Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R

BEAZLEY P: I have had the advantage of reading in draft the judgments of R A Hulme J and Adamson J. I agree with the reasons of Adamson J and the orders her Honour proposes. I also agree with the additional observations of R A Hulme J.

In agreeing with their Honours’ reasons, I have reviewed the evidence, including the CCTV footage, and independently have come to the view that it was not open to the jury to be satisfied of the guilt of Mr Hristovski or of the guilt of Mr Bubanja.

R A HULME J: I have had the considerable advantage of having read in draft the judgment of Adamson J. In particular I am grateful for her Honour's thorough review of the evidence, the submissions of counsel and the summing up by the trial judge.

I agree with Adamson J for the reasons she has given that grounds 1 and 2 of Mr Hristovski’s appeal (Shepherd direction) should be rejected.

I also agree that the various grounds otherwise challenging aspects of the trial judge’s summing up should be upheld for the reasons her Honour has provided. (Mr Popovic’s Grounds 1, 2 and 3; Mr Koloamatangi’s Grounds 1 and 2; Mr Bubanja’s Grounds 2, 3 and 3A; and Mr Hristovski’s Ground 3). I confirm that in assessing the balance of the summing up, I have had regard to its overall effect rather than examining the impugned passages piecemeal. Viewed in isolation, some of those passages might not be of great significance but it is the cumulative effect that gives rise to a miscarriage in my view.

One theme permeated the summing up; that is, there were suggestions made to the jury about how they might assess the evidence in a manner that might favour the Crown that had not been raised by the prosecutor in his closing address. But, as was conceded by the Crown at the hearing in this Court, there were no matters favouring the applicants that had not been raised in their counsel’s addresses. This is not to say that a judge cannot point out matters that have not been raised in addresses that might assist a jury’s assessment of the evidence. But, of course, great care is required to maintain balance and to avoid putting to the jury anything of such significance that there is unfairness in the inability of defence counsel to respond. Regrettably, in this case there was such unfairness.

The unreasonable verdict grounds (Mr Bubanja Ground 1 and Mr Hristovski Ground 4) should be upheld as well. I am in general agreement with the reasoning of Adamson J in relation to this but wish to clarify my view in the light of my own assessment of the evidence.

First, however, it is worth noting that some fundamental propositions in relation to an appellate court's treatment of a ground of appeal asserting that a verdict of guilty returned by a jury is unreasonable or cannot be supported were very recently restated by the High Court of Australia in R v Baden-Clay [2016] HCA 35 at [65]-[66]. They included:

I accept that in this case there is a difficulty in having regard to the "advantage enjoyed by the jury" when that advantage was potentially impacted adversely by the manner in which it was suggested they might assess the evidence of key prosecution witnesses whose credibility was seriously in issue. This is particularly so in relation to the trial judge's suggestion that they examine reasons "why would they lie?" which implicitly carried with it that the evidence of those witnesses might be more readily accepted if the jury could not identify a particular reason. It was, of course, fundamental that it was for the Crown to persuade the jury that they were telling the truth in the essential aspects of their evidence.

Mr Taylor’s credibility and reliability were very important matters in the assessment of the case against Mr Hristovski. I am not so troubled about matters of time, the sequence of events and the colour of the gun. In large part, such matters were naturally open to imprecision: timing and sequence of events because of the long period that had elapsed between the events in question and when Mr Taylor first reduced his version to written form (5 years) and when he gave evidence (7 years); and the colour of the gun because of the less than ideal circumstances (poor lighting and the brevity and trauma of the event) in which the witnesses at the nightclub had in which to see and recall the appearance of the weapon. These matters did not inspire confidence in Mr Taylor but I would place less weight on them than the applicants’ counsel did in submissions in this Court, and their trial counsel did in address to the jury, as being destructive of his credibility and reliability.

The one thing that particularly gives rise to a reasonable doubt about the guilt of Mr Hristovski in my mind is the seeming impossibility of Mr Taylor’s account of the collection of the gun from Mr Hristovski at Warrawong. (See the analysis by Adamson J under the headings “The sequence of events on the evening of 7 and 8 September 2007” and “The fact and timing of the visit to Mr Hristovski’s on 7-8 September 2007”.) It was a critical element in the case against Mr Hristovski but the evidence is such that there must be a grave doubt that it occurred at all. And the simple fact is, if there is a doubt about that, there is a doubt about Mr Hristovski’s guilt. This assessment may be made without recourse to the jury’s advantage, even if that was appropriate.

I cannot add anything useful to the review of the case against Mr Bubanja provided in the judgment of Adamson J. It was a case that was significantly dependent upon acceptance of particular aspects of the evidence of two indemnified witnesses who will be referred to in these reasons as Messrs Taylor and Radz. Mr Taylor’s evidence was problematic in a number of respects and the example I have referred to in relation to the collection of the gun is damaging in relation to his credibility generally. Mr Radz’s evidence was, on my assessment, of even more dubious credibility. The remainder of the case against Mr Bubanja was not enough to restore confidence in those men’s evidence.

I am mindful of the Crown’s submissions as to the importance of having regard to the combined force of all aspects of its case. In particular, the telephone evidence certainly provided the Crown with a powerful basis to argue for a joint enterprise being pursued by each of the applicants given the flurry of communications and attempted communications in which they were involved, and the sequence of them, in the critical period leading up to the shooting. The problem, though, is the absence of evidence as to the content of such communications which left the Crown cases in respect of Messrs Hristovski and Bubanja heavily dependent upon the evidence of Messrs Taylor and Radz to fill the gap.

Accordingly I have reached the same conclusion as Adamson J that the verdicts of guilty in respect of the applicants Hristovski and Bubanja are unreasonable.

I agree with the orders proposed by Adamson J.

ADAMSON J: On 29 May 2014, after a trial by jury, Tevi Koloamatangi, Dalibor Bubanja, Zlatan Popovic and Jason Hristovski (the applicants) were found guilty of the murder of Dragan Sekuljica on 8 September 2007. On 30 May 2014 the applicants were found not guilty of shooting Robert Gyles with intent to murder him.

The Crown case was that the deceased was shot a number of times by a single gunman, Mr Koloamatangi, just after 3am on Saturday 8 September 2007 as he was leaving Splashes night club in the Wollongong Novotel Hotel to cross the road to get into a taxi. He ran back inside and was followed by the gunman, who shot him again at close range and also shot Mr Gyles, a security guard who was nearby. The gunman fled to a vehicle driven by Peter Taylor. The deceased died at the scene. Mr Gyles survived.

The Crown case was that Mr Popovic had arranged the murder following a feud between Zoran Bubanja, the father of Mr Bubanja, and the deceased. The Crown case was that Mr Hristovski had supplied the gun (which belonged to Johnny Radz but was being held by Mr Hristovski for safekeeping) earlier that evening to Mr Koloamatangi and Mr Taylor for the purpose of its being used in a murder that night; and that Mr Bubanja acted as the lookout at Splashes on the night of 7-8 September 2007.

Mr Koloamatangi was sentenced to a term of life imprisonment commencing on 1 June 2023; Mr Popovic to a term of 34 years imprisonment comprising a non-parole period of 26 years commencing on 21 September 2012 with a further term of 8 years; Mr Bubanja to a term of 34 years imprisonment comprising a non-parole period of 26 years commencing on 1 February 2014 with a further term of 8 years; and Mr Hristovski to a term of 29 years imprisonment comprising a non-parole period of 22 years commencing on 25 July 2014 with a further term of 7 years.

The applicants apply for leave to appeal against their respective convictions for the murder of the deceased. Mr Bubanja seeks leave to appeal against his sentence.

Mr Popovic, seeks leave to appeal on the following grounds:

Mr Koloamatangi, seeks leave to appeal on the following grounds:

Mr Bubanja, seeks leave to appeal on the following grounds:

Mr Bubanja also seeks leave to appeal against his sentence on the basis of a “justifiable sense of grievance” in light of the sentences imposed upon Mr Hristovski and Mr Popovic (ground 4).

Mr Hristovski, seeks leave to appeal on the following grounds:

Although the applicants’ grounds of appeal are expressed in different ways, there is considerable overlap between them. The two principal challenges to the convictions are, in the case of Mr Hristovski and Mr Bubanja, that the verdict was unreasonable; and, in the case of each applicant, that the summing up was so unbalanced as to deprive him of a fair trial. The second challenge also incorporates other grounds, some of which are confined to a single applicant, such as Mr Hristovski’s complaint that a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573 (the Shepherd direction) was not given.

Because the grounds concern the summing up and the reasonableness of the verdicts (in the case of Mr Hristovski and Mr Bubanja) in light of the evidence at trial, it is convenient to set out the Crown case at trial and the evidence before turning to the summing up in order that it can be seen in context.

The trial commenced on 2 April 2014. The jury was sent out to deliberate on 22 May 2014, after 32 sitting days. As the unreasonable verdict grounds have been raised only by Mr Bubanja and Mr Hristovski the outline of the evidence at trial will concentrate mainly on the evidence against them and in support of the Crown case generally, rather than evidence that is specific to either Mr Popovic or Mr Koloamatangi (such as the build, skin colour and appearance of the gunman).

None of the applicants gave evidence. The principal Crown witnesses were Mr Radz and Mr Taylor, who had both been given indemnities in return for giving evidence at the trial. Mr Taylor was criminally concerned with the shooting of the deceased as, according to his evidence, he had dined with Mr Popovic and Mr Koloamatangi earlier that evening, collected the gun which was used in the shooting from Mr Hristovski; delivered Mr Koloamatangi to the scene by car and driven him away soon after the shooting. Both Mr Taylor and Mr Radz also gave evidence of admissions made by Mr Popovic and Mr Bubanja which implicated them in the shooting.

The evidence of other Crown witnesses was either relevant to the background (including a possible motive arising from a dispute between Zoran Bubanja and the deceased following the construction of units at Figtree); or to the events leading up to and immediately after the killing.

Mr Radz lived in the Wollongong area until his imprisonment in 2000 following a conviction for a shooting offence. Before his incarceration he met Mr Popovic through a mutual friend. Mr Radz was in prison from 2000 until his release in April 2006. At about this time he met Mr Bubanja who was then living in Figtree. The two became friends and Mr Radz moved into Mr Bubanja’s house and they spent most days together. Mr Radz also contacted Mr Popovic after his release. Mr Radz heard of the deceased through Mr Bubanja, although he did not meet him. According to Mr Radz, Mr Bubanja told him many times in 2006 that he could not wait until the deceased was released from gaol (which took place in May 2006) so that he could put a bullet in his head.

In about May 2006, according to Mr Radz, Zoran Bubanja and Mr Bubanja and two others told him that he had organised a meeting with the deceased at 8pm at Chicko’s and that they wanted Mr Radz to shoot him in the leg. Mr Radz declined the assignment as he was on parole and believed he was being watched by the police.

In June 2006 police came to Mr Bubanja’s residence, after which Mr Radz moved to a unit in Wollongong, where he remained until his parole officer told him that he was not to live in the Illawarra area. He subsequently moved to his parents’ house in Sydney.

The deceased’s widow, Mrs Sekuljica, gave evidence that the deceased and Zoran Bubanja had been good friends. The deceased was godfather to one of Zoran’s children (Mr Bubanja’s sister). They had both been involved in the construction business and had worked together. Their last joint project, the construction of units at Figtree, some time before 2006, ended their friendship. The deceased told his wife that Zoran owed him money at the end of the project which, to her knowledge, was never paid.

In 2006 the deceased and his wife were living with their two children in a unit in Corrimal Street which had a restricted entry activated by an intercom system with a camera. According to Mrs Sekuljica, towards the end of May 2006, Zoran and his sons “Daki” (Mr Bubanja) and Marko and another man (who on the Crown case was Mr Radz) came to the entrance to the unit. She could see the men and hear their conversation. Zoran asked the deceased to come outside. Mrs Sekuljica formed the view that Zoran was intoxicated and told her husband that she did not want him to go outside. The deceased remained inside and switched off his mobile phone.

Mr Radz gave a significantly different version of this incident. According to Mr Radz, Zoran Bubanja pressed the buzzer and, when it was not answered, Zoran, Mr Bubanja and the others started kicking the doors and Zoran Bubanja said to the deceased through the intercom, “You fucking dog, you’re dead.”

According to Mr Radz, in about March 2007, he contacted Mr Hristovski to ask him if he could collect an old-looking silver revolver, about 20-25cms long from him and hide it for him. According to Mr Radz, Mr Hristovski agreed and came to collect the gun. Mr Radz said that he had seen the gun once underneath the counter in Mr Hristovski’s workshop but had not seen it since.

By April 2007 Mr Radz was married and living in Yagoona. He gave evidence that on Good Friday in April 2007 Mr Popovic told him that Zoran Bubanja was paying him to get him (Mr Radz) to kill the deceased. According to Mr Radz, he refused the job because he had enough dramas. Not long after this discussion, Mr Radz’s parole was revoked and he returned to prison between June and October 2007.

In April or May 2007 Mr Popovic introduced to family friends of the deceased (Angela Djuraki and her husband) a man known as “Doc” (Mr Koloamatangi) and asked if he could stay the night at their place. Mrs Djuraki and her husband agreed to his staying.

One night in August 2007, Mr Hristovski and Amy Ewen, his then girlfriend, went out with friends to Mamma’s Pizza in Lower Crown Street, Wollongong before going to the Steelers Club. Mamma’s Pizza was run by Mr Popovic’s mother who employed Mr Taylor, who was also known as “Herbie”, as a driver in her business.

When they arrived home that evening to Mr Hristovski’s parents’ place in Warrawong where they lived, Ms Ewen went to bed and fell asleep but Mr Hristovski went out again. Ms Ewen said that it was not uncommon for Mr Hristovski to go out without her. On his return he threw something heavy on the bed which hit her legs and woke her up. She sat up and saw that it was a gun, which she thought was a revolver. The light from the window was sufficient for her to see that part of the gun was silver. She saw the gun, or a similar gun, again on many occasions. Sometimes it was kept under the bottom drawer in the bedside table and sometimes in their wardrobe.

Mrs Sekuljica gave evidence that about a fortnight before the killing the deceased rang to ask her to pick him up from the North Wollongong Hotel (also known as the North Gong Hotel) and take him to Mamma’s Pizza. He went inside and came out again a minute later. He asked her to take him to get a kebab from a shop in Figtree. On the way to Figtree, the deceased received a phone call from Mr Popovic, in the course of which the deceased called him both a “trader” [traitor] and “Izdanica”, after a Serbian leader who had given up the Serbian people by swapping sides. Mr Popovic told the deceased to meet him at the bushland at Mt Keira. The deceased agreed that he would do so. By the time the deceased and his wife arrived at the kebab shop it was still daylight. Mrs Sekuljica estimated that they arrived there before 6pm.

