R v Rice & ors (No 3) [2014] NSWSC 1522

Supreme Court New South Wales

Medium Neutral Citation: R v Rice & ors (No 3) [2014] NSWSC 1522 Hearing dates: 30 October 2014 Decision date: 30 October 2014 Before: Bellew J Decision: The tender of the evidence is rejected. Catchwords: EVIDENCE - relevance - probative value - danger of unfair prejudice Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Regina - Crown Colin Ray Rice - Accused Zlatan Popovic - Accused Tevi Koloamatangi - Accused Radomir Vukovic - Accused Representation: Counsel: Mr P Barrett - Crown Mr C Watson - Accused Rice Mr L Brasch - Accused Popovic Ms C Davenport SC - Accused Koloamatangi Mr Pickin - Accused Vukovic 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 Publication restriction: Nil

Judgment (EX TEMPORE - REVISED) 1The Crown has sought to tender, in its case against the accused Zlatan Popovic, evidence of two conversations. The first was recorded on 19 September 2007, the second on 18 October 2007. The transcripts of those conversations have been marked as exhibits VD1 and VD2 respectively. 2The conversation set out in exhibit VD1 is between the accused Popovic and a person referred to as "an unidentified male". The significant passage of that conversation identified by the Crown commences at about p. 128.7 as follows: "UM: ...that I can tell you. Everything is the same, we are alright, healthy and alive, that's the most important. POPOVIC: Any news there from here? UM: From? POPOVIC: From here, from Australia. Are you getting any news? UM: I have haven't heard anything. I don't know what you're referring to. POPOVIC: I don't know...only if...just to see what people are saying there. UM: (Laughs) I don't know...I don't know what you're referring to. POPOVIC: Ah...alright. Here (unintelligible) UM: Unintelligible. POPOVIC: Huh? Say again... UM: Are you okay? POPOVIC: Well, like...not bad. Ring... UM: I'm saying you're okay? POPOVIC: Well, I am personally okay but my mother worries a lot. UM: What is...what is up with (sounds like) Christina? POPOVIC: Well, nothing, just ring with her when you can, have a chat with her ... tell her... to see how she is. She's worried a little, you know some people heard that someone has placed... UM: You are making her worry? POPOVIC: No. I am not making her worry. Some idiot has placed a price over my head so she's worried a little you know. UM: Be careful what you're doing there, man. POPOVIC: I'm not doing anything. UM: You heard me? POPOVIC: I'm enjoying myself, enjoying myself." 3The relevant passage of the second call, which is between the accused and a person identified as Vaso Davidovic ("VD"), commences at about p. 382.5. There had been, before that part of the conversation, references by the accused to the fact that he was about to be married. The following is then recorded: "POPOVIC: Well...eh... nothing then...is there a chance for me to see you in the next few days to give you the invitation so if you want to come to the wedding. VD: Don't worry, doesn't matter. POPOVIC; and we'll have a chat. VD: Listen, you don't need to worry about that, it doesn't matter, you don't need to give it to me, I know just tell me when it is, you don't need to come for that. POPOVIC: Yeah but just to let you know, I don't know if you know that Duca and I had a bit of a tussle. VD: When? POPOVIC: About two months ago or so. VD: I don't know. POPOVIC: About a month and a half ago. VD: I don't talk...I came to the funeral... POPOVIC: Uh ha. VD: I came to the funeral because, you know that I knew Dragan and he used to come to my house and he was in gaol together with my Dragan and all that and to tell you honestly I ran way before...immediately when there was a little bit of...I took off. POPOVIC: Mm VD: I went home, I did not talk to anyone. POPOVIC: Eh VD: And I don't know, to tell you honestly, I don't want to get involved in that, Zlatan. POPOVIC: Well we didn't have a tussle. We just said he has his and I have my own life. I am getting married. VD: Yes. POPOVIC: And he has his own [life] VD: It would have been better if the two of you didn't...but... POPOVIC: I know that. But it was in his hands. VD: I would have liked it better if the two of you didn't...but what can one do. That's life. POPOVIC: It's not like we had a fight and we're enemies but he just said what he had to say and I said 'Okay, no problem. I have mine and you have yours." VD: Yes. POPOVIC: [That's it.]" 4The conversation then continued with reference to the fact that the accused would not be inviting the person referred to as "Duca" to his wedding. On the Crown case "Duca" is Dusan Krstic, the target of the alleged conspiracy to murder to which the four accused were said to be a party. 5As to the first call Mr Brasch, who appears for the accused, submitted that the contents were not relevant. He submitted, in particular, that it was no part of the Crown case that the accused Popovic had "a price placed over (his) head". The Crown submitted that although the evidence was (as he described it) "cryptic", it was nevertheless relevant. The relevance, the Crown submitted, stemmed from the fact that although it was not part of the Crown case that the accused had a "price over his head" it was nevertheless relevant that the accused believed this to be the case. 6As to the second call, there was reference to the accused and Duca having had what was described as a "bit of a tussle". There is some issue about whether the word "tussle" has been accurately translated. However, for the purposes of the argument the Crown accepted that the expression "bit of a tussle" equated to what might be described as a difference of opinion between the accused and Duca. 7Mr Brasch conceded that the conversation was relevant but submitted that the evidence should be excluded under s. 137 of the Evidence Act 1995 ("the Act"), on the basis that the danger of unfair prejudice outweighed its probative value. The essence of Mr Brasch's submissions was that the evidence lent itself to misuse by the jury, either by the application of an illegitimate process of reasoning or alternatively, as a consequence of too much weight being placed on it. It was submitted that it would be something of a quantum leap to reason that simply because the accused and Duca had some difference of opinion, the accused may have been motivated, as a result, to have entered into a conspiracy to kill him. 8The Crown made it clear that he would not be putting to the jury a submission in those precise terms. The Crown also submitted that this was one of a number of pieces of evidence upon which reliance was placed and that in making an assessment of any unfair prejudice it was obviously necessary to view the evidence as a whole. 9As to the first conversation, I am unable to ascertain the relevance, to any issue in this trial, of anything that was said. The Crown's description of the conversation as "cryptic" was kind. Even allowing for the width of s.55 of the Act, the fact that the accused thought that somebody had placed a price on his head is irrelevant to any issue in this trial. It is not, as I understand it, going to be put by the Crown that such a perception on the part of the accused provided a motive to enter into the alleged conspiracy. Accordingly, the tender of that evidence is rejected. 10The issue in relation to the conversation in Ex VD2 is slightly different, given Mr Brasch's concession that the evidence is relevant. The question for determination in relation to that conversation is whether, having regard to the terms of s137 of the Act, the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. If I come to the conclusion that it is so outweighed, the section mandates the exclusion of the evidence. 11I accept that the Crown will not be putting a submission to the jury that what was said in that conversation provides a motive for the accused to have entered into the conspiracy. That, however, does not provide a complete answer. It does not, in particular, prevent the jury from ascribing far greater weight to that conversation than is warranted in all of the circumstances. This is particularly so in circumstances where, even if there had been some difference of opinion between them, the accused and Duca had, apparently "agreed to disagree" and had gone their separate ways without incident. 12In all of these circumstances I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice and the tender of that evidence is also rejected.