R v Popovic

Supreme Court of NSW|2017-02-23|Before: Harrison J, Hulme AJ, Adamson J

Judgment

HIS HONOUR: Zlatan Popovic applies for bail. He has been in custody since 12 September 2012 when he was arrested and charged with the murder of Dragan Sekuljica on 8 September 2007. Mr Popovic was tried before R S Hulme AJ and a jury and convicted of murder on 29 May 2014. He was sentenced by his Honour to a term of imprisonment of 34 years. He remained in custody thereafter serving that sentence until 21 September 2016 when his conviction was quashed by the Court of Criminal Appeal and a new trial was ordered: Popovic v R [2016] NSWCCA 202. He has therefore remained in custody since then as a remand prisoner until the present time. His re-trial is scheduled to commence on 31 July 2017.
The Crown opposes bail. Mr Popovic is required to show cause why his continued detention is not justified. That is because murder is a show cause offence as defined in s 16B of the Bail Act 2013. The Crown maintains that even if Mr Popovic were able to show cause, his release application should be refused because he continues to pose an unacceptable risk in accordance with s 19 of the Act and because there are no conditions that could be imposed upon his release on bail that could eliminate or satisfactorily mitigate that risk.
Mr Popovic made a previous application for bail. The Crown concedes that in terms of s 74(3)(c) of the Act, circumstances relevant to the grant of bail have changed since the previous application was made and that Mr Popovic has grounds for a further release application in the terms of that section. In my opinion, that concession is properly made.

Strength of the Crown case

As was pointed out in DPP v Mawad [2015] NSWCCA 227 at [19]: "[19] Bail applications are not suitable forums to conduct mini trials. Nevertheless, an assessment of the strength of the Crown case is important to an assessment of prospective risk which is at the heart of the process of determining whether or not to grant bail…"
The case against Mr Popovic is that he arranged with others to kill the deceased. The case against him was largely, although not exclusively, made up of evidence from two particular witnesses and phone records indicating or suggesting close contact between him and some of his co-accused in the time leading up to the death. It is the Crown case that the call charge records show a pattern of contact that is broadly consistent with the direct evidence given by these two witnesses. One of the witnesses gave evidence of driving a Mr Koloamatangi, one of the co-accused, to Sydney after the shooting of the deceased and delivering money to him provided by Mr Popovic. The Crown case also relies upon a telephone call made by Mr Koloamatangi to Mr Popovic some minutes after the shooting, suggesting that this was evidence of the shooter reporting to Mr Popovic as the organiser that the job had been done.
The evidence generally relied upon in support of the Crown case at the trial was referred to by Adamson J in the Court of Criminal Appeal at [111] in the following terms: "[111] 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 Ekermawi 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 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 Irwin; (6) the return of Mr Irwin 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 Irwin's place to collect clothes; (7) the arrival of Mr Irwin 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 Irwin driving Mr Koloamatangi back to Sydney from Wollongong shortly after 3am on 8 September 2007."
Mr Popovic contended that the witnesses upon whom the Crown relies are unreliable and incredible, and that there is a strong prospect that their evidence will not be accepted by the jury. Mr Popovic draws heavily in this respect upon certain comments made by the judges in the Court of Criminal Appeal that were on one view severely critical of these crucial Crown witnesses. For example, R A Hulme J at [11] refers to "the seeming impossibility of [witness A's] account of the collection of the gun from Mr Hristovski at Warrawong". His Honour went on to say this evidence "was a critical element in the case against Mr Hristovski but [it] is such that there must be a grave doubt that it occurred at all". His Honour said at [12] that the evidence of one of the two critical witnesses "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". His Honour described the evidence of the other critical witness as "of even more dubious credibility".
His Honour also commented in the following terms at [13]: "[13] 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 criminal 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 dependent upon the evidence of Messrs [A] and [B] to fill the gap."
It was contended by Mr Popovic that this material, and similar comments in the Court of Criminal Appeal, fundamentally demonstrated that the case against Mr Popovic was hopeless. Indeed, an application has been made to the Director for the finding of a no bill.
These contentions have to be considered, however, in the following context. First, these criticisms of the two witnesses were made principally in the context of a consideration of the appeals by two of Mr Popovic's co-accused. Those appeals were successful and verdicts of acquittal were entered. It is not correct to say that the criticisms also extend with similar force or effect to impugn the viability of the Crown case against Mr Popovic.
Secondly, and in a related sense, it was not submitted on Mr Popovic's behalf in the Court of Criminal Appeal that the jury verdict in his case was unreasonable. That is so notwithstanding the type of attack that he mounts now upon the evidence that convicted him. It is apparent that counsel for Mr Popovic at his trial embarked upon a significant attack, both in cross-examination and in addressing the jury, on each of these witnesses. There was considerable scope for doing so. It is clear that the jury were nevertheless able to conclude that Mr Popovic was guilty of murder. It would therefore seem to be an inevitable, or at least an available, conclusion that much of the evidence of these witnesses was necessarily accepted by the jury to be true. It follows that there must remain a reasonable possibility that another jury might do so as well. I accept immediately that the impugned directions given by the trial judge, which resulted in the quashing of the conviction and the ordering of a new trial, would arguably have had a significant effect on neutralising the defence submissions favourable to Mr Popovic and that a proper consideration of the apparent importance of the jury verdict has to be modified accordingly.
Doing the best I can, I am not prepared to characterise the Crown case as weak and certainly not hopeless. It will undoubtedly be a matter for another jury in due course to assess the evidence as a whole. The Crown case is certainly viable in my opinion.