The Crown tendered footage of the beer garden in the grounds of the North Wollongong Hotel on 31 August 2007 which showed the deceased, Zoran Bubanja and Mr Bubanja speaking together for almost half an hour. At times the three were separate from other acquaintances but at other times they were joined by others. The footage shows that they were generally on good terms but there were a few minutes when there was apparent conflict, or at least disagreement, between the deceased and Zoran Bubanja, as manifested by each man sticking out his chest and some slight shoving between them, although there is no evidence of any blow being struck. The timing of the footage is consistent with its having been taken on the same afternoon on which Mrs Sekuljica collected the deceased from the hotel and before the heated conversation between the deceased and Mr Popovic referred to above.

Mr Taylor’s evidence was that he had met “Doc” (Mr Koloamatangi) and Mr Bubanja a couple of weeks before the shooting. He already knew Mr Hristovski and the deceased. Mr Taylor’s evidence was that, about two to three weeks before the shooting, he overheard Mr Popovic talking to Mr Bubanja and Mr Hristovski in the Woolworths car park, across the road from Mr Popovic’s unit, which was empty at the time. Mr Taylor said that he heard a reference to “Dragan” (the deceased) and “Dusan” (a friend of the deceased). Mr Bubanja (“Daki”) said that they were dogs and were speaking to police.

Mr Taylor’s evidence was that, a week before the shooting, he and Mr Popovic were conversing at the front of Mr Taylor’s unit in Angel Street, Corrimal. Mr Popovic told him: “it is war” and asked him: “are you with me?” to which Mr Taylor responded, “Yes”.

On 2 September 2007 Mrs Djuraki returned from a trip overseas. When the deceased visited her at home between 2 September and 7 September 2007 he told her that Zlatan [Popovic] was the biggest traitor in Serbian history.

Ms Ewen recalled an occasion a few days before the shooting when Mr Hristovski left his home at Warrawong for Wollongong between 7pm and 10pm. On his return, he told her that he had been to see “friends” at Mamma’s Pizza. He made specific mention of Mr Bubanja and Mr Popovic and may have mentioned “Dragan” [the deceased].

Mr Taylor gave evidence that a day or two before the shooting (which was confirmed by a register to be the day before, 6 September 2007) he went to the Collegians Rugby Club by himself. While he was there he joined Mr Koloamatangi and his girlfriend Emma; Mr Bubanja; and Mr Popovic and his fiancée, Emily. He said that he stayed only for half an hour. Mr Taylor accepted in cross-examination that he was only able to be precise about matters such as the date on which he attended the Collegians Rugby Club because detectives had taken him through the register that he had signed on entry.

On Friday 7 September 2007 Mrs Sekuljica and the deceased were at home after taking their children to school. Later Mrs Sekuljica went out alone. When she returned and found that the deceased had gone out she assumed that he had gone to the North Wollongong pub since he often went there on Fridays. The CCTV footage established that the deceased arrived at the North Wollongong Hotel at 12.26.38pm and left at 14:26:15pm on Friday 7 September 2007.

Mr Taylor said towards the end of his evidence in chief that he and Mr Popovic had gone to Mr Hristovski’s place at Warrawong together between lunch and the evening on 7 September 2007 for the purpose of Mr Taylor knowing where Mr Hristovski lived. In cross-examination Mr Taylor admitted that he had never made a statement to that effect before including it in his evidence in chief on 10 April 2014. He adhered to his evidence that this visit had occurred although he could not remember what else had occurred during the day on 7 September 2007 and ultimately said that he might have been shown the way to Mr Hristovski’s place the previous day.

On the evening of 7 September 2007 there was a dinner at Kings Chinese restaurant in Wollongong which was attended by Mr Popovic and his fiancée, Emily; one of Mr Popovic’s cousins and his girlfriend; Mr Taylor; and Mr Koloamatangi and his girlfriend, Emma. In cross-examination Mr Taylor said that the dinner started between 6 and 7 and finished about 8 or 8.30pm. He said that it was not possible that they were still there at 10pm.

Mr Taylor gave evidence in chief that, after the dinner, he had driven Mr Koloamatangi and Emma back to Sydney and dropped Emma somewhere near the Harbour Bridge before driving back to Wollongong with Mr Koloamatangi.

According to Mr Taylor, on their return to Wollongong they went to Mr Popovic’s unit. He estimated that they arrived there at about 10.30pm or 11pm. Mr Taylor accepted in cross-examination that the whole of his evidence (about time) was predicated on his being back in Wollongong by 10.30pm or 11pm. Mr Taylor said in evidence in chief and confirmed in cross-examination that he stayed for about an hour at Mr Popovic’s unit before leaving for Mr Hristovski’s house.

Mr Taylor’s evidence was that Mr Popovic sat down with him and Mr Koloamatangi. Mr Taylor did not catch all of their conversation as Mr Popovic and Mr Koloamatangi were whispering to each other. In cross-examination, Mr Taylor agreed that he said in three statements to police (4, 6 and 12 June 2012) that he had been told by Mr Popovic during that visit that the deceased was at the “North Gong Hotel”. Mr Popovic asked Mr Taylor to go to Mr Hristovski’s house to pick something up. There was also mention that they were going to go and see Dragan (the deceased) afterwards. Mr Taylor said originally in his evidence in chief that they left at about midnight but later said, also in chief, that they arrived at Mr Hristovski’s place between 11pm and midnight. Mr Taylor estimated that it took about 15 minutes to get from Mr Popovic’s unit in George Street, Wollongong, to Mr Hristovski’s place in Warrawong.

Mr Taylor confirmed in cross-examination that he was in the Wollongong CBD by about 12.49am on 8 September 2007.

Mr Taylor’s evidence was that he and Mr Koloamatangi drove from Mr Popovic’s unit to Warrawong and parked in the cul-de-sac outside Mr Hristovski’s house in Blaxland Avenue and waited for him to come out. Ten minutes later, Mr Hristovski came out with an old cream coloured bag with a short revolver with six bullets, stamped “Astra” which was silver with a black handle. According to Mr Taylor, Mr Koloamatangi said, “What the fuck is this. What am I going to fucking do with this?” to which Mr Hristovski responded, “That’s all I have.” Mr Taylor asked Mr Hristovski what they were going to do to Dragan (the deceased) and Mr Hristovski motioned with his hand in the shape of a gun.

Mr Taylor, who accepted that he had a rough idea by this time that someone was going to be shot, spoke with Mr Koloamatangi about what clothes would be needed. According to Mr Taylor, he and Mr Koloamatangi went from Warrawong to Mr Taylor’s unit in Corrimal (which was 25-35kms north of Mr Hristovski’s house and took about twenty minutes) to collect black pants, gloves and a beanie. Mr Taylor gave Mr Koloamatangi the dark blue hoodie he had been wearing that night and Mr Koloamatangi cut holes in the beanie to turn it into a balaclava. Mr Taylor confirmed in cross-examination that in his statement of 9 July 2012 he told police that he was in his own home for about 20 minutes.

Mr Taylor said that about this time they spoke on the phone to Mr Popovic who told them to go to Splashes.

Mr Taylor parked in the car park near Splashes and sat in the car smoking. He said that he turned his phone off so that no one could track his whereabouts. In cross-examination, he confirmed that he was sitting in the car for an hour and a half to two hours while Mr Koloamatangi waited outside.

Mr Taylor heard about five gunshots, started the car and drove to the exit to the car park. Mr Koloamatangi jumped in the back seat of the car and confirmed that he had done what he had to do. Mr Taylor then drove him back to Sydney.

According to Mr Taylor, on the way back to Sydney, Mr Koloamatangi asked him to call Mr Popovic about Mr Koloamatangi’s money. Mr Taylor’s evidence was that he used Mr Koloamatangi’s phone to make the call (having earlier been shown his own telephone records which did not show that such a call had been made from his phone). Mr Popovic told Mr Taylor to come and see him “tomorrow”. Mr Taylor drove Mr Koloamatangi to Mascot before returning home to Corrimal.

Exhibit G comprised a schedule of telephone communications, or attempted telephone communications, both by voice call and SMS, which were relied upon to identify the approximate location of certain persons as well as to show communications between relevant persons. For present purposes it is sufficient to set out the conversations relied on by the parties with an indication, where applicable, of their forensic significance. The entries from Exhibit F, the CCTV footage are also included where relevant.

It is common ground that the evidence did not reveal a single call made by a relevant party in the area which came through the Berkeley tower which covered Warrawong (where Mr Hristovski’s then residence was located).

A number of prosecution witnesses who were in and around Splashes at that time gave evidence about the lighting, the weather, the clothing of the gunman and the colour of the gun. Although there were some variations in their evidence, each of them identified the weapon carried by the gunman as being a dark colour.

The evidence of Timothy Berry, an expert witness, was that the bullets (recovered from the deceased’s body and Mr Gyles’ body) indicated that the gun was a revolver rather than a pistol and could have been either a 38 special firearm or a 357 Magnum calibre firearm. The rifling effect of the firearm could have been created by many other weapons, including Astras.

CCTV footage from cameras outside Splashes established that Mr Bubanja arrived at the night club from 11.27pm with his friends Miodrog Milisic (Big Mickey) and Stanko (Stan) Petrovic. The deceased arrived with others at 12.30am. Mr Bubanja and the deceased, who already knew each other, had contact in the bar of the club and also in the toilets. Mr Harris, an off-duty security guard, heard parts of their discussion and understood that there was a problem that needed to be fixed. There was evidence of the interaction between the two men from witnesses, some of whom did not observe any conflict between them and others who did. Witnesses gave evidence of poor telephone reception inside the night club which necessitated people stepping outside to make and receive calls. The number of calls which were made to Mr Bubanja that night which are recorded as “DVM”, or divert to voicemail is consistent with the poor reception inside Splashes.

At about 3am on 8 September 2007 the deceased left Splashes with Mr Bubanja and Big Mickey. Mr Bubanja said in his Electronically Recorded Interview of a Suspected Person (ERISP) that they intended to catch a taxi to a brothel. The deceased made a call to a taxi at about this time. Just outside the premises, the deceased was shot by a man wearing a black balaclava. The deceased ran back inside Splashes and was followed by the gunman. Mr Gyles, a security officer, approached the gunman to restrain him and was himself shot in the elbow. The gunman then shot the deceased a further three times. The deceased died soon afterwards. The gunman left the premises and was driven away by Mr Taylor who was parked nearby.

Witnesses spoke of Mr Bubanja being distressed after the shooting.

On the evening of 7 September 2007 Ms Ewen and Mr Hristovski had something to eat after which they went to their room (in Mr Hristovski’s parents’ house at Warrawong) to watch movies. Ms Ewen fell asleep at about midnight. She woke in the early hours of the morning to find that Mr Hristovski was no longer in bed next to her. There was a phone beside the bed (which was Mr Hristovski’s as she did not have her own mobile phone at the time) which she tried to use to call him but it did not have any credit. At that time Mr Hristovski had two phones. She went back to sleep and was woken by Mr Hristovski getting back to bed. She estimated that he returned some time between 3am and 5am. She could see light coming through the window. He told her that he had gone to pick up Mr Bubanja from a nightclub in Wollongong and take him home. Ms Ewen agreed, in cross-examination, that Mr Hristovski and Mr Bubanja were good “mates” and that Mr Hristovski would often go out at night to give Mr Bubanja a lift.

On Saturday 8 September 2007 Ms Ewen heard Mr Hristovski’s brother, Daniel, telling him that he had been at Splashes the previous night and had seen Mr Bubanja there. Mr Hristovski told his brother that he had picked him up from Splashes and taken him home. Later that morning, as a result of a television news bulletin, Ms Ewen first discovered that there had been a shooting in Wollongong. She learned from the television news on Monday 10 September 2007 that the deceased had been shot dead at Splashes in the early hours of Saturday morning.

According to Mr Taylor, later that same day, on Saturday 8 September 2007, or the following day, Mr Taylor collected money from Mr Popovic and drove to Sydney to deliver it to Mr Koloamatangi who complained that it was “short”. On several occasions Mr Taylor delivered money to Mr Koloamatangi from Mr Popovic. Mr Taylor said that he was not paid for his involvement in the shooting or for his collecting money and delivering it to Mr Koloamatangi. There was no indication in the evidence of why Mr Taylor had been willing to participate in the murder.

Either a couple of days, or a week, after the shooting, Mr Popovic said to Mr Taylor, “Go get the gun and toss it into a pond” in front of “Dusan’s” house. Dusan was a friend of the deceased. When Mr Taylor passed on this message to Mr Koloamatangi he said that he had already disposed of it in a bin at a location in Surry Hills which he referred to as the “Projects”.

According to Mr Taylor, he saw Mr Bubanja a week or two after the shooting but there was no conversation about it at that time. Later Mr Popovic and Mr Bubanja visited Mr Taylor at home and took him for a drive in Mr Popovic’s white BMW. Mr Popovic and Mr Bubanja were mostly speaking Serbian, which Mr Taylor did not understand. At one point, Mr Popovic, referring to Mr Taylor, said, “Herbie did it.” Mr Bubanja responded, “You’re a sick fuck” and shook his hand. This conversation was relied on by the Crown to prove that Mr Popovic was involved in the killing and that Mr Bubanja was glad that the deceased had been killed.

Some time after the shooting, Ms Ewen got a job in the kitchen at Mamma’s Pizza where Mr Taylor was still working as a delivery driver.

Not long after Mr Radz was released from gaol in October 2007, he attended Mr Popovic’s wedding to Emily. Later he visited Mr Popovic with his own wife and newborn daughter. According to Mr Radz, he and Mr Popovic went for a walk in the park opposite the cinemas in the Wollongong CBD in the course of which Mr Popovic told him that an Islander called Doc (who Mr Radz said he knew from 2000) [Mr Koloamatangi] had done the job and that “Herbie” [Mr Taylor] was driving and that Mr Bubanja was the one to make the call for Doc to strike and that he was following the deceased to Splashes. Mr Popovic also told him that Zoran Bubanja paid him $250,000 to arrange it and “Doc” $40,000 to do the job.

It was put to Mr Radz by Mr Popovic’s trial counsel that this conversation was a lie and that Mr Radz knew all the details which he had allegedly been told by Mr Popovic from either the prosecution brief or from the newspaper. Mr Radz accepted that he had heard from his wife about the murder but that he did not like reading and only read the headlines. He said the whole incident (at Splashes) did not concern him.

The Crown tendered recordings of telephone intercepts made on 23 October 2007 and in particular a conversation in which Mr Hristovski phoned Mr Popovic, who put him on to Mr Radz, who was with him at the time. The purpose of the tender was to show that Mr Radz, Mr Hristovski and Mr Popovic were on good terms, which was consistent with the Crown case that Mr Radz had entrusted his gun to Mr Hristovski and that Mr Popovic had been prepared to discuss the murder with Mr Radz.

In early 2008 Ms Ewen’s relationship with Mr Hristovski ended.

In July 2008 Mr Radz was imprisoned again and remained in custody until his release on 27 April 2009. He gave evidence that while he was at Parklea Correctional Centre (Parklea) he saw Mr Koloamatangi who was on the other side of a wire fence which separated sections of the prison. According to Mr Radz, Mr Koloamatangi told him that he was in the car park with the balaclava and the gun and that when he got the call he ran up to Splashes, shot the deceased outside and then followed him inside, chased him inside and finished him off, by shooting him in the head and the chest and also shot the security guard too, by accident. According to Mr Radz, Mr Popovic had not paid him what he owed him for the job.

