R v Popovic; R v Koloamatangi

Evidence of Peter Taylor

1. The Crown case is set out in R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110. It relies to a significant extent on the evidence of an "accomplice" witness known as Peter Taylor. He gave evidence in the trial over four days.
2. The Crown case relied upon Mr Popovic's having a motive to kill the deceased arising out of a previous dispute between the deceased and Zoran Bubanja. On the Crown case, the deceased and Mr Popovic had previously been friends, but when Mr Popovic took Mr Bubanja Sr's side in that dispute the deceased considered him a traitor. Evidence was adduced from the deceased's widow, Snezana Sekuljica, to the effect that the deceased and Mr Bubanja had fallen out over a debt owed to the deceased arising out of work in the building industry. Other evidence was adduced in the Crown case to the effect that Mr Bubanja's son Dalibor ("Daki") Bubanja was aware of this dispute and was present at the North Wollongong Hotel on 31 August 2017 when the deceased and Mr Bubanja Sr had an argument. Mrs Sekuljica also gave evidence that after her husband left that hotel on 31 August 2017 Mr Popovic telephoned him. She said that there was an argument in which the deceased called Mr Popovic a traitor and Mr Popovic said, "Come to me at Mt Keira and I'll fix you up there. Come and I'll meet you up there."
3. Mr Taylor gave evidence that he was friends with Mr Popovic and had known him for nine to ten years prior to 2007. In 2007, he was working part-time for Mr Popovic's mother in her pizza shop in Wollongong. He met Mr Koloamatangi about two weeks prior to the murder through Mr Popovic. He knew Mr Koloamatangi as "Doc".
4. Mr Taylor gave evidence in this trial that in the lead up to the shooting he would see Mr Popovic up to three times a week. At paragraph [17] of his statement of 4 June 2012, he recalled a meeting between a number of people, including both of the accused and Mr Bubanja Jr, at the Woolworths car park at Wollongong in the days before the shooting. He gave evidence at the previous trial in this matter that, at that meeting, Mr Bubanja Jr referred to both the deceased and another man, Dusan, as "dogs" and said that they were speaking to police. Another conversation had taken place between Mr Taylor and Mr Popovic prior to that meeting, at which time Mr Popovic said to Mr Taylor, "It's war. Are you with me?" Mr Taylor replied "Yes, you don't have to ask." His evidence was that although he did not know what Mr Popovic was talking about, he classed him as a friend at that time.
5. Mr Brasch, counsel for Mr Popovic, objected to evidence being led from Mr Taylor that his client was present when Mr Bubanja Jr referred to the deceased as a "dog" and said that he was speaking with police. He submitted that the reference to the police introduced an element of prejudice, in that the jury may speculate that there was some criminal content to the dispute between the deceased and Mr Bubanja Sr. It was submitted that the jury may reason beyond the motive asserted by the Crown to some other "nefarious activity" involving the police. He submitted that the word "dog" has a very particular meeting when used in the context of speaking to police. He submitted that if the Court were minded to admit the evidence, one way in which the prejudice could be minimised would be to limit Mr Taylor's evidence to the reference to the deceased's being a dog and omit the reference to speaking to police.
6. The Crown submitted that the evidence was relevant to motive because Mr Popovic was said to have gone over to the side of the Bubanjas in the dispute. There was also the evidence of Mrs Sekuljica that the deceased thought that Mr Popovic was a traitor. He submitted that the evidence was relevant as evidence of continuing "bad blood" and that there was no basis to exclude it under s 137 of the Evidence Act 1995 (NSW).

Consideration

1. The Crown sought to elicit evidence from Mr Taylor regarding his knowledge of any hostility between the deceased and Mr Popovic. Mr Taylor's knowledge was confined to the enquiry by Mr Popovic as to whether Mr Taylor was on his side in the "war" and to the fact that, at around the same time, he had been present at the Woolworths car park when Mr Bubanja Jr had expressed hostility towards the deceased in Mr Popovic's presence.
2. The threshold of admissibility is relevance: s 55 of the Evidence Act. That is, could the evidence that Mr Popovic was present when a member of the Bubanja family called the deceased a "dog" in the period leading up to the murder rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, namely, whether there was an ongoing dispute between Mr Popovic and the deceased at the time of his death?
3. I am satisfied that the evidence is relevant, consistent with my earlier ruling that the Crown be permitted to adduce evidence concerning the dispute between the deceased and members of the Bubanja family and with other evidence in the Crown case going to motive. The evidence is not being led for a hearsay purpose, therefore the hearsay rule in s 59 of the Evidence Act does not apply.
4. In the event that I were to find that the evidence was relevant and otherwise admissible, it was submitted that I would exclude it under s 137 of the Evidence Act on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused men. In considering s 137, the court is required to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. "Probative value" is defined in the Dictionary to the Evidence Act as: "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
5. The assessment of probative value for the purposes of s 137 does not require evaluation of the credibility, reliability or weight of evidence, those being matters appropriate for the determination of the tribunal of fact if the evidence be admitted: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at 315 [52] per French CJ, Kiefel, Bell and Keane JJ.
6. The danger of "unfair prejudice" in s 137 has been held to refer to the real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]: "The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case..."
7. Applying these evidentiary principles to the evidence in question, I observe that the probative value of the evidence is not significant. Despite this, I am not satisfied that the jury would use the evidence in a way logically unconnected with the issues in this case. During legal argument concerning the admissibility of Mr Taylor's evidence, I indicated that any risk of prejudice could be minimised by limiting the evidence to the description of the deceased as a "dog" without going on to make reference to the fact that he been speaking to police.
8. The word "dog" has a particular meaning to those involved in the criminal law, but that is not its only meaning. Although it is a word that bears a number of meanings, it seems to me that none of them are complimentary. It would no doubt be open to the jury to find that Mr Popovic was present when a member of the Bubanja family was critical of the deceased. The way that the Crown proposes to present its case to the jury leads me to conclude that if the evidence is confined to the "dog" reference without any mention of police, there is no risk of the evidence being used in a way logically unconnected with the issues in the case.

