not been explored in the evidence of Ms Ewen, who would have been up and awake at that time. Thirdly, it would also have substantially undermined Mr Taylor's evidence that he was unaware of the potential criminality of the venture until his hour-long visit to Mr Popovic's place when he was asked to collect "something" from Mr Hristovski's place.
The evidence of what was recorded in the note was elicited by defence counsel in cross-examination and was relied on by the applicants as a prior inconsistent statement by Mr Taylor, whose evidence at trial was that he and Mr Koloamatangi had collected the item from Mr Hristovski's place after their return to Wollongong after delivering Mr Koloamatangi's girlfriend to Sydney. It was, accordingly, evidence which was adduced for the benefit of the applicants.
The only reference to the note being used for a hearsay purpose was in the summing up where his Honour said (in the passage at SU 109 set out above) that if Detective Ritchie had recorded Mr Taylor's version of 1 June 2012 correctly and Mr Taylor had in fact collected the gun from Mr Hristovski before his first trip to Sydney then the criticisms made by Ms Davenport based on timing could be put to one side. Notwithstanding a complaint by trial counsel for Mr Popovic about this aspect of the summing up in the adjournment immediately following his Honour's comment, the trial judge neither corrected nor amended what he had said.
The applicants contended that the effect of the warning was to undermine the significance of Detective Ritchie's note to the applicants' challenge to Mr Taylor's credibility by suggesting that the note was not accurate. The Crown accepted before this Court that no hearsay warning was appropriate because the evidence was not relied on by anyone for a hearsay purpose. It contended that, although the giving of the warning was not necessary, and although it was expressed as a "warning", it amounted to no more than a comment.
Mr Gartelmann SC, who appeared for Mr Koloamatangi, submitted that the request for the warning was plainly a request for the trial judge to warn the jury of matters that may cause the evidence of Mr Taylor and Mr Radz to be unreliable. In so far as that evidence was evidence of admissions said to have been made by any of the applicants to Mr Radz, it was hearsay evidence, in respect of which the trial judge was obliged to give a warning, if it was requested. Mr Gartelmann contended that the effect of the trial judge's warning to the jury regarding "hearsay" evidence was to identify reasons why the evidence of police that Mr Taylor had made prior inconsistent statements may be unreliable, and thus to inform the jury of reasons why Mr Taylor's and Mr Radz's evidence was reliable. Far from giving a warning which would protect the interests of the applicants, the trial judge, so it was argued, gave a warning which was not only adverse to their interests, but which also did not correspond with the warning sought.
The first point is that the hearsay rule did not apply to the contents of Detective Ritchie's note since it was admitted because it was relevant for a non-hearsay purpose: s 60(1) of the Evidence Act. Although the effect of s 60 was to make the evidence admissible for the hearsay purpose as well, since it was relevant to a non-hearsay purpose (Adam v The Queen [2001] HCA 57; 207 CLR 96 at [37]), this potential effect was, in fact, irrelevant in the trial since no one relied on the evidence for its hearsay purpose. I reject the submission made by the Crown that the trial judge's warning was no more than a comment. In my view, its context in the summing up and the fact that it was listed at the end of a three other warnings which amounted to directions, was sufficient to indicate that the jury could reasonably have understood it as being a warning rather than merely a comment.
Moreover the distinction between "comment" and "direction" is, at times, illusory from the jury's perspective since it may not be clear whether what the judge says is, at any given point in the summing up, a direction or a comment. If the jury regards what is being said as a direction, they may feel bound to abide by it; however, even if the relevant matter is purely a comment, it might have a tendency to "overawe" the jury because, unlike counsel's submissions, a comment by the judge carries with it the weight of judicial office.
The warning in terms was not only erroneous as a matter of law, but it did not correspond with the request (and was inimical to the purpose of the request). It was plainly adverse to the applicants' interests (since it diminished the reliability of the evidence of the prior inconsistent statement) and had not been sought by the Crown: R v Salama [1999] NSWCCA 105 at [86]-[87] (Kirby J, Wood CJ at CL and Ireland J agreeing) and DPP v Ramlagun [2014] VSCA 68.

[58]

