Judgment
1HIS HONOUR: There is an application by both accused to exclude certain critical parts of the evidence of Drago Popovic. Reference is made to ss 137 and 138 of the Evidence Act 1995 (NSW), in particular s 138. The applications are opposed by the Crown.
2In my view there is plainly impropriety in terms of s 138(1)(a) and (b). Drago Popovic was interviewed repeatedly and extensively by the police in a context where he had been and still was himself charged with participation in the conspiracy to import drugs and where he might possibly become what is often described as a "rollover" witness or "Queen's evidence" witness.
3It is apparent from extensive evidence that the police involved in this interview exercise did not have the benefit or clear guidelines as to how they should conduct themselves in such a complex situation as confronted them. From the materials before me I note the following deficiencies in the interview procedures which occurred over a number of months. This list is not necessarily exhaustive:
there was a failure to record all the conversations;
the witness was, on some important matters, led. That is some answers were suggested to him by the context in which the questioning occurred;
interviewing police indicated weaknesses or possible weaknesses in the police case against one of the present accused, in the context of Drago Popovic being potentially a witness against this accused if he were to be granted immunity or other benefits;
mention was made by interviewing police implying a connection between certain possible evidence and a discount of sentence which might be given by a court;
there appear to have been various documents shown to the witness being interviewed (Drago Popovic) which were not identified, recorded and retained;
there seems to have been a failure of vigilance on the part of interviewing police about the very real possibility that the person being interviewed might have been attempting to manipulate the police in his own interests.
4It is surprising that counsel were not able to point me to any document published by the police or the Director of Public Prosecutions which would give guidance to police who are given the task of interviewing suspects such as Drago Popovic.
5In my view the public interest requires that steps should be taken to cause a protocol to be drafted and publicised which may avoid the procedural error and improprieties which have been revealed in this case.
6I have generalised about these six deficiencies which I have identified in the procedures used in the interrogations of Drago Popovic. The interviews occupied numerous days over quite a few months. I list below material surrounding a series of questions and answers in the cross-examination in this trial of Mr Briggs, the AFP officer who had had the primary task of interrogating the potential witness Drago Popovic.
7These transcript references in this trial identify material where Mr Briggs concedes some improprieties and instances of the potential for impropriety in the interviewing process but where he denies intentional impropriety on his part. This impropriety (as I will call it collectively) is reflected and acknowledged in a series of questions and answers in the evidence of Mr Briggs. I refer to the following pages where, without identifying particular lines, it is plain to see that there was such a recognition or acknowledgment or denial, as the case may be:
8Trial transcript pages 3017, 3018, 3020, 3198, 3199, 3262, 3278, 3280, 3345, 3359, 3367, 3377, 3399, 3406, 3407, 3414, 3415, 3417, 3421, 3425, 3449, 3455, 3493, 3527.
9By way of illustration, I refer to material from several of these pages:
10[TT3017]
"Q. See you answered "No" to those propositions, or those questions that I put to you, because you knew that it would be improper for you, as a person in authority interviewing a person in Drago Popovic's position, to have told Drago Popovic anything about the weakness of the case against another accused, correct?
A. Correct.
Q. And that is in fact what you did, correct?
A. Correct.
Q. And I suggest to you that in doing so your conduct was improper, what do you say to that?
A. I don't believe my conduct was improper with my dealings."
11[TT3018]
"Q. When you told Drago Popovic in October 2010 that the prosecution case against Miras Popovic was weak, or very weak, did you accept that you were saying that to someone who was wearing two hats?
A. Yes, he was.
Q. You were saying it to someone that understood, as you perceived it, that there was a direct relationship between the evidence that he could give as a witness, and the benefit that he would derive through that assistance, yes?
A. Yes.
Q. The more assistance he could give, the better the quality of that assistance, the more benefit that he could hope to achieve, you understood that?
A. That's correct. Yes."
12[TT3278]
"Q. I suggest to you that it was improper for you to be making suggestions of this kind bearing in mind that they were very important issues concerning the charges that were then pending before the Court, you agree?
A. It has that potential."
13[TT3280]
"Q. Was your question, given that you asked it, was it directed to quantity or was it directed to price?