In about August 2008 Ms Ewen formed a relationship with Mr Taylor. She told him about the single gun, or similar guns, she had seen in Mr Hristovski’s possession when she was living with him. On 17 April 2009 Ms Ewen was still in a relationship with Mr Taylor when he was assaulted, apparently by Mr Hristovski or his associates. Ms Ewen accompanied Mr Taylor to the police station to report the assault. After he was taken to hospital she made a statement to police about the events relating to the shooting. This was the first statement she had made regarding the shooting. The police told her that Mr Hristovski was angry about Mr Taylor starting a relationship with her. At about this time Ms Ewen and Mr Taylor had a further conversation about the gun she had seen in Mr Hristovski’s possession.

Some time between Mr Radz’s release from gaol on 27 July 2009 and his going overseas in 2010, he dined with Mr Bubanja and others at a restaurant in Wollongong. According to Mr Radz, Mr Bubanja told him that he was the one who followed the deceased into Splashes and made the phone call for “Doc” to strike, to which Mr Radz said, “you are a sick cunt”, which were said to be words of congratulations or approval.

Some time after 2009 Mr Radz went with Mr Bubanja to Zoran Bubanja’s farm to visit Mr Popovic. According to Mr Radz, Mr Bubanja bragged that he was the “man for the whole operation and that if it wasn’t for him it wouldn’t have happened and that the shooter and driver were moved in from what he was telling him and that his father paid for the whole thing and Zlatan [Mr Popovic] organised the whole thing, the shooter, the weapon and the car.”

According to Mr Radz, he saw Mr Koloamatangi in Parklea Gaol in about September or October 2013. They were together with an opportunity to speak for “a good five minutes”, during which time Mr Koloamatangi told Mr Radz that he had not been paid yet for the murder although he had confronted Mr Popovic.

According to Mr Radz, he also saw Mr Popovic in Parklea in 2013. Mr Popovic told him that “Herbie” [Mr Taylor] had “turned dog” against him for the “Splashes murder”.

On 1 June 2012 Mr Taylor met with Detectives Ritchie and Santivalle in the course of which they intimated that they might be able to get permission to take an induced statement from him, which he understood meant that nothing in the statement could be used against him. The interview on 1 June 2012 was not recorded but Mr Taylor gave police, for the first time, an outline of what he might be able to tell them. Mr Taylor did not remember any details of the conversation with the detectives that day. When Detective Ritchie had finished the interview he made notes of what he remembered Mr Taylor saying to him, including that he had collected the gun on the night of 7 September 2007 after the dinner at Kings in Wollongong and before the first trip to Sydney. Detective Ritchie explained that he did not take notes in the course of the discussion because he found that potential witnesses tended to be more forthcoming if no notes were made during the first interview, before it was determined whether an induced statement was taken.

Mr Taylor accepted in cross-examination that he had made induced statements on 4, 6, 14, 21 June 2012; 9 and 30 July 2012; 10 and 20 September 2012; and 10 January 2013.

Mr Bubanja made a statement to police on 8 September 2007. He described the sequence of events on the evening of 7 September 2007, including the arrival of the deceased at Splashes about an hour or so after he arrived. He said that he had spent a considerable time talking to the deceased. He described leaving the premises with the deceased and their plan to catch a taxi together to another venue. He described the shooting of the deceased. He went straight from the scene of the murder to the police station to make the statement.

Mr Bubanja was interviewed by Detective Chambers on 21 November 2012. He was asked what his relationship was with Mr Popovic, to which he responded, “I just met him.” He said that he could not recall why he had phoned him that night or what Mr Popovic said to him. He was asked whether it was possible that he rang Mr Popovic on the night of the murder and he said he could not remember. He also said he could not remember telling Mr Popovic that the deceased was at Splashes and could not comment on the proposition that he was there keeping a look-out for the deceased. He denied any prior knowledge or, or involvement in, the murder.

Substantial challenges were made by all defence counsel to Mr Taylor’s credibility. He admitted that he had been involved in drug dealing, as a result of which he was in fear for his life from a drug dealer called Simon De Witt, whom he used to drive to and from Sydney once or twice a week to purchase ice.

Mr Taylor had been given the following indemnity:

Mr Taylor’s credibility was challenged on the basis of differences between what he told Detectives Ritchie and Santivalle on 1 June 2012 (as recorded in a file note prepared after the interview) and his evidence. The principal differences relied on were:

Mr Taylor agreed that he had never, before giving his evidence in chief in April 2014, suggested that he had driven with Mr Popovic to Mr Hristovski’s place before the killing and had realised when giving his evidence in chief that he must have known where it was when he went there later that evening. Mr Taylor asserted that it was only when he saw the paper the next day that he realised that the person who had been shot dead at Splashes was the deceased.

Mr Taylor was cross-examined about being approached by police on a number of occasions prior to 2012 when he decided to answer their questions. Mr Taylor confirmed in cross-examination that at the committal hearing in May 2013 he had an independent recollection of the times of the dinner and the trip to Sydney and the return to Wollongong on the night of 7 September 2007.

Mr Ramage QC, trial counsel for Mr Popovic, put to Mr Taylor that in his statement of 14 June 2012 he had said that between the time he left Mr Popovic’s unit to collect the gun from Mr Hristovski until he spoke to Mr Popovic after the killing he did not have any other conversations with Mr Popovic. Mr Taylor responded that he thought that he had included in his statement the call from Mr Popovic telling him to go to Splashes night club.

Mr Taylor confirmed in cross-examination by Ms Davenport SC, trial counsel for Mr Koloamatangi, that there were no calls recorded on Exhibit G which indicate that Mr Taylor made any telephone calls during the whole of 7 September 2007 or the morning of 8 September 2007 apart from an unconnected call to the phone of Tara Wilton, being a friend for whom he regularly obtained drugs. She put that the absence of record was inconsistent with what he had said in his police statement of 9 July 2012 that he rang Mr Popovic from outside Mr Hristovski’s place to ask him to ring Mr Hristovski to tell him that they had arrived. Mr Taylor identified the call at 00.49.58 in Exhibit G as being the one in which Mr Koloamatangi had phoned Mr Popovic to tell him that they were outside Mr Hristovski’s house.

Trial counsel for Mr Koloamatangi cross-examined Mr Taylor about his evidence in chief that, on the way back to Sydney after the shooting, Mr Koloamatangi asked him to call Mr Popovic about Mr Koloamatangi’s money and that Mr Taylor used Mr Koloamatangi’s phone to make the call. Mr Taylor agreed that his first version could have been that he had used his own phone but that it may have been pointed out to him that this did not fit with the phone records (which did not show that he had made any such call). Mr Taylor accepted that the police had gone over “the time line” with him and pointed out that some of the statements he had made did not fit with some of the other evidence they had.

Mr Taylor agreed in cross-examination by trial counsel for Mr Bubanja that he only mentioned the gathering in the Woolworth’s car park in his induced statement of 4 June 2012 and that in that statement he had not mentioned that anyone had referred to “Dragan”. He agreed that he referred to “Dragan” as being a name he had heard mentioned in the fortnight prior to the shooting and had not put it in context of the gathering in the car park. Mr Taylor agreed that there was no mention in his statement of 4 June 2012 that Daki or Dalibor Bubanja had been at the Collegians on 6 September 2007.

Mr Taylor agreed in cross-examination by Mr Hristovski’s trial counsel that he had been the victim of an attempted kidnapping on 17 April 2009 as a result of which he was assaulted and hospitalised. Shortly after Mr Taylor had provided a statement to police on 17 April 2009 about the assault, he was interviewed by Detectives O’Donohoe and Noble from the Homicide Squad regarding the death of the deceased. Detective O’Donohoe suggested to Mr Taylor that Mr Hristovski might have been involved in the assault because he was angry that Mr Taylor was having a relationship with Ms Ewen.

Mr Taylor did not provide the detectives with any information about the killing when he was interviewed on 17 April 2009 about the assault on that day; on 1 July 2009 when he was contacted by Detective Chambers (the officer in charge of the murder investigation); or indeed at any time prior to 1 June 2012. At the time Mr Taylor made the induced statements in 2012 he was no longer in a relationship with Ms Ewen.

Mr Taylor agreed in cross-examination by trial counsel for Mr Hristovski that, as at September 2007, Ms Ewen lived with Mr Hristovski and his parents at Blaxland Avenue, Warrawong. He agreed that he had worked with Ms Ewen at Mamma’s Pizza towards the end of 2007, at which time she had been living with her mother at Dapto. He formed a relationship with Ms Ewen in August 2008 and had dropped her at Dapto on a few occasions. He denied that he had ever dropped her off at the Blaxland Avenue address.

The indemnity granted to Mr Radz by the Attorney-General was tendered in evidence and provided in part:

Mr Radz accepted that he had been involved in organised crime and gangs for at least part of his adult life. At times he had held weapons for the purposes of providing them, when required, for an outlaw motor cycle gang. He was cross-examined about his criminal history, which began when he was 17. He accepted that in 1996 and 1998 he committed offences of robbery with aggravation, stealing and two assaults but disagreed that these met the description of “organised crime”. Mr Radz agreed that in 2000 he was initially charged with attempted murder, damage property by fire, possess and use unregistered firearm and shoot at persons with intent to inflict grievous bodily harm and two counts of malicious wounding and was ultimately sentenced for shooting at a person with intent to inflict grievous bodily harm, with three counts of malicious wounding, damage property by fire and the possession of an unregistered firearm taken into account. He agreed he told police the shooting involved discharging the “full clip” of a Beretta pistol towards a person in a car but maintained the person was not badly injured. He was sentenced to nine years with a minimum of six years imprisonment. Mr Radz agreed that on 5 July 2001 he was also convicted of possession of a knife in a public place.

When Mr Popovic’s trial counsel put to Mr Radz that he made up the admissions attributed to the applicants because he wanted to gain from the reward of $200,000 offered for information about the murder, he said that he only became aware of the reward when he was half way through his statement and that he would not put his life in danger for $200,000. Mr Radz agreed that he had gone to prison in 2000 for a crime that involved kneecapping and that he had been charged with the same crime in 2013. He agreed that he knew when he was arrested in February 2013 that he could get a reduction in his sentence if he gave assistance to the police because the police talked to him about it on the night he was arrested.

Mr Radz was cross-examined extensively about previous statements he had made to the Crime Commission which he accepted were untrue. Counsel for each of the applicants cross-examined Mr Radz extensively on his credibility, largely on the basis of his prior inconsistent statements. Mr Radz agreed that he had prepared a time line of events to assist his recollection and that there was no mention of Mr Hristovski or of his nickname of Pigeon in the time line for 2007.

Mr Radz gave evidence that Mr Bubanja told him many times in 2006 that he could not wait until the deceased was released from gaol (which took place in May 2006) so that he could put a bullet in his head and that seeing him (Mr Radz) was a “dream come true”. Although Mr Radz said that there were 100 witnesses, this appeared to be an exaggeration, particularly as Mr Radz could not name one.

He was cross-examined by Mr Hristovski’s trial counsel about why he would have given the gun to Mr Hristovski whom he hardly knew and whom he did not pay to come and collect the gun.

The reward note was tendered by Mr Corish, trial counsel for Mr Hristovski:

At the close of the Crown case on 15 May 2014, counsel for all applicants other than Mr Hristovski announced that they did not propose to call any evidence. Mr Corish called Mr Hristovski’s brother, Christopher, who gave evidence that he did not ever see a silver revolver at the premises at Cringila from which the family business operated. The witness gave evidence that he took over the business from his father in about June 2007 at which time he moved the business from Cringila to Unanderra and that he never saw a gun at those premises either.

Trial counsel requested warnings with respect to the evidence of Mr Taylor and Mr Radz. Mr Ramage sought warnings under s 165 of the Evidence Act 1995 (NSW), including a “prison informer” warning in relation to Mr Radz’s evidence and a warning about “admissions” and “hearsay”.

The trial counsel for Mr Hristovski requested a Shepherd direction in relation to Mr Hristovski’s provision of the gun. The trial judge said that he was inclined to give such a direction although the Crown said that the jury would only need to be satisfied beyond reasonable doubt of that matter if the jury was relying on his provision of the gun alone as evidence of Mr Hristovski’s involvement.

The Crown summarised the events relevant to its case against all of the applicants by referring to the following:

The Crown addressed the jury on its case with respect to each of the applicants in turn.

As against Mr Bubanja, the Crown relied on (1) and (2) above and referred to the evidence that Mr Radz lived at Mr Bubanja’s place from April 2006 until June 2006. The Crown also relied on (3) and (4), (7), (9), (10) and (11) above and the incident at Chicko’s when Mr Radz had been asked to shoot the deceased in the leg but had declined the assignment. The Crown submitted that there was ongoing discord between the deceased and Zoran Bubanja, which escalated at the end of August 2007 and continued until the night of the killing on 7-8 September 2007.

The Crown referred to: Mr Taylor’s evidence of the gathering in the Woolworth’s car park about a week before the shooting in which the deceased was referred to as a “dog”; the conversation after the shooting in which Mr Bubanja shook Mr Taylor’s hand in recognition for having killed the deceased; and Mr Harris’ evidence about the exchange in the toilets between the deceased and Mr Bubanja in which there was a reference to a problem that needed to be fixed. The Crown also relied on what Mr Bubanja had said in his interview with Detective Chambers on 21 November 2012 and in particular that he had just met Mr Popovic shortly prior to the murder when the evidence established that they had known each other for much longer.

As against Mr Hristovski, the Crown relied on “two separate pieces of evidence”: first, the supply of the gun that was used to kill the deceased and to shoot Mr Gyles; and, secondly, Mr Hristovski’s presence in the vicinity of Splashes in the early hours of the morning leading up to and surrounding the time of the shooting and the number of telephone calls to which he was a party. The Crown said that the first piece of evidence would be sufficient for a conviction if the jury was satisfied that the gun was supplied with the intention that it be used in the murder. The Crown continued:

The Crown referred to Mr Radz’s evidence of supplying a gun to Mr Hristovski and his evidence that he had seen the gun at the workshop of Mr Hristovski’s family business. He also referred to Ms Ewen’s evidence about the gun in the bedroom as well as the different descriptions of the gun by eyewitnesses at Splashes (that it was black) and by Ms Ewen (that it was silver) and Mr Radz (that it was silver, old and 20-25cms long). The Crown relied on Mr Taylor’s evidence of going to Mr Hristovski’s place with Mr Koloamatangi to collect the gun.

The Crown referred to Detective Ritchie’s note of the informal interview which took place with Mr Taylor on 1 June 2012 and suggested that he might have recorded events in a different order from the way they had been related to him by Mr Taylor. The Crown contended that the version recorded in the note, that they had collected the gun before going to Sydney to drop off Mr Koloamatangi’s girlfriend, was unlikely and could be explained by Detective Ritchie having recorded the events in the wrong order.

