Supreme Court New South Wales Medium Neutral Citation: R v Popovic; R v Koloamatangi (No 2) [2017] NSWSC 1022 Hearing dates: 1,2 August 2017 Decision date: 04 August 2017 Jurisdiction: Common Law Before: N Adams J Decision: See paragraph [90] Catchwords: CRIMINAL LAW – murder trial – application to exclude evidence on the basis of relevance and on basis that probative value is outweighed by the danger of unfair prejudice CRIMINAL LAW – application to exclude evidence of representations made by the deceased – hearsay rule Legislation Cited: Evidence Act 1995 (NSW), ss 55, 59, 65, 67, 135, 137 Cases Cited: Colby v The Queen [1999] NSWCCA 261 IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 Papakosmas v The Queen (1999) 196 CLR 297 Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112 R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Category: Procedural and other rulings Parties: Regina (Crown) Zlatan Popovic (Accused) Tevi Koloamatangi (Accused) Representation: Counsel: Mr P Barrett (Crown) Mr L Brasch (Accused Popovic) Ms C Davenport SC (Accused Koloamatangi) Solicitor: Solicitor for Public Prosecutions (Crown) Toomey Lawyers (Accused Popovic) Katsoolis & Co (Accused Koloamatangi) File Number(s): 2012/00232565; 2012/00370471 JudgmenT Background 1. On 31 July 2017, Zlatan Popovic and Tevi Koloamatangi pleaded not guilty before me to one charge that on 8 September 2007 they did murder Dragan Sekuljica. Counsel foreshadowed that a number of pre-trial rulings would be required prior to the empanelment of the jury. 2. On 1 August 2017, I considered a number of objections made by Mr Brasch, counsel for the accused Mr Popovic, and Ms Davenport SC, counsel for the accused Mr Koloamatangi, to material sought to be adduced by the Crown against both accused at the trial. I received evidence and heard submissions at that time. On 2 August 2017, I received further exhibits on the voir dire and heard further submissions. 3. Both accused were previously found guilty of this murder on 29 May 2014, as were two other co-accused, Dalibor ("Daki") Bubanja and Jason Hristovski, after a trial by a jury. On 21 September 2016, the Court of Criminal Appeal ("CCA") quashed all four convictions: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202. New trials were ordered in relation to these two accused. Mr Bubanja and Mr Hristovski were acquitted on the basis that the CCA was satisfied that the jury's verdicts in relation to them were unreasonable and could not be supported having regard to the evidence. 4. The first trial proceeded on the basis that all four men were part of a joint criminal enterprise to murder the deceased. Based on the relevant legal principles concerning complicity, all evidence led in the trial was admissible against all of the accused if the Crown could establish the participation of each accused in that agreement. Following the decision of the CCA, evidence admitted at the first trial concerning Mr Bubanja is no longer admissible in respect of the present accused unless the Crown can establish its direct admissibility against them. The present objections to evidence sought to be led by the Crown at the trial all concern this issue. 5. Determination of each of the objections involves a detailed consideration of the relevant evidence in the context of the anticipated Crown case overall. Although evidentiary rulings of this kind are usually best addressed during the course of the trial when the significance of each piece of evidence is more readily apparent, counsel all agreed that these rulings were required before the trial commenced. The Crown case 1. Neither a Crown case statement nor written submissions outlining the nature of the Crown case at trial were tendered on the voir dire. I indicated to counsel that I had read the decision of the CCA and thus was aware in general terms of the Crown case as it was run at the first trial. However, that judgment does not summarise the evidence as against these two accused, but rather that against the two accused persons, Mr Bubanja and Mr Hristovski, who were acquitted by the CCA. 2. The only material initially tendered on the voir dire was the witnesses' statements made in 2007 concerning the relevant evidence to which objection is now taken and some CCTV footage. During submissions, it became apparent that the witnesses had not given evidence at the first trial consistent with their witness statements. The transcript of the evidence given at trial by the various witnesses was then tendered, as was the transcript evidence of various other witnesses said to be relevant to the issues to be determined. By reference to these documents, the CCA decision and the oral submissions of counsel, it seems that the Crown case can be summarised in general terms as follows. 3. At some stage prior to 2006 there had been a falling out between Zoran Bubanja (who is the father of Daki Bubanja) and the deceased. I shall refer to Zoran Bubanja as Mr Bubanja Sr and Daki Bubanja as Mr Bubanja Jr. The falling out concerned whether the deceased had been paid for work he had done for Mr Bubanja Snr in the construction of a block of units in Figtree. This evidence comes from the deceased's wife and is not objected to. 4. In May 2006, both Mr Bubanja Sr and Mr Bubanja Jr, along with Marko Bubanja (another son of Mr Bubanja Sr), a man known in the proceedings as Witness C and two other men, attended the premises of the deceased shortly after the deceased had been released from jail. They requested that the deceased come outside to meet them. Mrs Sekuljica described the incident as an "argument" whereas Witness C describes the incident as a more confronting and potentially violent incident. This evidence is the subject of an objection. 5. On 31 August 2017, a few days after Mr Bubanja Sr was released from jail, there was an arrangement that the deceased meet with Mr Bubanja Sr and Mr Bubanja Jr at the North Wollongong Hotel. There is CCTV footage taken from different angles of those men engaged in a conversation from about 4.15 pm in an area away from the main area in which people were drinking in the Hotel. At times, the conversation includes finger pointing and arm movement. At 4.40 pm, the deceased and Mr Bubanja Sr can be seen separating from Mr Bubanja Jr and moving away to a nearby area where they continue the conversation and then return to their original position at about 4.45 pm. The deceased leaves their company around 10 seconds after that. They remain in different parts of the Hotel after that without having a further contact. That CCTV footage is the subject of an objection. 6. The deceased's wife states that the deceased telephoned her after the meeting at the North Wollongong Hotel and asked her to collect him, which she did. He went looking for Mr Popovic who telephoned him back and they had an argument in which the deceased called Mr Popovic a traitor. Most, but not all, of this evidence was given at the first trial. The Crown seeks to call additional evidence from the deceased's wife that was in her statement but not adduced at the first trial. That evidence is objected to. 7. The Crown case relies upon the evidence of two informer witnesses, one of whom might also reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. I have made certain orders in relation to the identity of these witnesses. In this judgment they will be referred to as John Taylor and Witness C. I was not provided with the transcript of their evidence, nor with a summary of the evidence that it is anticipated that they will give against these two accused. I was provided with one statement from Witness C confined to three paragraphs in relation to which objection was taken (to which I refer above at [9]), but otherwise I am not aware at this stage of precisely what evidence it is proposed that these witnesses give against these accused as it was not summarised in the CCA decision. It is to be inferred that that evidence forms the main part of the Crown case. 8. There was a dinner at a Chinese restaurant in Kings Cross on the evening of 7 September 2017. Mr Popovic was present with his fiancée, as was Mr Koloamatangi with his girlfriend. A cousin of Mr Popovic, his girlfriend and the second informer witness, John Taylor, were also there. After that dinner, Mr Taylor and Mr Koloamatangi returned from Sydney to Wollongong. It is anticipated that Mr Taylor will give evidence as to collecting a gun. 9. Mr Taylor and Mr Koloamatangi arrived at Splashes Nightclub and waited for the deceased. During this time, there was a considerable amount of telephone contact with Mr Popovic. 10. Mr Bubanja Jr was present at Splashes, with Miodrog "Big Mickey" Milosic and Stanko "Stan" Petrovic, from 11.27pm. The deceased was present from 12:30am. During the time that the deceased and Mr Bubanja Jr were both at Splashes, employees of the club observed them having some form of disagreement in the toilets. This evidence is the subject of an objection. 11. CCTV shows the deceased and Mr Bubanja walking out of Splashes and crossing the road to get into a taxi at approximately 3am. The deceased was then shot and wounded by a gunman wearing a hooded jacket. He ran back into Splashes and was pursued by the gunman, who shot him again at close range in the back of the head inside the nightclub before running back out again. 12. There was then a 20-second telephone call at around 3.11am from Mr Koloamatangi to Mr Popovic. 13. Mr Taylor drove Mr Koloamatangi back to Sydney shortly after 3am on 8 September 2007. 14. Overall, the Crown case is that Mr Bubanja Sr was in a long-running dispute with the deceased of which Mr Bubanja Jr was aware. Mr Popovic had previously been friends with the deceased, but as he became close friends with Mr Bubanja Sr he took Mr Bubanja Sr's side in the dispute, such that the deceased considered him a "traitor". Matters escalated until such time when Mr Popovic arranged to have the deceased killed and he contracted Mr Koloamatangi to do so. On the crown case Mr Koloamatangi is the shooter. 15. In the context of the above narrative, I was asked to rule on the admissibility of discrete aspects of the Crown case. In each instance, the primary objection was to relevance with, an alternate argument relying upon ss135/137 of the Evidence Act 1995 (NSW). Counsel for the accused also objected to some of the evidence on the basis that it was hearsay evidence. Before turning to each of the objections, it is pertinent to have regard to the relevant provisions of the Evidence Act. The Evidence Act 1. The threshold of admissibility is relevance. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at [6]: "Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise." 1. Section 55(1) of the Evidence Act relevantly provides: "(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." 1. Section 55 of the Evidence Act was considered by the High Court in IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 ("IMM"). The majority (French CJ, Kiefel, Bell and Keane JJ) observed the following at [38]- [39]: "By s 55, evidence is relevant if it 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.' There can be no doubt that the reference to the effect that the 'could' have on proof of a fact is a reference of the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact. The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words 'if it were accepted', which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case, its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance." 1. The task of determining whether evidence is relevant requires an assessment of the capability of evidence rationally to affect the assessment of the probability of the existence of a fact in issue. That exercise is to be undertaken on the assumption that the jury will accept the evidence, an assumption that is compelled by the words "if it were accepted" in s 55: IMM at [49]. It is not the role of the trial judge, at the point of assessing relevance, to enquire into the weight that a jury may give to evidence. A piece of evidence that gives rise to an inference consistent with guilt is probative unless that inference is preposterous or incredible in the sense explained by the majority in IMM at [39]. 2. Section 59(1) of the Evidence Act provides that: "Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation." 1. This is known as the hearsay rule. One of the exceptions to the hearsay rule is contained in s 65(2)(c) of the Evidence Act. Section 65(1) provides that that section applies in a criminal proceeding if a person who made a previous representation is "not available" to give evidence about an asserted fact" 2. Section 65(2)(c) provides: "The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: … (c) was made in circumstances that make it highly probable that the representation is reliable. …" 1. Clause 4(1)((a) of the Dictionary to the Act provides that, "For the purposes of this Act, a person is taken not to be available to give evidence about a fact if the person is dead." 2. Section 137 of the Evidence Act provides that: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. In applying s 137 of the Evidence Act, 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." 1. As the High Court confirmed in IMM, 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. 2. 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..." 1. With these evidentiary principles in mind, I turn to consider the admissibility of the relevant parts of the Crown case in relation to which objection is taken. May 2006 incident involving members of the Bubanja family 1. The first event is that described in broad terms at [9] above. It concerns the evidence of the deceased's wife and the witness known as Witness C about an incident in May 2006. The evidence is as follows 2. It is anticipated that the deceased's wife will give evidence of an occasion when Mr Bubanja Sr, who was intoxicated, and some other men visited the unit block where she and the deceased resided with their children. Mr Bubanja Sr asked for the deceased to come outside, but she did not permit him to do so. She then had her husband turn his mobile telephone off. 3. Evidence of this event is also given by Witness C, who was one of the men present with Mr Bubanja Sr at that time. His evidence is that Mr Bubanja Sr and the other men had said, "You fucking dog, you're dead", and that Mr Bubanja Sr, Mr Bubanja Jr and another man, Dario, started kicking the doors. 4. During submissions, I was informed that there is no objection to evidence being led that there was animosity between the deceased and Mr Bubanja Sr. The basis of the objection to this particular violent incident in May 2006 is that it was at a time prior to Mr Popovic's being involved in the dispute. 5. In order for this evidence to be admissible against Mr Popovic, in circumstances where Mr Bubanja is not on trial, knowledge of it has to be able to be imputed to Mr Popovic in some way. No evidence was put before me capable of proving that Mr Popovic knew of this incident. Rather, the material is said to be relevant to show how long the dispute was on foot and, presumably, the intensity of it. 6. The events in question occurred in the absence of Mr Popovic and over a year before any evidence in the case of any hostility between Mr Popovic and the deceased. In the absence of any direct evidence linking that evidence to Mr Popovic, the evidence can do no more than establish that as at 2006, members of the Bubanja family sought to confront the deceased. 7. I am not satisfied that this evidence is relevant in the sense that it could rationally affect the jury's assessment of the probability of the existence of a fact in issue in the proceeding; namely, whether the accused Mr Popovic had a motive to kill the deceased as at 8 September 2007. 8. In any event, even if it could be established that the material was relevant in some general way as going to Mr Popovic's alleged motive, I would exclude it under 137 of the Evidence Act on the basis that the evidence of Witness C is of an act of violence showing hostility towards the deceased on the part of the Bubanja family in circumstances where none of the other evidence as to this pre-existing hostility proposed to be led by the Crown against these accused is of such a threatening nature. I am satisfied that there is a real risk that the jury would misuse the evidence by imputing that conduct to the state of mind of the present two accused. 9. For these reasons, I do not propose to permit the Crown to lead this evidence at the trial. Events at the North Wollongong Hotel on 31 August 2007 1. At the first trial CCTV footage was played of a meeting between the deceased and Mr Bubanja Snr at the North Wollongong Hotel on 31 August 2007. Mr Bubanja Jr was also present. A lengthy conversation can be observed. The deceased had a telephone conversation with Mr Popovic after he left. Objection is taken to the playing of that footage at this trial in circumstances where Mr Bubanja is no longer on trial. Objection is also taken to further details being elicited from the deceased's wife about the events leading up to and after that the meeting at the hotel. 2. Although the deceased's wife gave evidence at the first trial, not all of the evidence in her statement was elicited at the first trial. This appears to be due to a combination of oversight and the fact that not all of the detail in her statement had the same significance when Mr Bubanja Jr was also on trial. Now that the trial is only against these two accused the Crown has re-considered her statement and now wishes to adduce more details from it than occurred at the first trial. 3. The two objections concerning the events on 31 August 2007 are thus to the CCTV footage and to the additional evidence of the deceased's wife. 4. The evidence relevant to this objection is as follows. 5. In the afternoon of 31 August 2007, the deceased attended the North Wollongong Hotel with some friends, including Mr Freeborough. His wife later collected him from that Hotel. The Crown case is that there was a heated dispute as between the deceased, Mr Bubanja Sr and Mr Bubanja Jr at that time. That evidence comes from three sources. 6. First, there is CCTV footage taken at the hotel. Some of this CCTV footage was played in court on the voir dire. I viewed other parts of it in Chambers. Camera 7 was played in court. The footage shows the three men in the background, away from the table where the deceased had previously been drinking with his friend Mr Freeborough. Those three men are Mr Bubanja Sr and the deceased, with Mr Bubanja Jr standing with them. I viewed footage from Camera 2 in Chambers. It shows the same event from a different angle. In that footage, the three men are closer to the middle of the screen. What is depicted in the footage is a matter on which counsel are unable to agree. 7. Second, Mr Freeborough gave evidence at the first trial that he was at the North Wollongong Hotel with the deceased on the afternoon of 31 August 2007. Although he saw Mr Bubanja Sr having a conversation with the deceased whilst Mr Bubanja Jr was present, he did not hear the conversation nor did the deceased speak to him about it afterwards. 8. Third, the deceased's wife gives an account of the circumstances surrounding the event depicted in the CCTV footage in her statement, made on 20 September 2007. She states that on that day Mr Bubanja Sr was released from gaol (31 August 2007), the deceased received a telephone call from Mr Bubanja Jr saying that Mr Bubanja Sr wanted to meet up with him. The deceased went to the North Wollongong Hotel for a drink with Robert Freeborough and others. Her statement is then in these terms: "Zoran went to the hotel and spoke to Dragan, and this turned into an argument. Zoran attended the hotel with Daki and Marko Bubanja, a few Lebanese boys and a Macedonian boy Zlatan Popovic was also there but waited outside in a car with another person. I believe that this was just a heated argument." 1. The deceased's wife did not give the above evidence at the first trial for the reasons that I have already set out. At the first trial, she did, however, give most of the following evidence contained in her statement of 20 September 2007: "After this happened Dragan called me and I picked up [sic] from the hotel. I picked him up and he appeared to be calm, He asked me to drive past Mama's Pizza. This store is owned by Zlatan Popovic's mother and is in Crown Street, Wollongong. Dragan went in looking for Zlatan Popovic, while I waited outside in the car with the kids. Dragan was told that he wasn't there by Lila Alvajana so Dragan came straight out. We went to Figtree to get a kebab for Dragan. On the way Dragan received a phone call from Zlatan. This conversation over the phone was a heated argument. I remember that the argument seemed to be over the fact that Zlatan was becoming close friends with Zoran and Daki Bubanja. Dragan didn't like them being friends. Dragan insulted Zlatan Popovic and his mother. Dragan said "You motherfucker, you trader", "You are a bigger trader than Georgiva". This was a reference to Serbian history when a King betrayed the Serbian people to the Turkish. Dragan also asked, "What were you doing waiting in the car". I believe that Zlatan replied by saying "See how my friend's stuffed you up", "Let's meet up at Mt Keira in the bush". Dragan said, "I'll meet you anywhere, you mother fucker". The call ended at this time by Dragan hanging up on him. This phone conversation was all in Serbian." [emphasis added] 1. Mrs Sekuljica goes on in her statement to say that the deceased and Mr Popovic used to be close friends but in recent times had begun to have a falling out. 2. Her evidence at the second trial was that the telephone call took two – three minutes and they were both talking loudly. The deceased told Mr Popovic that he was like one of the Serbian leaders who was a traitor to the Serbian people. She later gave evidence that this person was someone who "swapped sides." I note in passing that there was cross-examination at the first trial about the use of the word "trader" in her statement rather than "traitor". Nothing turns on that for present purposes. 3. Thus, it can be seen that evidence was not led at the first trial from this witness regarding the hearsay assertion that Mr Popovic was outside the hotel at the time of the relevant conversation, nor the assertion that there was a "heated argument" at the North Wollongong Hotel. Nor was the conversation in the italicised portion of the statement above at [51] led in full at the first trial. The Crown Prosecutor was unable to indicate why all of the italicised portion was not led but allowed for the possibility of oversight. No objection to any of that material is recorded on the transcript of her evidence at the first trial that was provided to me. 4. Turning first to the question of the admissibility of the CCTV footage, the Crown Prosecutor submitted that it goes to explain the heated conversation between Mr Popovic and the deceased that almost immediately followed the meeting at the Hotel between the deceased and Mr Bubanja Sr. He submitted that it was clearly an animated discussion that took place in an area separate from those patrons who were drinking. The men were not observed to be standing around having a drink together; they are to be observed having an animated discussion. He further submitted that the fact of the conversation was sufficient to cause the deceased to go looking for Mr Popovic afterwards and to have the heated conversation that he had with him over the telephone. 5. Counsel for Mr Popovic, Mr Brasch, submitted that the deceased's widow will give evidence that she collected him from the Hotel and that that is all that is needed. He submitted that the CCTV footage does not establish that there were heated exchanges between Mr Bubanja Sr and the deceased at the North Wollongong Hotel. He submitted that, in order for the evidence to be relevant there must be at least some rational basis upon which the evidence can establish that there was such an exchange. He also relied upon s 135 of the Evidence Act in that there was no need for the jury to watch 45 minutes of CCTV footage. It was also submitted that there was a risk the evidence could be misused by the jury. Even if it be accepted that there was some dispute between the men at the Hotel, it was submitted that unless it can be established that it was a dispute about the outstanding debt then it is not relevant. 6. Ms Davenport submitted that the background of ongoing animosity between unrelated people is prejudicial. In circumstances where it is to be presumed that the Crown is calling neither Mr Bubanja Sr nor Mr Bubanja Jr as witnesses, the jury is left to speculate as to the subject matter of the conversation. It may have been that Mr Bubanja Sr or Jr provided the deceased with some information about Mr Popovic that caused him to make the telephone call. It could have been anything. What actually was said is unknown. 7. The primary objection to the CCTV footage was that it was not relevant within the meaning of s 55 of the Evidence Act. That is, the fact that the deceased had a meeting with the Bubanja family on 31 August 2007 is not relevant to the guilt of Mr Popovic and Mr Koloamatangi. The submission was based on the premise that it cannot be gleaned from the relevant footage that anything beyond a lengthy conversation took place between the three men. 8. I note that, in the decision of the CCA, Adamson J, with whom the other members of the Court agreed, indicated at [312] that she had seen the relevant footage and had formed the view that she was unable to characterise it as showing a heated exchange. Her Honour found that, even if it did show a heated conversation, it could not be inferred that it referred to the previous debt said to be owed by Mr Bubanja Sr to the deceased. I am not bound by these observations of her Honour, nor is it clear to me that her Honour is describing what can be seen in the footage taken from both camera angles. The images in Camera 2 are clearer than in Camera 7. 9. What is to be gleaned from CCTV footage can often be a matter in dispute. If the interpretation of it advanced by the Crown was not open at all, then I would not leave it to the jury. Having viewed the footage a number of times, I am satisfied that it shows an animated discussion that lasts for some time and is such that other persons in the vicinity seem to be staring at the men from time to time. The men involved stand very close to each other. An inference is available that this was a meeting for a purpose other than just having a few drinks. I am not satisfied that the footage is incapable of being interpreted in the manner suggested by the Crown. On that basis, it passes the threshold of relevance within s 55 of the Evidence Act. 10. Nor am I satisfied that there is any risk that the jury would misuse this evidence such as would lead me to exclude it under s 137 of the Evidence Act. I have given this question careful consideration in light of the submissions made by counsel for the accused that without knowing exactly what was said during the conversation, the jury could only speculate about it. The motive upon which the Crown relies is that when Mr Popovic became close friends with Mr Bubanja Sr he took his side in the dispute with the deceased. To that extent, the fact that the dispute between the deceased and Mr Bubanja Sr is ongoing is relevant, as is the fact that the telephone conversation between Mr Popovic and the deceased occurred so soon after the meeting with the Bubanja family at the Hotel. 11. Mr Popovic's motive for wanting to kill the deceased, as relied upon by the Crown, arises from him taking Mr Bubanja Sr's side in his ongoing dispute with his previous friend, the deceased. Although the Crown is not entitled to rely upon Mr Bubanja Jr being involved in the murder, that is not to say that the fact that the dispute was ongoing so close to the time of the shooting, and that Mr Popovic was now part of that dispute, is not relevant. Although the dispute was over money owed it does not seem to me that the reason for the ongoing animosity is as important as the fact that it existed at all at that point in time. In this way, I am satisfied not only that this evidence is relevant but also that there is no danger that it will be used by the jury in a manner logically unconnected with the issues in the case. The jury will be directed that the limited relevance of the evidence is to place the subsequent telephone conversation with Mr Popovic in context. 12. There is some force, however, in Mr Brasch's submission that it seems unnecessary to play a significant amount of this footage to the jury to establish this narrow point. It would be preferable if the footage could be edited to the pivotal events but that is entirely a matter for the Crown. I raised with counsel whether some agreement could be reached as to what was depicted in the CCTV footage such that the issue could be put before the jury by some Agreed Fact but the Crown Prosecutor and counsel for the accused are unable to agree as to what is depicted in the footage thus the need for the footage to be shown. It will ultimately be an issue for the jury. 13. Turning next to the evidence of the deceased's wife, it is to be noted that no objection is made to her evidence as to the conversation between Mr Popovic and the deceased. Although that evidence is hearsay evidence, much of it was led at the first trial and the transcript does not reflect that it was objected to. It would be admissible under s 65(2)(c) of the Evidence Act in any event. The Crown Prosecutor proposes to lead all of the conversation in the italicised portion above at [51] at this trial. 14. Mr Brasch objected to the leading of a portion of the italicised conversation for a hearsay purpose; namely, to establish that Mr Popovic was in fact outside of the Hotel at the relevant time. He otherwise had no objection to the italicised passage. He did object, however, to the hearsay evidence earlier in the witness statement to the effect that what occurred at the North Wollongong Hotel was a "heated argument" and also to the effect that Mr Popovic was present with another man in a car outside the Hotel. He indicated that no notice had been provided under s 67 of the Evidence Act that such evidence would be led at the second trial. 15. I propose to permit all of the conversation in the italicised portion above at [51] to be admitted. There was no real objection to it, save for the fact that a direction will have to be given that it is not proof of the fact that Mr Popovic was outside the hotel at the relevant time. I have had particular regard to the fact that part of this conversation is a reference to what his friend or friends had done earlier. Given the timing of this telephone conversation, it seems to me that it would be open to the jury to infer that this is a reference to the previous meeting at the Hotel. In this way, the meeting with the Bubanjas is relevant as it puts into context the later statement of Mr Popovic and why the deceased went looking for Mr Popovic when he left the Hotel. This could have been communicated to Mr Popovic whether or not he was present at the Hotel. 16. I do not propose, however, to permit the Crown to lead the hearsay evidence of what the deceased may have told his wife about it's being a heated argument and about Mr Popovic's presence outside the Hotel at this stage of the proceedings. 17. Mrs Sekuljica made her statement about these events on 20 September 2007, approximately three weeks afterwards. Unlike the conversation in the italicised portion at [51] above, which is in the first person and contains some detail, she did not set out in her statement the basis for her knowledge about the "heated argument" and/or about Mr Popovic being present outside the Hotel in the same detail. As Mr Brasch submitted, it is currently unknown whether the suggestion that Mr Popovic was present in a car outside the Hotel was something that the deceased told his wife or whether it was something said by someone else to the deceased who then told her. If the latter were the case, the evidence would be second-hand hearsay in any event. 18. The Crown Prosecutor suggested that the source of her information could be an inference arising from what she overheard the deceased say to Mr Popovic in the telephone conversation. If that is the case it would go against its admissibility. I am simply unable to rule on whether the evidence is admissible without knowing the witness's recollection as to the basis for those parts of her statement and whether it is first or second-hand hearsay. I accept the Crown submission that, if otherwise admissible evidence is not led at one trial, that does not preclude reliance upon it at a subsequent trial. The difficulty is that the evidence is hearsay evidence to which objection has been taken. In circumstances where Mrs Sekuljica did not give evidence on the voir dire, it is simply unknown at this stage of the proceedings precisely what evidence she could give on the issue. 19. Although I am mindful that these rulings were sought before the trial, there is insufficient material before me to enable me to consider the terms of s 65(2)(b) of the Evidence Act properly without further details as to what the proposed evidence would be and the basis for it. I will permit the Crown Prosecutor to revisit this issue prior to the witness giving her evidence but based on the current state of the evidence I do not propose to admit this hearsay evidence at this stage 20. As for the objection to this evidence on the basis of a lack of notice as required by s 67 of the Evidence Act, I simply note that the court may dispense with such notice requirements in appropriate circumstances. In this case, the statement of the deceased's wife was presumably served on the legal representatives for both accused as part of the brief after they were charged. It was made on 20 September 2007. A trial has already been conducted in which she has given hearsay evidence as to what the deceased told her. These circumstances are a sufficient basis to dispense with the notice requirements in s 67 if the evidence was otherwise admissible. The argument at Splashes Nightclub in the early hours of 8 September 2007 1. The Crown case against Mr Bubanja Jr at the first trial was that he played the role of some form of lookout, keeping Mr Popovic and Mr Koloamatangi abreast of the deceased's whereabouts on the night of 7 September 2007. 2. The evidence establishes that the deceased was in the company of Mr Bubanja Jr whilst he was at Splashes Nightclub between the hours of 12am and 3am on 8 September 2007, just prior to his death. I am informed that there is evidence that, at the time of the shooting, Mr Bubanja Jr was in a taxi that the deceased had called and in which they were supposed to leave together. There is no objection to any of this evidence being led at the second trial. 3. Objection is taken, however, to evidence from three witnesses at the nightclub that there had been some sort of dispute between Mr Bubanja Jr and the deceased in the hours before the shooting and that a conversation was overheard in which the two men referred to a dispute "needing to be fixed". Two other witnesses present with the men that night did not observe any argument. The basis for the objection is that this evidence is not relevant in circumstances where Mr Bubanja Jr is no longer on trial. 4. The basis upon which the Crown seeks to lead this evidence at the second trial is not to prove that Mr Bubanja Jr was there to play a role in the murder, but rather to show that the dispute between the Bubanja family and the deceased was ongoing and thus that the basis for Mr Popovic's motive for the murder was continuing. The evidence is relevant, it was submitted, to show that the basis for Mr Popovic's antipathy towards the deceased was ongoing in the sense that there had been no rapprochement between the Bubanjas and the deceased as at 8 September 2017. 5. I have been provided with the transcript of the evidence of those witnesses given at the first trial on this issue and whom it is proposed will be called as witnesses again at the second trial. I am also informed that there is CCTV footage depicting the deceased in the company of Mr Bubanja Jr and another man whilst he was at Splashes. 6. The evidence of Colin Walker, who was a security officer at Splashes, in his statement of 1 October 2007 was that he saw three men, Mr Bubanja Jr, a man fitting the description of the deceased and a man known as "Big Mickey", at Splashes Nightclub on the night that the deceased was shot. At one stage, he saw Mr Bubanja Jr and the deceased "standing toe to toe". He saw the deceased pointing his finger into Mr Bubanja Jr's chest. The deceased's face was only a few centimetres away from Mr Bubanja Jr's face. They both looked "serious", Mr Bubanja Jr looked "worried" and the deceased looked "angry". Mr Bubanja Jr walked away and the deceased slammed his drink down on the bar. Big Mickey and Mr Bubanja Jr went to the toilet and the deceased left. When he went into the toilet, Mr Bubanja Jr and Big Mickey were having a conversation in another language and he heard one of them say "Shh" when he entered the bathroom. 7. John Harris worked as a security officer at Splashes, but was not on duty on 7 September 2007. He and another man decided to go to the club for a few drinks. In his police statement tendered on the voir dire, it is asserted that he heard two men being aggressive and having an argument in the toilet. They were two tall men with "rats' tails", one of whom was the man who later got shot. They were talking in the toilet about a problem that had to be fixed. When they realised that he was in the toilet, they started speaking in another language. The conversations appeared to be "passionate". This witness later saw the shooting of the deceased and thought that he may have been one of the two men whom he saw talking in the toilet. He first saw the two men at the bar inside the club. On the Crown case, the description of the other man is consistent with that of Mr Bubanja Jr. 8. When Mr Harris was called to give evidence at trial, he could not remember what he had said about this argument. Leave had to be granted under s 38 of the Evidence Act for the Crown Prosecutor to cross-examine him about it. He also gave evidence that he was not close enough to hear what they were saying and in cross-examination conceded that the men may have been "mucking around". 9. Adrian Castagna was the master of sound ceremonies at Splashes. He was present in the club on 7 September 2007, although he was not officially on duty. The evidence contained in his statement was that he heard three men speaking in the toilets in another language, which he recognised as either Serbian or Macedonian. He could vaguely make out key words. One of the men was "swearing heaps" and one of the others was trying to explain something to the man who was swearing. One of the men left and the other two remained and they still appeared to be in disagreement. He described two of the men, but did not get a good look at the third. He also saw "Darkie" in the club that night, whom he knew from growing up in the Unanderra area. 10. His evidence at trial was that he saw the three men in the toilets. They were speaking in another language that Mr Castagna recognised because he grew up around Serbians, Croations and Macedonians. He said that it was not a "good conversation". He could understand the swear words that the men were using. He did not remember any of the conversation other than the swear words because it was seven years ago at the time of the trial. 11. There was also evidence from another witness, Milos Bolic, who denied seeing any dramas between the men that evening. There was evidence from a Mr Milisic, who is the witness described as "Big Mickey". He gave evidence that he spent time drinking and talking with the deceased and Mr Bubanja Jr and did not give evidence about any conflict. There was also evidence from a security guard Mr Somerville who agreed in cross-examination that Mr Bubanja Jr was "highly distressed" when he heard that the deceased was dead and tried to approach the deceased's body. 12. On behalf of the accused it was submitted that in circumstances where the Crown is no longer permitted to rely upon Mr Bubanja Jr's having any involvement in the murder, it is not permissible to lead evidence of any argument that occurred that evening between he and the deceased. This is especially so since there is also evidence that they were drinking together that night after the argument. 13. The primary objection to the evidence was thus that it was irrelevant. I am not satisfied that it is not relevant. The evidence proposed to be led is capable of establishing that in the hours before his death the deceased was in the company of Mr Bubanja Jr with whom some feelings of ill-will from the past were ongoing. I have taken into account that the dispute with the deceased was in fact with Mr Bubanja Sr and not Mr Bubanja Jr. Despite this, Mr Bubanja Jr was with his father at the meeting at the North Wollongong Hotel on 31 August 2007. 14. The secondary position of counsel for the accused is that this evidence should be excluded under s 137 of the Evidence Act. I am not satisfied that there is any risk that the evidence could be misused by the jury in any way. The jury would be instructed that the only basis upon which the evidence could be used would be to infer that the dispute with Mr Bubanja Sr, which had been ongoing since 2006, was ongoing in so far as Mr Bubanja Jr was concerned. To put it another way, the evidence is relevant to rebut any suggestion that the ill will between the Bubanjas and the deceased from the past had completely subsided. 15. In ruling that the evidence is admissible I have had regard to the fact that the evidence did not all go one way, two witnesses will apparently give contrary evidence; namely, Big Mickey and Mr Bolic. However, relevance is to be determined on the assumption that the evidence is accepted by the tribunal 16. Having determined that the evidence is relevant, I am also satisfied that its probative value (albeit that it is not of any particular significance in the Crown case overall) outweighs any danger of unfair prejudice. Again, the fact that there is contradictory evidence is not relevant to the assessment of the probative value of the evidence. Moreover, I propose to give careful directions as to how this evidence may be used. The Crown is only permitted to rely upon it to the extent that it rebuts any suggestion that there was no longer any ill will as between the Bubanja family and the deceased, at least in so far as Mr Bubanja Jr was concerned. 17. Although I am satisfied that the evidence of the observations made of the disagreement between Mr Bubanja Jr and the deceased that evening are admissible, I am not persuaded that there is any basis to admit the hearsay evidence of what these witnesses heard Mr Bubanja Jr say, if it indeed was Mr Bubanja Jr who was overheard to say words to the effect that there was a problem which needed to be fixed. Without the Crown calling any of the participants in the conversation, such evidence is hearsay evidence and inadmissible if tendered for a hearsay purpose. The makers of the statements are available; on the Crown case they are Mr Bubanja Jr and Big Mickey In those circumstances, the evidence is inadmissible unless it falls into one of the exceptions to the hearsay rule. None was identified in the application before me. Nor was it suggested that the words were not led for a hearsay purpose. On the contrary, as the Crown Prosecutor put his submissions to me, he sought to rely upon the evidence for a hearsay purpose. 18. In the circumstances, I propose to permit the Crown to lead evidence of the observations that the relevant witnesses made of the deceased and Mr Bubanja Jr on the night, but of not anything that was overheard. ORDERS 1. I make the following rulings: 1. The Crown is not permitted to rely upon evidence of the events in May 2006. 2. The Crown is permitted to rely upon the CCTV footage at the North Wollongong Hotel on 31 August 2007. 3. The Crown is permitted to rely upon the parts of Mrs Sekuljica's statement not called at the first trial, save as for the hearsay evidence that Mr Popovic was present in a car outside the North Wollongong Hotel and that there was a "heated argument" at the Hotel. The Crown is permitted to make a further application to admit this evidence once Mrs Sekuljica is at court and available to give evidence on a voir dire. 4. The Crown is permitted to rely upon the observations made of the deceased and Mr Bubanja Jr at Splashes Nightclub on 8 September 2007 in the hours before the shooting. 5. The Crown is not permitted to rely upon any hearsay evidence as to what was overheard by witnesses during this argument ********** 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: 15 September 2017