R v Popovic; R v Koloamatangi (No 1)

Zlatan Popovic and Tevi Koloamatangi stand charged that on 8 September 2007 they did murder Dragan Sekuljica. They were previously found guilty of this murder after a trial by a jury on 29 May 2014. On 21 September 2016, the Court of Criminal Appeal quashed their convictions and ordered a new trial: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202. That trial was listed before me on 31 August 2017.

The deceased was shot outside a nightclub in Wollongong. The Crown case relies, in part, upon the evidence of two witnesses who were granted indemnities from prosecution to give evidence in these and other proceedings. These witnesses fall into the category of Crown witnesses known as “informers”. One of them also fits into the category of being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings.

On 31 July 2017, I granted the Commissioner of Police leave to file in Court a notice of motion seeking orders under s 7(1)(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Court Suppression Act”) that the identity of these two Crown witnesses be suppressed. Orders are sought that they both give their evidence under a pseudonym and that the court be closed for the duration of their evidence. The proposed order suggests that defence counsel refer to the witnesses by their names in closed court but that they use a pseudonym at other times. Orders were also sought under s 130 of the Evidence Act 1995 (NSW) that there be no cross-examination of any Crown witnesses regarding the security measures undertaken to assist these two witnesses with their ongoing safety and security.

Although the Commissioner initially sought an order under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that the witnesses give their evidence by way of audio-visual link (“AVL”), that application was not pressed.

An amended notice of motion was filed in court on 31 August 2017. In support of that notice of motion, the Commissioner relied upon an affidavit of Assistant Commissioner Malcolm Arthur Lanyon (“AC Lanyon”) sworn 28 July 2017. As is the common practice in applications such as this, the Commissioner also relied upon a confidential affidavit, being that of AC Lanyon sworn 28 July 2017. Although the open affidavit was provided to the parties (the Crown Prosecutor and both defence counsel), the confidential affidavit was provided to the Court only and on a confidential basis. The Commissioner also relied upon other confidential material provided to the Court at the earlier mention on 26 July 2017. The Commissioner relied upon written submissions that were provided to all of the parties.

The affidavit evidence outlines the history of the two witnesses to whom, for the purposes of this judgment, I will refer in the same way as AC Lanyon’s affidavit; namely, as Witness C and Witness D. The evidence is that both witnesses gave evidence in their own name by way of AVL at the committal proceedings in Wollongong on 16 July 2013. Both witnesses also gave evidence in their own name in court during the previous trial.

Witness C has given or agreed to give evidence in four separate proceedings for serious offences relating to some ten accused persons. He has already given evidence in some of these matters without the use of a pseudonym. He will be required to give evidence in a Supreme Court trial listed to commence on 3 October 2017. Davies J has made orders protecting the identity of Witness C in those proceedings: R v Wiggins; R v Nikolovski [2017] NSWSC 266. There is a publication restriction in relation to that judgment.

Witness D has given or agreed to give evidence in relation to four separate homicide-related matters in respect of five accused persons in total.

When the CCA quashed the murder convictions of these two accused and ordered a retrial, the CCA decision was published on the Court’s website on 21 September 2016. Both Witnesses C and D are named in that decision. On 26 September 2016, the judgment was restricted following an application to the Court registry made by the solicitor with carriage of the proceedings on behalf of the Director of Public Prosecutions.

On 23 February 2017, the accused Popovic made an unsuccessful release application before Harrison J. His Honour made certain suppression, non-publication and closed court orders in relation to Witnesses C and D at that time.

On 17 May 2017, the accused Popovic made a further unsuccessful release application to the CCA. At that time, the Court (Hoeben CJ at CL, Price and Rothman JJ) confirmed that the orders made by Harrison J on 23 February 2017 continued to operate.