It is not necessary to detail the evidence relied on by the Crown against Mr Koloamatangi or Mr Popovic in addition to the general evidence referred to above as neither applicant sought leave to appeal on the ground that his verdict was unreasonable or not able to be supported.

The Crown referred to Mr Taylor’s credibility in the context of the telephone records in the following terms:

The Crown also referred to the calls involving Mr Hristovski which indicate (by reference to the various towers) that he had travelled through Wollongong CBD and to Brokers Point and Thirroul (which cover the area where Splashes is located) and also in the Berkeley area (which covers Warrawong, where he lived).

Mr Corish replayed video footage and cross-referenced it to the phone records. He submitted that the Crown had not excluded an innocent explanation: namely, that Mr Hristovski was out with friends on a Friday night and communicated from time to time on the phone with them and others.

Mr Corish also relied on the proven falsity of the following aspects of Mr Taylor’s evidence:

Mr Corish submitted that Mr Taylor and Mr Radz were both skilled liars. He relied on Mr Taylor’s motive to harm Mr Hristovski by reason of the assault on him that took place in April 2009, which he and Ms Ewen believed was as a result of her former relationship with Mr Hristovski. Mr Corish relied on the inconsistency between Detective Ritchie’s note of the informal interview on 1 June 2012 and Mr Taylor’s evidence at trial as to the sequence of events on 7 and 8 September 2007. He also relied on the disparity between the descriptions of the gun given by the eye witnesses at Splashes (that it was dark); Ms Ewen’s evidence (that it was a silver revolver); Mr Taylor’s evidence (silver gun); and Mr Radz’s evidence of the gun he handed over (old silver revolver 20-25cms in length). Mr Corish also referred to examples of inconsistencies in Mr Taylor’s evidence.

Mr Corish read out extracts from the evidence of Mr Radz in support of his submission that he was a skilled liar and submitted that Mr Radz’s evidence was so unreliable that it could not support Mr Taylor’s evidence or the Crown case.

Mr Austin, trial counsel for Mr Bubanja, referred to CCTV footage of the incident at North Wollongong Hotel on 31 August 2007 and replayed parts of the footage at Splashes around the time of the murder. Mr Austin submitted that there was nothing about Mr Bubanja’s conduct that evening that indicated that he was aware that there was about to be an attempt to shoot and kill the deceased.

Mr Austin relied on the fact that the last call recorded as having been made (as opposed to received) by Mr Bubanja on 8 September 2007 was made at 00.17.47, which was before the deceased arrived at Splashes and therefore could not have been the call to tip off Mr Koloamatangi that the deceased was either there or was leaving. The next call initiated by Mr Bubanja was not until 11.00.46 on 8 September 2007.

Mr Austin submitted that, even if Mr Bubanja had told Mr Popovic that the deceased was at Splashes during the 18-second call initiated by Mr Popovic at 00.50.56, more was required to establish that he was part of a joint criminal enterprise. Mr Austin also referred to the fact that Zoran Bubanja, with whom the deceased was alleged to have a disagreement, had not been charged and that it was Zoran Bubanja who was said to owe money to the deceased. Mr Austin submitted that bad blood between the men could not reliably be inferred from the CCTV footage taken at the North Wollongong Hotel since the body language may have reflected no more than a transient disagreement.

Mr Austin described Mr Radz’s evidence of admissions said to have been made by Mr Bubanja as “an evil concoction” by a man with every reason to lie. He also relied on the disparity between Mr Radz’s evidence of the content of the admissions and the objective facts, including that, according to Mr Radz, Mr Bubanja said that he followed the deceased to Splashes and called Mr Popovic to tell him that the deceased was there, when the evidence established that Mr Bubanja arrived at Splashes before the deceased and that Mr Bubanja did not call Mr Popovic at all from Splashes. Mr Austin told the jury that there was not enough evidence against Mr Bubanja unless they accepted Mr Radz’s evidence, which was so exaggerated and unreliable that they could not safely accept it.

Mr Austin referred to Mr Taylor’s evidence and submitted that the evidence of “Dragan” being a “dog” in a conversation involving Mr Bubanja was too vague to be reliable as a motive, as was the evidence of the gathering in the Woolworth’s car park. Mr Austin said that the conversation in which Mr Popovic was said to have told Mr Bubanja that “Herbie [Mr Taylor] did it” cannot be a reference to the deceased’s murder since Mr Taylor obviously did not do it. Furthermore Mr Austin submitted that the conversation did not support Mr Bubanja’s involvement in the murder.

Mr Austin submitted that the CCTV footage from Splashes showed that the deceased and Mr Bubanja were on good terms and that it appeared that Mr Bubanja was going to leave with the deceased in a taxi.

Ms Davenport took the jury through Ex G and submitted that it showed that Mr Taylor’s evidence about his movements that night was wrong. She highlighted the fact that, although Exhibit G showed a “flurry” of telephone calls at the relevant time, none was to Mr Koloamatangi, whom one might expect to be the most important person to whom contact ought be made. Ms Davenport highlighted Mr Taylor’s motive to lie arising from the fact that he was pulled over by police in 2012 with drugs in the car and wanted and needed the indemnity. She submitted that all that the Crown had against Mr Koloamatangi was Mr Taylor’s evidence.

As Mr Koloamatangi’s application does not include an unreasonable verdict ground, it is not necessary to summarise his trial counsel’s address further.

Mr Ramage adopted and expanded on the submissions of other counsel regarding Mr Taylor and Mr Radz’s credibility. As Mr Popovic’s application does not include an unreasonable verdict ground, it is not necessary to summarise his trial counsel’s address.

At the beginning of the summing up the trial judge gave a number of directions and warnings, including a direction relating to multiple accused. At SU 3, the trial judge said:

The trial judge, after giving the standard directions of law including those regarding onus and standard of proof, gave the jury a document setting out the elements of the offence and what is required to establish a joint criminal enterprise. His Honour then gave four warnings, the first three of which were given in response to the requests made by defence counsel referred to above. His Honour prefaced these warnings with the following words (SU 13):

The first warning was in relation to Mr Taylor’s evidence. The trial judge said in part (SU 14):

The second warning was in relation to Mr Radz’s evidence. The trial judge said (SU 15):

The third warning was a further warning about Mr Radz’s evidence in which his Honour said (SU 15):

The fourth warning, the giving of which had not been raised with counsel earlier, was sought neither by defence counsel, nor by the Crown. It was in the following terms (SU 15-16):

The substance of the fourth warning was reiterated later in the summing up (SU 104).

The trial judge informed the jury about issues that may arise with recollection and the process of drawing inferences. His Honour said (SU 21):

At the conclusion of the first day of the summing up, in the absence of the jury, counsel for Mr Koloamatangi submitted that the warning regarding Mr Radz was inadequate in that it did not warn the jury of the potential unreliability of evidence given by prison informers of admissions made by accused persons (SU 23).

On the second day of the summing up, the trial judge commenced the summary of the evidence. His Honour addressed the circumstances of the shooting, including the description of the gun and the gunman; the “actions of the gunman in so far as they may bear on the reliability of Mr Taylor’s evidence”; and the actions of the gunman as demonstrating an intention to kill. His Honour catalogued the versions of witnesses as to the weather; the number of shots fired; the build and skin colour of the gunman; and what he was wearing.

The trial judge (SU 34) referred to the evidence of Adrian Castagna, the Master of Ceremonies at Splashes that night, and read a passage from the transcript of his cross-examination in which he described the gun as “black coloured”, following which the exchange occurred:

His Honour then said, “Whether he is talking about the gun was inescapable, or the colour was inescapable, is not clear.” His Honour then read out the same questions and answers again (SU 34).

His Honour summarised the evidence of Mr Harris (SU 35), who came across two men at the bar (one of whom was identified as being Mr Bubanja) and later, the same two men in the toilet. There was a discussion between the two men in which they referred to a problem that needed to be, or would be, fixed. His Honour referred to evidence about a conversation between Mr Bubanja and the deceased at the bar which suggested some conflict.

His Honour referred to the evidence of Mr Berry, the ballistics expert (SU 37), that no fired cartridge cases were found at the scene, which, together with the analysis of the bullets (which were extracted from Mr Gyles and the deceased’s body), indicated that the weapon was a revolver rather than a pistol.

The trial judge referred to the evidence of Ms Ewen (SU 37). His Honour reminded the jury of her evidence that she had first seen a gun, which she described as silver, in August 2007 and had seen a gun (whether the same or another gun) on numerous occasions (“possibly a dozen”) thereafter when Mr Hristovski was putting it away. She agreed that the gun had come up in conversation with Mr Taylor and that she had discussed her statement with him. The trial judge told the jury:

His Honour then said (SU 38):

His Honour referred to Mr Radz’s evidence that the gun was 20-25cms long as compared with Mr Taylor’s evidence of a short revolver, lady’s weapon or “snub-nosed’ gun (SU 38-39). After summarising the remainder of Ms Ewen’s evidence, his Honour turned to the evidence of the deceased’s widow.

His Honour referred to Mrs Sekuljica’s evidence about the dispute between the deceased and Zoran Bubanja which arose from the construction of some units before 2006. The trial judge also referred to the incident in May 2006 when Zoran Bubanja, Mr Bubanja and his brother Marko came to the deceased’s unit and spoke to him through the intercom asking him to come out but that the deceased did not comply with the request.

The trial judge referred to the evidence of the conversation between the deceased and Mr Popovic, about which Mrs Sekuljica gave evidence, in the course of which the deceased called Mr Popovic a traitor.

The trial judge referred to Exhibit G which logged the calls and text messages between relevant persons and which also indicated the location of the persons sending and receiving these communications. His Honour went to particular entries at particular times (SU 44-45).

In the morning adjournment, in the absence of the jury, counsel raised with the trial judge that his Honour was referring to communications in Exhibit G which had not been the subject of address by counsel. Mr Corish (trial counsel for Mr Hristovski) accused the judge of “cherry picking” “to advance a particular analysis or interpretation of the calls” without proper regard to the evidence about the footprints of the various towers (SU 48-40).

In the same adjournment, Mr Corish informed the trial judge that his Honour had referred to Mr Taylor’s description of the gun on 1 June 2012 (when he spoke to officers of the Crime Commission) without referring to Mr Taylor’s statement that the gun was a .32 calibre gun. Mr Corish also challenged his Honour’s insinuation that there was ambiguity about the word “inescapable” in Mr Castagna’s evidence about the colour of the weapon. Mr Corish submitted (SU 52) that Mr Castagna’s statement was made very soon after the shooting and had not been challenged in any meaningful way. He accused the trial judge of embarking “on an impeachment exercise in relation to his description of the weapon being black coloured”. The trial judge refused Mr Corish’s request that he withdraw it. Mr Ramage, trial counsel for Mr Popovic, adopted Mr Corish’s submissions and submitted that the trial judge had engaged in a “deliberate distortion of the witness’s evidence” (SU 54).

In response to counsel’s request, the trial judge read out an extract from Ms Ewen’s evidence about the gun in which she said that the body of the gun was silver and that she thought it was a revolver although she was not sure (SU 56).

When the jury came back, the trial judge took the jury through the evidence of phone calls at particular times to indicate where Mr Taylor and Mr Koloamatangi were. He also referred to the timing of calls between Mr Taylor and the applicants. The trial judge then linked this evidence to the evidence of Mr Taylor (SU 60) as follows:

Mr Ramage (trial counsel for Mr Popovic) asked the trial judge to withdraw the comment about the scenario about people calling in advance since it was not based on any evidence.

Ms Davenport (trial counsel for Mr Koloamatangi) raised the issue of the summary of the telephone calls in the following terms (SU 64):

Ms Davenport submitted that the trial judge was seeking to undermine the defence submission that there was a number of inconsistencies between Exhibit G (which was relevantly objective incontrovertible evidence) and Mr Taylor’s evidence (SU 65). She continued (SU 65):

Mr Corish (trial counsel for Mr Hristovski) asked the trial judge to withdraw all that he had said about Exhibit G and start again. He reminded the judge that Mr Taylor had identified the call at 00.49.58 as “100 %” the call which was made from Blaxland Avenue, Warrawong (where Mr Hristovski lived). Mr Corish accused the judge of “rehabilitating the witness” and engaging in “an exercise in resurrection” (SU 66).

On Monday morning, in the absence of the jury, the question of the adequacy of the prison informer warning was revisited. Ms Davenport submitted that, since the only interaction between Mr Radz and Mr Koloamatangi occurred in prison, it was necessary that a particular warning be given about the reasons why evidence of those particular conversations may be unreliable. She added:

Mr Ramage (trial counsel for Mr Popovic) adopted Ms Davenport’s submissions and submitted that the trial judge ought not to have rolled up the two warnings (criminally concerned and prison informer) into one. Mr Ramage also complained about the fourth warning (set out above) and said (SU 76):

The trial judge informed counsel that, although he indicated that he had told them that he would tell the jury that if they did not accept Mr Taylor’s evidence about picking up the gun from Mr Hristovski that they should acquit, his Honour said that he had changed his mind on the basis that such a direction would be “too adverse to the Crown”.

The trial judge informed the jury that what he had said about people ringing in advance was not a direction of law. His Honour said (SU 83):

The trial judge referred to the inconsistency between Exhibit G and Mr Taylor’s evidence about being at Mr Popovic’s for one hour. His Honour also referred to the absence of any calls involving Mr Taylor or Mr Koloamatangi to indicate that they had been in Warrawong (which was covered by the Berkeley tower (SU 85) on the night of 7-8 September 2007.

His Honour then said, of Mr Taylor’s evidence (SU 85-86):

The trial judge summarised Mr Taylor’s evidence before saying (SU 93):

In this context the trial judge continued the summary of evidence before turning, at SU 102, to Mr Taylor’s evidence of the incident in the Woolworth’s car park. The trial judge said:

His Honour also referred to the defence “attack” on Mr Taylor’s evidence on the basis of two matters: first, his evidence that he spent an hour at Mr Popovic’s place on the evening of the killing; and, secondly, that he had told investigators on 1 June 2012 (three days before he had made a formal statement on which his evidence at trial was based) that he and Mr Koloamatangi had collected the gun before the first trip to Sydney on that evening. As to the second matter, the trial judge reminded the jury that Mr Taylor had denied the statement recorded in Detective Ritchie’s note about the timing of the collection of the gun. The trial judge read out Detective Ritchie’s evidence of his note which recorded:

The trial judge then read out the cross-examination of Detective Ritchie in which the witness raised the question whether the paragraphs ought be switched around. The trial judge continued (SU 104):

At SU 105, the trial judge referred to Mr Taylor’s evidence that the call at 00.49 was made from outside Mr Hristovski’s house, which was challenged on the basis that the call was made at a time when Mr Taylor and Mr Koloamatangi were still in the Wollongong CBD area (according to Exhibit G), which does not provide coverage to Warrawong. The trial judge addressed Mr Taylor’s evidence in that context at some length. His Honour’s remarks are set out below in full because of the reliance placed on them in support of the ground that the summing up was unbalanced. His Honour said, at SU 105:

His Honour then turned to the colour of the gun which was described as “the next matter of detail” (SU 106). The trial judge continued (SU 106-107):

The trial judge also referred to Ms Davenport’s argument about whether there was time for Mr Taylor to do what he said he did and referred to the evidence of waiting in the car park as “another matter of detail” (SU 107). The trial judge, at SU 109, referred to Ms Davenport’s attack on Mr Taylor’s evidence of events and times and said:

Mr Ramage asked the trial judge to withdraw the speculation that there had been some conspiracy that the deceased be taken to the North Gong Hotel. He also requested that his Honour withdraw the question “Why would he [Mr Taylor] lie?” and direct the jury to ignore those remarks. Mr Corish endorsed Mr Ramage’s submissions and contended that the “Why would he lie?” comment suggested that an onus was being placed on the accused to offer an explanation. Mr Corish also submitted that there were reasons for Mr Taylor to lie, including revenge (on Mr Hristovski for the assault of April 2009) and to shift blame from himself to others, as well as the incentive provided by the financial reward and the indemnity. Mr Corish suggested that a more neutral question would be to ask the jury in respect of Mr Taylor, “Why can’t he get the facts right?”