A. Quantity.
Q. In any event according to his answer what he said was that there had been no discussion about quantity, am I right?
A. He said no.
Q. You went on after he said no, you went on to say and I quote "Just as much as he could get". Am I right?
A. Yes.
Q. You were interviewing this man as a witness to take a statement, what possible reason did you have at the time to say that?
A. I don't know.
Q. You were seeking to influence Drago Popovic, am I right?
A. No.
Q. You were suggesting something to him, am I right?
A. I did, yes.
Q. You were suggesting that they wanted to get as much as they could when this man had told you that there was no discussion about quantity, am I right?
A. Yes.
Q. Well do you accept today that that was a legitimate and proper thing for you to say?
A. No.
Q. Does it follow, therefore, that it was improper for you to make that suggestion to this proposed witness?
A. Potentially yes."
14As I say, the collective effect of the material contained in the pages of the trial transcript to which I have referred is that important parts of the evidence of Drago Popovic have been obtained either improperly or as a consequence of impropriety in terms of s 138 of the Evidence Act.
15I am obliged therefore to consider whether the desirability of admitting the evidence outweighs the undesirability of admitting it, given the way the evidence was obtained. I have regard to subss (3) of s 138 and the factors listed therein as well as other considerations which strike me as significant. The first of these is that this is a very complicated case. Modern technology such as telephone intercepts permits the creation of a great deal of evidence which in past times would not have been available. In this case there are very extensive telephone intercepts between the alleged conspirators, much of which material is couched in terms which are ambiguous, often designedly so.
16The complexity of the task facing interviewing officers was increased because Drago Popovic continued for some time to be himself an accused person to whom, under the requirements of disclosure, a brief of evidence was provided for the purposes of the committal exercise and possible subsequent trial. This meant that his capacity (with legal advice) to consider whether he should plead guilty also enabled him (if he wished to do so) to write fiction for his own purposes. Whether he did so or not I do not need to determine.
17The complicated situation inevitably created a dilemma for police. However, in my view, it is a dilemma which would best have been faced and managed by interviewing police had they been able to deal with it in accordance with some appropriate protocol.
18I strongly urge that such a protocol or guidelines be prepared, in consultation with relevant bodies, and made available for guidance of police officers in the situation in which Mr Briggs found himself.
19In any event the task which confronted interviewing police here was not easy. Drago Popovic recognised that there was very powerful evidence against him and he took what turned out to be the sensible course of pleading guilty.
20Prima facie, as someone directly involved in what was no doubt a criminal agreement to import drugs of one kind or another, he had insider knowledge which could be very valuable in this case to investigating police, to prosecuting authorities and to this court. In terms of s 138(3)(b), I am satisfied that Drago Popovic's evidence is important in these proceedings. However, its probative value in terms of s 138(3)(a) is not so clear. The late revelation, indeed actually during the course of this trial, of material which casts doubt on the accuracy of Drago Popovic's version about which specific drugs were agreed to be imported detracts from the probative value of his evidence.
21An argument has been made by Messrs Thomas and Pickin for the respective accused that Drago Popovic has altered his evidence to fit in with a revised police theory of the case. It is not for me to adjudicate in any final fashion on that matter. Nonetheless there is certainly some evidence to support that defence contention. Drago Popovic is a very intelligent man, highly alert to his own best interests. Moreover, it is regrettable that the late disclosure occurred as it did. There was a vast quantity of material supplied by police and the DPP to the accused before this matter got to trial but there certainly has been a very belated disclosure of some important materials associated with the interviewing process. Indeed, in major respects counsel for the Crown was taken by surprise just as much as counsel for the defence were.
22It became necessary during the trial for police to be sent back to search at the Australian Federal Police headquarters for particular material to be produced. Alarmingly, a search of the back of a cupboard in the AFP offices revealed material of some significance which had not hitherto been disclosed. I do not accept that that was an intentional exercise of concealment but even though police were handling a very large body of material, a failure to disclose what ultimately was revealed in the cupboard was very unhelpful, to put it mildly.