The open affidavit of AC Lanyon outlines that the orders are sought to protect the identities of Witness C and Witness D because police hold grave fears for their safety. The bases for those concerns are set out in the confidential affidavit. The Commissioner also relies upon the relevant principles pertaining to the protection of informer witnesses generally and their crucial role in the criminal justice system. The affidavit includes statements to the effect that prospective Crown witnesses need to feel secure in providing information to the authorities and that it is important that persons not be dissuaded from coming forward to assist. If something were to happen to witnesses such as Witness C and Witness D it would have a deterrent effect on future potential witnesses coming forward.

The Crown Prosecutor did not seek to rely upon any evidence nor did Ms Davenport SC, counsel for Mr Koloamatangi.

Counsel for Mr Popovic, Mr Brasch, tendered some newspaper articles available online at the websites of the Illawarra Mercury, the local newspaper in Wollongong where the murder took place.

Mr Glover of counsel appeared for the Commissioner. He relied upon detailed written submissions. He set out the relevant authorities and principles pertaining to informer witnesses. He noted that the CCA had already made orders under the Court Suppression Act suppressing the names of the two witnesses. He relied upon s 130A of the Criminal Procedure Act 1986 (NSW) which provides that “a pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding”.

It was submitted that the various media publications available online only serve to heighten the risk that these witnesses face in coming to court. Despite this risk, the Commissioner has not pressed the application that the witnesses give their evidence remotely by way of AVL. He referred to the articles tendered by Mr Brasch and noted that none of them disclosed the physical appearance of the two witnesses. He further submitted that since the time of the first trial there have been significant developments with respect to the assessment of the relevant risk to these two witnesses. He drew my attention to certain paragraphs of the confidential affidavit in support of this submission and submitted that the risk is not only real and significant but recent and ongoing.

Mr Glover indicated that the Commissioner has no particular position regarding the way which the witnesses are identified in court so long as some form of pseudonym is used. He clarified that the Commissioner only suggested that the witnesses’ real names be used when the court was closed to make it easier for defence counsel. He submitted that it would be preferable if the pseudonyms were used throughout the trial. In circumstances where the witnesses are going to give evidence in court rather than by way of AVL, it was submitted that the very minimum that can be done to ensure their safety is for the court to be closed while they give their evidence and for their evidence to be given under a pseudonym.

The position of the Crown Prosecutor was that it was appropriate for the orders to be made subject to the question of their practical implementation in a manner that minimised any perceived prejudice. For his part, he indicated he would prefer that the witnesses be referred to as Witness C or D, rather than be given some other full name.

Ms Davenport submitted that the use of pseudonyms throughout the trial with no real explanation to the jury as to why that was happening was inherently prejudicial to the accused. Similarly, she did not support the use of pseudonyms for parts of the trial in open court but the use of real names in closed court. She noted that the decision of the CCA in Mr Popovic’s bail application was not made in the context of a jury trial and submitted that that would constitute a reason why that decision could be revisited under s130A of the Criminal Procedure Act.

Ms Davenport had not been provided with the restricted decision of Davies J in R v Wiggins; R v Nikolovski but indicated her understanding that the value of the witness’s evidence in that trial differed to that in the present trial.

Mr Davenport noted that she has previously cross-examined Witnesses C and D at the first trial and that they were brought into court wearing bullet-proof vests surrounded by police. Although the trial judge ordered that the vests be removed, there was still an aspect of prejudice in the manner in which the witnesses gave their evidence in any event. She submitted that the current application should be viewed in the context of the potential prejudice arising from the manner in which the witnesses will give their evidence in any event.

Mr Brasch relied upon the three articles from the Illawarra Mercury in support of his submission that the order should not be granted because it is futile. He acknowledged that he was not privy to the material in the confidential affidavit, but noted that there is information as to the identity of the witnesses already in the public domain. He acknowledged that it may have been appropriate to have made these orders at an earlier time, but that this did not occur. The consequence is that the material is now readily available online and that thus the orders sought are futile.

He further submitted that, to the extent that any of the material in the confidential affidavit relies upon assertions or opinions made by the witnesses themselves, the Court would approach that evidence with some caution given the findings made by the Court of Criminal Appeal regarding the credibility of these two witnesses.