At SU 114 trial counsel for Mr Popovic complained about the hearsay warning given in relation to Detective Ritchie’s evidence in the following terms:

When the jury returned the following morning (Tuesday 27 May 2014), the trial judge referred to what he had said at 106-107 SU:

The trial judge referred to the defence submission that Mr Taylor was a skilled liar and continued (SU 119-120):

Mr Ramage (trial counsel for Mr Popovic) interrupted the summing up to apply for a discharge on the basis that there was no evidence that Mr Popovic had been in prison before 2013 when he had been charged with the murder of the deceased. He also relied on the reasons the trial judge had given for suggesting that Mr Popovic might ask Mr Hristovski to “get something” in support of a submission that the trial judge had raised bad character. His Honour refused the application.

When the jury came back, the trial judge told them that he had made a mistake and that there was no evidence at all that Mr Popovic had ever been in gaol before the current charge, in 2013 (SU 127). His Honour directed the jury to put out of their minds the “argument” that Mr Popovic’s time in prison may have been a factor in his using the term “something” rather than “gun” (SU 127-129).

His Honour then summarised the evidence of Mr Radz.

The trial judge commenced the next section of the summing up by saying, “Let me just briefly summarise the cases.” In the following two pages of the summing up, the trial judge summarised the Crown case against each applicant.

The trial judge said that the case against Mr Koloamatangi depended on the phone calls; the physical location of his phone; and the fact that he made two trips to Sydney on the night of 7 or 8 September 2007. His Honour said further:

The trial judge identified the evidence against Mr Popovic as being the evidence of the deceased’s widow and another witness who had deposed to the deceased referring to Mr Popovic as a traitor; and the evidence of the number of phone calls between Mr Popovic and other persons on the night of 7 and 8 September 2007, including Mr Koloamatangi, whom the Crown submitted was the gunman. His Honour said further:

The trial judge identified the evidence against Mr Bubanja as comprising: “the visit to the unit and the banging on the door”; “the incident in the North Wollongong Hotel”; “the incident in the toilet on the 7th of September”; and “the fact of the phone calls”.

The trial judge summarised the Crown case against Mr Hristovski in the following terms:

Because of its brevity, I propose to set out in full the trial judge’s summary of the applicants’ cases (SU 155-156):

Before the jury was sent out to deliberate, but in their absence, the trial judge invited counsel to make any objections in the absence of the jury. Ms Davenport (trial counsel for Mr Koloamatangi) submitted that the summing up was unbalanced because of the amount of time (which Ms Davenport estimated, as recorded at SU, 159, to be fewer than five minutes) devoted to summarising the defence cases. The other trial counsel adopted and expanded on these submissions. His Honour brought the jury back and made some factual corrections. His Honour said at SU 178:

After the jury was sent out to deliberate, counsel made further submissions about the summing up (the utility of which was questionable having regard to the timing), to which the trial judge responded in the following terms, presumably for the benefit of counsel and in defence of his Honour’s approach to the summing up, since the jury had already commenced its deliberation:

Because of the overlap between the grounds of appeal I propose to address them as follows:

Ms Rigg SC, who appeared on behalf of Mr Hristovski, contended that there were two primary facts of which the jury needed to be satisfied beyond reasonable doubt before it could convict Mr Hristovski: first, that he supplied a firearm to Mr Koloamatangi, within hours prior to the shooting, in the presence of Mr Taylor; and, secondly, that, in the hours before the shooting he had extensive telephone contact with Mr Bubanja and Mr Popovic at the times set out in Exhibit G. She submitted that the trial judge ought to have given the jury a Shepherd direction.

It is accepted that Mr Hristovski’s trial counsel sought a Shepherd direction with respect to Mr Hristovski’s provision of the gun to Mr Taylor. The trial judge, after having given a preliminary indication that he would give it, subsequently decided that it would be too adverse to the interests of the Crown to give such a direction.

It was common ground that the Crown principally relied on two evidentiary bases for its case against Mr Hristovski: the supply of the gun; and his presence in the vicinity of Splashes leading up to and surrounding the time of the shooting, evidenced by Ms Ewen’s evidence of his leaving home in the early hours of the morning and the telephone records indicating his location and communications with the other applicants. Although the Crown accepted that either category would not be sufficient of itself, it submitted that the two could support each other but that the first category need not be proved beyond reasonable doubt, since Mr Hristovski’s involvement was not dependent on his having supplied the gun, although the Crown case was that he had.

Whether a Shepherd direction ought be given arises for consideration where it is necessary for the jury to reach a conclusion as an “indispensable intermediate step” in the reasoning process. The metaphor used in Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par. 412-414 for such a step is that it is a “link in the chain” and is to be distinguished from a “strand in a cable”, which is a fact which need not be proved beyond reasonable doubt because the reasoning does not depend on its being made out, although it may assist the drawing of an inference. The distinction between the elements of the offence, each of which must be proved beyond reasonable doubt, and the relevant facts relied upon to prove each element, which need not be proved beyond reasonable doubt, is subject to a qualification that some facts (which are not elements of the offence) need to be proved beyond reasonable doubt because of their status as “indispensable intermediate steps”.

In Shepherd v The Queen Dawson J said at 585:

The distinction was confirmed in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [52] (per French CJ, Bell, Keane and Nettle JJ) where a Shepherd direction was described as a principle of law which must be applied in a trial by judge alone, although it need not be expressed in terms in the reasons.

Ms Rigg contended that this Court ought apply the test approved in Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199 at [126]-[128]: namely, what is the effect on the Crown case of removing the fact said to be an indispensable intermediary step? She submitted that if one removes the provision of the gun, all one has is that Mr Hristovski was in the vicinity of Splashes at the relevant time and communicated with some of the other applicants throughout the evening, which would be insufficient to permit the jury to be satisfied that the hypotheses consistent with innocence (such as that he was simply out with friends on a Friday night) had been excluded. By contrast, if the jury was satisfied that the gun was supplied, the evidentiary significance of Mr Hristovski’s location and communications with him at relevant times is substantial.

The Crown contended that although the provision of the gun was one way in which the jury could have drawn an inference of guilt to the requisite standard, it was not the only way in which they could infer that Mr Hristovski was playing an active role in assisting the other participants in the enterprise in the vicinity of the murder scene. Accordingly, it contended that the trial judge was correct to refuse to give the direction, on the basis that it would be adverse to the Crown’s interests.

I am not persuaded that the provision of the gun was an intermediate indispensable fact or that, even if it was, a Shepherd direction needed to be given. It is not enough that the Crown case would be substantially weakened if the relevant fact was removed; or whether there would be a case to go to the jury without it (R v Davidson [2009] NSWCCA 150; 75 NSWLR 150 at [74] per Simpson J) or that a verdict without the evidence of provision of the gun would be unreasonable.

Although I am not persuaded that the giving of a Shepherd direction would have been confusing or adverse to the interests of the Crown, the question whether such a direction is appropriate is a matter for the trial judge to assess. I am not satisfied that the trial judge was in error in not giving the jury a direction that they needed to be satisfied beyond reasonable doubt that Mr Hristovski provided the gun to Mr Taylor. As Spigelman CJ said in R v Davidson at [19]:

I am satisfied that the trial judge directed the jury sufficiently as to the onus and standard of proof such that the direction was not required in any event.

Ms Rigg provided a draft direction in support of her submission that it would not have been confusing to provide a direction to the jury. It is not necessary to set out the terms of the draft direction since I am satisfied that it would not have been confusing to provide such a direction.

It would, in my view, have been open to the trial judge to direct the jury that if they were to use the provision of the firearm as a basis for inferring Mr Hristovski’s criminal involvement they would need to be satisfied of that fact beyond reasonable doubt. However I do not consider that the trial judge was obliged to give such a direction because of the way the Crown had put its case against Mr Hristovski, which highlighted the provision of the gun. As the facts against Mr Hristovski were relatively few in number, I do not consider that a direction was required in addition to the standard directions as to onus and standard of proof which have not been challenged.

It was accepted that a request had been made for warnings in respect of Mr Taylor’s evidence, on the ground that he was criminally involved, and in respect of Mr Radz’s evidence, on the ground that he was a prison informer and that his evidence comprised admissions and hearsay. Accordingly, the trial judge was obliged to give warnings under s 165(1)(a) and s 165(1)(d) in respect of Mr Taylor’s evidence and under s 165(1)(a) and (e) in respect of Mr Radz’s evidence.

Section 165 of the Evidence Act provides in part:

Each of the applicants relied on the trial judge’s warning relating to Detective Ritchie’s evidence as an error which was relevant to the general ground that the summing up was unbalanced. It was identified as a ground only by Mr Bubanja. The passages from the summing up in which the warning was given (SU 15-16 and 104) are set out above.

The evidence the subject of the warning was Detective Ritchie’s note in which he had recorded that Mr Taylor had said, on 1 June 2012, that he had picked up the gun from Mr Hristovski’s place before driving to Sydney with Mr Koloamatangi and his girlfriend to drop her off before returning to Wollongong with Mr Koloamatangi on the evening of 7/8 September 2007. Although no order was made to limit the use of the evidence to its non-hearsay purpose, the evidence was not relied on by the Crown (or any of the applicants) at trial for the hearsay purpose.

There were several reasons why the Crown did not contend for the truth of the version recorded by Detective Ritchie that Mr Taylor had collected the gun before the first trip to Sydney. First, it was inconsistent with Mr Taylor’s evidence that they had collected the gun after he and Mr Koloamatangi after they had spent an hour at Mr Popovic’s place following their return to Wollongong from Sydney. Secondly, the possibility of such a visit had not been explored in the evidence of Ms Ewen, who would have been up and awake at that time. Thirdly, it would also have substantially undermined Mr Taylor’s evidence that he was unaware of the potential criminality of the venture until his hour-long visit to Mr Popovic’s place when he was asked to collect “something” from Mr Hristovski’s place.

The evidence of what was recorded in the note was elicited by defence counsel in cross-examination and was relied on by the applicants as a prior inconsistent statement by Mr Taylor, whose evidence at trial was that he and Mr Koloamatangi had collected the item from Mr Hristovski’s place after their return to Wollongong after delivering Mr Koloamatangi’s girlfriend to Sydney. It was, accordingly, evidence which was adduced for the benefit of the applicants.

The only reference to the note being used for a hearsay purpose was in the summing up where his Honour said (in the passage at SU 109 set out above) that if Detective Ritchie had recorded Mr Taylor’s version of 1 June 2012 correctly and Mr Taylor had in fact collected the gun from Mr Hristovski before his first trip to Sydney then the criticisms made by Ms Davenport based on timing could be put to one side. Notwithstanding a complaint by trial counsel for Mr Popovic about this aspect of the summing up in the adjournment immediately following his Honour’s comment, the trial judge neither corrected nor amended what he had said.

The applicants contended that the effect of the warning was to undermine the significance of Detective Ritchie’s note to the applicants’ challenge to Mr Taylor’s credibility by suggesting that the note was not accurate. The Crown accepted before this Court that no hearsay warning was appropriate because the evidence was not relied on by anyone for a hearsay purpose. It contended that, although the giving of the warning was not necessary, and although it was expressed as a “warning”, it amounted to no more than a comment.

Mr Gartelmann SC, who appeared for Mr Koloamatangi, submitted that the request for the warning was plainly a request for the trial judge to warn the jury of matters that may cause the evidence of Mr Taylor and Mr Radz to be unreliable. In so far as that evidence was evidence of admissions said to have been made by any of the applicants to Mr Radz, it was hearsay evidence, in respect of which the trial judge was obliged to give a warning, if it was requested. Mr Gartelmann contended that the effect of the trial judge’s warning to the jury regarding “hearsay” evidence was to identify reasons why the evidence of police that Mr Taylor had made prior inconsistent statements may be unreliable, and thus to inform the jury of reasons why Mr Taylor’s and Mr Radz’s evidence was reliable. Far from giving a warning which would protect the interests of the applicants, the trial judge, so it was argued, gave a warning which was not only adverse to their interests, but which also did not correspond with the warning sought.

The first point is that the hearsay rule did not apply to the contents of Detective Ritchie’s note since it was admitted because it was relevant for a non-hearsay purpose: s 60(1) of the Evidence Act. Although the effect of s 60 was to make the evidence admissible for the hearsay purpose as well, since it was relevant to a non-hearsay purpose (Adam v The Queen [2001] HCA 57; 207 CLR 96 at [37]), this potential effect was, in fact, irrelevant in the trial since no one relied on the evidence for its hearsay purpose. I reject the submission made by the Crown that the trial judge’s warning was no more than a comment. In my view, its context in the summing up and the fact that it was listed at the end of a three other warnings which amounted to directions, was sufficient to indicate that the jury could reasonably have understood it as being a warning rather than merely a comment.

Moreover the distinction between “comment” and “direction” is, at times, illusory from the jury’s perspective since it may not be clear whether what the judge says is, at any given point in the summing up, a direction or a comment. If the jury regards what is being said as a direction, they may feel bound to abide by it; however, even if the relevant matter is purely a comment, it might have a tendency to “overawe” the jury because, unlike counsel’s submissions, a comment by the judge carries with it the weight of judicial office.

The warning in terms was not only erroneous as a matter of law, but it did not correspond with the request (and was inimical to the purpose of the request). It was plainly adverse to the applicants’ interests (since it diminished the reliability of the evidence of the prior inconsistent statement) and had not been sought by the Crown: R v Salama [1999] NSWCCA 105 at [86]-[87] (Kirby J, Wood CJ at CL and Ireland J agreeing) and DPP v Ramlagun [2014] VSCA 68.

The applicants relied on several passages in the summing up in support of the submissions relating to this ground and in particular SU 21, 106-107.