23Section 138(3)(c) requires me to refer to the nature of the relevant offence and I note that the charges are for very serious drug offences of the kind about which there is considerable public concern. As to the factor listed in s 138(3)(d), my view is that the improprieties I have identified are serious. A proper procedure in the interviewing of potential "rollover" witnesses is of importance in the administration of the criminal law.
24As to factor (e), my view is that the impropriety was not deliberate but it was certainly imprudent. Although it was, as the Crown submitted, "artless", it was in my view the product of excessive zeal coupled with the absence of appropriate guidelines for dealing with a situation such as this.
25Consideration (f) is not relevant here but as to factor (g) in s 138(3) I have no way of knowing whether there is likely to be any proceeding taken in relation to the impropriety. However, I repeat that in my view the circumstances of this case should be considered by the DPP and senior federal police for the purpose not of imposing discipline but of improving the administration of the law in the interests both of the prosecution and of accused persons.
26As to the final factor listed under s 138(3) it seems to me that it would not have been difficult to obtain the evidence of Drago Popovic without impropriety.
27My task has been described as being the equivalent of the task identified in Bunning v Cross [1978] 141 CLR 854, that is to say it is a balancing process. Bearing in mind that I have concluded that there was an impropriety and that there is then an onus on the Crown to persuade me as to the desirability of admitting the evidence notwithstanding its defects, I am satisfied that the Crown has done so. Whatever procedural deficiencies have been revealed in the course of the evidence and however much the credibility of Drago Popovic has been put in question (as it has), nonetheless there has been exposed a series of issues which can be fairly put before the jury "warts and all" for their determination. I bear in mind as one consideration that s 80 of the Commonwealth Constitution enjoins the trial of Commonwealth offences charged on indictment to the trial by jury. The jury is normally the proper constitutional body for the determination of issues arising at trial.
28I appreciate that s 138 of the Evidence Act is aimed, amongst other things at the protection of individual rights, the promotion of trial fairness and the encouragement of proper methods of police investigation.
29Mr Thomas has urged upon me that a particular important consideration when s 138 comes into play is that the tribunal of fact should have put before it reliable evidence, accurate evidence, and he argues that Drago Popovic's evidence is unreliable and inaccurate. That may or may not be so, but as I say, undertaking the balancing process required consistently with s 138 and Bunning v Cross, my conclusion is that notwithstanding the identified impropriety it is desirable that the evidence should be permitted to be put before the jury.
30It has been argued by both Mr Thomas and Mr Pickin that s 137 of the Evidence Act constitutes a separate basis for the exclusion of the evidence of Drago Popovic. I have taken into account the materials contained in written submissions by both counsel as well as their oral arguments. In New South Wales law the approach to the interpretation of s 137 adopted in Shamouil v R [2006] NSWCCA 192 continues to apply. Most of the arguments addressed to me by Mr Thomas and Mr Pickin concerning s 137 come down to the question of the reliability or believability of the evidence of Drago Popovic. Whatever ultimate deficiencies there are in his evidence, he has given evidence in-chief capable of being regarded as consistent with the Crown case. I see no basis for taking away from the jury under s 137 the opportunity to evaluate Drago Popovic's believability or reliability. The jury will be able to consider the arguments of counsel and will be able to test Drago Popovic's evidence in the light of what are said to be several different versions given under inducement.
31Finally let me say that simply because I will permit this evidence to go before the jury it should not be thought that I regard the criticisms of Drago Popovic's evidence and the processes by which it was obtained as necessarily lacking in merit. There will be ample opportunity for counsel to put vigorous submissions to the jury about these matters and at this stage of the trial an outcome favourable to the prosecution is by no means assured.
32It would not be surprising if the arguments about the manner in which the evidence of Mr Drago Popovic came forward were to create doubts in the minds of the jury. If that result ensues the procedural deficiencies exposed in relation to the interviewing of Drago Popovic might well be regarded as causative. At the conclusion of the trial, whatever the outcome be, I will forward to the Director of Public Prosecutions and to the authorities in the Australian Federal Police a copy of this judgment for their consideration of my observations about the need for a protocol as I have suggested.
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Decision last updated: 25 June 2014