Telephone calls to and from Daki Bubanja in Exhibit O

1. At the previous trial, the Crown tendered a schedule of telephone calls. The Crown sought to tender substantially the same schedule at this trial, edited to comply with pseudonym orders. The schedule includes calls made and text messages sent on 7 and 8 September 2007 said to be relevant to the trial. They included all of the calls to and from Daki Bubanja and Jason Hristovski during the relevant period. Both of those men were previously convicted of the murder of the deceased, but were subsequently acquitted by the CCA. The Crown case against those two men at the first trial was that Mr Hristovski supplied the gun that was used and Mr Bubanja Jr was, among other things, the "lookout" who kept the others informed of the deceased's whereabouts that night.
2. Mr Bubanja Jr was present with the deceased at Splashes from shortly after midnight until he left the club with the deceased just after 3am, at which time the deceased was shot and killed. The schedule of telephone calls records telephone contact between Mr Popovic and Mr Bubanja Jr during this time. Not all of the calls connected. There was evidence that telephone reception within the nightclub was poor.
3. Ms Davenport objected to the calls to and from Mr Bubanja Jr being included in the schedule of telephone calls. She submitted that the only reason that they had been included in that schedule at the previous trial was because Mr Bubanja Jr was one of the accused at that time. She submitted that the fact that he had been acquitted means that any of the telephone calls consistent with his playing such a role should be excluded because, if admitted, they would traverse the decision of the CCA.
4. Ms Davenport also submitted that there were a number of other calls involving a variety of other people apparently unconnected with this trial that were not relevant, but did not ask that they be removed. It was only the calls involving Mr Bubanja Jr to which objection was taken. Ms Davenport submitted that the inclusion of telephone calls to and from Mr Bubanja Jr would invite the jury to speculate about his involvement.
5. The Crown tendered a copy of the proposed schedule with the calls in dispute highlighted in yellow. Those calls were: 7 September 2007 1. 1:37:34 pm, 46 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-2 2. 2:38:22 pm, 3 seconds, DVM (i.e. diverted to voicemail), from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3, Daki Bubanja's location - Brokers Point 3. 3:08:19 pm, 1 minute and 13 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD 1800-3 4. 3:21:35 pm, 14 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-2 5. 4:28:29 pm, 76 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 6. 6:26:53 pm, 31 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 7. 7:42:56 pm, 56 seconds, call from Daki Bubanja to Popovic, Daki Bubanja's location - Shell Harbour, Popovic's location - Figtree-2 8. 8:48:44 pm, SMS from Daki Bubanja to Popovic 9. 8:48:46 pm, SMS from Daki Bubanja to Popovic 8 September 2007 1. 00:54:56 am, 18 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 2. 00:54:54 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3, Daki Bubanja's location - Thirroul 3. 00:55:17 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 4. 00:59:55 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3, Daki Bubanja's location - Thirroul 5. 01:00:23 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3, Daki Bubanja's location - Thirroul 6. 01:00:50 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 7. 01:06:52 am, 58 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-1800-3 8. 01:19:43 am, 4 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 9. 01:36:38 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 10. 02:02:43 am, 3 seconds, DVM, from Popovic to Daki Bubanja, Popovic's location - Wollongong CBD-3 11. 10:44:02 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong -1 12. 10:44:04 am, 3 seconds, call from Popovic to Daki Popovic's location - Wollongong -1 13. 10:44:40 am, 2 seconds, call from Popovic to Daki Bubanja, Popovic's location - Wollongong -1 14. 10:44:40 am, 3 seconds, DVM from Popovic to Daki Bubanja, Popovic's location - Wollongong -1, Daki's location - Shell Harbour 15. 12:54:18 pm, 17 seconds, call from Popovic to Daki Bubanja, Popovic's location - Kiama-1 16. 13:02:41 pm, 25 seconds, call from Popovic to Daki Bubanja, Popovic's location - Shell Harbour-2 17. 15:09:45 pm, 27 seconds, call from Popovic to Daki Bubanja, Popovic's location - Calderwood-3 18. 17:17:49 pm, 75 seconds, call from Daki Bubanja to Popovic Daki Bubanja's location - Warrawong, Popovic's location - Nowra South-1 19. 18:29:40 pm, 23 seconds, call from Popovic to Daki Bubanja, Popovic's location - Gerringong-3
6. It was submitted on behalf of Ms Davenport that the only possible relevance of the telephone calls in the early hours of 8 September 2007 was as a basis for inferring that Mr Popovic was making calls seeking to find out the whereabouts of the deceased. She submitted that that evidence was inadmissible in light of the CCA decision. She conceded that her stronger argument was that to adduce this evidence would be in conflict with the CCA decision, rather than that it would cause any particular prejudice to the accused. She conceded that if the calls had been made by Mr Bubanja Sr (who has never been charged) rather than Mr Bubanja Jr, she would not have made the application to have the calls excluded. Her application was based solely on the findings of the CCA in relation to the involvement of Mr Bubanja Jr.
7. Ms Davenport conceded that the evidence was relevant but that it should be excluded under s 137 of the Evidence Act because of the risk that it would be misused by the jury in some way. The risk of its being misused was the risk that it was in conflict with the CCA decision. Ms Davenport submitted that to admit the evidence would leave the jury to one conclusion only: that Mr Bubanja Jr is also guilty of the murder.
8. The Crown submitted that, on its case, Mr Popovic was telephoning people to obtain information as to the whereabouts of the deceased. He submitted that the evidence was relevant to confirm that, on the Crown case, Mr Popovic was at his home making calls to people. In that way, it is corroborative of the witness Mr Taylor, who gave evidence that Mr Popovic was at home that evening giving directions. He submitted that the schedule shows that Mr Popovic made a number of calls that night whilst he was at home to a number of persons, some of which connected and some did not. He also submitted that Mr Popovic was not only in contact with Mr Bubanja Jr at Splashes that night, but also with another witness, Mickey Milisic. In fact, the last call that connected from Mr Popovic to any person at Splashes Nightclub was to Mr Milisic at 2.01am.
9. Mr Brasch relied upon and adopted the submissions made by Ms Davenport. He submitted that it would be quite wrong for the Crown to suggest that Mr Milisic was the person who provided Mr Popovic with information as to the whereabouts of the deceased that night in circumstances where that person was called as a witness and the suggestion was not put to him. He submitted that the logical conclusion was that it was Mr Bubanja Jr who told Mr Popovic where the deceased was and to adduce that evidence would be in conflict with the decision of the CCA.