Mr Brasch invited the Court to weigh in that balancing exercise the public interest in proceedings being held in open court in order to assist the public to be able to scrutinise and assess the quality of the evidence given by witnesses who have been granted indemnities. He relied upon principles of open justice and submitted that there was a significant public interest in such evidence being heard in public.

Section 7 of the Court Suppression Act provides that a court may, by making a suppression order or non-publication order on grounds permitted by the Act, prohibit or restrict the publication or other disclosure of information that comprises, inter alia, “information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court…”

The grounds upon which a suppression order or non-publication order may be made are set out in s 8(1) of the Court Suppression Act. Those grounds include, among other things, that the order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)), that the order is necessary to protect the safety of any person (s 8(1)(c)), and that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice (s 8(1)(e)).

A “suppression order” is defined in s 3 of the Act as an order that prohibits or restricts the disclosure of information (by publication or otherwise), whereas a “non-publication order" is defined to mean an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

In deciding whether to make a suppression order, or a non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 of the Court Suppression Act.

Section 130(1) of the Evidence Act provides that, “If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.” Section 130(4) provides a list of the sorts of matters that are considered to be matters of state and s 130(5) sets out an inclusive list of matters to take into account when undertaking the test in 130(1).

Each of the grounds set out in s 8 of the Court Suppression Act imports a test of “necessity”. The Court of Criminal Appeal (Bathurst CJ, Basten and Whealy JAA) considered the question of what is meant by a test of necessity in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125. The trial judge in that matter made an order pursuant to the Court Suppression Act purporting to prevent the publication of material referring to any other criminal proceedings in which the respondents were parties or witnesses. The applicants appealed to the Court of Criminal Appeal pursuant to s 14 of the Court Suppression Act. One of the issues that the Court considered was whether the order made by the trial judge was a valid exercise of the power provided by that Act.

Bathurst CJ agreed with Basten JA (whose observations are extracted below) and added the following comments at [8] regarding the meaning of the word “necessary”:

Basten JA observed at [46]:

His Honour went on to observe at [48]:

In Hamzy v R [2013] NSWCCA 156 at [70], Beech-Jones J stated at [70]:

In the same judgment, Harrison J stated (at [60]) that, “The term "necessary" is not to be given a restricted meaning. It has to be interpreted and applied in context.” His Honour went on to observe that such context includes the “possibility of an irrational and illogical response” from members of the public.

In addition to the powers available under the Court Suppression Act, orders protecting the identity of witnesses can be made in the Court’s inherent jurisdiction. It is well established that the Court has inherent jurisdiction to make appropriate orders whenever it is necessary to do so to secure the proper administration of justice: Commissioner of Police v Nationwide News (2007) 70 NSWLR 643 at 648; [2007] NSWCA 366 at [32].

In R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101, McClellan CJ at CL (with whom Spigelman CJ and Sully J agreed) referred (at 583 – 584 [24]) to the observations made by Spigelman CJ in John Fairfax Publications Pty Limited & Anor v District Court of New South Wales & Ors (2004) 61 NSWLR 344; [2004] NSWCA 324 (at 352 [17] – [23]) and then went on to observe at (at 584 [25]):

His Honour went on to observe (at 586 [33]):

In addition to the principles derived from the decisions to which I have already referred above, I have had regard to other decisions dealing with applications for protective orders in relation to informer witnesses, such as that of Hamill J in R v Qaumi & Ors (AVL) [2015] NSWSC 1711 and of RA Hulme J in R v Hawi & Ors (No 2) [2011] NSWSC 1648 and R v Hawi & Ors (No 6) [2011] NSWSC 1652. In particular, I have had regard to the recent decision of Davies J in R v Wiggins; R v Nikolovski.

In determining whether to make the orders sought, I am mindful to strike an appropriate balance between the need to protect the safety of the witnesses, the need for a fair trial and principles of open justice.

