Supreme Court New South Wales Medium Neutral Citation: R v Rice & ors (No 5) [2014] NSWSC 1526 Hearing dates: 31 October 2014 Decision date: 31 October 2014 Jurisdiction: Common Law Before: Bellew J Decision: The application for a verdict by direction is rejected. Catchwords: CRIMINAL LAW – Conspiracy to murder – application for directed verdict of acquittal – whether sufficient evidence identifying accused as a participant in alleged conspiracy – where Crown relied upon direct and circumstantial evidence to establish identification – test to be applied when Crown relies upon inferences – application rejected Cases Cited: Attorney General's Reference Number 1 of 1983 (1983) 2 VR 410 Doney v The Queen (1990) 171 CLR 207 The Queen v Hillier (2007) 228 CLR 618 R v JMR (1991) 57 A Crim R 39 Saffron v The Director of Public Prosecutions; Allen v The Director of Public Prosecutions (1989) 16 NSWLR 397 Category: Procedural rulings Parties: Regina – Crown Colin Ray Rice – Accused Zlatan Popovic – Accused Tevi Koloamatangi – Accused Radomir Vukovic - Accused Representation: 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 Judgment (EX TEMPORE - REVISED) 1. The Crown has indicated that he is about to close the Crown case. Yesterday afternoon, in the course of another argument, Mr Pickin, who appears for the accused Vukovic, informed me that he would make an application at the close of the Crown case for a verdict by direction on behalf of his client. That application has now been made and will be determined on the basis that the Crown is about to close his case. 2. For the purposes of determining the application it is necessary for me to refer briefly to the nature of the Crown case and some of the evidence called in support of it. 3. The Crown case, is that the four accused conspired to murder Dusan Krstic ("Krstic"). That conspiracy is said to have evolved partly in the following way. The accused Popovic approached a person to whom I shall refer by the pseudonym Peter Taylor (Taylor) and put a proposal to him that Krstic be killed. Taylor was promised $250,000.00 in return and, in the event that he was apprehended as a consequence of carrying out the request, he was promised a sum of $150,000 for each year that he spent in custody as a result. 4. Taylor gave evidence that he then contacted the co-accused, Koloamatangi, and put the proposal to him. Taylor also said that in the course of his discussions with the accused Popovic he was informed by Popovic that he (Taylor) would be introduced to another person. On the Crown case that other person is the accused Vukovic. The accused Rice is said to have joined the conspiracy as a consequence of his association with Koloamatangi. 5. On the Crown case Taylor and the accused Vukovic did meet. Taylor gave evidence that a person called "Rashko" (who on the Crown case is the accused Vukovic) drove with him to a number of places, including to Western Sydney where Kristic was said to be residing at the time. It is also part of the Crown case that the accused Vukovic provided a pistol to Taylor which was to be used in the murder. 6. Taylor has given lengthy evidence for the Crown. No identification evidence was led in his examination in chief, although in re-examination the Crown elicited the following: " … male and in his 40s. He is Serbian or Yugoslavian. He is between five and six feet tall. He has a medium build and short grey hair. He speaks with a strong accent. He lived near Kiama. I don't think I ever rang Rasko. I did the gyprocking at Pop's mum's house at some time later. He did the plastering and I was his labourer." 1. Part of the evidence of Taylor was that he was driven to relevant locations by Rasco in a particular vehicle. He was asked (T286 L28 and following): "Q. Did he have a vehicle? A. Yeah, a red four-wheel drive. Q. What sort of four-wheel drive, do you recall? A. I think it was a RAV 4 or - a small medium type four-wheel drive. Q. And it was red coloured, did you say? A. Yes." 1. The Crown tendered, without objection, a document which is now exhibit K2, which establishes that a red Toyota RAV 4 was registered to Nada Vukovic, the accused's wife. The address nominated on exhibit K2 is the same address as that of the accused. 2. In addition, Taylor gave evidence that he had previously worked with Rashko doing gyprocking work at the home of the mother of the accused Popovic. There is uncontested evidence that Vukovic has previously worked as a gyprocker. 3. Mr Pickin has submitted that there is no evidence upon which a jury could conclude that the accused Vukovic is Rashko. He pointed out that there is no direct evidence of identification and that there is no evidence of any association between the accused Popovic and his client. 4. In the course of argument Mr Pickin's attention was directed in particular, to: 1. the evidence of Taylor about the vehicle driven by Rashko; 2. the evidence contained in Exhibit K2; 3. the evidence of Vukovic's address, and the consistency between that address and that which appears on exhibit K2; 4. the evidence given by Taylor as to the gyprocking work he undertook with Rashko; and 5. the evidence that the accused Vukovic was, at one stage, a gyprocker. 