Mr Game SC, who appeared with Mr Lange on behalf of Mr Bubanja, submitted that the effect of the trial judge’s summing up was to invite the jury to start with the assumption that Mr Taylor was a truthful witness and tell them not to displace that assumption without cause. He contended that the rhetorical question, “why would Mr Taylor lie?” was even more prejudicial to the accused than the situation considered by the High Court in Palmer v The Queen (1998) 193 CLR 1 when the accused had been asked when he was giving evidence why the complainant would lie. Mr Game submitted that the Crown would not have been entitled to ask Mr Taylor the question when he was giving evidence. He contended that it was even more prejudicial for the trial judge to ask it in the course of the summing up because the judge’s asking the question endowed it with a judicial imprimatur and its timing deprived defence counsel of an opportunity to respond.

The question of motive to lie tends to arise in two situations: first, where there is a witness in respect of whom there is no evidence to suggest a motive to lie; and secondly, where the evidence reveals such a motive. In the first case, the jury ought not be asked to consider why the witness would lie because the question tends to suggest that the jury ought believe the witness in the absence of evidence suggesting a motive to lie. However in the second case the jury is entitled to be asked to consider the validity of the motive to lie that has been asserted. In such a case, the jury ought be directed that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth: see R v Jovanovic (1997) 42 NSWLR 520 at 521-522 per Priestley J and at 535 per Sperling J.

Mr Game submitted that the present case belongs to the second category, since Mr Taylor plainly had a motive to lie: to minimise his own criminality; and exaggerate that of the applicants for the purpose of the reward and his indemnity. Mr Game contended that, notwithstanding the warning (about Mr Taylor’s criminal involvement) the trial judge was effectively telling the jury that they needed to be satisfied that Mr Taylor had a motive to lie (which was presumably additional to the one about which a warning had been given) before they disbelieved him.

The relevant principles were summarised by Hunt AJA (Simpson and Whealy JJ agreeing) in South v R [2007] NSWCCA 117 in the following passage:

In my view, the effect of the trial judge’s asking, rhetorically, why Mr Taylor would lie was not only to deprive the earlier warning under s 165(1)(d) of the Evidence Act (that he was criminally concerned) of any substantial force, but also to give the jury the impression that if they could not identify another reason why he would lie, they should accept his evidence. This is an error which, in my view, could give rise to a substantial miscarriage of justice.

Before turning to the particular matters identified by the applicants as indicating that the summing up was unbalanced I propose to summarise the purposes to be served by a summing up in a criminal trial and the way in which these purposes are conventionally fulfilled.

The purposes of a summing up are:

This is not to say that there must always be a clear demarcation between (2) and (3). However, if the inferences for which the Crown or the accused contend are interleaved in the summary of evidence, there is a risk that the jury will gain the impression that the judge is contending for a particular inference. Although there is considerable leeway in the way in which the summing up can be structured, it is an essential element of a summing up that the competing cases of the Crown and the accused be summarised fairly and adequately.

It is particularly important that the judge does not raise in the summing up matters which have not been raised by the Crown but which advance the prosecution case since this could amount to a denial of natural justice as the accused will, in that event, have no opportunity to respond: R v Meher [2004] NSWCCA 355 at [87]-[88] per Wood CJ at CL (Buddin and Shaw JJ agreeing). Furthermore, the raising by the trial judge in the summing of matters not put by counsel in address tends to compromise the appearance of impartiality: R v Esposito (1998) 45 NSWLR 442 at 455D-E per Wood CJ at CL.

Although a trial judge may, within limits, comment on the evidence the assessment of which is purely a matter for the jury as the tribunal of fact, it is generally unadvisable to do so, except in instances of which Tsigos v R (1965) 36 ALJR 76, to which his Honour referred after the jury had been sent out to deliberate, is an example. Thus, if the defence case in a murder trial was run on the basis of manslaughter by reason of provocation, it is open to a trial judge to direct the jury not to bring in an irrational acquittal since the only rational choice is between murder and manslaughter. Except in this instance, Tsigos does not provide any support for the proposition that it is appropriate for a trial judge to comment on the evidence in such a way as to steer a jury to a particular verdict.

The restrictions on comment in a summing up were addressed by the High Court in B v The Queen (1992) 175 CLR 599 where Brennan J (Mason CJ and Deane J agreeing) said at 605-606:

Where more than one accused is tried, the trial judge is obliged to identify the separate position of each accused, both as to the evidence, the Crown case and the accused’s own case: R v Towle (1954) 72 WN 338 at 340; followed in R v Masters (1992) 26 NSWLR 450. In R v Towle Street CJ said, at 340, that, except in unusual cases, where two or more persons are being tried together:

This obligation can, however, be discharged in different ways. Where the whole of the evidence is relevant to each of the accused, it may not be necessary, and could be artificial, to segregate the position of each accused in the orthodox way. Thus, in Huynh v The Queen [2013] HCA 6; 87 ALJR 434, the High Court dismissed an appeal brought, in part, on the basis that the summing up failed to distinguish between the cases of the accused. The Court said at [49]:

The importance of preserving the division of functions between the judge as the tribunal of law and the jury as the tribunal of fact was addressed by the High Court in RPS v The Queen [2000] HCA 3; 199 CLR 620 (Gaudron A-CJ, Gummow, Kirby, Hayne JJ) as follows:

Ms Rigg identified several factors which she contended established that the summing up was so unbalanced as to deprive the applicants of a fair trial and amount to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). These factors, which are listed below, will be considered in turn:

Mr Game adopted Ms Rigg’s analysis. Mr Game submitted that the effect of the summing up was not only to weaken the effect of the warnings given about the reliability of Mr Taylor’s evidence (arising from his criminal involvement and the indemnity) but also to reverse the onus of proof. He also relied on the occasions on which the trial judge had encouraged the jury to accept Mr Taylor’s evidence on bases not raised by the Crown.

As Mr Game and the other applicants’ counsel also made submissions with respect to the points raised by Ms Rigg, it is convenient to refer to them by reference to these matters although the question whether the summing up was so unbalanced as to deprive the applicants of a fair trial is one to be approached by considering the summing up as a whole.

Ms Rigg relied on the extract set out above from SU 21 where the trial judge asked several rhetorical questions which were prefaced with the phrase, “if Mr Taylor is going to concoct a completely cock and bull story”. She submitted that what followed was the trial judge’s prolonged critique of the reliability of defence counsel’s arguments in which his Honour urged that they be approached with caution, if there were possibilities consistent with guilt. She contended that his Honour embarked on a detailed analysis of the differences between observations made by eyewitnesses at Splashes which were largely, if not wholly irrelevant, such as the position of the deceased at the time of the first shot.

The defence counsel made much of the difference between Mr Taylor’s description of the gun as silver and the descriptions given by all eye witnesses, which was that it was black or dark. Ms Rigg contended that the trial judge undertook a detailed review of the evidence of the lighting and inconsistencies in evidence regarding the circumstances of the shooting which had the effect of diminishing the force of the evidence of the eyewitnesses that the gun was black or dark. If the jury accepted that the weapon used in the shooting was black or dark, this would substantially undermine the Crown case against Mr Hristovski as well as damage Mr Taylor’s credibility, since he swore that the gun he collected from Mr Hristovski for Mr Koloamatangi to use to shoot the deceased was silver.

Ms Rigg contended that Ms Ewen’s estimates of how often she had seen the gun were not only relevant to whether her observation of a firearm supported Mr Taylor’s version of being provided with the gun by Mr Hristovski. She submitted that Ms Ewen’s evidence was also capable of raising a real possibility that the gun to which Mr Hristovski had access in August and early September 2007 did not leave his possession on 8 September 2007, since its appearance was so unlike the gun described by the eyewitnesses at Splashes. Ms Rigg pointed to the following passage in the summing up (SU 38) in which the trial judge said:

Ms Rigg submitted that the effect of what the trial judge said was that the benefit of Ms Ewen’s evidence was completely lost to the defence, since his Honour postulated that there might have been another gun. She contended that the Crown had not put the argument advanced by the trial judge in the passage set out above and that its inclusion in the summing up had deprived the applicants’ counsel of the opportunity of responding to it.

Ms Rigg contended that it was erroneous to give such a warning, which was adverse to the interests of the defence, when it had not been sought, and tended to undermine the evidence relied on by the defence and the defence case.

This matter has already been addressed to some extent above. However, its relevance to the unbalanced summing up ground is that it was a warning given against the interests of the applicants, which had not been sought.

For reasons given above, s 165(1)(a) did not apply to Detective Ritchie’s note of what Mr Taylor said on 1 June 2012 since it was not tendered or used for a hearsay purpose and was not an admission (since Mr Taylor was not an accused). It was common ground that no party had requested a warning under s 165(2) in respect of the evidence. Nonetheless, the trial judge’s power to give a warning to the jury or inform the jury of matters is preserved by s 165(5). Accordingly, the question is whether a warning was appropriate and, if not, whether it was productive of a miscarriage of justice: Restricted Judgment [2016] NSWCCA 44 at [57] (R A Hulme J, Basten JA and Johnson J agreeing).

The weight to be given to evidence is pre-eminently a matter for the jury as the tribunal of fact. The warnings for which s 165 and the common law provide have been developed as a matter of fairness to accused persons because certain evidence has been found to be unreliable in a way which may not be known to the jury as a tribunal of fact. As this Court said in Kanaan v R [2006] NSWCCA 109 at [182]

It is difficult to see how Detective Ritchie’s evidence of the contents of his note could properly call for a warning. The only aspect of it which might tend to undermine its accuracy was that Detective Ritchie did not make a note of what Mr Taylor said at the time of the interview, but made the note shortly thereafter by way of a summary rather than a word-for-word account. However this was something of which the jury could be taken to be well aware. It is a matter of common experience that a note taken of something someone said at the time the words were spoken is likely to be more reliable than one produced even relatively soon afterwards.

It is generally undesirable for a trial judge to give a warning in the case of evidence of a person other than the accused that evidence is unreliable where the evidence favours the accused: see, in the context of negative identification evidence, R v Rose [2002] NSWCCA 455; 55 NSWLR 701 at [297] (Wood CJ at CL and Howie J) and Kanaan v R at [128]. This is particularly where no such warning has been sought by the Crown such as would give defence counsel an opportunity to respond to the application.

In my view the effect of the trial judge’s warning was to elevate a matter of common experience to a warning or direction, which thereby attracted the status of the trial judge’s office and served to substantially undermine the probative value of Detective Ritchie’s note, which was to impugn Mr Taylor’s credibility. The warning was both erroneous as a matter of law and inappropriate. Whether it was productive of a miscarriage of justice does not need to be considered in isolation, by reason of the number of other matters relied on.

Ms Rigg also relied on the passage reproduced above from SU 109 in which the trial judge said that, even if Ms Davenport’s calculations about time were correct, Mr Taylor might have picked up the gun before the first trip to Sydney anyway, in which case “that attack . . . fails”.

For the reasons given above, the trial was not conducted by any party on the basis that the version of Mr Taylor’s movements recorded by Detective Ritchie (that he collected the gun before the first trip to Sydney) was true. Counsel would not have been entitled to raise it as a possibility in final address because it had not been put to relevant witnesses: see the discussion of Browne v Dunn (1893) 6 R 67 in R v Birks (1990) 19 NSWLR 677 at 686-692 (Gleeson CJ). It is generally inappropriate for the trial judge to make what is effectively a submission to a jury in the summing up that it could reason to a version of the facts which is inconsistent with the way the case was conducted at trial. Exceptions such as the obligation to address defences or alternative verdicts which have not been raised are not presently relevant. It is even more inappropriate for a trial judge to raise such a matter in a way which is adverse to the interests of accused persons, particularly where, if the Crown had made the submission, the defence would have had a chance to respond.

I am persuaded that his Honour’s remarks in SU 109 were inappropriate since they raised a matter adverse to the interests of the accused persons which had not been relied on by the Crown and which had not been explored with the relevant witnesses and in respect of which defence counsel had not had an opportunity to address the jury. Having regard to the importance of Mr Taylor’s evidence to the Crown case they had the potential to cause a miscarriage of justice.

At trial, the applicants relied on Mr Taylor’s evidence that Mr Popovic asked him to “pick up something” as a powerful indication that he was seeking to minimise his own responsibility and exaggerate the role of others (the applicants) in the murder of the deceased. They submitted, in effect, that it was implausible that Mr Taylor would not have been aware from the outset that the “something” was a gun. This was, accordingly, another matter which, on the defence cases, served to impugn Mr Taylor’s credibility and was, according to defence counsel, in a similar category to Mr Taylor’s evidence that he was to receive no reward or other remuneration for his part in the killing, which included (on Mr Taylor’s version) going to Mr Hristovski for a reconnoitre with Mr Popovic; going again later to collect the gun; dropping Mr Koloamatangi’s girlfriend in Sydney; providing clothing for Mr Koloamatangi; providing transport for him to and away from Splashes; and delivering the cash to Mr Koloamatangi for the killing.

Ms Rigg argued that the passage from SU 120 (reproduced above) not only did not refer to the submission made by the defence at trial but provided no less than the following four reasons why Mr Taylor’s version of the conversation ought be believed:

Ms Rigg submitted that it would have been preferable for the trial judge to summarise the evidence without interleaving it with the Crown case. She also submitted that, if the trial judge included submissions within the summary, they should be balanced and refer to the defence case as well. Further, she submitted that: (1), though true, was irrelevant since the conversation occurred on 7 or 8 September 2007 and took place in person rather than on the phone; there was no evidence of (2); and, as to (3) and (4), although there was evidence that Mr Popovic knew both Mr Taylor and Mr Radz, there was no evidence that he knew of their criminal records or conduct. Although it was accepted that the trial judge had corrected (2) (at SU 127), his Honour left the other matters uncorrected.

In my view, what his Honour said at SU 120 was not only incorrect (as to (2), (3) and (4)) and irrelevant (as to (1)) but it was also inappropriate. It was highly prejudicial to the interests of the applicants since it tended to support Mr Taylor’s credibility by reference to matters which had not been established or were irrelevant. Had such matters been relied on by the Crown, defence counsel would have had an opportunity to respond in their respective addresses to the jury. That the trial judge saw fit to correct one out of the four matters but leave the remainder uncorrected would have had a tendency to give the jury the impression that the remaining three could properly be taken into account. Having regard to the importance of Mr Taylor’s evidence to the Crown case this aspect of the summing up had the potential to cause a miscarriage of justice.

The defence case was that Mr Taylor’s evidence that the call at 00.49.58 from Mr Koloamatangi to Mr Popovic was made from Warrawong outside Mr Hristovski’s house could not possibly be true, having regard to the objective evidence of the call and the fact that it passed through telephone tower Wollongong CBD-3 which was some distance north from Warrawong, which was not covered by the tower. The defence also relied on the evidence, with other evidence, to show that Mr Taylor’s version that he and Mr Koloamatangi stayed at Mr Popovic’s unit for an hour after the first trip to Sydney was also untrue and that a call at that time from Mr Koloamatangi to Mr Popovic tended to suggest that they were not together at the time.

At SU 60-61, the trial judge, after referring to that evidence, postulated (in the passage set out above) that sometimes people ring in advance and that the jury was entitled to take into account their experience of life that this can occur. As set out above in the narrative of the summing up the trial judge refused the consequential application for a discharge of the jury and refused to accede to the request that he ask the jury to disregard all that he had said about Exhibit G and start again. At SU 83, his Honour told the jury (in terms extracted above) that what he had said about people ringing in advance did not amount to a direction of law but could be taken into account by them if they had had general experience of people ringing in advance.