Delay

The question of delay is certainly a matter of concern. I say that in the context that any delay is troubling and extended or extensive delays are inimical to the due administration of justice. In the present case Mr Popovic will have been in custody on remand for something in the order of 29 months by the time his case commences in July if his present release application is refused.
The Crown submitted that it was appropriate in this respect to ignore any anterior delay and that a proper assessment of the issue meant that only the period between now and July was relevant. The Crown sought to take strength from the terms of s 18(1) (h) in that it refers to "the length of time the accused person is likely to spend in custody if bail is refused." It does not refer to the length of time that the accused person has already spent in custody.
In my opinion, the Crown's argument is unsupported by the words in question. Any assessment of the amount of time that an accused person is likely to spend in custody if bail is refused must necessarily be the sum total of time already spent in custody and the time that it is anticipated he or she will remain there. In my opinion, in considering delay, all delay is relevant and should be taken into account.
Mr Popovic contended that a total of 29 months was unacceptable and that it adequately supported his contention that he has shown cause why his continued detention is not justified. I agree that the period in question is long and unsatisfactory. It would be wholly unacceptable if Mr Popovic had not already come to trial. However, the circumstances in this case are to some extent unusual and the broken periods on remand both before and after the period served following his conviction do not in my view combine so as to amount to extraordinary delay. I accept that 29 months on remand is unfortunate but it does not amount to cause in support of the proposition that Mr Popovic's continued detention is not justified.

General

Mr Popovic has also contended, with some force, that his current location in a regional gaol has interfered with visits from his family, including in particular his children, and that it has also interfered with his ability to prepare his case in consultation with his legal advisers. Regrettably, imprisonment as a remand prisoner has the inevitable consequence of familial dislocation and disruption. It could not amount to anything that is not faced by every person in a similar position.
So far as the preparation of his case is concerned I note that Mr Popovic has already been subjected to a lengthy trial. The Crown case will be clearly understood. Unlike the first trial, the evidence of all witnesses has now been reduced to the form of a valuable transcript. Analysis of that material would not involve significant personal interaction with Mr Popovic. I appreciate the fact in making these comments that the ability of legal advisers to engage with an incarcerated client is much compromised. It is however trite to observe that it is a disadvantage that is far from unique to Mr Popovic.
In my view, this is not a case in which Mr Popovic has shown cause why his continued detention is not justified. The result of that conclusion is that his application for release must be refused.

Unacceptable risks

Having regard to the conclusion that I have reached, it becomes unnecessary to consider the Crown's bail concerns or whether any of them amounts to an unacceptable risk or a risk that cannot be appropriately mitigated by suitable conditions. Much of the material to which I was directed by the Crown in support of its contention that Mr Popovic poses an unacceptable risk in several respects was sensitive and confidential. It had the potential if disseminated at large to compromise a number of police investigations and the safety of certain named individuals. If it were thought necessary by either party that I should decide the question of the significance or otherwise of the Crown's nominated bail concerns then I would do so. It seems to me in the circumstances to be desirable from both parties' perspectives that I should not do so unless specifically asked.

Orders

I consider that Mr Popovic's release application should be refused.

Amendments 09 August 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2024

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