It is well accepted that the position of a police informer is such that care needs to be taken to protect his or her identity: see DPP v Smith (1996) 86 A Crim R 308; Cain v Glass (No 2) (1985) 3 NSWLR 230 and Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156. Such protection can be afforded by utilisation of a number of methods, including having the witness give evidence by way of AVL from a remote location. That was the primary application initially foreshadowed by the Commissioner. That application was not pressed before me on Monday. Rather, the application is confined to a request for pseudonym orders and for a closed court while Witnesses C and D give their evidence.

It is to be accepted that if the courts fail to make orders designed to protect witnesses, future investigation of serious crimes may be jeopardised. The criminal justice system relies upon persons coming forward who may be criminally concerned in the conduct the subject of the trial. It also relies heavily on the use of informers. If police did not seek to ensure the safety of such witnesses and it became generally known that even one person had been killed in those circumstances, it may dissuade future informers and other witnesses from cooperating with police. As Basten JA observed in Attorney General (NSW) v Lipton at [38]:

Although his Honour made those observations in the context of maintaining the anonymity of police sources, it seems to me that they apply with equal force to the situation of prison informers and persons criminally concerned in the commission of offences who give evidence in proceedings.

It seems to me that if the confidential evidence satisfies me that the concerns currently held by police have a proper basis and are significant then the orders sought should be made. As the authorities to which I have referred clearly establish, if there is evidence that a witness might be harmed if their identity is revealed then the court will take steps to minimise that risk of harm. The difficulty with the application identified by counsel for the accused in the present matter, and no doubt part of the reason upon which the orders are opposed, is that the witnesses have previously given evidence under their names. The position of counsel for the accused is further complicated by virtue of the fact that they are not privy to the material that has been provided to the Court in the confidential affidavit.

I am satisfied that it was appropriate to receive the material that established the bases of the police safety concerns regarding the witnesses on a confidential basis so as to not defeat the protection that the Commissioner seeks to invoke. As Sully J (with whom Spigelman CJ and Adams J agreed) observed in Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 at [20]:

Similar statements have been made in other decisions and the practice is well settled. Nonetheless, it does place counsel for the accused in a difficult position in addressing their opposition to the orders sought.

It is to be accepted that, on the face of it, the fact that the witnesses initially gave evidence under their own names does not lend support for an argument that they face an increased risk should they do so again. I have had regard to the fact that there is identifying material available online pertaining to these two witnesses and that they have previously given evidence without the benefit of such orders. I have considered Mr Brasch’s submission that there is an air of futility associated with making the orders sought in circumstances where their identity is available online. I have also taken into account his submission that, to the extent that any of the material provided on a confidential basis relies upon the credibility of Witness C and/or D, such material should be approached with circumspection. Although I am not in a position to address that issue in this judgment expressly, it has not been one that has caused me any concern given the material provided to me.

I am satisfied that the fact that there is material available online that could identify Witness C in any event does not render the orders sought futile for three reasons.

First, there can always be a change in the level of risk assessment made by police in matters of this nature. The confidential material before me satisfied me this occurred in this case. The first trial was in 2014. Further events have occurred since that time.

Second, I am satisfied that the nature of some of the material available online highlights the risks associated with these witnesses coming to court to give evidence in these proceedings.

Third, it is relevant that Davies J has recently made similar orders in relation to the manner in which Witness C is to give evidence in another trial. In that matter, the orders sought were for a pseudonym, closed court and AVL. I have had particular regard to those orders. It does not seem to me to be futile to make orders consistent with other orders already on foot. In addition, the same orders have also already been made by Harrison J and confirmed by the Court of Criminal Appeal in the accused Popovic’s recent release applications. I accept, however, that the latter two decisions did not have to take into account the right to a fair trial before a jury and for that reason I do not consider myself bound by them.

Not only am I satisfied that it would not be futile to make the orders sought, based on the material I have read in the confidential affidavit I am satisfied that steps need to be taken to ensure the protection of these two witnesses. The material as to the potential risk to their safety satisfies me that it is necessary to prevent further disclosure of their identities at this trial. Police have consistently sought similar orders in relation to these witnesses since early this year. Although it would have been preferable had a consistent approach been taken in this matter from the time of the first trial, police have adopted their present position having reassessed the relevant risk in the light of further information.