Ms Rigg submitted that the effect of what the trial judge said was to support Mr Taylor’s credibility in a way that was unbalanced and not warranted by the evidence.

Mr Game relied on the fact that it had never been suggested that a call had been made on the way to Mr Hristovski’s place (which would have been inconsistent with Mr Taylor’s evidence that it was made when they were outside his place at Warrawong). He contended that the proposition removed the inconsistency between Mr Taylor’s evidence that a call had been made from the particular location, and the objective evidence which showed that it was impossible for the call to have been made at that time from the location identified. Mr Game submitted that the inconsistency was powerful because Mr Taylor’s evidence was given at a time when he did not appreciate that it could be disproved (because he did not understand the coverage of the towers and how it related to the telephone records). Mr Game submitted that this aspect of the summing up demonstrated that the trial judge was, effectively, strongly encouraging the jury to accept Mr Taylor’s evidence by arguments which were not explored in the evidence and not advanced by the Crown.

Although there is much room for variation in the way a summing up ought be given, I am persuaded that his Honour’s remarks were inappropriate and tended to create a miscarriage.. By interleaving the summary of evidence with remarks such as the one referred to above, his Honour tended to upset the balance of the summing up in favour of the Crown.

This matter has, to a large extent, been dealt with in the context of the separate ground addressed above. However, the applicants submitted that the trial judge had engaged in such a persistent attempt to “resurrect” and “rehabilitate” Mr Taylor’s evidence throughout the course of the summing up and that this question was posed in a number of ways to the same effect. They submitted that this had the effect of skewing the summing up against their interests and in favour of the Crown, having regard to the importance of Mr Taylor’s evidence to the Crown case.

As referred to above, Mr Game submitted that, in effect, the trial judge told the jury that the “default assumption” was that Mr Taylor was truthful which was tantamount to asking why Mr Taylor would lie. Mr Game referred to SU 21 and the reference to the implausibility of Mr Taylor providing detail that was incorrect if he were “going to concoct a completely cock and bull story”. He also referred to SU 61 and the “calling ahead” scenario that had not been put by any party. Mr Game directed attention to SU 85-86 and in particular the passage at SU 86 where the trial judge outlined the following four “possibilities” with respect to Mr Taylor’s evidence:

Mr Game submitted that the effect of the trial judge’s summing up was to promote the fourth possibility and thereby neutralise or minimise the errors and inaccuracies that defence counsel had exposed in Mr Taylor’s evidence.

Mr Game referred to SU 93-94 in which the trial judge described the following three pieces of evidence given by Mr Taylor as the only “vital bits”: first, that he and Mr Koloamatangi obtained the gun from Mr Hristovski; secondly, that the gun was provided pursuant to an arrangement with Mr Popovic; and, thirdly, that he drove Mr Koloamatangi to Splashes, waited for him and drove him away.

Mr Game referred to the trial judge’s treatment of the gathering in the Woolworth’s car park at SU 102 and his Honour’s reference to the inconsistencies in Mr Taylor’s account of being present. He submitted that the trial judge’s reference to the jury’s difficulties in remembering events five years previously (in Mr Taylor’s case, the statements were made in 2012 about the events in 2007) was an impermissible attempt to persuade the jury of the fourth possibility: that he made errors in matters of detail but was correct in the “vital bits”.

Mr Game contended that the trial judge’s warning about Detective Ritchie’s note (at SU 102-104) should be seen in the context of the theme developed by his Honour that, although Mr Taylor was incorrect about matters of detail, he was a reliable witness. Mr Game also relied on the circumstance that the trial judge’s suggestion that the statement could be true (that the gun was collected before the first trip to Sydney) removed the forensic force of the defence submission that the events could not have occurred as Mr Taylor described in his evidence.

Mr Game referred to SU 105-106 in which the trial judge raised the question whether, if Mr Taylor was wrong about his location when the call at 00.49.58 was made, “any untruthfulness was deliberate”. Mr Game also drew the Court’s attention to SU 105-106 where the trial judge addressed Mr Taylor’s evidence that he was with Mr Popovic for an hour and that he was told that the deceased was at the North Gong Hotel. The trial judge described his evidence as “not only wrong, but inexplicable”. The passage at SU 106 set out above that commences, “One could speculate” was relied on by Mr Game as an illegitimate invitation by the trial judge to engage in speculation in the absence of evidence. He also contended that the trial judge’s comments, at SU 106-107, that there was no apparent reason for Mr Taylor to make up the evidence provided further illustrations of the trial judge’s contravention of “the principle that truthfulness is not to be inferred from the absence of an apparent motive to lie”: R v Jovanovic at 535G per Sperling J. Further examples were pointed out at SU 118-119. Mr Game submitted that, in effect, the trial judge was inviting the jury to use the discrepancies between Mr Taylor’s evidence and the objective evidence and the inconsistencies within his evidence, to bolster his credibility.

I am persuaded by the submissions which were made, or adopted, by all counsel for the applicants which I have set out above. It was not appropriate for the trial judge to pose the rhetorical question, why would Mr Taylor lie. There were several reasons why he might have lied which derived from the evidence (that he was criminally involved, a reward was offered and that he had been indemnified) but it was not for the trial judge to invite the jury to speculate as to whether there was any other reason or to understand that they ought believe him unless they were able to identify a reason why he would lie.

Although the way in which a summing up is constructed and delivered is a matter for the discretion of the trial judge, the summary of the Crown case and the case for each accused is, as referred to above, necessary. In the present case, the trial judge commented on the evidence, principally of Mr Taylor, in the summary of the evidence, which effectively incorporated the inferences for which the Crown contended as well as inferences which were in favour of the Crown but for which the Crown had not contended. Because this process had been undertaken as part of the summary of evidence, the outline of the Crown case and the applicants’ cases was done in a general way which did not distinguish between the cases for and against the respective applicants. I do not regard the trial judge as having put fairly to the jury the case which was made on behalf of each of the applicants.

The present was not a case where the evidence for all of the applicants was the same. The role of each was separate and distinct. The trial judge was obliged to distinguish between their respective positions and the evidence relevant to each.

Although it is necessary for a trial judge to summarise the cases of each accused in any case, it was particularly important that it be done in case such as the present where the conduct said to implicate each accused, and their roles as contended for by the Crown, were so different. This was not a case such as Huynh v The Queen where a trial judge was entitled to depart from the conventional process of addressing the case for each accused separately. Although the trial judge referred briefly to the Crown case against each accused separately, his Honour did not adequately address the fact there was significantly more evidence to implicate Mr Koloamatangi and Mr Popovic than to implicate Mr Hristovski and Mr Bubanja, which was potentially very much to the detriment of Mr Hristovski and Mr Bubanja.

The trial judge did not summarise the defence cases individually at all. Indeed, at SU 155 the trial judge referred to “the defence case” as if there was only one. This may have led the jury to consider that all the accused were in the same position notwithstanding the standard direction given by the trial judge at the commencement of the summing up at SU 3 that they needed to consider the case of each accused separately and bring in separate verdicts. For the reasons given by Street CJ in R v Towle at 340, a general direction that each case be considered separately is insufficient to discharge the obligation to put the case of each accused separately to the jury in the summing up.

I am satisfied, on the basis of the cumulative effect of the matters listed above, that the trial judge impermissibly instructed the jury as to how they could reason towards a verdict of guilt for each of the applicants by accepting the evidence of Mr Taylor. The effect of the summing up effectively deprived the applicants of the benefit of the warning to which they were entitled under s 165(1)(d) of the Evidence Act in respect of Mr Taylor’s evidence. The trial judge failed to distinguish between the cases made by each applicant in summarising “the defence case”.

For the reasons set out above, I am satisfied that the summing up was such as to deprive each of the applicants of a fair trial.

In these circumstances it would be inappropriate to apply the proviso to s 6 of the Criminal Appeal Act since, for the reasons given above, the applicants have been, in important respects, denied procedural fairness: Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [45]. They have not had the benefit of a fair trial.

In light of my conclusion, it is not necessary to deal with the additional ground raised on behalf of Mr Popovic: that a miscarriage of justice was occasioned by the failure of the trial judge to discharge the jury after the trial judge’s comments at SU 119-120.

Two of the applicants, Mr Bubanja and Mr Hristovski, press unreasonable verdict grounds, which, if made out, would result in a verdict of acquittal being entered in each case.

The principles which must be applied in determining whether a verdict “is unreasonable or cannot be supported” within the meaning of s 6(1) of the Criminal Appeal Act were authoritatively determined by the majority in M v The Queen (1994) 181 CLR 487 at 493. The question the court must ask itself is:

In answering that question:

The majority also said in M v The Queen at 494-495:

The majority view in M v The Queen has been reiterated and applied by the High Court and remains the law: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [55]-[58]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; and Filippou v The Queen at [12].

The passage set out above from M v The Queen requires an appellate court to consider whether a jury’s advantage is capable of resolving any doubts which the appellate court might have. This consideration is more complicated in the present application because of the number of grounds of appeal. Where the sole ground of appeal is that the verdict is unreasonable or cannot be supported and there is no challenge to the directions given by the trial judge, the weight to be given to the jury’s verdict may be considerable: R v Baden-Clay [2016] HCA 35 at [65]-[66]. But where an appellate court finds that a jury has been misdirected or that there has been a relevant miscarriage of justice, the position is otherwise since the assumption is to be made that the jury follows the directions of the trial judge: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ.

In such circumstances, the weight to be attributed to a jury’s verdict may be relatively slight (SKA v R (No. 2) [2012] NSWCCA 205 per Adams J at [311], Hislop J agreeing, Beazley JA dissenting on other grounds). In some circumstances, the jury’s advantage ought be excluded from consideration in this exercise altogether, as was found to be appropriate in R v Ortega-Farfan [2011] QCA 364; 215 A Crim R 251 where Fraser JA said at [75] (Chesterman JA and Mullins J agreeing):

There are common elements to the determination whether a verdict was unreasonable and the task of determining whether there has been a substantial miscarriage of justice (Weiss v The Queen at [41]). The limitations on the use to be made of a jury’s verdict in determining whether there has been a substantial miscarriage of justice are also relevant to an unreasonable verdict ground. In Cesan v The Queen [2008] HCA 52; 236 CLR 358 the plurality (Hayne, Crennan and Kiefel JJ; Gummow J agreeing) said at [129]:

The task of this Court is to consider the whole of the evidence against Mr Hristovski and Mr Bubanja and decide whether it thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the particular applicant was guilty. If this Court experiences a doubt in that process, it is required to consider whether the doubt is one that the jury, too, ought to have experienced. It is only when the Court considers that the doubt could have been resolved by the jury by hearing and seeing the witnesses that it may conclude that there has been no miscarriage of justice.

In respect of the last-mentioned matter, Ms Rigg and Mr Game submitted that, although the jury had the advantage of seeing and hearing Mr Taylor, they were, in effect, misdirected by the trial judge in the summing up and therefore no, or little, weight ought be given to their verdict in the event that this Court experiences a doubt as to Mr Hristovski’s or Mr Bubanja’s guilt. Accordingly, they contended that any allowance made by this Court for the jury’s advantage ought also take into account the disadvantage to which they were subjected by reason of the unbalanced summing up and erroneous direction as to the hearsay matter.

Apart from the telephone records, the evidence against Mr Hristovski was largely comprised of Mr Taylor’s evidence that he and Mr Koloamatangi had gone to his house at Warrawong on the night of the murder, after their first trip to Sydney, and collected a gun, which was used by Mr Koloamatangi to shoot the deceased. Mr Taylor’s credibility was the principal issue as far as Mr Hristovski was concerned.

Although this Court does not have the advantage of seeing and hearing Mr Taylor give evidence or observing his demeanour, it is not thereby precluded from making any assessment of his credibility, in the sense of reliability. Lord Pearce said in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431:

Several of the matters referred to by Lord Pearce arise for consideration when Mr Taylor’s evidence is assessed, including: motive in minimising his involvement and exaggerating that of others; antipathy towards Mr Hristovski arising from the assault in April 2009; his own criminal involvement in respect of which he sought indemnity; the passage of time since the events occurred; inconsistencies between his statements at various times and his sworn evidence; inconsistencies between his evidence and objective or incontrovertible evidence; and inconsistencies between his evidence and contemporaneous notes made by others.

The evidentiary matters particularly relied upon by Ms Rigg as bearing on whether it was open to the jury to find Mr Hristovski guilty beyond reasonable doubt are addressed in turn below.

Mr Taylor gave evidence that Mr Hristovski was not involved in the dinner at Kings Chinese Restaurant in Wollongong on the evening of 7 September 2007. However, Detective Ritchie recorded in a note made on 1 June 2012 after meeting with Mr Taylor that Mr Hristovski was at the dinner and that he and Mr Koloamatangi went to Mr Hristovski’s house after dinner to collect the gun before they delivered Mr Koloamatangi’s girlfriend to Sydney that evening. Although Detective Ritchie accepted that he could have got the sequence of the trip to Sydney around the wrong way, he recalled that Mr Taylor had told him that Mr Hristovski was at the dinner at Kings. This evidence was inconsistent with all other evidence, including Mr Taylor’s own evidence at trial.

Mr Taylor’s evidence in chief was that he and Mr Koloamatangi went to Mr Popovic’s unit after travelling back from Sydney, arrived there at about 10.30pm or 11pm and stayed there for about an hour before going to Warrawong to collect “something” from Mr Hristovski’s house.

This version is inconsistent with the telephone records which showed that Mr Taylor and Mr Koloamatangi were still in the footprint of the Rockdale tower (heading south) at 11.58pm; the Loftus tower at 12.14am and in the Wollongong area at 12.46am, 12.49am, 12.55am and 1am. The call at 12.49am from Mr Koloamatangi to Mr Popovic was, accordingly, likely to have been made before they arrived at Mr Popovic’s place.

Mr Taylor’s evidence was that while they were at Mr Popovic’s unit, he overheard a conversation between Mr Popovic and Mr Koloamatangi in which Mr Popovic instructed them to get “something” from Jason’s [Mr Hristovski’s] house. Mr Taylor also gave evidence that he overheard a reference to “Dragan” [the deceased] being at the “North Gong” Hotel.

As referred to above, the CCTV footage established that the deceased arrived at the North Wollongong Hotel at 12.26.38pm and left at 14.26.15pm on Friday 7 September 2007. Accordingly he was long gone from the hotel when Mr Popovic is alleged to have told Mr Koloamatangi in a conversation said to have been overheard by Mr Taylor that the deceased was still there.