Consideration

1. It was ultimately conceded during the application to exclude this evidence that it was relevant in the case against the accused. The application thus became one of whether the evidence should be excluded under s 137 of the Evidence Act on the basis that it was in conflict with the decision of the CCA. In that regard, it is pertinent to have regard to the findings of the CCA on this issue.
2. At [316] of the CCA decision under the heading "The phone evidence involving Mr Bubanja on 7-8 September 2007" the following is recorded (per Adamson J, with whom Beazley P and RA Hulme J agreed): "Mr Bubanja made a phone call to Mr Hristovski on 8 September 2007 at 00.17.47, before the deceased arrived at Splashes. He did not make another call until much later, in the morning of 8 September 2007 at 11.43.58, when he called Mr Popovic. That these calls were the only calls initiated by Mr Bubanja during the relevant period provides some indication that he was not the person who informed others that the deceased was at Splashes. However, even if he did, the evidence does not indicate that he had any awareness that the deceased was to be killed that night. There was a very substantial number of attempted communications by Mr Hristovski to Mr Bubanja that night, many of which were unsuccessful because of the poor or non-existent mobile reception at Splashes. These communications are consistent with Ms Ewen's evidence that Mr Hristovski and Mr Bubanja were friends and that Mr Hristovski would often go out in the middle of the night either with Mr Bubanja, or to collect him and drive him home."
3. I had regard to that passage in particular and the decision of the CCA as a whole. I was not satisfied that including telephone contact between Mr Popovic and Mr Bubanja Jr on 7 and 8 September 2007 was in conflict with anything found by the CCA. If the only concern was that the jury may impermissibly speculate as to whether Mr Bubanja Jr was somehow involved in the murder, then that was a matter capable of being cured by direction. In any event, the jury had before them evidence that after the deceased was shot Mr Bubanja Jr was upset and referred to him as his "kume", which the evidence discloses means godfather in Serbian. It is apparently a term of endearment. Even if the jury were satisfied that Mr Bubanja Jr had told Mr Popovic where the deceased was that night, that would not lead to a conclusion that he is also guilty of murder. Consistent with this ruling I directed the jury in my summing up that it was no part of the Crown case that Mr Bubanja Jr was criminally responsible for the murder of the deceased.
4. It was for these reasons that I was not satisfied that the relevant telephone calls should be deleted from the proposed schedule of calls.

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