R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137

Supreme Court New South Wales

Medium Neutral Citation: R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137 Hearing dates: 25, 28 August 2017 Decision date: 29 August 2017 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: The hearsay evidence of Emily Popovic is inadmissible. Catchwords: EVIDENCE – hearsay – maker unavailable – whether circumstances in which representations were made make it highly probably that representations are reliable – whether statements made against interest Legislation Cited: Evidence Act 1995 (NSW), ss 59, 65, 137 Cases Cited: Conway (2000) 98 FCR 204; [2000] FCA 461 Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 R v Suteski (2002) 56 NSWLR 182 R v Williams (2000) 119 A Crim R 490 Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32 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)

Solicitors: Solicitor for Public Prosecutions (Crown) Toomey Lawyers (Accused Popovic) Katsoolis & Co (Accused Koloamatangi) File Number(s): 2012/00232565; 2012/00370471

Judgment 1. Zlatan Popovic and Tevi Koloamatangi are both on trial for the murder of Dragan Sekuljica, who was shot dead in the early hours of the morning of 8 September 2007 in a nightclub in Wollongong. The Crown case is that Mr Popovic arranged for Mr Koloamatangi to shoot the deceased. The trial has proceeded before a jury since 7 August 2017. The two men were previously convicted of this offence following a trial in 2014 but a new trial was ordered by the Court of Criminal Appeal on 21 September 2016: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202. 2. On 25 August 2017, the Crown made application under s 65(2)(c) and (d) of the Evidence Act 1995 (NSW) to adduce evidence contained in two statements made by Mr Popovic's former wife, Emily Popovic, who is now deceased, in 2012. Both accused object to the tender of this material. The Crown did not seek to adduce this evidence at the first trial.