The "why would he lie?" question

The applicants relied on several passages in the summing up in support of the submissions relating to this ground and in particular SU 21, 106-107.
Mr Game SC, who appeared with Mr Lange on behalf of Mr Bubanja, submitted that the effect of the trial judge's summing up was to invite the jury to start with the assumption that Mr Taylor was a truthful witness and tell them not to displace that assumption without cause. He contended that the rhetorical question, "why would Mr Taylor lie?" was even more prejudicial to the accused than the situation considered by the High Court in Palmer v The Queen (1998) 193 CLR 1 when the accused had been asked when he was giving evidence why the complainant would lie. Mr Game submitted that the Crown would not have been entitled to ask Mr Taylor the question when he was giving evidence. He contended that it was even more prejudicial for the trial judge to ask it in the course of the summing up because the judge's asking the question endowed it with a judicial imprimatur and its timing deprived defence counsel of an opportunity to respond.
The question of motive to lie tends to arise in two situations: first, where there is a witness in respect of whom there is no evidence to suggest a motive to lie; and secondly, where the evidence reveals such a motive. In the first case, the jury ought not be asked to consider why the witness would lie because the question tends to suggest that the jury ought believe the witness in the absence of evidence suggesting a motive to lie. However in the second case the jury is entitled to be asked to consider the validity of the motive to lie that has been asserted. In such a case, the jury ought be directed that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth: see R v Jovanovic (1997) 42 NSWLR 520 at 521-522 per Priestley J and at 535 per Sperling J.
Mr Game submitted that the present case belongs to the second category, since Mr Taylor plainly had a motive to lie: to minimise his own criminality; and exaggerate that of the applicants for the purpose of the reward and his indemnity. Mr Game contended that, notwithstanding the warning (about Mr Taylor's criminal involvement) the trial judge was effectively telling the jury that they needed to be satisfied that Mr Taylor had a motive to lie (which was presumably additional to the one about which a warning had been given) before they disbelieved him.
The relevant principles were summarised by Hunt AJA (Simpson and Whealy JJ agreeing) in South v R [2007] NSWCCA 117 in the following passage: "[43] Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments: R v Uhrig at 16-17; Palmer v R at [10]-[11]. To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask 'Why would the complainant lie?' is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant's evidence. [44] The jury should never be asked to go beyond the evidence on which both parties rely to establish or refute a motive to lie and to consider the question 'Why would she lie? Such a question simply should never be asked."
In my view, the effect of the trial judge's asking, rhetorically, why Mr Taylor would lie was not only to deprive the earlier warning under s 165(1)(d) of the Evidence Act (that he was criminally concerned) of any substantial force, but also to give the jury the impression that if they could not identify another reason why he would lie, they should accept his evidence. This is an error which, in my view, could give rise to a substantial miscarriage of justice.

[60]

The purposes of a summing up and the applicable principles

The purposes of a summing up are: 1. to direct the jury as to the law (including the elements of the offence; the onus and standard of proof and give warnings regarding unreliability of particular evidence) which it needs to know in order to fulfil its duty as the tribunal of fact; 2. to summarise the evidence germane to the issues; 3. to summarise fairly the way in which the Crown and the defence put their respective cases, including the inferences for which each contends; 4. if a possible defence, or alternative verdict (such as manslaughter) is available on the evidence and has not been referred to by counsel, to instruct the jury in relation to it; and 5. to comment on any obviously untenable submission which has been put by either the Crown or counsel for the accused.
This is not to say that there must always be a clear demarcation between (2) and (3). However, if the inferences for which the Crown or the accused contend are interleaved in the summary of evidence, there is a risk that the jury will gain the impression that the judge is contending for a particular inference. Although there is considerable leeway in the way in which the summing up can be structured, it is an essential element of a summing up that the competing cases of the Crown and the accused be summarised fairly and adequately.
It is particularly important that the judge does not raise in the summing up matters which have not been raised by the Crown but which advance the prosecution case since this could amount to a denial of natural justice as the accused will, in that event, have no opportunity to respond: R v Meher [2004] NSWCCA 355 at [87]-[88] per Wood CJ at CL (Buddin and Shaw JJ agreeing). Furthermore, the raising by the trial judge in the summing of matters not put by counsel in address tends to compromise the appearance of impartiality: R v Esposito (1998) 45 NSWLR 442 at 455D-E per Wood CJ at CL.
Although a trial judge may, within limits, comment on the evidence the assessment of which is purely a matter for the jury as the tribunal of fact, it is generally unadvisable to do so, except in instances of which Tsigos v R (1965) 36 ALJR 76, to which his Honour referred after the jury had been sent out to deliberate, is an example. Thus, if the defence case in a murder trial was run on the basis of manslaughter by reason of provocation, it is open to a trial judge to direct the jury not to bring in an irrational acquittal since the only rational choice is between murder and manslaughter. Except in this instance, Tsigos does not provide any support for the proposition that it is appropriate for a trial judge to comment on the evidence in such a way as to steer a jury to a particular verdict.
The restrictions on comment in a summing up were addressed by the High Court in B v The Queen (1992) 175 CLR 599 where Brennan J (Mason CJ and Deane J agreeing) said at 605-606: "A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'. I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg. v Hulse: '[T]o use the words of the Privy Council in Broadhurst's Case, there is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views'."
Where more than one accused is tried, the trial judge is obliged to identify the separate position of each accused, both as to the evidence, the Crown case and the accused's own case: R v Towle (1954) 72 WN 338 at 340; followed in R v Masters (1992) 26 NSWLR 450. In R v Towle Street CJ said, at 340, that, except in unusual cases, where two or more persons are being tried together: "… it is the clear duty of the trial judge to separate for the jury's consideration the evidence properly relevant and material in the case of each, and to present the case made against each of the accused separately. The jury should be specifically told of the evidence which they may consider against each individual accused, together with appropriate directions as to the legal principles involved. In this connection it is insufficient to rest such a direction on the formula that each case must be considered separately, without further explanation."
This obligation can, however, be discharged in different ways. Where the whole of the evidence is relevant to each of the accused, it may not be necessary, and could be artificial, to segregate the position of each accused in the orthodox way. Thus, in Huynh v The Queen [2013] HCA 6; 87 ALJR 434, the High Court dismissed an appeal brought, in part, on the basis that the summing up failed to distinguish between the cases of the accused. The Court said at [49]: "It was the responsibility of the trial judge to structure the summing-up in a way that he assessed would most effectively distil the issues for determination in each case and, to the extent that it was necessary to do so, to remind the jury of the evidence bearing on the determination of those issues. Given that the whole of the oral evidence was common to the three cases, and that many of the factual issues were common to liability in each case, the approach that his Honour adopted was one which avoided a deal of needless repetition. Critical to the appellants' separate cases were the suggested weaknesses in the evidence that implicated each as engaged in the assault on the deceased and in other acts of violence at the scene. The trial judge drew attention to these criticisms of the evidence and to their significance to the case against each appellant in the course of reviewing the evidence."
The importance of preserving the division of functions between the judge as the tribunal of law and the jury as the tribunal of fact was addressed by the High Court in RPS v The Queen [2000] HCA 3; 199 CLR 620 (Gaudron A-CJ, Gummow, Kirby, Hayne JJ) as follows: "41 Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. 42 But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues [the footnote referred to Tsigos]. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. 43 To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case." (Footnotes omitted.)

[61]

The challenges to the summing up

Ms Rigg identified several factors which she contended established that the summing up was so unbalanced as to deprive the applicants of a fair trial and amount to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). These factors, which are listed below, will be considered in turn: 1. The trial judge contrasted the defence submissions about the unreliability of Mr Taylor with possibilities that he might be telling the truth; 2. The trial judge focussed on the differences between eyewitnesses which had the effect of detracting from their unanimity that the gun was black or dark; 3. The trial judge undermined other evidence which was capable of casting doubt on the reliability of Mr Taylor's account that Mr Hristovski had supplied the gun; 4. The trial judge gave the hearsay warning in connection with Detective Ritchie's notes of what Mr Taylor had said on 1 June 2012; 5. The trial judge's suggestion to the jury that they could use Detective Ritchie's note for a hearsay purpose; 6. The trial judge's criticism of the defence submission that Mr Popovic would not have asked Mr Taylor to pick up 'something' by reference to matters which were not established by the evidence or which were incorrect; 7. The trial judge's summary of Mr Taylor's evidence relating to the call at 00.49.58 on 8 September 2007; 8. The trial judge posed the rhetorical question in respect of Mr Taylor's evidence: 'why would he lie?' and minimised the effect of errors made by Mr Taylor by inviting the jury to characterise them as 'matters of detail'; and 9. The trial judge failed to summarise the respective defence case adequately and failed to distinguish between the cases of each of the applicants.
Mr Game adopted Ms Rigg's analysis. Mr Game submitted that the effect of the summing up was not only to weaken the effect of the warnings given about the reliability of Mr Taylor's evidence (arising from his criminal involvement and the indemnity) but also to reverse the onus of proof. He also relied on the occasions on which the trial judge had encouraged the jury to accept Mr Taylor's evidence on bases not raised by the Crown.
As Mr Game and the other applicants' counsel also made submissions with respect to the points raised by Ms Rigg, it is convenient to refer to them by reference to these matters although the question whether the summing up was so unbalanced as to deprive the applicants of a fair trial is one to be approached by considering the summing up as a whole.

[65]

(4) The trial judge gave the hearsay warning in connection with Detective Ritchie's notes of what Mr Taylor had said on 1 June 2012

Ms Rigg contended that it was erroneous to give such a warning, which was adverse to the interests of the defence, when it had not been sought, and tended to undermine the evidence relied on by the defence and the defence case.
This matter has already been addressed to some extent above. However, its relevance to the unbalanced summing up ground is that it was a warning given against the interests of the applicants, which had not been sought.
For reasons given above, s 165(1)(a) did not apply to Detective Ritchie's note of what Mr Taylor said on 1 June 2012 since it was not tendered or used for a hearsay purpose and was not an admission (since Mr Taylor was not an accused). It was common ground that no party had requested a warning under s 165(2) in respect of the evidence. Nonetheless, the trial judge's power to give a warning to the jury or inform the jury of matters is preserved by s 165(5). Accordingly, the question is whether a warning was appropriate and, if not, whether it was productive of a miscarriage of justice: Restricted Judgment [2016] NSWCCA 44 at [57] (R A Hulme J, Basten JA and Johnson J agreeing).
The weight to be given to evidence is pre-eminently a matter for the jury as the tribunal of fact. The warnings for which s 165 and the common law provide have been developed as a matter of fairness to accused persons because certain evidence has been found to be unreliable in a way which may not be known to the jury as a tribunal of fact. As this Court said in Kanaan v R [2006] NSWCCA 109 at [182] "Section 165(2)(b) requires the warning to inform the jury of matters which may cause the evidence to be unreliable. The purpose of doing so is to provide the jurors with knowledge of matters not within their general experience and understanding (see par [166] supra). Those matters need be stated only with such detail as is required to achieve that purpose. A trial judge in any criminal case is required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury; the conduct of the case necessarily bears on the extent to which the judge is bound to comment on and discuss the evidence: Domican v The Queen at 561. The High Court in that case (at 561-562) went on to say, however, that because the seductive effect of identification evidence had so frequently led to proven miscarriages of justice special rules apply in relation to that evidence. In the case where the issue of identification plays any significant part of the Crown case, the judge must isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence - whatever the defence raised and however the case is conducted."
It is difficult to see how Detective Ritchie's evidence of the contents of his note could properly call for a warning. The only aspect of it which might tend to undermine its accuracy was that Detective Ritchie did not make a note of what Mr Taylor said at the time of the interview, but made the note shortly thereafter by way of a summary rather than a word-for-word account. However this was something of which the jury could be taken to be well aware. It is a matter of common experience that a note taken of something someone said at the time the words were spoken is likely to be more reliable than one produced even relatively soon afterwards.
It is generally undesirable for a trial judge to give a warning in the case of evidence of a person other than the accused that evidence is unreliable where the evidence favours the accused: see, in the context of negative identification evidence, R v Rose [2002] NSWCCA 455; 55 NSWLR 701 at [297] (Wood CJ at CL and Howie J) and Kanaan v R at [128]. This is particularly where no such warning has been sought by the Crown such as would give defence counsel an opportunity to respond to the application.
In my view the effect of the trial judge's warning was to elevate a matter of common experience to a warning or direction, which thereby attracted the status of the trial judge's office and served to substantially undermine the probative value of Detective Ritchie's note, which was to impugn Mr Taylor's credibility. The warning was both erroneous as a matter of law and inappropriate. Whether it was productive of a miscarriage of justice does not need to be considered in isolation, by reason of the number of other matters relied on.

[67]

(6) The trial judge's criticism of the defence submission that Mr Popovic would not have asked Mr Taylor to pick up 'something' by reference to matters which were not established by the evidence or which were incorrect

At trial, the applicants relied on Mr Taylor's evidence that Mr Popovic asked him to "pick up something" as a powerful indication that he was seeking to minimise his own responsibility and exaggerate the role of others (the applicants) in the murder of the deceased. They submitted, in effect, that it was implausible that Mr Taylor would not have been aware from the outset that the "something" was a gun. This was, accordingly, another matter which, on the defence cases, served to impugn Mr Taylor's credibility and was, according to defence counsel, in a similar category to Mr Taylor's evidence that he was to receive no reward or other remuneration for his part in the killing, which included (on Mr Taylor's version) going to Mr Hristovski for a reconnoitre with Mr Popovic; going again later to collect the gun; dropping Mr Koloamatangi's girlfriend in Sydney; providing clothing for Mr Koloamatangi; providing transport for him to and away from Splashes; and delivering the cash to Mr Koloamatangi for the killing.
Ms Rigg argued that the passage from SU 120 (reproduced above) not only did not refer to the submission made by the defence at trial but provided no less than the following four reasons why Mr Taylor's version of the conversation ought be believed: 1. On 20 October 2007, Mr Popovic's telephone was being bugged; 2. Mr Popovic had been in gaol; 3. Mr Popovic was "friendly with the drug dealing Mr Taylor"; and 4. Mr Popovic was "friendly with the kneecapping Mr Radz".
Ms Rigg submitted that it would have been preferable for the trial judge to summarise the evidence without interleaving it with the Crown case. She also submitted that, if the trial judge included submissions within the summary, they should be balanced and refer to the defence case as well. Further, she submitted that: (1), though true, was irrelevant since the conversation occurred on 7 or 8 September 2007 and took place in person rather than on the phone; there was no evidence of (2); and, as to (3) and (4), although there was evidence that Mr Popovic knew both Mr Taylor and Mr Radz, there was no evidence that he knew of their criminal records or conduct. Although it was accepted that the trial judge had corrected (2) (at SU 127), his Honour left the other matters uncorrected.
In my view, what his Honour said at SU 120 was not only incorrect (as to (2), (3) and (4)) and irrelevant (as to (1)) but it was also inappropriate. It was highly prejudicial to the interests of the applicants since it tended to support Mr Taylor's credibility by reference to matters which had not been established or were irrelevant. Had such matters been relied on by the Crown, defence counsel would have had an opportunity to respond in their respective addresses to the jury. That the trial judge saw fit to correct one out of the four matters but leave the remainder uncorrected would have had a tendency to give the jury the impression that the remaining three could properly be taken into account. Having regard to the importance of Mr Taylor's evidence to the Crown case this aspect of the summing up had the potential to cause a miscarriage of justice.

[68]

(7) The trial judge's summary of Mr Taylor's evidence relating to the call at 00.49.58

The defence case was that Mr Taylor's evidence that the call at 00.49.58 from Mr Koloamatangi to Mr Popovic was made from Warrawong outside Mr Hristovski's house could not possibly be true, having regard to the objective evidence of the call and the fact that it passed through telephone tower Wollongong CBD-3 which was some distance north from Warrawong, which was not covered by the tower. The defence also relied on the evidence, with other evidence, to show that Mr Taylor's version that he and Mr Koloamatangi stayed at Mr Popovic's unit for an hour after the first trip to Sydney was also untrue and that a call at that time from Mr Koloamatangi to Mr Popovic tended to suggest that they were not together at the time.
At SU 60-61, the trial judge, after referring to that evidence, postulated (in the passage set out above) that sometimes people ring in advance and that the jury was entitled to take into account their experience of life that this can occur. As set out above in the narrative of the summing up the trial judge refused the consequential application for a discharge of the jury and refused to accede to the request that he ask the jury to disregard all that he had said about Exhibit G and start again. At SU 83, his Honour told the jury (in terms extracted above) that what he had said about people ringing in advance did not amount to a direction of law but could be taken into account by them if they had had general experience of people ringing in advance.
Ms Rigg submitted that the effect of what the trial judge said was to support Mr Taylor's credibility in a way that was unbalanced and not warranted by the evidence.
Mr Game relied on the fact that it had never been suggested that a call had been made on the way to Mr Hristovski's place (which would have been inconsistent with Mr Taylor's evidence that it was made when they were outside his place at Warrawong). He contended that the proposition removed the inconsistency between Mr Taylor's evidence that a call had been made from the particular location, and the objective evidence which showed that it was impossible for the call to have been made at that time from the location identified. Mr Game submitted that the inconsistency was powerful because Mr Taylor's evidence was given at a time when he did not appreciate that it could be disproved (because he did not understand the coverage of the towers and how it related to the telephone records). Mr Game submitted that this aspect of the summing up demonstrated that the trial judge was, effectively, strongly encouraging the jury to accept Mr Taylor's evidence by arguments which were not explored in the evidence and not advanced by the Crown.
Although there is much room for variation in the way a summing up ought be given, I am persuaded that his Honour's remarks were inappropriate and tended to create a miscarriage.. By interleaving the summary of evidence with remarks such as the one referred to above, his Honour tended to upset the balance of the summing up in favour of the Crown.

[69]

(8) The trial judge posed the rhetorical question in respect of Mr Taylor's evidence: 'why would he lie?' and minimised the effect of errors made by Mr Taylor by inviting the jury to characterise them as 'matters of detail'

This matter has, to a large extent, been dealt with in the context of the separate ground addressed above. However, the applicants submitted that the trial judge had engaged in such a persistent attempt to "resurrect" and "rehabilitate" Mr Taylor's evidence throughout the course of the summing up and that this question was posed in a number of ways to the same effect. They submitted that this had the effect of skewing the summing up against their interests and in favour of the Crown, having regard to the importance of Mr Taylor's evidence to the Crown case.
As referred to above, Mr Game submitted that, in effect, the trial judge told the jury that the "default assumption" was that Mr Taylor was truthful which was tantamount to asking why Mr Taylor would lie. Mr Game referred to SU 21 and the reference to the implausibility of Mr Taylor providing detail that was incorrect if he were "going to concoct a completely cock and bull story". He also referred to SU 61 and the "calling ahead" scenario that had not been put by any party. Mr Game directed attention to SU 85-86 and in particular the passage at SU 86 where the trial judge outlined the following four "possibilities" with respect to Mr Taylor's evidence: 1. he is wholly untruthful (his whole account is "cock and bull"); 2. his version is wholly correct; 3. the inconsistencies in his evidence are such that one could not rely on him; and 4. the inconsistencies in his evidence relate to "matters of detail" which do not throw doubt on the substance of his version.
Mr Game submitted that the effect of the trial judge's summing up was to promote the fourth possibility and thereby neutralise or minimise the errors and inaccuracies that defence counsel had exposed in Mr Taylor's evidence.
Mr Game referred to SU 93-94 in which the trial judge described the following three pieces of evidence given by Mr Taylor as the only "vital bits": first, that he and Mr Koloamatangi obtained the gun from Mr Hristovski; secondly, that the gun was provided pursuant to an arrangement with Mr Popovic; and, thirdly, that he drove Mr Koloamatangi to Splashes, waited for him and drove him away.
Mr Game referred to the trial judge's treatment of the gathering in the Woolworth's car park at SU 102 and his Honour's reference to the inconsistencies in Mr Taylor's account of being present. He submitted that the trial judge's reference to the jury's difficulties in remembering events five years previously (in Mr Taylor's case, the statements were made in 2012 about the events in 2007) was an impermissible attempt to persuade the jury of the fourth possibility: that he made errors in matters of detail but was correct in the "vital bits".
Mr Game contended that the trial judge's warning about Detective Ritchie's note (at SU 102-104) should be seen in the context of the theme developed by his Honour that, although Mr Taylor was incorrect about matters of detail, he was a reliable witness. Mr Game also relied on the circumstance that the trial judge's suggestion that the statement could be true (that the gun was collected before the first trip to Sydney) removed the forensic force of the defence submission that the events could not have occurred as Mr Taylor described in his evidence.
Mr Game referred to SU 105-106 in which the trial judge raised the question whether, if Mr Taylor was wrong about his location when the call at 00.49.58 was made, "any untruthfulness was deliberate". Mr Game also drew the Court's attention to SU 105-106 where the trial judge addressed Mr Taylor's evidence that he was with Mr Popovic for an hour and that he was told that the deceased was at the North Gong Hotel. The trial judge described his evidence as "not only wrong, but inexplicable". The passage at SU 106 set out above that commences, "One could speculate" was relied on by Mr Game as an illegitimate invitation by the trial judge to engage in speculation in the absence of evidence. He also contended that the trial judge's comments, at SU 106-107, that there was no apparent reason for Mr Taylor to make up the evidence provided further illustrations of the trial judge's contravention of "the principle that truthfulness is not to be inferred from the absence of an apparent motive to lie": R v Jovanovic at 535G per Sperling J. Further examples were pointed out at SU 118-119. Mr Game submitted that, in effect, the trial judge was inviting the jury to use the discrepancies between Mr Taylor's evidence and the objective evidence and the inconsistencies within his evidence, to bolster his credibility.
I am persuaded by the submissions which were made, or adopted, by all counsel for the applicants which I have set out above. It was not appropriate for the trial judge to pose the rhetorical question, why would Mr Taylor lie. There were several reasons why he might have lied which derived from the evidence (that he was criminally involved, a reward was offered and that he had been indemnified) but it was not for the trial judge to invite the jury to speculate as to whether there was any other reason or to understand that they ought believe him unless they were able to identify a reason why he would lie.

[70]

(9) The trial judge failed to summarise the respective defence case adequately and failed to distinguish between the cases of each of the applicants.

Although the way in which a summing up is constructed and delivered is a matter for the discretion of the trial judge, the summary of the Crown case and the case for each accused is, as referred to above, necessary. In the present case, the trial judge commented on the evidence, principally of Mr Taylor, in the summary of the evidence, which effectively incorporated the inferences for which the Crown contended as well as inferences which were in favour of the Crown but for which the Crown had not contended. Because this process had been undertaken as part of the summary of evidence, the outline of the Crown case and the applicants' cases was done in a general way which did not distinguish between the cases for and against the respective applicants. I do not regard the trial judge as having put fairly to the jury the case which was made on behalf of each of the applicants.
The present was not a case where the evidence for all of the applicants was the same. The role of each was separate and distinct. The trial judge was obliged to distinguish between their respective positions and the evidence relevant to each.
Although it is necessary for a trial judge to summarise the cases of each accused in any case, it was particularly important that it be done in case such as the present where the conduct said to implicate each accused, and their roles as contended for by the Crown, were so different. This was not a case such as Huynh v The Queen where a trial judge was entitled to depart from the conventional process of addressing the case for each accused separately. Although the trial judge referred briefly to the Crown case against each accused separately, his Honour did not adequately address the fact there was significantly more evidence to implicate Mr Koloamatangi and Mr Popovic than to implicate Mr Hristovski and Mr Bubanja, which was potentially very much to the detriment of Mr Hristovski and Mr Bubanja.
The trial judge did not summarise the defence cases individually at all. Indeed, at SU 155 the trial judge referred to "the defence case" as if there was only one. This may have led the jury to consider that all the accused were in the same position notwithstanding the standard direction given by the trial judge at the commencement of the summing up at SU 3 that they needed to consider the case of each accused separately and bring in separate verdicts. For the reasons given by Street CJ in R v Towle at 340, a general direction that each case be considered separately is insufficient to discharge the obligation to put the case of each accused separately to the jury in the summing up.

[73]

The relevant principles

The principles which must be applied in determining whether a verdict "is unreasonable or cannot be supported" within the meaning of s 6(1) of the Criminal Appeal Act were authoritatively determined by the majority in M v The Queen (1994) 181 CLR 487 at 493. The question the court must ask itself is: "… whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
In answering that question: "… the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
The majority also said in M v The Queen at 494-495: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."
The majority view in M v The Queen has been reiterated and applied by the High Court and remains the law: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [55]-[58]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; and Filippou v The Queen at [12].

[74]

The weight to be given to the jury's advantage

The passage set out above from M v The Queen requires an appellate court to consider whether a jury's advantage is capable of resolving any doubts which the appellate court might have. This consideration is more complicated in the present application because of the number of grounds of appeal. Where the sole ground of appeal is that the verdict is unreasonable or cannot be supported and there is no challenge to the directions given by the trial judge, the weight to be given to the jury's verdict may be considerable: R v Baden-Clay [2016] HCA 35 at [65]-[66]. But where an appellate court finds that a jury has been misdirected or that there has been a relevant miscarriage of justice, the position is otherwise since the assumption is to be made that the jury follows the directions of the trial judge: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ.
In such circumstances, the weight to be attributed to a jury's verdict may be relatively slight (SKA v R (No. 2) [2012] NSWCCA 205 per Adams J at [311], Hislop J agreeing, Beazley JA dissenting on other grounds). In some circumstances, the jury's advantage ought be excluded from consideration in this exercise altogether, as was found to be appropriate in R v Ortega-Farfan [2011] QCA 364; 215 A Crim R 251 where Fraser JA said at [75] (Chesterman JA and Mullins J agreeing): "I am not persuaded that the doubt is one which is capable of resolution by reference to the advantage of the jury in seeing and hearing the complainant and the other witnesses give evidence. The jury must have found that the complainant was a reliable and credible witness. Her demeanour might well have suggested to the jury that she was a truthful witness. But her demeanour could not resolve the doubt about the reliability of her account which arises from the inconsistencies and weaknesses apparent on the face of the record. In any event, the jury's verdict should not be taken into account in this exercise because the jury might have attributed substantial weight to the evidence of the covert conversations which should not have been admitted." [Emphasis added.]
There are common elements to the determination whether a verdict was unreasonable and the task of determining whether there has been a substantial miscarriage of justice (Weiss v The Queen at [41]). The limitations on the use to be made of a jury's verdict in determining whether there has been a substantial miscarriage of justice are also relevant to an unreasonable verdict ground. In Cesan v The Queen [2008] HCA 52; 236 CLR 358 the plurality (Hayne, Crennan and Kiefel JJ; Gummow J agreeing) said at [129]: "In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all of the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty."

[76]

The evidence against Mr Hristovski

Apart from the telephone records, the evidence against Mr Hristovski was largely comprised of Mr Taylor's evidence that he and Mr Koloamatangi had gone to his house at Warrawong on the night of the murder, after their first trip to Sydney, and collected a gun, which was used by Mr Koloamatangi to shoot the deceased. Mr Taylor's credibility was the principal issue as far as Mr Hristovski was concerned.
Although this Court does not have the advantage of seeing and hearing Mr Taylor give evidence or observing his demeanour, it is not thereby precluded from making any assessment of his credibility, in the sense of reliability. Lord Pearce said in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 431: "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
Several of the matters referred to by Lord Pearce arise for consideration when Mr Taylor's evidence is assessed, including: motive in minimising his involvement and exaggerating that of others; antipathy towards Mr Hristovski arising from the assault in April 2009; his own criminal involvement in respect of which he sought indemnity; the passage of time since the events occurred; inconsistencies between his statements at various times and his sworn evidence; inconsistencies between his evidence and objective or incontrovertible evidence; and inconsistencies between his evidence and contemporaneous notes made by others.
The evidentiary matters particularly relied upon by Ms Rigg as bearing on whether it was open to the jury to find Mr Hristovski guilty beyond reasonable doubt are addressed in turn below.

[78]

The sequence of events on the evening of 7 and 8 September 2007

Mr Taylor's evidence in chief was that he and Mr Koloamatangi went to Mr Popovic's unit after travelling back from Sydney, arrived there at about 10.30pm or 11pm and stayed there for about an hour before going to Warrawong to collect "something" from Mr Hristovski's house.
This version is inconsistent with the telephone records which showed that Mr Taylor and Mr Koloamatangi were still in the footprint of the Rockdale tower (heading south) at 11.58pm; the Loftus tower at 12.14am and in the Wollongong area at 12.46am, 12.49am, 12.55am and 1am. The call at 12.49am from Mr Koloamatangi to Mr Popovic was, accordingly, likely to have been made before they arrived at Mr Popovic's place.
Mr Taylor's evidence was that while they were at Mr Popovic's unit, he overheard a conversation between Mr Popovic and Mr Koloamatangi in which Mr Popovic instructed them to get "something" from Jason's [Mr Hristovski's] house. Mr Taylor also gave evidence that he overheard a reference to "Dragan" [the deceased] being at the "North Gong" Hotel.
As referred to above, the CCTV footage established that the deceased arrived at the North Wollongong Hotel at 12.26.38pm and left at 14.26.15pm on Friday 7 September 2007. Accordingly he was long gone from the hotel when Mr Popovic is alleged to have told Mr Koloamatangi in a conversation said to have been overheard by Mr Taylor that the deceased was still there.
Moreover, the CCTV footage showed that when the deceased arrived at Splashes at 0.30.31 on 8 September 2007, Mr Bubanja was already there. Mr Bubanja and Mr Popovic spoke, after that time at 00.50.56 and 1.06.52, when it can be inferred that Mr Bubanja knew that the deceased was at Splashes. Given the telephone records referred to above, it can be inferred that, if Mr Taylor and Mr Koloamatangi in fact went to Mr Popovic's place on 8 September 2007, they arrived after at least the first call (at 00.50.56). There is no explanation for Mr Taylor's evidence that he overheard that the deceased was at the "North Gong" Hotel, except, possibly, that he became aware that the deceased often went there on a Friday or possibly that he misheard some reference to the deceased having been at the hotel earlier in the day.

[79]

The fact and timing of the visit to Mr Hristovski's on 7-8 September 2007

Mr Taylor's evidence in chief was that he arrived at Mr Hristovski's around midnight, which he confirmed was about a 15-minute drive from Mr Popovic's unit. His evidence was that he had tried to call Mr Popovic from Mr Hristovski's cul-de-sac and that the call was made at 00.49 on 8 September 2007. The records of Mr Taylor's phone did not disclose such a call being made. Mr Taylor's evidence was that he used Mr Koloamatangi's phone to make the call and that he was certain that he made the call from the cul-de-sac. However, the timing of this call did not fit the movements of his return to Wollongong from Sydney with Mr Koloamatangi since he was still north of Wollongong at 1am.
The telephone records do not include any call from Mr Taylor's or Mr Koloamatangi's phone which shows that they were in range of the telephone tower that covered Warrawong (where Mr Hristovski lived) at any relevant time.
Furthermore, the call by Mr Hristovski to Bubanja at 1.23am on 8 September 2007 was made from a location north of Mr Hristovski's home since it passed through the Wollongong CBD tower, which does not cover Warrawong. Accordingly, the call could not have been made while he was at home. Although Mr Hristovski travelled south for a short period after this call (as shown by the calls between 1.29.15 and 1.50.29) into an area covered by the Berkeley tower, which covered Warrawong, there is no record of his returning to the area covered by the Berkeley tower after 1.50.29 until a call was made from his telephone at 3.30.44. This left a very short period, between 1.29.15 and 1.50.29 when Mr Hristovski could have been at home to hand over the gun. However, at 1.49.50 a call was made from Mr Koloamatangi's phone through the Brokers Point tower, which is still some distance north of Wollongong.
The result of the telephone records is, in my view, that Mr Hristovski has shown that he was not at home at any time between the return from Sydney of Mr Taylor and Mr Koloamatangi and the shooting and therefore could not have provided the gun to them in that period.

[92]

Mr Radz's evidence of admissions made by Mr Bubanja both prior to and after the shooting

Mr Radz gave evidence of two admissions said to have been made by Mr Bubanja to Mr Radz. There was no prior mention of these admissions, which were not recorded in any of the statements taken by police who had interviewed Mr Radz.
The first admission was said to have been made some time prior to the shooting in which Mr Bubanja is said to have told Mr Radz that he could not wait until the deceased got out (of gaol) so that he could put a bullet in his head. Mr Radz's evidence was that Mr Bubanja made the statement (that he could not wait until the deceased got out so that he could put a bullet in his head) "every day" and to "100 other people", although he was unable to name a single person who had heard the statement. In my view, the reliability of this first admission was substantially impugned by the obvious exaggeration in Mr Radz's evidence relating to it as well as Mr Radz's motive in fabricating such an admission.
The second admission was said to have been made by Mr Bubanja to Mr Radz in 2009 or 2010 between Mr Radz's release from gaol in April 2009 and his departure overseas in 2010. According to Mr Radz he went out to dinner at Latani's restaurant in Wollongong CBD and Mr Bubanja was there. Mr Bubanja said to him: "Did you hear what I did, I am the one that followed Dragan [the deceased] to Splashes and made the phone call for Doc to strike."
There are two principal difficulties with this admission. First, Mr Bubanja did not follow the deceased to Splashes, since Mr Bubanja arrived at 23.27.39 on 7 September 2007 and the deceased did not arrive until 00.30.31 on 8 September 2007. Secondly, Mr Bubanja did not make a call between the time the deceased arrived at Splashes and the time he was shot. It is, in my view, not safe to put any weight on Mr Radz's evidence of these two admissions which can, accordingly be disregarded for the purposes of performing the task set out in M v The Queen.

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