Moreover, the CCTV footage showed that when the deceased arrived at Splashes at 0.30.31 on 8 September 2007, Mr Bubanja was already there. Mr Bubanja and Mr Popovic spoke, after that time at 00.50.56 and 1.06.52, when it can be inferred that Mr Bubanja knew that the deceased was at Splashes. Given the telephone records referred to above, it can be inferred that, if Mr Taylor and Mr Koloamatangi in fact went to Mr Popovic’s place on 8 September 2007, they arrived after at least the first call (at 00.50.56). There is no explanation for Mr Taylor’s evidence that he overheard that the deceased was at the “North Gong” Hotel, except, possibly, that he became aware that the deceased often went there on a Friday or possibly that he misheard some reference to the deceased having been at the hotel earlier in the day.

Mr Taylor’s evidence in chief was that he arrived at Mr Hristovski’s around midnight, which he confirmed was about a 15-minute drive from Mr Popovic’s unit. His evidence was that he had tried to call Mr Popovic from Mr Hristovski’s cul-de-sac and that the call was made at 00.49 on 8 September 2007. The records of Mr Taylor’s phone did not disclose such a call being made. Mr Taylor’s evidence was that he used Mr Koloamatangi’s phone to make the call and that he was certain that he made the call from the cul-de-sac. However, the timing of this call did not fit the movements of his return to Wollongong from Sydney with Mr Koloamatangi since he was still north of Wollongong at 1am.

The telephone records do not include any call from Mr Taylor’s or Mr Koloamatangi’s phone which shows that they were in range of the telephone tower that covered Warrawong (where Mr Hristovski lived) at any relevant time.

Furthermore, the call by Mr Hristovski to Bubanja at 1.23am on 8 September 2007 was made from a location north of Mr Hristovski’s home since it passed through the Wollongong CBD tower, which does not cover Warrawong. Accordingly, the call could not have been made while he was at home. Although Mr Hristovski travelled south for a short period after this call (as shown by the calls between 1.29.15 and 1.50.29) into an area covered by the Berkeley tower, which covered Warrawong, there is no record of his returning to the area covered by the Berkeley tower after 1.50.29 until a call was made from his telephone at 3.30.44. This left a very short period, between 1.29.15 and 1.50.29 when Mr Hristovski could have been at home to hand over the gun. However, at 1.49.50 a call was made from Mr Koloamatangi’s phone through the Brokers Point tower, which is still some distance north of Wollongong.

The result of the telephone records is, in my view, that Mr Hristovski has shown that he was not at home at any time between the return from Sydney of Mr Taylor and Mr Koloamatangi and the shooting and therefore could not have provided the gun to them in that period.

Until almost the end of his evidence in chief, which was by and large adduced in chronological order, Mr Taylor made no mention that he had been to Mr Hristovski’s place before the trip to collect the gun and gave no explanation of how he knew where he lived. However, shortly before the commencement of his cross-examination, Mr Taylor gave the following evidence:

In cross-examination Mr Taylor said that he had not remembered the detail of the earlier visit on 7 September 2007 until about a week before giving evidence and that he had not made another statement about it or told the Crown Prosecutor about it. He agreed that he had made no mention of it in the seven or eight statements he had made to police previously. He could not remember what he was doing during the daytime on 5, 6 or 7 September 2007, including whether he was working on those days. He gave no explanation of why he thought he needed to know, or why Mr Popovic would want him to know, where Mr Hristovski lived. He agreed that he realised that there was a problem with his evidence in that there was no explanation as to how he knew how to get to Mr Hristovski’s house. I am not satisfied that the earlier trip to Mr Hristovski’s house with Mr Popovic to show him where he lived is other than a recent invention fabricated to add verisimilitude to his evidence that he had visited him on that night.

Mr Taylor described the gun as either silver or silver with a black handle. All the eyewitnesses at Splashes described it as black or dark. Mr Taylor initially described it to police in June 2012 as a snub-nosed 32 or similar, although this appears to have been at the same time as the detectives showed him a photograph of a gun downloaded from the internet. In his evidence at trial Mr Taylor described the gun as a short revolver, six bullets, like a “lady’s weapon” and with an Astra symbol on the handle.

Mr Taylor knew from his subsequent relationship with Ms Ewen what kind of gun Mr Hristovski had at the time of the shooting. I am not satisfied that Mr Taylor did not use this information to implicate Mr Hristovski when interviewed by police. The evidence Mr Taylor gave which implicated Mr Hristovski increased the value of his evidence to the Crown since it was a significant plank in the Crown case against Mr Hristovski, without which he would presumably not have been charged. I am not satisfied that his evidence about the appearance of the gun or its link with Mr Hristovski was reliable.

The cumulative effect of the evidence and the matters raised by Ms Rigg causes me to have a doubt, which I consider to be reasonable, about Mr Hristovski’s involvement in the shooting. After having considered the whole of the evidence against Mr Hristovski, I am satisfied that his evidence about obtaining the gun from Mr Hristovski when Mr Hristovski was at home at Warrawong on the night of 7-8 September 2007 was incorrect. Indeed I have considerable doubt whether Mr Hristovski provided a gun to Mr Taylor at all and whether the gun in Mr Hristovski’s possession was used in the shooting of the deceased. I do not consider that the other evidence of his involvement, which is largely comprised of telephone records, to be sufficient to rebut a hypothesis consistent with innocence: that he was out on a Friday night with his friends after watching a movie at home in bed with his girlfriend.

I am concerned that Mr Taylor’s evidence in that regard was motivated by a desire to implicate Mr Hristovski in the killing and did not accord with what actually happened.

In the present case, the fact that the jury returned a guilty verdict in respect of Mr Hristovski probably indicates that it accepted the evidence of Mr Taylor as to both the provenance and provision of the gun. However, it did so after having listened to a summing up which I consider to have been so unbalanced as to deprive Mr Hristovski of a fair trial. As the trial judge did not distinguish between the cases of each of the accused, Mr Hristovski’s case was not summarised separately for the jury by the trial judge, which may have led the jury to believe that there was only one “defence case” and that if they convicted one accused, they ought convict each accused. The summing up also contained a material misdirection regarding hearsay evidence, which should not have been given. Moreover, I consider that the trial judge’s suggestion to the jury that the evidence about timing could, in effect, be disregarded, if the jury accepted Mr Taylor’s initial version to Detective Ritchie that he had collected the gun before the first trip to Sydney to have been such that no weight can be given to the jury’s verdict. In all the circumstances, I do not consider that any particular weight can be given to the jury’s verdict with respect to Mr Hristovski.

For these reasons, in my view it was not open to the jury on the whole of the evidence to be satisfied of Mr Hristovski’s guilt. I am persuaded that the verdict of guilty in respect of Mr Hristovski is unreasonable and cannot be supported having regard to the evidence. In my view, it should be quashed and a verdict of acquittal entered.

The evidence against Mr Bubanja comprised the following, which will be addressed in turn:

The evidence established that there was a falling out between the deceased and Mr Bubanja’s father, Zoran, arising from the construction of units at Figtree some time prior to 2006.

The deceased’s wife gave evidence of her recollection of the visit to the building in which their unit is located. Her impression was that Zoran Bubanja was intoxicated and that he asked the deceased to come outside. When the deceased refused to come out, those outside left.

Mr Radz’s evidence about the visit was that those at the door, “Daki [Mr Bubanja], Dario and Zoran [Bubanja]” started kicking the doors and the others joined in. He deposed that there was no response from the deceased and that Zoran Bubanja had said, “You fucking dog, you’re dead.”

There is no apparent reason why the deceased’s wife would understate the seriousness of the incident. The Crown submitted that she might not have seen or heard what Mr Radz said occurred, or that with the passage of time she might have forgotten those details. However, that seems highly unlikely. By way of contrast, there was every reason why Mr Radz would exaggerate it, including the reward money, the nature and extent of the indemnity and his desire to have his bail application supported by the authorities. In these circumstances, I would not accept Mr Radz’s evidence about this interchange except to the extent that it is corroborated by the deceased’s wife.

Mr Taylor’s evidence at trial was there was an apparently unplanned gathering in the Woolworth’s car park in the course of which Mr Bubanja had referred to “Dusan and Dragan” as “dogs” who were “speaking to police”. Although Mr Taylor mentioned hearing a reference to “Dusan and Dragan” within a couple of weeks of the murder in his statement given on 14 June 2012, these words were neither attributed to Mr Bubanja in that statement; nor was there any connection made in the statement between the words and the location of the Woolworth’s car park; nor was there any reference to the word “dog” or police informant.

Having regard to the lack of pertinent detail in the statement of 14 June 2012, I do not consider that any particular weight ought be given to this evidence, even having regard to the potentially cumulative effect of circumstantial evidence.

On 31 August 2007 Mr Bubanja, his father and the deceased were at the North Wollongong Hotel. The Crown contended that there was a heated exchange between Mr Bubanja and the deceased as depicted on the CCTV footage. Having viewed the footage I am unable to characterise the exchange in the way for which the Crown contended since I regard it as too ambiguous to draw such an inference. However, even if the exchange was heated, there is no way of knowing whether it related to the debt which the deceased’s wife said still owed by Zoran Bubanja to the deceased or to some other area of disagreement. Since the dispute about the debt had arisen more than a year previously, no firm inference can be drawn about whether it was the subject of the apparent disagreement between them on that day.

Mr Harris, an off-duty security guard, gave evidence that he had seen the deceased and Mr Bubanja arguing that evening and described them as looking “agitated”, “intimidated” and “passionate” in the course of a discussion. He heard reference to a problem that “needed to be fixed”. However, the ultimate impression which Mr Harris got was that the two would “look after” each other. Mr Castagna saw them in the toilets and concluded that “an uncomfortable situation” had developed which was not violent but which involved two males swearing at each other.

Mr Walker, a security guard, gave evidence of an interchange (“a few words”) between the deceased and Mr Bubanja shortly before the deceased left Splashes that evening. The Crown referred to Mr Walker’s evidence that the deceased and Mr Bubanja “had a few words” and that “this bloke [the deceased] was in Daki’s face”. However, Mr Walker also said that he was not close enough to hear what they were saying. When it was put to him in cross-examination that the two may have been “joking around”, he said: “they may have been mucking around, I don’t know.” Mr Bolic, another witness, denied seeing “any dramas” that evening. Mr Vacic said that “everyone was pretty much happy and relaxed”. Mr Milisic, who had spent time drinking and talking with the deceased and Mr Bubanja, did not depose to any conflict between them.

Mr Somerville, a security guard, accepted that Mr Bubanja was “highly distressed” when he heard that the deceased was dead and tried to approach the deceased’s body until he was led away from the area by police.

Mr Bubanja made a phone call to Mr Hristovski on 8 September 2007 at 00.17.47, before the deceased arrived at Splashes. He did not make another call until much later, in the morning of 8 September 2007 at 11.43.58, when he called Mr Popovic. That these calls were the only calls initiated by Mr Bubanja during the relevant period provides some indication that he was not the person who informed others that the deceased was at Splashes. However, even if he did, the evidence does not indicate that he had any awareness that the deceased was to be killed that night. There was a very substantial number of attempted communications by Mr Hristovski to Mr Bubanja that night, many of which were unsuccessful because of the poor or non-existent mobile reception at Splashes. These communications are consistent with Ms Ewen’s evidence that Mr Hristovski and Mr Bubanja were friends and that Mr Hristovski would often go out in the middle of the night either with Mr Bubanja, or to collect him and drive him home.

According to Mr Taylor, a week or two after the shooting, Mr Popovic and Mr Bubanja visited Mr Taylor at home and they went for a drive. They were speaking Serbian, which Mr Taylor did not understand. At one point, Mr Popovic, referring to Mr Taylor, said, “Herbie did it.” Mr Bubanja responded, “You’re a sick fuck” and shook his hand.

There are several difficulties with regarding this conversation as implicating Mr Bubanja in the murder of the deceased. First, as Mr Taylor did not understand Serbian, the context of the comments in English remains unknown. Secondly, there was no reference to the killing of the deceased that Mr Taylor could understand in the conversation. Thirdly, the Crown case was not that Mr Taylor “did it” since it was Mr Koloamatangi who was, on the Crown case, the gunman and Mr Popovic who organised it.

Mr Radz gave evidence of two admissions said to have been made by Mr Bubanja to Mr Radz. There was no prior mention of these admissions, which were not recorded in any of the statements taken by police who had interviewed Mr Radz.

The first admission was said to have been made some time prior to the shooting in which Mr Bubanja is said to have told Mr Radz that he could not wait until the deceased got out (of gaol) so that he could put a bullet in his head. Mr Radz’s evidence was that Mr Bubanja made the statement (that he could not wait until the deceased got out so that he could put a bullet in his head) “every day” and to “100 other people”, although he was unable to name a single person who had heard the statement. In my view, the reliability of this first admission was substantially impugned by the obvious exaggeration in Mr Radz’s evidence relating to it as well as Mr Radz’s motive in fabricating such an admission.

The second admission was said to have been made by Mr Bubanja to Mr Radz in 2009 or 2010 between Mr Radz’s release from gaol in April 2009 and his departure overseas in 2010. According to Mr Radz he went out to dinner at Latani’s restaurant in Wollongong CBD and Mr Bubanja was there. Mr Bubanja said to him:

There are two principal difficulties with this admission. First, Mr Bubanja did not follow the deceased to Splashes, since Mr Bubanja arrived at 23.27.39 on 7 September 2007 and the deceased did not arrive until 00.30.31 on 8 September 2007. Secondly, Mr Bubanja did not make a call between the time the deceased arrived at Splashes and the time he was shot. It is, in my view, not safe to put any weight on Mr Radz’s evidence of these two admissions which can, accordingly be disregarded for the purposes of performing the task set out in M v The Queen.

Having reviewed the evidence set out above, I have a doubt whether Mr Bubanja was part of a joint criminal enterprise to kill the deceased. I do not consider that the Crown excluded the hypothesis that Mr Bubanja’s conduct at Splashes was for a purpose unconnected with the deceased’s murder.

There are different considerations that apply to an assessment of the weight to be given to the jury’s verdict in respect of Mr Bubanja than apply to the verdict in respect of Mr Hristovski because of the differences between the evidence against them. Nonetheless the lack of balance in the summing up and the directions concerning Mr Taylor tended to compromise the verdicts in respect of all applicants. Mr Taylor’s credibility was important with respect to the conversation in the Woolworth’s car park as well as the congratulatory conversation after the shooting. Mr Radz’s credibility was substantially impugned for the reasons given elsewhere.

As I have said above, the trial judge’s failure to summarise the case of each applicant separately was particularly disadvantageous to Mr Hristovski and Mr Bubanja because the Crown cases against them were not as strong as against the other applicants. In these circumstances I do not consider that the doubt I experience with regard to the verdict with respect to Mr Bubanja could be resolved by any advantage that the jury enjoyed or that its verdict is entitled to weight in the circumstances of the summing up.

For these reasons, I am persuaded that the verdict of guilty in respect of Mr Bubanja is unreasonable and cannot be supported having regard to the evidence. In my view it was not open to the jury on the whole of the evidence to be satisfied of Mr Bubanja’s guilt. In my view, the verdict should be quashed and a verdict of acquittal entered.

As referred to above, Mr Bubanja has sought leave to appeal against his sentence. In the circumstances it is not necessary to address this application.

I propose the following orders: