Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202

Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202

The conviction appeals were allowed because the summing up by the trial judge was so unbalanced as to deprive each applicant of a fair trial; it included errors in directions and warnings regarding unreliable evidence, inappropriately invited the jury to speculate on why a prosecution witness would lie, and failed to sufficiently present individually the respective defence cases. In respect of Bubanja and Hristovski, in addition, the verdicts of guilty were found to be unreasonable on the evidence and acquittals were entered.

Jurisdiction
Australia
Judgment Date
21 September 2016
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeals allowed
Legal Topics
['conviction Appeal' 'murder' 'jury Directions' 'unreasonable Verdict' 'summing Up' 'hearsay Evidence' 'unreliable Evidence' 'joint Criminal Enterprise']
['criminal Law'] ['conviction Appeal' 'murder' 'jury Directions' 'unreasonable Verdict' 'summing Up' 'hearsay Evidence' 'unreliable Evidence' 'joint Criminal Enterprise']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 ['Whether the trial judge erred by failing to give a Shepherd direction regarding the provision of a firearm (Hristovski)' 'Adequacy of warnings regarding evidence of prison informers and criminally concerned witnesses under Evidence Act 1995 (NSW), s 165' 'Whether the trial judge erred by inviting the jury to consider why a key Crown witness would lie' 'Whether the summing up was so imbalanced as to deprive the applicants of a fair trial' 'Whether the guilty verdicts against Mr Bubanja and Mr Hristovski were unreasonable having regard to the evidence']

Ratio Decidendi

The conviction appeals were allowed because the summing up by the trial judge was so unbalanced as to deprive each applicant of a fair trial; it included errors in directions and warnings regarding unreliable evidence, inappropriately invited the jury to speculate on why a prosecution witness would lie, and failed to sufficiently present individually the respective defence cases. In respect of Bubanja and Hristovski, in addition, the verdicts of guilty were found to be unreasonable on the evidence and acquittals were entered.

Court Disposition

Appeals allowed

Orders

  • ['Grant leave to appeal.' 'Allow the appeals.' 'Quash the convictions of Popovic, Koloamatangi, Bubanja and Hristovski.' 'Order retrials for Popovic and Koloamatangi.' 'Enter verdicts of acquittal for Hristovski and Bubanja.']