1. Mr Pickin submitted that those factors, be they taken alone or in combination, did not sustain an inference that his client was the person Rashko. He submitted that to so conclude would involve impermissible speculation. 2. The Crown submitted that the evidence was sufficient to sustain an inference that Rashko and the accused Vukovic were one and the same person. The Crown relied upon a number of circumstances in support of his argument. 3. He submitted firstly that on the evidence of Taylor the person Rashko had been introduced to him by Mr Popovic. He pointed to the fact that Taylor had said that he had been driven by Rashko in a red RAV 4. He pointed to the contents of exhibit K2 which established that a red RAV 4 was registered to the wife of Vukovic at the same address. The Crown also relied upon Taylor's evidence as to undertaking gyprocking work with Rashko. He submitted that this was consistent with undisputed evidence that Rashko was a gyprocker or plasterer. 4. The Crown argued strongly against the proposition that this evidence was weak and emphasised that that the circumstances upon which reliance was placed necessarily had to be looked at as a whole. It was submitted that when that approach was taken there was a sufficient basis upon which it would be open to the jury to draw the inference that Rashko was indeed the accused Vukovic. 5. It is open to me to direct a verdict of not guilty only if I come to the view that there is a defect in the evidence such that, when taken at its highest, the evidence will not support a verdict of guilty. In Doney v The Queen (1990) 171 CLR 207 the High Court stated the principle in this way (at 214): "It follows that if there is evidence, even if tenuous, or inherently weak or vague, which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision, or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 1. It will be evident from the manner in which the Crown has approached this issue, and his articulation of particular matter upon which he relies, that the Crown case that Rashko is the accused Vukovic is a largely circumstantial one. Even if competing hypotheses or inferences are available to be drawn from the evidence relied upon, that does not mean that I should direct a verdict of not guilty. It is not open to me to direct a verdict of not guilty on the basis that inferences other than those advanced by the Crown might be open: see The Queen v JMR (1991) 57 A Crim R 39. In Saffron v The Director of Public Prosecutions; Allen v The Director of Public Prosecutions (1989) 16 NSWLR 397, Gleeson CJ put the matter in this way (at 401 (citation omitted)): "It is a corollary of the fundamental principle that the prosecution carries the onus of proof of guilt beyond reasonable doubt. That a jury cannot convict on the basis of circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances…It does not follow, however, that simply because it is possible looking at the objective circumstances established by the evidence in a case to construct a hypothesis consistent with the innocence of the accused that the case is not one which is fit to go to a jury. That entirely overlooks the role of a jury in a criminal trial." 1. In making those observations, his Honour referred to such matters having been emphasised in Attorney General's Reference Number 1 of 1983 (1983) 2 VR 410 at 415-416. 2. It follows that if the evidence which is adduced by the Crown is capable of proving that the accused is Rashko, then the case should be left to the jury for its determination. In determining whether this is so, it is important to bear in mind that the evidence must be considered as a whole and not in a piecemeal fashion: The Queen v Hillier (2007) 228 CLR 618. 3. Applying those principles to the present case, I am satisfied that the evidence is capable of satisfying the jury beyond reasonable doubt that Rashko is the accused Vukovic. I have had regard, in reaching that view, to the evidence of Taylor that Rashko drove a red RAV 4 vehicle. This is consistent with the contents of Exhibit K2, which shows a car fitting that description registered to the wife of the accused Vukovic at the same address. I have also had regard to Taylor's references to having done gyprocking work with Rashko at the home of the mother of the co-accused Popovic. This is consistent with uncontested evidence that the accused was in fact a gyprocker at the relevant time. 4. Even if a view were reached that such evidence is not particlarly strong, the decision in Doney makes it clear that even if the evidence is weak or vague, providing it is capable of satisfying a jury beyond reasonable doubt of the offence alleged, then the matter should be left to the jury. 5. For these reasons, the application for a verdict by direction is rejected. ********** Amendments 11 February 2021 - Pseudonyms inserted 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: 11 February 2021