Solicitors:
S Kavanagh Solicitor for Public Prosecutions - Crown
Macquarie Lawyers - Accused Rice
Toomey Defence Lawyers - Accused Popovic
Peter Katsoolis Lawyers - Accused Koloamatangi
R.F. Bergagnin & Co Solicitors and Attorneys - Accused Vukovic
File Number(s): 2012/380633
2012/232565
2012/370471
2012/387249
[2]
Judgment (EX TEMPORE - REVISED)
Towards the close of its case the Crown indicated an intention to adduce evidence of the three telephone calls in its case against the accused Vukovic. The details of those calls are contained in Exhibits VD3 and VD4. However, those documents do not replicate the actual form in which the evidence is to be led, but are a précis or synopsis of the evidence.
The first telephone call occurred on 14 October 2008 and was made by the accused Vukovic to the accused Popovic. The synopsis of the call is as follows:
"Msg left saying that man from IV Plaster? that they will be ready on Thursday. Rashko asking Zlatan if he can find someone to help him on Saturday and Sunday to finish it."
I interpolate that on the Crown case, the person described as "Rashko", is the accused Vukovic.
I have assumed for the purposes of this application that the Crown will be in a position to establish that the call was lawfully recorded. I have also assumed that the Crown will be in a position to lead evidence of some link between the telephone service from which the call was made, and the accused Vukovic.
The second and third calls occurred on 21 October 2008. On the Crown case they are conversations between the accused Popovic and his then wife. A synopsis of those conversations is set out in Exhibit VD3. The second call took place at 3:02pm on 21 October and the synopsis reads as follows:
"Zlatan says that he's in Wollongong now and will be going up to Sydney. Zlatan says that if he can't get anyone to help Rashko with the gyprock for his mum's house, he'll have to do it."
The third call took place at 5:39pm on the same day. The synopsis reads:
"Tells wife that he has to stay at his mothers. Says Herbie is working at BHP and he will have to help Rashko in the morning. Says he wants him there at 7am. Says when the plastering is done his mother can move in. Tells her he's not answering Pete's number. Tells her to tell Pete he is in Sydney and that she hasn't been able to reach him. Says Pete is going to kill him. Wife asks if it's because of the money. Zlatan says yes. Tells her that he is going to Sydney to know (sic) to see if a bloke can pay him the money that he is owed. Tells her he is not answering private numbers and to send a message if the call is from a private number."
The reference to "Herbie" in that conversation is, on the Crown case, a reference to a person to whom I shall refer by the pseudonym Peter Taylor ("Taylor") the principal witness in the Crown case. I will return to aspects of Taylor's evidence in due course.
Objection has been taken by Mr Pickin of counsel, who appears for the accused Vukovic, to the admission of this evidence on a number of bases. Mr Brasch of counsel, who appears for the accused Popovic, has also raised an objection to it although that objection, without intending any disrespect to Mr Brasch, is of less significance than that raised by Mr Pickin. In order to deal with those objections it is necessary for me to outline some matters by way of background.
On 20 October, 2014 each of the four accused before the Court pleaded not guilty to an indictment alleging that between 8 September 2007 and 4 October 2007 at Toongabbie, Redfern and other places in the State of New South Wales, they conspired to murder Dusan Krstic ("Krstic"). A Crown case statement filed in the proceedings, which is consistent with the terms in which the Crown opened the case to the jury, alleges that at some stage between 8 September 2007 and 22 September 2007 the accused Popovic asked Taylor if he was interested in killing Krstic. The Crown alleges that Popovic offered Taylor $250,000 to kill Kristic. In the event that Taylor was subsequently apprehended, Popovic offered him a sum of $150,000 for each year that he was required to spend in custody as a result. Following that conversation Taylor contacted the co-accused Koloamatangi and advised him of the conversation that he had had with Popovic. Popovic then organised for Taylor to meet a person to whom Taylor has referred only as "Rashko" but who, on the Crown case, is the accused Vukovic. The accused Rice is said to have joined the conspiracy as a consequence of his long standing friendship with Koloamatangi.
Vukovic and Taylor then met, following which Vukovic drove Taylor to a number of places, including Western Sydney where Kristic was said to be residing at the time. Vukovic did so in a red Toyota RAV 4 motor vehicle. Vukovic later supplied Taylor with a pistol to be used in Krstic's murder.
Taylor, who has been indemnified, has given evidence before the jury over a number of days. His evidence has been completed. Unsurprisingly, given that on his own admission he was part of the conspiracy and has received the benefit of an indemnity, Taylor's credit was very much in issue in cross-examination by counsel for the four accused.
In the course of his evidence in chief, and particularly at T283 L35 and following, Taylor gave evidence that Popovic had told him that he (Taylor) would meet up with a person named Rashko for the purposes of a particular location being shown to him. Taylor then stated (T284 L16 and following) that he in fact met with the person called Rashko. He gave evidence that they then drove to various places. At T286 L27 Taylor told the Court that Rashko had a red four-wheel drive, which he thought was a "RAV 4", or a small to medium type of four-wheel drive. Taylor also said (commencing at T390 L36) that at a later stage he was provided with an antique pistol by Rashko which was to be used in carrying out the conspiracy to kill the target. Taylor also gave evidence (at T293) that he worked with Rashko in late 2007, gyprocking at the premises of the mother of the accused Popovic.
In the course of re-examination, but not in the course of evidence-in-chief, a general description of Rashko was elicited from Taylor. There was no other evidence of identification led. I infer in those circumstances that the Crown did not have any evidence of identification which was in an admissible form.
Reference is made to gyprocking in the conversations which appear in Exs VD3 and VD4. The Crown seeks to tender evidence of those conversations, to corroborate the evidence of Taylor, and in particular to support the proposition that Rashko is in fact the accused Vukovic.
It should also be noted that in the proceedings on 23 October (at T245) the Crown tendered what is now Exhibit K2. That exhibit, which was tendered without objection, establishes that a Red Toyota RAV 4 vehicle was registered to Vukovic's wife, Nada Vukovic. The nominated address is that at which the accused was residing at the time.
During the course of Taylor's cross-examination (at T392) Mr Pickin asked the Crown to clarify or confirm who was intended to be called in the Crown case prior to the Crown case being closed, and in particular, who the Crown was proposing to call to give evidence in its case against the accused Vukovic. Although not specifically stated, that enquiry was obviously intended to encompass not only notification of the identity of witnesses to be called, but notification of any evidence which was to be called from those witnesses. In response (T392 L10-20) the Crown said amongst other things:
"There may be some further intercepted telephone calls that I will need to tender."
I then gave the parties an opportunity to discuss the matter. Having done so, I was told that such issue as had arisen had been resolved.
Following the completion of Taylor's evidence, and that of another witness, the Crown indicated that he proposed to recall Detective Chambers, the Officer in Charge of the investigation. It was in those circumstances that the Crown indicated an intention to lead evidence of the calls in VD3 and VD4. The transcript of the proceedings of 30 October 2014 reflects the lengthy argument which took place in relation to this issue. I do not propose to set out the entirety of that argument but there are certain matters which warrant emphasis.
In the course of argument it became apparent that there had been some correspondence between Mr Pickin and the Crown on the afternoon of Friday 25 October 2014. That correspondence was not tendered, but the Crown submitted that it was as a consequence of that correspondence that he learned, for the first time, that the identification of the accused Vukovic was an issue in these proceedings. On the evidence which has been placed before me, it appears that in response to being made aware, the material in exhibits VD3 and VD4 was produced within one business day. It seems clear that the correspondence of 24 October between the Crown and Mr Pickin was the catalyst for the production of this material.
Who requested its production is not clear. I accept, without equivocation, that the material has only just come into the possession of the Crown. The Crown has informed me, and I also accept, that the material was part of the "holdings" of the New South Wales Crime Commission. However, the speed with which the material was produced following the Crown's discussions with Mr Pickin on 24 October supports a conclusion that its existence was certainly known by someone, albeit not by the Crown Prosecutor. The strong inference is that someone involved in the investigation was aware of the existence of the material for some time. That begs the obvious question why it was not disclosed to the accused.
In the course of submissions Mr Pickin raised a number of issues. In terms of the admissibility of the evidence, he submitted that it was hearsay. He pointed out, in particular, that the Crown had not given the notice required by s67 of the Evidence Act 1995 ("the Act"), although he ultimately acknowledged, as I understood it, that I had power to dispense with any notice requirement if I thought it appropriate to do so.
Leaving aside questions of admissibility, Mr Pickin's substantive objection was based on the provisions of s137 of the Act. He submitted that in all of the circumstances any probative value of the evidence was outweighed by the danger of unfair prejudice.
In the course of argument (in particular at T549 L20-23) and in answer to a direct query from me, Mr Pickin agreed that the unfairness really arose from the fact that there was now material which, on the face of it, might provide some identification of his client and would thus go some way to establishing the offence alleged against him. In other words Mr Pickin at least at that point, appeared to be acquiescing to the proposition that the unfairness really arose from the fact that there was now evidence which would strengthen the possibility of his client being convicted. If that were the only basis on which unfair prejudice was said to arise then Mr Pickin's objection would fail. Simply because evidence may go to prove that a person is guilty of an offence does not lead to the conclusion that it is, for that reason alone, unfairly prejudicial: Papakosmas v R (1999) 196 CLR 297 at [91]. However, it became apparent that Mr Pickin's objection went beyond that. He pointed out that the material had never been disclosed and that a disc containing the calls (which are partly in Serbian) had been given to him only a matter of hours ago. Consistent with this, the Crown informed me that transcripts of the calls were being prepared as the argument was taking place.
Mr Picken pointed out that when he was informed of the Crown's intention, his cross-examination of Taylor had been completed. He submitted that he had cross-examined Taylor in a particular way, in accordance with his instructions and having regard to various forensic decisions that he had made in his capacity as trial counsel. He explained that he made those decisions based, in part, upon what he understood to be the evidence against his client. He submitted that to allow the Crown to tender this evidence at such a late stage, and against a background of the circumstances that I have outlined, would be unfairly and irreparably prejudicial to his client's case.
The Crown in his submissions accepted that the service of the material, or its production, was "late in one sense". I should say that in my view, it is late in any sense. The Crown submitted that the first time that he became aware that the identification of the person who did work at the house of Popovic's mother, and the person who drove Taylor in the RAV 4, was in issue, was in his correspondence with Mr Pickin on 24 October. Part of the basis for his understanding was said to be something which had apparently been put on the accused's behalf in a bail application some time ago. In particular, the Crown said (at T553 L20 and following)
"I understood in general terms that there would be an issue about whether Mr Vukovic took part in the conspiracy or did these things that he is said to have done by Mr Taylor, but not that it was disputed that he was the man Rasko who was the driver of a RAV 4 vehicle and who carried out gyprocking work."
In answer to a question from me, the Crown explained that the material which is sought to be tendered had been in the possession of the Crime Commission between 2008 and 2014. He emphasised that he was not previously aware of it. As I have said, I unreservedly accept that is the case.
In determining whether the evidence should be excluded the first question is whether or not it is relevant. In my view it is clearly relevant and I did not understand Mr Pickin to argue to the contrary. It is capable of corroborating the evidence of Taylor. It is also capable of going to prove that Rashko is the accused Vukovic.
The second question is whether or not the evidence is admissible. In making that determination (at least in respect of the conversation set out in exhibit VD 4) I do so on the basis of the assumptions to which I have previously referred. The conversation in exhibit VD4 is a message left by the accused Vukovic. On the assumptions I have made, that evidence would be admissible. It constitutes an admission within the meaning of s. 81 of the Act.
The conversations in exhibit VD3 fall into a different category. They are not statements said to be made by the accused Vukovic. They are clearly hearsay but in my view they would be admissible under ss 65(1)(b) or (c) of the Act. I accept Mr Pickin's submission that admissibility under that section would be subject to my exercising a discretion to waive the notice requirements set out in s 67. Whether I would be prepared to do so is inextricably linked to Mr Pickin's primary submission based on s 137.
The effect of s. 137 of the Act is to mandate the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice. In the present case, the probative value of the evidence is not insignificant for the reasons that I have already articulated. The real issue is whether or not that probative value is outweighed by the danger of unfair prejudice.
It would be fair to say that in many, if not the majority, of cases where s.137 is engaged, the danger of unfair prejudice stems from the nature of the evidence and its possible misuse by a jury. In the present case the situation is slightly different. Here, the danger of unfair prejudice is said to arise, to a large extent, from what be described as procedural unfairness.
I am satisfied that unfair prejudice for the purposes of s137 can be constituted by unfairness of that kind. In Haoui v R (2008), 188 A Crim R 331; (2008) NSW CCA 209, the Court of Criminal Appeal ordered a re-trial in which late service of the evidence of an expert had been given by the Crown. Although that case did not deal with the provisions of s 137, the approach taken by the Court, and the conclusion reached, provides some support for the proposition that procedural considerations of the kind which arise in the present case are capable, in a given set of circumstances, of giving rise to the kind of unfairness to which s 137 is directed.
The late stage at which the accused and his counsel in the present case have been confronted with this evidence, although not determinative of the issue, is clearly relevant. In my view it is completely unacceptable, for the reasons that I have already stated, for an accused person to be confronted with such evidence, not only in the midst of a trial but virtually at the close of the Crown case, and in circumstances where the principal Crown witness has completed his evidence.
It goes without saying that there are disclosure obligations on the part of the prosecuting authorities. In this case, on the evidence before me, those obligations have not been met. I do not lay the blame for that at the feet of the Crown Prosecutor. He was only provided with the material recently himself, but the timing and the chronology of the events to which I have referred support the conclusion that someone was clearly aware of the existence of this material long before now. No explanation has been provided as to why it was not discovered.
I should also add that I have some difficulty accepting the Crown's submission that he only became aware of the fact that identification was in issue on 24 October. The day before, 23 October, the Crown tendered what is now exhibit K2, seemingly to support the evidence of Taylor, and to go some way to establishing that Rashko is in fact the accused Vukovic. Had there been no issue about identification there would have been little or no need to tender that document.
It is also relevant that the Crown was on notice from the response to its case statement that the accused Vukovic denied being involved in any conspiracy. It must be said that the response filed on behalf of the accused Vukovic to the Crown's case statement is a poorly drafted document which is nebulous in its expression. If it does meet the purposes of the legislation, it does so only barely. Equally, however, the Crown appears to have accepted its contents. The matter became before me on a number of occasions prior to the trial and no issue was raised by the Crown about the obvious inadequacies in the document.
In any event, paragraph (b) of the defence response at least makes it apparent that the case for the accused Vukovic would be that Taylor was not a witness of truth insofar as his evidence implicated the accused. Why no steps were taken to obtain information which was obviously available to support the evidence of Taylor is not explained.
I also find it surprising that in circumstances where Taylor is an indemnified co-conspirator whose evidence will attract a warning under s. 165 of the Act, steps were not taken to ensure that every possible aspect of his evidence was corroborated. Although his statements are not in evidence, I was informed in the course of the argument that as long as 2012 Taylor made one or more statements in which he referred to the issue of doing gyprocking with the accused Vukovic. The calls now sought to be tendered support that assertion, and establishes a link between Vukovic and Popovic which is not otherwise established on the evidence.
It is difficult, in one sense, to determine how Mr Pickin may have cross-examined Taylor differently had he been aware of the material the Crown now seeks to tender. However having considered the matter carefully, I have concluded that I must respect, and give weight to, the fact that I am not privy to Mr Pickin's instructions, nor am I privy to the basis for any forensic decision he has made as trial counsel. The inescapable fact that he is now being confronted with evidence for the first time, and after his cross-examination of Taylor has finished. A combination of those circumstances, in my view, gives rise to unfair prejudice.
Recalling Taylor, and allowing Mr Pickin to further cross-examine him, does not, in my view, remove the danger of unfair prejudice which has arisen. In fact, it has the capacity highlight, and increase, that danger. Recalling Taylor for further cross-examination would necessarily involve Mr Pickin being required to open up an entirely new area of questioning which, for forensic reasons, he did not embark upon when initially cross-examining Mr Taylor.
The circumstances which have arisen are, to say the least, lamentable. However I have concluded, for the reasons given, that the danger of unfair prejudice arising from the admission of the evidence is not only significant, but outweighs any probative value that might attach to the evidence.
Accordingly, for those reasons, the tender of the evidence is rejected.
[3]
Amendments
11 February 2021 - Pseudonyms inserted
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Decision last updated: 11 February 2021