Turning first to the proposed pseudonym orders, I have weighed up the competing interests of open justice as against the protection of informer witnesses, the public interest in ensuring the safety of such persons, and the right of each of the accused to a fair trial. I have also had regard to the fact that the witnesses will be coming to court to give their evidence rather than giving it from a remote location by way of AVL. In determining whether it is necessary to make the orders sought, I have approached the relevant provision on the basis that the word “necessary” is not to be given a restricted meaning and is to be considered in context. Although there is a degree of overlap as between the relevant grounds in s 8(1), in the circumstances I am satisfied that it is necessary to make the pseudonym orders sought on the grounds provided in 8(1)(a), (c) and (e) for the reasons set out herein.

I am satisfied that suitable directions could be given to the jury as to the reason for the witnesses’ giving their evidence by way of pseudonym that would minimise any potential prejudice to the accused. It is not unusual for witnesses to give evidence with a pseudonym and the courts have been able to craft directions to remove any prejudice associated with such a course being taken at a trial. As senior counsel for the accused Koloamatangi pointed out, it will become apparent during the cross-examination of Witness C that he has given evidence and will give evidence in other matters. It seems to me that this is a relevant matter that could form part of any direction given in relation to the use of pseudonyms. I am satisfied that following further consultation with counsel, directions could be fashioned that would minimise any such prejudice.

Although it was not strictly part of this application, I propose to make orders at the appropriate time, if need be, as to the manner in which these two witnesses give evidence in court in order to minimise any prejudicial impact, balancing the safety concerns of the police against the prejudicial effect of the witnesses’ giving evidence under heavy security.

Turning specifically to the question of whether the court should be closed for the evidence of Witness C and Witness D, I am satisfied that such an order is also necessary in order to provide the relevant protection. As McClellan CJ at CL observed in Lodhi v R in the passage extracted above at [37], an order for a pseudonym and a non-publication or suppression order alone may be insufficient if persons can come into court and observe the physical appearance of the witness. It was not suggested by counsel for either of the accused that there would be any particular prejudice associated with the evidence of these two witnesses being heard in closed court. Rather, the opposition to such an order was based on the desirability of the court being open to enable members of the public to assess the quality of evidence given by informer witnesses.

Although no particular prejudice to each of the accused was identified in relation to the order that the court be closed for the evidence of these two witnesses, that is not to diminish the importance of proceedings being held in public. Open justice is a significant consideration and not to be departed from lightly, but that does not mean that the court should not be closed in appropriate cases. I have balanced the need for open justice against the need to protect the safety of the witnesses who will now be giving their evidence in court. Again, I have had regard to the material in the confidential affidavit. I have also had regard to the orders made by Davies J. Having carefully balanced the competing interests I am satisfied that it is appropriate for the court to be closed for the evidence of these two witnesses. I am not satisfied that the pseudonym orders alone would be sufficient to address the relevant concerns regarding the safety of the witnesses

Finally, I turn to the question of whether the cross-examination of police officers and other Crown witnesses should be restricted so as to preclude questions concerning any activities undertaken to assist Witnesses C and D with their ongoing safety and security. No opposition was expressly made by counsel for either of the accused to this particular order, nor has any particular prejudice been raised should such an order be made. I have had regard to material that was provided to me on a confidential basis. I have undertaken the balancing test under s 130(1) of the Evidence Act and had regard to the relevant considerations in s 130(5).

Based on the material before me, both in the confidential affidavit and in the other material provided to me on behalf of the Commissioner, I am satisfied that the orders sought are appropriate. I again take into account that counsel for the accused did not have access to the confidential material.

Neither Witness C nor Witness D, nor any of the relevant police officers, may be asked about the current location of Witness C or D, whether any monies have been provided to them for such relocation, or about details of measures taken to secure their security. It seems to me that the terms of the orders sought would not preclude them being questioned as to any other benefits that they have gained by reason of their giving evidence in these or other proceedings.

I order that: