Nikolovski v The Queen
[2021] NSWCCA 327
•30 December 2021
|
New South Wales |
Case Name: | Nikolovski v R |
Medium Neutral Citation: | [2021] NSWCCA 327 |
Hearing Date(s): | 8 October 2021 |
Date of Orders: | 30 December 2021 |
Decision Date: | 30 December 2021 |
Before: | Payne JA at [1]; |
Decision: | 1. Leave to appeal granted; |
Catchwords: | CRIME — appeals — appeal against conviction — miscarriage of justice — where Crown relied on evidence of [redacted] witness who had twice earlier been found by the Court of Criminal Appeal to be a witness who lacked credibility |
Legislation Cited: | Crimes Act 1900 (NSW), ss 18(1)(a), 346 |
Cases Cited: | AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 93 ALJR 59 |
Texts Cited: | Office of the Director of Public Prosecutions (NSW) Prosecution Guidelines (March 2021) |
Category: | Principal judgment |
Parties: | Robert Nikolovski (Applicant) |
Representation: | Counsel: |
File Number(s): | 2014/274295 |
Publication Restriction: | 1. Pursuant to the Court’s implied powers, for the purposes of these proceedings, the following individuals (collectively, “the witnesses”) each be referred to as follows: |
Decision under appeal: | |
Court or Tribunal: | Supreme Court of New South Wales |
Jurisdiction: | Criminal |
Citation: | [2018] NSWSC 1147 |
Date of Decision: | 06 July 2018 |
Before: | Latham J |
File Number(s): | 2014/274295 |
HEADNOTE
[This headnote is not to be read as part of the judgment]
Darko Janceski was shot dead outside his parents’ home by a balaclava-clad man who was riding a motorcycle. By a majority verdict, the applicant, Mr Nikolovski, was found guilty of the murder as an accessory before the fact. The Crown case at trial was that the applicant encouraged and/or assisted in the murder by supplying the shooter with the gun. The only evidence of that fact was provided by two [redacted] witnesses, described by the pseudonyms “James Williams” and “Josh Baker”, who gave evidence about admissions allegedly made by the applicant to each of them about the supply of the gun. A third [redacted], “Tom Davies”, also gave evidence of admissions allegedly made concerning the applicant’s “involvement” in the crime but did not give evidence relevant to the supply of the gun.
Before the trial, the applicant unsuccessfully sought the exclusion of Mr Williams’ evidence on the basis that he had been “positively disbelieved” in the Court of Criminal Appeal about two other admissions allegedly made to him about an unrelated murder. In Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 (“Popovic”), Adamson J (Beazley P and R A Hulme J agreeing) held that it was “not safe to put any weight on” Mr Williams’ evidence of the admissions and that Mr Williams’ “credibility was substantially impugned”.
After the applicant was tried and convicted, the Court of Criminal Appeal again considered and criticised Mr Williams’ [redacted] evidence. In Koloamatangi v R; Popovic v R [2020] NSWCCA 52; (2020) 282 A Crim R 160 (“Koloamatangi”), Bathurst CJ (Bell P and Price J agreeing) described Mr Williams as “a seasoned criminal”, “a serial liar” and “an entirely unreliable witness”.
The applicant sought leave to appeal against his conviction and sentence. The principal issues in relation to the conviction appeal were:
1. whether the trial miscarried as a result of the admission of Mr Williams’ evidence; and
2. whether the verdict was unreasonable and could not be supported by the evidence.
The Court (Payne JA, Lonergan J agreeing, Fullerton J dissenting on ground 2) held, granting leave to appeal, allowing the appeal, quashing the conviction and entering a verdict of acquittal:
As to ground 1 (whether there was a miscarriage of justice)
Per the Court:
1. The Crown prosecutor alone bears the responsibility of deciding whether a person should be called as a witness for the Crown. The fact that Mr Williams was found, twice, by this Court to be a witness who lacked credibility did not necessarily mean that his evidence could not be relied on in respect of different admissions by different people in the present case. There was no miscarriage in the decision to call Mr Williams: [68]-[69] (Payne JA); [132] (Fullerton J); [251] (Lonergan J).
2. The fact that the Court’s decision in Koloamatangi had not been handed down at the time of the applicant’s trial and was therefore not before the trial judge on the application to exclude Mr Williams’ evidence did not result in a miscarriage of justice: [70]-[73] (Payne JA); [132] (Fullerton J); [251] (Lonergan J).
3. There is no necessary inconsistency in different outcomes being achieved in cases involving different evidence. Subject to the Court’s unreasonable verdict jurisdiction, the assessment of a witness’ credibility and reliability are matters for a jury, properly instructed and with the benefit of testing through informed cross-examination: [78] (Payne JA); [132] (Fullerton J); [251] (Lonergan J).
As to ground 2 (whether the verdict was unreasonable)
Per Payne JA and Lonergan J:
4. Messrs Williams and Baker were witnesses lacking in credibility. Mr Williams was a practised and habitual liar. Acting properly, the jury should have placed no weight on his evidence. Mr Baker’s evidence was uncorroborated and unrecorded. His status as a [redacted], extensive criminal record and motivation to fabricate his evidence was a similarly unsafe foundation upon which the conviction could stand: [105], [114], [122] (Payne JA); [252]-[253], [258] (Lonergan J).
5. Mr Davies’ evidence did not provide any substantial support to the evidence of Messrs Williams or Baker. His evidence may have led the jury to a path of impermissible reasoning. The other evidence in the Crown case did not provide a sufficient basis on which the conviction could stand: [118]-[120] (Payne JA); [252], [254], [258] (Lonergan J).
6. This was a rare case where the evidence in the record itself lacked sufficient probative force on the critical issue of the supply of the gun. The evidence was not sufficient properly to satisfy the jury beyond reasonable doubt that the applicant supplied the murder weapon. Even making allowance for the advantages enjoyed by the jury, it was dangerous in all the circumstances to allow the verdict of guilty to stand: [124]-[127] (Payne JA); [252], [257]-[258] (Lonergan J).
Per Fullerton J, dissenting:
7. The jury’s verdict was not unreasonable or insufficiently supported by the evidence to be able to stand. It was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. The second ground of appeal was not made out: [133], [249] (Fullerton J).
Judgment
PAYNE JA: On 20 June 2018 the applicant, Mr Robert Nikolovski, stood trial before Latham J and a jury in the Supreme Court on an indictment charging him with the murder of Darko Janceski contrary to ss 18(1)(a) and 346 of the Crimes Act 1900 (NSW) as an accessory before the fact.
On 6 July 2018, the jury returned a majority verdict of guilty. On 25 July 2018, Latham J sentenced the applicant to 33 years’ imprisonment commencing on 7 December 2017, with a non-parole period of 20 years: R v Robert Nikolovski [2018] NSWSC 1147. The applicant seeks leave to appeal against his conviction and sentence.
Relevant facts
On 14 April 2012, Mr Janceski was shot dead outside his parents’ home at Berkeley, Wollongong, by a balaclava-clad man who was riding a motorcycle. A motorcycle helmet and sunglasses with DNA matching “Matthew Wiggins”, together with the gun that was used (which when forensically tested yielded no positive findings), were left behind at the scene. Mr Wiggins was charged with Mr Janceski’s murder in January 2013. The applicant was also charged in January 2013 with the offence of soliciting Mr Wiggins to commit the murder. At that time, a good deal of covertly recorded evidence of electronic communications involving the applicant was available, which established a motive to harm Mr Janceski. However, there was insufficient evidence of any involvement in the murder on the part of the applicant. A No Bill was entered on that charge.
In September 2014, the applicant was charged with being an accessory before the fact on a charge of murder. The Crown case, as eventually particularised, was that the applicant “encouraged” and/or “assisted” the murder by providing the gun used by Mr Wiggins to commit the murder. The only evidence of the applicant providing the gun used by Mr Wiggins to kill Mr Janceski was provided by two [redacted], described by the pseudonyms “James Williams” and “Josh Baker”, who made statements to the police claiming that the applicant had admitted to each of them that he had provided the gun used in Mr Janceski’s murder. Mr Williams’ statement was made in December 2013. Mr Baker made his statement in October 2014, after the applicant had been charged, but did not sign it until February 2015. The evidence of these two [redacted] is at the heart of this appeal.
On 18 December 2015, the applicant was committed for trial in the Supreme Court. In April 2016, Mathews AJ refused the applications made by Mr Wiggins and the applicant for separate trials. In March and April 2017, the applicant and Mr Wiggins were tried jointly before a jury and Davies J in the Supreme Court. On application of the Crown, the jury was discharged and the trial was aborted due to matters concerning Mr Wiggins’ legal representation.
Mr Wiggins and the applicant each made further applications for separate trials. On 30 October 2017, Latham J ordered separate trials, with the trial against Mr Wiggins to proceed first. The applicant also applied to exclude the whole of the evidence of the witness James Williams. Her Honour refused the applicant’s application to exclude the evidence of Mr Williams (I will return to this topic below).
On 16 May 2018, following a trial before a jury and Latham J, Mr Wiggins was convicted of the murder of Mr Janceski and intentionally causing grievous bodily harm to Mr Janceski’s father, Slobodan Janceski. Mr Wiggins appealed against his conviction to this Court. On 7 October 2020, the appeal was allowed, the conviction set aside and a new trial ordered: Decision Restricted [2020] NSWCCA 256. The retrial is fixed to commence on 17 January 2022.
The applicant was arraigned before a jury and Latham J on 18 June 2018. The evidence concluded on 27 June 2018 and closing addresses were made on 28 June 2018. Her Honour summed up on 29 June 2018 and the jury retired to consider its verdict that afternoon. On 6 July 2018, following approximately five days of deliberation, the jury returned a majority verdict of guilty. On 25 July 2018, the applicant was sentenced to 33 years’ imprisonment with a non-parole period of 20 years.
The Crown case was that the applicant encouraged and/or assisted Mr Wiggins in committing the murder by providing him with the gun. Mr Wiggins’ conviction and the events at the scene of the shooting were the subject of agreed facts (“Exhibit C”). Significant background evidence was led from police officers, and tendered in the form of intercepted telephone calls, to establish the applicant’s motive to participate in the murder; that the applicant believed that the deceased had killed his brother Goran Nikolovski (“Goran”). Phone records were tendered to establish that the applicant and Mr Wiggins were in contact via text messages on the day of the murder.
The critical issue at trial, and for the purposes of the appeal, was the evidence which sought to establish that the applicant supplied a gun to Mr Wiggins. The Crown case about this issue was reliant on two [redacted] witnesses who gave evidence about admissions allegedly made by the applicant about supplying a gun to Mr Wiggins. A third in [redacted] also gave evidence of admissions allegedly made concerning the applicant’s “involvement” in the crime, but did not give evidence relevant to the supply of a gun. The first witness, “James Williams”, [redacted] volunteered information about admissions allegedly made by the applicant. The second witness, “Josh Baker”, [redacted] on the basis of an undertaking to give evidence against the applicant. The third witness, “Tom Davies”, [redacted], gave evidence of a further general admission made by the applicant that did not refer to the supply of the gun.
The applicant’s case at trial was that he was not involved in any arrangements for the murder and he did not make the admissions alleged. The applicant did not give evidence but tendered intercepted telephone calls to demonstrate that others, particularly members of the Comanchero outlaw motorcycle gang (“the Comancheros”), were strongly motivated to seek revenge for Goran’s death and were inclined to sideline him from any plan that they had because the applicant was regarded as a “loose cannon”. The applicant also called evidence from his treating psychiatrist as to his anxious and distressed condition at relevant times, and from the owner of a gym he attended in order to explain his presence at a different gym at the time of the murder.
Grounds of appeal
The applicant seeks leave, under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), to appeal against his conviction on the following grounds:
“GROUND 1: The trial miscarried as a result of the evidence of James Williams being admitted for the jury’s consideration.
GROUND 2: The verdict is unreasonable and cannot be supported by the evidence, as the jury ought not have placed any reliance on the evidence of the witnesses James Williams or Josh Baker because they were [redacted] and were unreliable witnesses and because Williams has been held by this Court to be unreliable, a ‘seasoned criminal’ and a ‘serial liar’.”
The applicant seeks leave, under s 5(1)(c) of the Criminal Appeal Act, to appeal against his sentence on the following ground:
“GROUND 1: The sentencing judge erred in applying and taking into account a standard non-parole period of 20 years.”
The evidence given at trial
There was a large body of evidence given at the trial about the background to the murder, which evidence broadly related to people involved in distributing illegal narcotics and people who were otherwise involved with outlaw motorcycle gangs in the Wollongong area.
Central figures in the evidence were Saso Ristevski and the applicant’s brother, Goran, who were associates in 2004. They were both gaoled for supplying a large quantity of drugs. There arose a dispute between them as to whether one or the other had informed on the other to the authorities. At that time, Goran was a close associate of Mark Buddle, the then-national president of the Comancheros. The applicant was not a motorcycle gang member.
On 28 September 2011, Mr Ristevski was murdered at his home in Lake Heights near Wollongong. The police suspected that Goran was involved in Mr Ristevski’s murder. After that date, the police lawfully intercepted Goran’s telephone.
In the late evening of 31 October 2011, Goran disappeared. The police had information suggesting that on the night he disappeared, Goran was going to Darko Janceski’s house. At that time, Mr Janceski was a member of the Comancheros.
Goran was reported missing on 1 November 2011. The evidence at the trial was that Mr Buddle suspected Mr Janceski’s involvement in Goran’s disappearance. That evening, Mr Buddle spoke to an associate and requested that the associate bring Mr Janceski to him. It was agreed that they would meet at McDonald’s.
On around 4 November 2011:
(1)Goran’s car was found burnt out in bushland but his body was never found;
(2)Messrs Wiggins and Buddle were recorded on telephone intercepts discussing the news that Goran’s car had been recovered and agreeing that they believed Goran to be dead. Mr Wiggins told Mr Buddle that he would try to find out more;
(3)the applicant was recorded on a telephone intercept speaking with an associate in a manner which suggested that the applicant was conducting his own investigation into Goran’s disappearance; and
(4)police released information to the media about Goran’s disappearance.
Mr Wiggins had been a close friend of Goran. Following Goran’s disappearance, he communicated regularly with the applicant.
In the early hours of 5 November 2011, Mr Janceski’s home was destroyed by fire. Mr Wiggins drove past Mr Janceski’s home later that morning and was stopped by the police.
The police investigation suggested that the fire at Mr Janceski’s home had been deliberately lit on the basis that certain fabrics and clothes had been laid throughout the house to create a “wick” to allow the fire to travel. It appeared that Mr Janceski was at the Steeler’s Club, which was about a 10-minute drive from the house, at the time of the fire.
The intercepts recorded from the applicant’s phone on 5, 6 and 9 November 2011 suggested that the applicant believed that Mr Janceski had set fire to his own home, and that he did so in an attempt to destroy evidence relevant to Goran’s murder. The applicant was recorded saying “I’m going to fucking kill him with my bare hands”; that he was “able, capable, very easy, at this current point in time to kill someone” with his “bare hands”; and that he was “going to kick heads” and “get Darko right now” but that it was not a good idea at that moment because he was being watched. The applicant was also recorded saying that he was scared to go out in public because he was worried about what he might do if he saw someone who had hurt his brother; and that he was “going out looking for this gronk” who had killed his brother.
Mr Janceski had been a member of the Comancheros but in January 2012 he was “sacked”, meaning that his colours were taken away from him and he was excluded from membership of the Comancheros. Mr Janceski’s former barrister gave evidence at the trial that he had told her he had received a death threat from Mr Buddle and that around two weeks before his home burnt down he had sent a text message to Mr Buddle saying that he would “die for his pride” and would not be returning his motorcycle (an apparent reference to a dispute arising from the “sacking” of Mr Janceski as a member of the Comancheros).
On 29 January 2012, Mr Janceski was shot in the groin by one of two men in a vehicle that pulled up at the front of his home. He survived but was hospitalised until 18 February 2012, when he was discharged to live with his parents at their home in Berkeley. Glen Wilson, an acquaintance of Goran, and a Mr Wellins were charged with the shooting of Mr Janceski.
At the trial, Mr Janceski’s former barrister gave evidence that on her understanding Mr Janceski and the applicant had resolved their issues. She said Mr Janceski had told her:
“... that he had reached out to Robert Nikolovski and they had met and that he had, in essence, pleaded his case to Robert Nikolovski that he had, that he loved Goran and that he had nothing to do with his disappearance or likely murder.
…
… That was the whole point of the conversation, as I understood it, from Darko that he was assuring me that he had spoken with Robert Nikolovski and that Robert Nikolovski had accepted, in essence, Darko’s word that he had nothing to do with the disappearance of Goran.”
On 28 March 2012, a Christopher Madden used a prepaid SIM card attached to a fictitious name to contact Matthew Ryan, who had placed an advertisement on eBay for the sale of his blue and white Yamaha WR450 motorcycle. They arranged to meet at McDonald’s in Cessnock, where Mr Madden purchased the motorcycle in cash under a false name. He then threw the SIM card and phone out of his car window. Using a different phone, Mr Madden contacted Derek Ferguson (a close associate of Mr Wiggins) five times throughout the day both before and after the purchase of the motorcycle. After purchasing the motorcycle, he went directly to Mr Ferguson’s workplace at Unanderra.
On 14 April 2012, Mr Janceski was at his parents’ house at Berkeley. Shortly after 5pm a man riding a blue and white Yamaha motorcycle approached the house. The motorcycle matched the description of the one purchased by Mr Madden on 28 March 2012. The man was wearing a full-face helmet with sunglasses and a balaclava. He stopped outside Mr Janceski’s house, called out “Hey Darko”, produced a semi-automatic pistol and fired seven shots in the direction of Mr Janceski. Three of the shots struck and fatally wounded Mr Janceski.
Mr Janceski’s father, Slobodan Janceski, was inside the house at the time. He heard the shots, ran outside and ran towards the shooter. He used a nearby garden stake to strike the shooter. The helmet and sunglasses were knocked from the shooter’s head. During a struggle between the two men, Slobodan Janceski disarmed the shooter and threw the firearm some distance away. Slobodan Janceski was seriously injured and was eventually overpowered by the shooter. The shooter then returned to the bike and rode away. Paramedics and police arrived and administered first aid to Mr Darko Janceski, who died shortly afterwards.
The motorcycle helmet and sunglasses revealed a DNA profile consistent with that of Mr Wiggins. A DNA profile consistent with Slobodan Janceski was identified on the firearm but no other profile could be retrieved. The firearm had never been licensed in New South Wales and was not on the National Firearm Licensing and Registration System. It was not known how the firearm came to be in Australia.
No DNA or fingerprints found on the evidence recovered from the scene could be traced to the applicant. The testing of gunshot residue did not return anything traceable to the applicant.
On or around 21 April 2012, a Yamaha motorcycle was found burnt out at a temple located approximately 800 metres from the workplace of Mr Ferguson. The Crown case was that this was the motorcycle used in the murder of Mr Janceski.
The police executed a search warrant at Mr Ferguson’s home and located a balaclava in the garage. DNA recovered from the inside of the balaclava matched Mr Wiggins’ DNA.
As I have described, the telephones of Goran and the applicant were being lawfully intercepted as part of the investigation into Mr Ristevski’s murder. The applicant’s telephone was lawfully intercepted from 4 November 2011 to 18 January 2012, 27 September 2012 to 13 December 2012 and 24 May 2012 to 29 May 2012.
The Crown relied upon various statements made by the applicant during the intercepted calls in November and December 2011 as demonstrating his anger and grief over the death of Goran and his suspicion or belief of the deceased’s involvement in Goran’s disappearance. The Crown relied on this evidence to establish the applicant’s motive to kill Mr Janceski. The Crown also relied on various pieces of telecommunications evidence to show the frequency of contact between the applicant and Mr Wiggins on and around the time of the murder.
An intercept warrant was not in force on 14 April 2012 for the applicant or Mr Wiggins. The records obtained in relation to the applicant’s phone were limited to outgoing calls and outgoing SMS’s but did not include the reverse call charge records. The records showed that the applicant did not use his phone between 2:41pm and 6:06pm on that day. The murder occurred shortly after 5:00pm.
Mr Wiggins’ telephone records from 14 April 2012 showed that he had contacted the applicant via text message 17 times on that day. Telephone records revealed that Messrs Ferguson and Wiggins were in regular contact in March and April 2012, including in the weeks prior to the murder. Mr Wiggins did not use his mobile telephone between 4:41pm and 5:47pm on 14 April 2012. His last call before the murder, and first call after the murder, were to Mr Ferguson. There were 34 telephone contacts between Messrs Wiggins and Ferguson on 14 April 2012.
On 19 April 2012, the Illawarra Mercury released an article about the murder containing a picture of a Yamaha motorcycle similar to the one used in the murder, requesting that anyone with information contact the police. Telephone records revealed 39 contacts between Messrs Ferguson and Wiggins and six contacts between Messrs Ferguson and Madden on the day that the Illawarra Mercury article was released.
The applicant was at a gym in Warrawong on the day of the murder. The police spoke with the applicant that day and noted that he had no physical marks indicating that he had been injured. There was no suggestion that he had attempted to flee from the police.
At the time of the murder, Messrs Wellins and Wilson (who had been charged with the shooting of Mr Janceski on 29 January 2012) were in custody. Mr Dingle was at a friend’s house from approximately 9:00am to 9:30pm. Mr Madden was also at a friend’s house.
Mr Buddle was in custody on the day of the murder, having been charged with an unrelated matter. The police believe that Mr Buddle left Australia permanently in 2016.
As I will explain in greater detail when addressing ground 2, the evidence of two [redacted], “James Williams” and “Josh Baker”, was the only evidence capable of establishing that the applicant provided the gun to Mr Wiggins which Mr Wiggins used to commit the murder.
“James Williams” (Witness F)
On 18 October 2017, the applicant made a pre-trial application for the exclusion of the evidence of “James Williams” (“Witness F”), on the basis that “he is such an atrocious criminal that it is an affront to justice that he be presented in court in a prosecution on behalf of the community and public confidence in the Courts will necessarily be diminished by such a procedure” (relying on Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66). It was argued that the evidence should be excluded as an abuse of process or under s 138 of the Evidence Act 1995 (NSW) because it was unlawfully or improperly obtained. Counsel for the applicant submitted that Mr Williams had been “positively disbelieved in the Court of Criminal Appeal about an admission of a kind similar to what the allegations in this case are”. As I will explain, that submission was a reference to two other admissions of murder said to have been made to Mr Williams and the decision of this Court in the first Splashes nightclub murder appeal, Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 (Popovic), where Adamson J (with whom Beazley P and R A Hulme J agreed) held that it was “not safe to put any weight on” Mr Williams’ evidence of the admissions and that Mr Williams’ credibility was “substantially impugned”.
The trial judge refused the application on 30 October 2017: R v Nikolovski & R v Wiggins (Supreme Court (NSW), Latham J, 30 October 2017, unrep). Her Honour noted that Mr Williams’ statement revealed that he was associated with members of known criminal groups in the Wollongong area since 1999, both inside and outside of prison. [redacted]. Her Honour said at [16]:
“[16] … F has already given evidence pursuant to [redacted] in a number of trials – indeed, Mr Woods QC for Mr Nikolovski has provided me with the transcript of parts of the cross examination of F by other counsel in other trials in order to demonstrate his unreliability and lack of credibility. Mr Woods QC also referred me to the judgment of Adamson J in Popovic v R [2016] NSWCCA 202 at [322] where her Honour said:-
It is, in my view, not safe to put any weight on [F’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.”
In declining to exclude Mr Williams’ evidence, her Honour said at [17] that she was prepared to treat him as a witness who would give evidence pursuant to an [redacted], which justified a cautious approach to the acceptance of his evidence by a tribunal of fact. Her Honour noted that the task performed by Adamson J in Popovic in assessing the reasonableness of a jury verdict, having regard to all of the evidence in the trial, was altogether different from the one considered in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424, which dealt with the same proposition that was advanced on the application to exclude Mr Williams’ evidence. There, Johnson J (with whom McClellan CJ at CL and James J agreed) observed at [176]-[179] that:
“[176] From time to time, the executive, in the form of the Attorney General, may be called upon to consider the power to grant indemnities under s.32 Criminal Procedure Act 1986, at the request of the Director of Public Prosecutions under s.19 Director of Public Prosecutions Act 1986.
[177] It has become part of the contemporary landscape of trials for very serious crimes that persons may give prosecution evidence whilst holding an indemnity and being the recipients of assistance and witness protection. In Rozenes v Beljajev, Brooking, McDonald and Hansen JJ observed at 544 that ‘if it were not for the evidence of accomplices, a great deal of very serious crime would go unpunished, and the frequent use of evidence of accomplices has been found to be necessary in the public interest’.
[178] In his closing address to the jury, the Crown Prosecutor echoed such reasoning (T1942):
‘The reality is [that] to crack crimes of this type and in this case, the evidence must come from a man on the inside. That is Khaled Taleb, the Crown submits to you.’
[179] In Doney v The Queen [1990] HCA 51; 171 CLR 207 at 215, the High Court observed that the inherent power of a court to prevent abuse of process does not provide any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. Questions of fact and the credibility of witnesses are for the jury to decide: Rozenes v Beljajev at 554 (applying Doney v The Queen).”
On 18 June 2018, prior to empanelment of the jury, counsel for the applicant renewed his application to exclude the evidence of Mr Williams, which her Honour again refused.
Ground 1 of conviction appeal: the trial miscarried as a result of the evidence of James Williams being admitted for the jury’s consideration
By ground 1 of the conviction appeal, the applicant contended that the admission of the evidence of Mr Williams led to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act.
In addition to the criticism levelled by this Court at Mr Williams’ [redacted] evidence in Popovic, subsequent to the applicant’s conviction this Court had cause to consider, again, and trenchantly criticise, Mr Williams’ [redacted] evidence: Koloamatangi v R; Popovic v R [2020] NSWCCA 52; (2020) 282 A Crim R 160 (“Koloamatangi”, the second Splashes nightclub murder appeal).
Although there was a degree of ambivalence in the written submissions, senior counsel for the applicant, Mr Boulton SC, accepted that any finding of fact made by this Court in Koloamatangi would not have been admissible in evidence in the applicant’s trial. This was explained in Campbell v R [2014] NSWCCA 175; (2014) 312 ALR 129. The applicant in that case attempted to rely on findings that had been made about an expert witness in another appeal. Simpson J (with whom Bathurst CJ and Hidden J agreed) observed at [319] that s 91 of the Evidence Act precluded that course:
“[319] … However, I should observe that I have some difficulty with the proposition that the findings of this Court, in a different case, concerning Associate Professor Cross’ credibility or reliability (assuming he was otherwise qualified to give the evidence) amount to evidence (fresh or otherwise) that could be taken into account in determining the admissibility of his evidence: see Evidence Act 1995 (NSW), s 91. In my opinion the judgment of this Court in Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581 was and remains irrelevant to the admissibility of Associate Professor Cross’ evidence. I would therefore reject Ground 4 of the appeal (if it were necessary to decide it).”
Mr Boulton SC also accepted, as the Crown submitted, that the findings of this Court in Koloamatangi could not be used in the cross-examination of Mr Williams to demonstrate that he had lied: O’Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103 at [37]-[42].
Mr Boulton’s point was rather that his client was denied a forensic opportunity to cross-examine Mr Williams about the lies he had allegedly told in the Splashes trial in circumstances where the Crown could not have told the jury that they should conclude his evidence in those cases was truthful. In order properly to understand these submissions it is necessary to descend into a little detail about the Splashes nightclub murder trials and subsequent appeals to this Court in Popovic and Koloamatangi.
The Splashes nightclub murder trial
Mr Williams gave evidence in a trial in April/May 2014 and a retrial in August 2017 involving a murder at the Splashes nightclub in Wollongong in September 2007. In each trial, Mr Williams [redacted] gave evidence of admissions of murder allegedly made to him by several of the accused. Each trial resulted in convictions that were successfully appealed.
There was controversy between the parties as to whether Mr Williams’ evidence constituted the principal evidence against any of the four co-accused. He and “Peter Taylor” (a pseudonym) each gave evidence of admissions of murder allegedly made to them by various of the accused. Mr Williams was [redacted], namely:
(1)fire firearm at dwelling house and reckless disregard for safety on 17 October 2012;
(2)discharge firearm with intent to cause grievous bodily harm on 9 February 2013;
(3)use unauthorised pistol on 9 February 2013; and
(4)knowingly deal with proceeds of crime, namely $11,500 cash on 18 February 2013.
[redacted]
Pausing there, Mr Williams’ evidence was that at least six confessions to murder were made to him, on multiple occasions, by Messrs Popovic, Bubanja and Koloamatangi. All four co-accused were found guilty at the first trial.
The first Splashes nightclub murder appeal: Popovic
In the conviction appeal following the first trial, Popovic, Mr Williams’ evidence was discussed in the context of considering an unreasonable verdict ground on Mr Bubanja’s appeal. Adamson J (with whom Beazley P and R A Hulme J agreed) made the following findings:
(1)that Mr Williams had “every reason” to exaggerate in his evidence, including [redacted] (at [309]);
(2)that Mr Williams’ evidence about Mr Bubanja’s alleged admission in custody that he could not wait until the deceased was released from gaol so that he could put a bullet in his head should be rejected because (i) it was not recorded in any statement taken by police who had interviewed him; (ii) its reliability was “substantially impugned by the obvious exaggeration” contained within it, namely that it was made “every day” and to “100 other people” (though he could not name any such person), and because he had a motive in fabricating that admission (at [319]-[320]); and
(3)that Mr Williams’ evidence as to Mr Bubanja’s admission in 2009 or 2010 at the restaurant should be rejected because (i) it was also not recorded in any statement taken by police who had interviewed him; and (ii) it was contradicted by the objective evidence about what Mr Bubanja did around the time of the murder, namely the CCTV footage and call logs (at [319]-[322]).
In considering whether the verdict against Mr Bubanja was unreasonable in accordance with the principles in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Adamson J concluded at [322] that it was “not safe to put any weight on [Mr Williams’] evidence of these two admissions”. Her Honour stated at [324] that Mr Williams’ “credibility was substantially impugned”. In a separate judgment, R A Hulme J observed that the Crown case was “heavily dependent” or “significantly dependent upon acceptance of particular aspects of the evidence of” Mr Williams and Mr Taylor. His Honour considered that Mr Taylor’s evidence was “problematic in a number of respects” and that Mr Williams’ evidence was “of even more dubious credibility [than that of Mr Taylor]” (at [12]).
The convictions of Messrs Bubanja and Hristovski were overturned and verdicts of acquittal were entered. Retrials were ordered for Messrs Popovic and Koloamatangi.
The Splashes nightclub murder retrial
In August 2017, Messrs Koloamatangi and Popovic were retried before N Adams J and a jury. Mr Williams gave evidence [redacted]. He repeated the evidence that Mr Popovic offered in April 2007 to pay him $40,000 to kill the deceased, which he refused; of the walk in the park with Mr Popovic in around November 2007 during which Mr Popovic was said to have told him that “it was [Mr Koloamatangi]” who had killed the deceased and that Mr Taylor was driving; of Mr Koloamatangi having told him while in custody in July 2008 that he (Mr Koloamatangi) was the one to have killed the deceased and of Mr Koloamatangi having complained to him while in custody in around October 2013 that he had still not been paid by Zoran Popovic for the murder. Both Messrs Popovic and Koloamatangi were again convicted.
The second Splashes nightclub murder appeal: Koloamatangi
Messrs Popovic and Koloamatangi appealed against their convictions on grounds including that the verdicts were unreasonable and could not be supported having regard to the evidence. Both applicants relevantly argued that it would be a miscarriage of justice to permit their convictions to stand in light of “[redacted]” (Mr Williams) having been condemned by this Court as a liar, and that reliance on his evidence to sustain the convictions would amount to a public scandal and would be contrary to public policy. Mr Popovic also contended that there was a substantial miscarriage of justice in the trial judge failing to exclude the evidence of Mr Williams.
In circumstances to which I will return, this Court (Bathurst CJ; Bell P and Price J agreeing) rejected the complaint that Mr Williams’ evidence should have been excluded. The Court, however, upheld the applicants’ grounds complaining that the verdicts were unreasonable or not supported by the evidence. The Chief Justice described Mr Williams as “a seasoned criminal”, “a serial liar” and “an entirely unreliable witness”. The complete passage is as follows:
“[362] There remains the evidence of Mr [Williams]. Having regard to his evidence, Mr [Williams] could not only be described as a seasoned criminal but also as a serial liar. Further, as is apparent from his cross-examination, a number of lies were told [redacted]. He was an entirely unreliable witness.
[363] The admissions Mr [Williams] said were made to him were made in circumstances which could only be described as unusual. The admission by Popovic was made apparently out of the blue on a walk in a park. Notwithstanding this, Mr [Williams] stated that the murder was never discussed with Popovic whilst they were together in gaol playing chess.
[364] The admissions said by [Mr Williams] to have been made to him by Koloamatangi were made in equally unusual circumstances. The first was made through a high wire fence, apparently unsolicited. As was put in cross-examination, Koloamatangi was said to have come up to the fence and, without any discussion, made the admission.
[365] Mr [Williams] admitted that from the time of that admission until 2013 he had no contact with Koloamatangi. His evidence was that after that lapse of five years, he and Koloamatangi passed in a prison corridor and he asked Koloamatangi whether he had been paid. Mr [Williams] accepted the admission was made when he and Koloamatangi were passing like ships in the night. Once again the circumstances of the admission were, to say the least, unusual.
[366] Further, the admissions he claimed to have been made to him were different to those which he said were made in the interview of 4 July 2013 with Mr Durant.
[367] Having regard to the unreliability of Mr [Williams] and the unusual circumstances in which the admissions were made, it was not open to the jury in my opinion to be satisfied beyond reasonable doubt that the applicants were guilty of the murder on the basis of his evidence, whether alone or in conjunction with the other evidence at the trial including that of Mr Taylor.” (Citations omitted.)
The applicant described this Court’s findings in Popovic and Koloamatangi as “a plain rejection of Mr Williams as a witness of truth” and tantamount to a finding of perjury. The Crown did not accept that characterisation and submitted that a finding was not made in either case that Mr Williams had lied about the relevant admissions.
The Crown submitted that in each appeal this Court undertook an independent assessment of the evidence and concluded that it was not open to the jury to be satisfied of guilt beyond reasonable doubt on the basis of Mr Williams’ evidence, with reference to features of that evidence such as exaggeration, inconsistency and improbability.
Having sketched the relevant background, I return to ground 1 of the present appeal.
Submissions in support of ground 1 of the conviction appeal
The applicant made three sub-contentions in support of ground 1. He argued that:
(1)the Crown should not have led the evidence of Mr Williams at trial;
(2)a miscarriage of justice was occasioned by the admission of Mr Williams’ evidence; and
(3)given Mr Williams’ role in the trial, it would be contrary to public policy to allow the conviction to stand.
Sub-contention 1: the Crown should not have led the evidence of Mr Williams at trial
The applicant contended that the Crown should not have called Mr Williams at the trial in the proper application of par 11.3 of the Office of the Director of Public Prosecutions (NSW) Prosecution Guidelines (March 2021). The applicant submitted that as at the time the Crown decided to call Mr Williams, the Crown was aware of (i) the particulars of Mr Williams’ criminal record, custodial history and dishonesty to the NSW Crime Commission; (ii) the nature of Mr Williams’ evidence allegedly including admissions made to him by or in respect of seven suspects; (iii) the verdicts of not guilty in the joint conspiracy to murder trials of R v Rice, R v Popovic, R v Koloamatangi and R v Vukovic, in which the Crown relied upon Mr Williams to give evidence in 2014; and (iv) the findings against Mr Williams’ credibility made by this Court in Popovic.
The applicant advanced four reasons as to why the proper exercise of the Director of Public Prosecution’s discretion should have resulted in the decision not to call Mr Williams:
(1)first, Mr Williams’ evidence was not detailed and not so factually specific so as to exclude the possibility that he learned it from reading the prosecution brief, the news or from rumour in the prison community. Mr Williams did not give evidence as to how the applicant procured the gun, from whom, how much he paid for it, its transportation to Australia or any other verifiable detail about the alleged admission concerning the gun;
(2)secondly, Mr Williams’ claims that seven different people confessed their involvement in three different murders from 2007 to 2012 told strongly against his credibility. The likelihood that seven separate people would each independently in the period between 2007 and 2012 confess to murder to Mr Williams was so low as to render his evidence incapable of belief;
(3)thirdly, the voluminous and complicated evidence of unrelated criminal activity which would need to have been introduced to give the jury an appreciation of the strange circumstances in which Mr Williams claimed to have had the various murders confessed to him risked overburdening and confusing the jury, which was already faced with a complex factual matrix concerning the motive for the murder; and
(4)fourthly, Mr Williams had the opportunity to develop his skills in giving evidence and being cross-examined in three Supreme Court trials prior to giving evidence in the applicant’s trial. He had been cross-examined on his previous offending, the chronology [redacted]. This was said to produce a significant forensic disadvantage for the applicant.
My fundamental difficulty with this aspect of the applicant’s case is that, unless and until the High Court decides otherwise, the Crown prosecutor alone bears the responsibility of deciding whether a person should be called as a witness for the Crown. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice: R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 575. It may be that there are circumstances where, in accordance with existing authority (such as Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53), the circumstances in which a particular witness is called may give rise to a miscarriage of justice. I am not persuaded that a miscarriage has been shown here by reason of the decision to call Mr Williams. As Bathurst CJ said of a similar objection in Koloamatangi at [318]:
“[318] So far as the evidence of [Mr Williams] was concerned, the decision in the previous judgment related to the admissions allegedly made to him by Bubanja. The Court did not deal with the admissions he alleged were made to him by the applicants. The fact that [Mr Williams] was found to be a witness who lacked credibility in the previous judgment does not mean his evidence could not be relied on in respect of different admissions by different persons in the present case.”
The fact that Mr Williams has been found, twice, by this Court to be a witness who lacked credibility does not necessarily mean that his evidence could not be relied on in respect of different admissions by different people in the present case. I will return to the topic of Mr Williams’ evidence at the applicant’s trial in detail when addressing ground 2, but I would reject sub-contention 1 of ground 1.
Sub-contention 2: a miscarriage of justice was occasioned by the admission of the evidence of Mr Williams
By sub-contention 2, the applicant contended that the admission of Mr Williams’ evidence resulted in a miscarriage of justice because the Court’s decision in Koloamatangi had not been handed down at the time of the applicant’s trial and was therefore not before the trial judge on the application to exclude Mr Williams’ evidence. By this sub-contention, the applicant did not challenge the ruling on the evidence but, rather, sought to invoke “the inherent power of the court to produce a fair trial”. The applicant sought to distinguish his position from the position taken in the abuse of process stay application in Darwiche.
The applicant submitted that this Court should not find that the applicant of his own volition did not call evidence which was available to him (being the transcripts of Mr Williams’ testimony in the Splashes nightclub murder trial and retrial) because little forensic use could have been made of the evidence.
The applicant submitted that, had he been aware of the outcome in Koloamatangi, his counsel would have been entitled to put to Mr Williams that he had been called as [redacted] in two murder trials and in each case had lied about admissions of murder. The applicant said there was a real possibility that the jury would have returned a verdict of not guilty because the Court’s judgment discredited the prosecution case.
Assuming, without deciding, that a change in the forensic balance between the Crown and the accused in any possible retrial was effected by the subsequent decision of this Court about the credibility of Mr Williams in Koloamatangi, I am not persuaded that a miscarriage of justice has been shown. It appears to me that such a conclusion would stray beyond the boundaries of a miscarriage of justice as explained by the High Court, most recently in Strickland. Whilst the outer limits of a miscarriage are, for good reason, not clear, any extension to cover the present circumstances would be a matter for the High Court.
Sub-contention 3: it would be contrary to public policy to allow the conviction to stand
The applicant submitted that it would be an affront to the administration of justice and an abuse of process to allow the conviction to stand, given the findings made in Popovic and Koloamatangi. The applicant submitted that although Mr Williams has not been found to be a witness lacking in credibility in respect of his particular evidence concerning the applicant, the findings by this Court in its previous judgments, and the similarity of the evidence there rejected, was such that it would be an affront to the administration of justice to allow the applicant’s conviction to stand. It was submitted that members of the public would regard any upholding of the conviction as inconsistent and capricious.
It was submitted that this case raises a serious question about public policy in relation to [redacted] in the criminal law and the following public policy considerations should have compelled the rejection of Mr Williams’ evidence:
(1)the established courts of law are regarded as the institutional expression of the rule of law in our society;
(2)it is important that the administration of justice should be regarded as consistent;
(3)it is important that the administration of justice should not be seen as capricious; and
(4)it is important that the decisions of the courts should be viewed by the public as seriously meaningful.
[redacted].
It will be recalled that AB v CD; EF v CD involved “fundamental and appalling breaches” of a barrister’s obligations to her clients and the court, and “reprehensible conduct” on the part of the police who encouraged her (at [10]). No irregularity or impropriety of the kind described in that case arose here in the very different circumstances of this trial.
The applicant may well be correct that “there must be a point at which the Court will intervene to prevent the Crown from relying upon a proven liar to prove convictions for the most serious criminal offences”. However, I am not persuaded that this point was reached here. There is no necessary inconsistency in different outcomes being achieved in cases involving different evidence. Subject to this Court’s unreasonable verdict jurisdiction, the assessment of witnesses’ credibility and reliability are matters for a jury, properly instructed and with the benefit of testing through informed cross-examination. I would reject sub-contention 3.
Conclusion regarding ground 1
I would grant leave to appeal on ground 1 but reject the ground.
Ground 2 of conviction appeal: the verdict is unreasonable and cannot be supported by the evidence
By ground 2, the applicant complained that his conviction was unsafe, having regard to the significance of Mr Williams’ and Mr Baker’s evidence. The applicant submitted that the jury could only have concluded that the applicant encouraged and/or assisted the murder by providing the gun on the evidence of Messrs Williams and Baker. The evidence given by those witnesses was crucial to the Crown case at trial. The trial judge gave the following direction to the jury:
“The principal issue in this trial is whether the accused, in fact, made a statement that he is said to have made to Mr Williams, Mr Davies and Mr Baker. It is important that you appreciate that if you reject the evidence of all three of those witnesses as untruthful or if you have a doubt about the reliability of that evidence there would not be sufficient evidence upon which you could be satisfied of the accused’s guilt. In those circumstances you would be obliged to acquit the accused.”
The trial judge later directed the jury as follows:
“Now it will be obvious to you, ladies and gentlemen, that in order to be satisfied beyond reasonable doubt that the accused encouraged and assisted Mr Wiggins to carry out the offence of murder in the way that the Crown has suggested, the factual basis for proof of that element comes only from the evidence of Mr Williams, Mr Davies and Mr Baker. Now we know that because we had evidence from the detective in charge of the case that the accused was initially charged with solicit to murder. That charge was not proceeded with. The accused was released on bail and then only after Mr Williams, Mr Baker and Mr Davies came forward was the accused charged with this current charge. So as I said at the beginning, unless you accept the evidence of Mr Williams, Mr Baker and Mr Davies, or at least one of them, and I would suggest that the only one that possibly provides a factual basis for the Crown case is the evidence of Mr Williams, then you could not convict the accused.
Now why I say Mr Williams is critical, ladies and gentlemen, is because Mr Williams the only one of the three who gives positive evidence of the accused providing the gun to Mr Wiggins the day before the murder was carried out. Mr Davies and Mr Baker give evidence of expressions of involvement in the planning of the offence. I am not suggesting that that would not be sufficient to constitute encouragement and assistance, but in terms of the provision of the gun, that only comes from Mr Williams.”
Her Honour subsequently corrected the last sentence of this direction:
“Just before I go on to give you the direction about the evidence of Mr Williams, Mr Baker and Mr Davies, I should correct something that I said before we took that brief adjournment. It is not just Mr Williams who refers to the accused providing the gun to Mr Wiggins. Mr Baker also gives that evidence. I will summarise this evidence shortly, ladies and gentlemen, but there is something that I do need to say which has arisen out of the discussions that I have had with counsel in relation to evidence of those three witnesses.
Mr Williams and Mr Baker each say, in different circumstances of course because they had the conversations with the accused in different circumstances and at different times, they each say that the accused admitted to them that he provided the gun to Mr Wiggins that was used in the shooting of Mr Janceski.
Mr Davies doesn’t say that. You are entitled to look at the evidence of all three of those witnesses in determining whether you accept each of them or none of them, and as the Crown submitted to you there are three unknown, that is three persons unknown to each other, who give evidence of these alleged admissions at different times in different circumstances, and the Crown relies upon the fact that it’s the combination of those three witnesses that gives force to the truth of their individual evidence.
But let me just give you this direction because it is important, if you were to reject the evidence of Mr Williams and Mr Baker, then the evidence of Mr Davies alone would not be sufficient to convict the accused and the reason for that is this, Mr Davies does not say anything at all about any specific act which is carried out by the accused which would constitute the encouragement and assistance. So Mr Davies’ evidence on its own would not be sufficient to provide a foundation for a conviction against the accused. But this will become clearer when I summarise their evidence which I’m going to do now.”
The applicant correctly identified that the evidence of Mr Williams and, to a lesser extent, Mr Baker, was critical in establishing the relevant element of the charge the applicant faced. It was, in truth, the only evidence going to that central topic.
Consideration of ground 2
The principles that are applicable to an appeal on the ground that a verdict is unreasonable, or cannot be supported, having regard to the evidence, were identified by the High Court in M v The Queen at 492-3. There Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated:
“Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’, or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (Footnotes omitted.)
Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, a case that actually concerned the prosecutor’s alleged misconduct in the course of a criminal trial, Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test for an intermediate appellate court when considering whether the convictions sustained below were unreasonable in the following terms:
“[113] … the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.” (Footnote omitted; emphasis in original.)
The principles enunciated in M were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:
“[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’
…
[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA [v The Queen (2002) 213 CLR 606; [2002] HCA 53], the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.’” (Footnotes omitted.)
At [22], their Honours said:
“[22] On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported. There is no doubt that the Court of Criminal Appeal was not bound by the ruling of the trial judge concerning the date of the 2006 offences. However, the Court of Criminal Appeal was required to form an opinion as to the date of the 2006 offences in order to weigh the whole of the evidence. The reasons for judgment by Simpson J do not disclose that the Court of Criminal Appeal made an independent assessment of the evidence concerning the 2006 offences, and therefore the Court could not weigh the competing evidence to determine whether the verdicts of guilty could be supported.”
The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:
“[45] As their Honours observed, to say that a jury ‘must have had a doubt’ is another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.” (Footnote omitted.)
Detailed evidence about the critical issue
I have set out at some length at [14]-[46] above the evidence at the trial. It is unnecessary to repeat that evidence here. As the trial judge correctly instructed the jury, the only way in which the Crown ultimately went forward to the jury on how the applicant “encouraged and/or assisted” Mr Wiggins in committing the murder was by the supply of the gun. The critical question, which was the focus of this ground of appeal, may be framed in this way: was the evidence that the Crown said established beyond reasonable doubt that the applicant supplied the gun to Mr Wiggins capable of establishing the applicant’s guilt?. As the trial judge also correctly told the jury, the only evidence that the applicant supplied the gun to Mr Wiggins was contained in the evidence of the [redacted] witnesses, Mr Williams and Mr Baker. It is thus necessary to go into some detail about the evidence of the [redacted] witnesses, including Mr Davies, whose evidence was said by the Crown to provide some support to the critical [redacted] witnesses.
Mr Williams’ evidence
Mr Williams was the most important Crown witness about the topic of the applicant’s supply of the gun used in the murder. As I have explained, I put to one side in addressing this ground the fact that Mr Williams was recently described in this Court by the Chief Justice as “a seasoned criminal”, “a serial liar” and “an entirely unreliable witness”.
I am unable to accept the Crown’s submission that there was nothing inherently unlikely in Mr Williams’ evidence about the conversation he had with the applicant. The context of the alleged admission made by the applicant was strange. Mr Williams gave evidence about his extensive criminal history and his prior knowledge of the applicant, his brother Goran and the deceased. At a time after the death of Mr Janceski, Mr Williams and his wife attended “Big Leo’s”, a mechanic in Fairy Meadow, to get a pink slip for his car. There, he unexpectedly ran into the applicant, who suggested that they “go for a talk”. Mr Williams said that the applicant asked him what his involvement was in Goran’s disappearance including whether he had been approached to shoot Goran. Mr Williams denied this. The applicant asked why he had featured in photographs with Mr Janceski just before the disappearance of his brother. The applicant then:
“... just sort of like snapped and started raising his voice and yelling ... [Saying] he’s got the power, he’s got the Comancheros backing him up and that he’s got the green light to, to get anyone that’s involved [in Goran’s disappearance] … to attack or hurt anyone he felt like that’s got to do with his brother’s disappearance.”
Mr Williams gave evidence that he again told the applicant he had “nothing to do with it” and asked “what’s all this got to do with me?” His evidence was that the applicant then said “that he’s the one that organised it and that he had Matty kill Darko”. His evidence was as follows:
“Q. Do you recall, doing the best you can, what words, using the words that Robert Nikolovski used, what he actually said when he talked about that?
A. Yes, that he um, I think he said the lines of, along the lines of that ‘You think the Comancheros, if you think the Comancheros are crazy’, he goes: ‘I’m crazier because I organized’ he said that he organized the whole thing and that Matty’s the one that killed him. And he explained to me in detail about how he actually did it with the motorbike and how he done a u-turn around the cul-de-sac and went in and shot Darko and he got attacked by his father and, um–”When asked what happened after the applicant said that he arranged or organised the murder of the deceased, Mr Williams said:
“After that I told him: ‘Okay, so what’s this got to do with me?’ And then he told me, he goes: ‘How do I know what you are telling me is truth.’ He wasn’t, he [was] unsure whether to believe it or not … that I’ve got no involvement in it. And I told [him]: ‘Because I’m not afraid of you and that that is why, how you know that I’m telling you the truth.’ And then that was it, that was pretty much it.”
It is clear from the evidence that the applicant approached Mr Williams at Big Leo’s and remonstrated with him angrily. Mr Williams’ wife, “Lisa Palmer”, and Leo Vangelovski also gave evidence of the discussion between Mr Williams and the applicant at Big Leo’s (Mr Vangelovski’s evidence was given by way of signed statements). They recalled the discussion becoming heated but could not hear what was said. It was not in contest that, despite Mr Janceski having been murdered sometime prior, the applicant remained concerned that Mr Williams was somehow involved in Goran’s murder. Given that Mr Williams admitted at the trial that he had committed at least six shootings, usually for money, both before and after this conversation, the applicant’s suspicion seems to have had a proper basis. Mr Williams’ evidence was that upon his denial of involvement in the murder of Goran, the applicant without prompting unburdened himself to Mr Williams that he was involved in the murder of Mr Janceski.
When cross-examined on this issue, Mr Williams gave the following evidence:
“Q. When you were outside the mechanic’s place on the occasion when you encountered Robert Nikolovski you had been driven there by your wife, hadn’t you?
A. Um, I think we came in two cars.Q. You what?
A. I think, I think I came in two cars. I’m not a hundred per cent sure but I went to get a pink slip for one of my cars.Q. Anyway, she was - so you might have come in two cars, but she was there?
A. Yes.Q. But she was some distance away?
A. She was, um, probably fifteen metres away.Q. She was close enough to hear Robert Nikolovski’s raised voice, wasn’t she?
A. I’m not sure.Q. You haven’t seen her statement?
A. I can’t remember, I can’t remember it.Q. In any event there was a raised voice, wasn’t there?
A. Yes, there was.Q. He was very cross with you?
A. Yes.Q. And then suddenly he turned around to you and admitted to you that he organised the murder?
A. That’s correct.”This evidence of a confession to murder, to a person suspected of being involved in Goran’s murder, is inherently unlikely. Despite the applicant angrily approaching Mr Williams and accusing him of involvement in Goran’s murder, upon hearing Mr Williams’ denial, the applicant is said to have decided, unprompted, to himself confess to involvement in the murder of Mr Janceski.
Even more inherently unlikely, given that the applicant was allegedly threatening Mr Williams with the “Comancheros backing him up”, Mr Williams claimed in his evidence at the trial that Mr Janceski had earlier confessed to him that he, Janceski, had murdered Goran. That is, on Mr Williams’ account, both murderers the subject of this case had confessed to him, seemingly out of the blue. Despite being angrily accused by the applicant of involvement in Goran’s murder and despite, on his account, being privy to a confession of Goran’s murder by the then deceased Mr Janceski, Mr Williams remained mute on this subject in the conversation with the applicant.
More strangely still, Mr Williams claimed in his evidence at the trial that Mr Janceski had confessed to him that he, Janceski, had burned his own house to the ground after Goran’s murder (see [21]-[22] above). Mr Williams also remained mute on this subject in his sole conversation with the applicant on the topic of Goran’s murder.
The circumstances in which Mr Williams came to bring to attention the confession allegedly made by the applicant to him are disturbing and should be set out in full. In short, the evidence was that Mr Williams [redacted] (see at [53] above). In late 2013, Mr Williams knew that [redacted]. The cross-examination on this topic should be set out in full:
“Q. [redacted]
A. That's correct.Q. And you were aware of that in 2013 [redacted], weren’t you?
A. That’s correct.Q. And you realised that you were getting on in years, that you were facing a long sentence, and that it was a pretty horrible prospect for you; correct?
A. No, that’s incorrect.Q. What, you were unconcerned with the prospect of another six or ten years in gaol, were you?
A. No, I wasn’t.Q. What, you weren’t concerned about it?
A. No, I was concerned.Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. You knew you couldn’t avoid it by claiming self-defence, correct?
A. That’s correct.Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. What is your assessment of the amount of time you would have spent in prison if you had fought it?
A. Two and a half years.Q. You got nine with six for shooting [redacted], correct?
A. That’s correct.Q. But you were only going to get two and a half years this time, would you?
A. Um, I had nothing to do with the [redacted] shooting, so I would have beat that. And the [redacted] shooting, I was under duress at the time. So I believe I would have ended up with around two and a half years if what I was saying was believed.Q. The duress that you were under, you say, was that you were threatened yourself with being shot [redacted]?
A. That’s correct.Q. You would appreciate that that is not a legal defence?
A. Um, I don’t know.Q. You don’t know. Well, think about it. You could have gone to the police, couldn’t you, and said, Look I am about to be shot by someone. Please protect me?
A. No, that is incorrect I couldn’t have down that.Q. In all your experience of prison life have you ever heard of anybody, any prisoner, succeeding in a case and beating a charge on the basis that they did something criminal because they were being threatened by a drug cartel?
A. Can’t say that I have.Q. No. In any event, the sequence of events was that you were arrested in 2013 on the, was it the - was it February that year that you were arrested [redacted]?
A. That’s correct.Q. And then when did you get out of gaol?
A. 2014.Q. Was that the [redacted] 2014?
A. That’s correct.Q. So you had served a year and three months or so?
A. Yes.Q. Two or three months. Right. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. All right. I am not asking you about the other cases, but the statement you signed in this case where you set out your version of what supposedly happened at the mechanic’s shop when you conversed with Robert Nikolovski was signed on the 10th of December 2013 and it was given to you in typed form on the 2nd. Is that your recollection?
A. I can’t remember.Q. Right. Well I am sure my friend will concede that those [are] the relevant dates. You signed a typed statement, you had spoken to the police, you signed a statement. On front of it it says ‘2 December 2013’ and then you considered it and then on the 10th you signed it, correct?
A. Yes.Q. [redacted]
A. [redacted]Q. And you had been told by some police, had you not, that there was some, [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]Q. [redacted]
A. [redacted]At the trial Mr Williams accepted that he had lied in the past about numerous matters of importance to the police, the NSW Crime Commission, his parole officer and the prison authorities. Contrary to the Crown’s submission, Mr Williams did not have a Damascene conversion [redacted]. I have concluded that Mr Williams was caught in a series of deliberate lies in his evidence at the trial. For example, he lied about his involvement, on behalf of a prominent Kings Cross identity, with the Nomads Motorcycle Club, an outlaw motorcycle gang. He was asked about his interview with his parole officer when he was doing this work and involved in both drugs and guns. He lied about believing that his shooting of various people was in “self-defence”. Mr Williams feigned memory problems about matters of critical importance. In short, Mr Williams’ evidence at the trial demonstrated that he was a thoroughly discreditable liar.
Turning then to Mr Williams’ evidence implicating the applicant in the supply of a gun to Mr Wiggins, that evidence was singularly unimpressive, even absent all of the manifest problems with Mr Williams’ credibility. In his evidence in chief he stated, twice, that he did not remember what, if anything, the applicant said about a gun in the only conversation of relevance Mr Williams ever had with the applicant:
“Q. Was there any mention during this conversation of a weapon being used at all?
A. Um, a gun.Q. Do you recall what was said by Robert Nikolovski in that regard?
A. Um, I can’t remember at this time.Q. After you said that this had nothing to do with you, you said that to Robert Nikolovski, is that right?
A. Yes.Q. You say there was this conversation where the accused told you that he’d organised in effect the killing of Darko?
A. That’s correct.Q. And that it was executed by Matthew Wiggins, is that right?
A. That’s correct.Q. Did he mention where it was that the weapon was obtained?
A. Um, I don’t know, I don’t remember that.”The only evidence about a gun actually given by Mr Williams in his evidence in chief was as follows:
“Q. Did he [the applicant] mention who got the gun?
A. Matty got the gun.”In cross-examination it was established that Mr Williams’ witness statement went further:
“Q. You say in your written statement on this subject I gave the gun to him and organised it the day before it happened’?
A. Yes, that’s correct.Q. Let me make it clear to you, you’ve given a written statement to this matter, haven’t you?
A. Yes.Q. And you say in the statement speaking as if you were Robert ‘I gave the gun to him and organised it the day before it happened’?
A. Yes.Q. That’s in your statement, is it?
A. Yes.”The cross-examination of Mr Williams as to his credibility encompassed aspects of his criminal history and dealings with authorities, including the following matters:
(1)he had shot “around” six people;
(2)[redacted]. He agreed that this explanation was “very absurd”;
(3)[redacted]. He agreed that his claim that he was acting in self-defence was “very ridiculous”;
(4)[redacted];
(5)after his release on parole for those shootings Mr Williams ignored significant parts of his parole conditions and his parole was revoked;
(6)Mr Williams also breached his parole conditions by becoming involved with the Nomads and being paid to threaten members of the rival Comancheros;
(7)[redacted];
(8)[redacted]; and
(9)[redacted]. Mr Williams agreed that this was a lie. He said he was at the Crime Commission to talk about other matters and did not want to reveal his defence to the charge.
I have concluded that Mr Williams is a witness totally lacking in credibility. He was demonstrated to be a liar, [redacted]. In his evidence in this trial he gave a series of answers which were frankly incredible. I find myself unable to place the slightest reliance on Mr Williams’ evidence. He had an extremely powerful motivation to give false evidence, [redacted]. He was a practised and habitual liar.
“Josh Baker”
The evidence of the only other witness who addressed the topic of the supply of the gun by the applicant to Mr Wiggins was hardly any more credible. Mr Baker was [redacted] who suffered from an acute bipolar disorder. He gave evidence that, without apparent reason, he asked the applicant whilst in gaol together “every day for a month” about whether he had murdered Mr Janceski. The applicant, each day, denied it until, after about a month had passed, again for no apparent reason, the applicant allegedly confessed to Mr Baker that he had supplied Mr Wiggins with a gun.
The circumstances in which Mr Baker came to give evidence are that he was in prison, having pleaded guilty to four aggravated break and enter charges, with further offences taken into account. On 23 November 2012 Mr Baker was sentenced to imprisonment for 10 years, with a non-parole period of seven years. He appealed to this Court.
With that appeal pending, on 15 October 2014, Mr Baker spoke with the police in relation to Mr Janceski. Mr Baker provided a written statement on or around 30 October 2014 and signed the statement on 16 February 2015. [redacted]. On appeal, Mr Baker was resentenced to six years’ imprisonment, with a non-parole period of four years. [redacted].
He was at the time detained in custody bail refused.
On 13 November 2011, he was convicted and sentenced in the District Court on an indictment charging him with four counts of aggravated break and enter with the balance of the offences charged on his arrest taken into account in the sentencing process. He was sentenced to imprisonment for 10 years with a non-parole period of 7 years.
It would appear that on 15 October 2014, whilst an appeal against the severity of that sentence was pending in the Court of Criminal Appeal, [redacted]. That officer gave evidence in the trial.
On 30 October 2014, Mr Baker gave a statement to the officer in charge of the investigation which he signed on 16 February 2015.
[redacted]
[redacted]
Mr Baker gave evidence that he knew the applicant's brother in the early 2000 from the Wollongong area and knew of the accused but did not associate with him. He did not know the deceased until hearing of his murder on the news.
He said he renewed his connection with the applicant after the applicant was admitted to custody after being charged with solicit to murder (in January 2013) and after [redacted]. That evidence was not in contest.
Mr Baker also gave evidence (again not contested) that he assisted the applicant to secure a job as a sweeper, a privileged position within the jail, from which they developed a friendship. He said he had a number of conversations with the applicant about his brother’s “disappearance” (which he had seen reported on the news) and although he suggested (again from media reports) that he might have gone overseas, he said the applicant told him “no he’s gone, he’s dead”. Mr Baker gave evidence that the applicant told him that the deceased “had killed his brother” and that the deceased had burned down his house to get rid of the evidence.
Mr Baker said he asked the applicant whether he had anything to do the deceased’s murder. He gave the following evidence:
Q. And did he say anything about how he came to die?
A. Well, we talked every day and I said to him “[The applicant] must have had something to do with [the deceased] and that” and he just didn’t really want to talk about it, joked about it “No didn't have nothing to do with it” and then about after a month he said he organised it.Q. In between times you’d been talking every day?
A. Yep.Q. In the cell and outside the cell?
A. Outside the cell.Q. Do I take it from your last answer you’d asked the accused whether he’d had anything to do with [the deceased’s] murder, is that what you meant?
A. Yeah.Q. Did you ask that on more than one occasion?
A. Yep.Q. Did he initially say to you he had nothing to do with it?
A. Yeah.Q. And I think you said he laughed it off?
A. Yeah like “Nah, nothing to do with it”.Q. After you’d known the accused … inside the gaol for about a month or so, do you recall having another conversation with him?
A. I just asked him again and he said “Yeah I”, like I asked him they must have evidence on him for charging him and he just said “They only got a phone tap about strangling him” or something and after a while he just said “Yeah I organised it, I got the gun”. He was upset about the gun or something and then “Yeah it was a perfect plan until his Dad came out”.[8]…
Q. Apart from talking about the gun and it being left and it being a perfect plan until the Dad came out, did he say anything about how it was done?
A. Yeah, he got his mate to ride past on a motorbike and shoot him.Q. Did you ask Mr Nikolovski, the accused in these proceedings, where he was at the time of the shooting?
A. He said he was at the gym so he could be on the CCTV.Q. Sorry?
A. So he could be on CCTV surveillance for it at the time so he had an alibi.[9][8] T 263.
[9] T 264.
He also gave the following evidence in relation to Mr Wiggins:
Q. Sir, do you recall any other conversations you had with the accused while you were in custody at this time in 2013 in relation to other people who were involved in relation to the motorbike that was used?
A. Yeah. Because in pod 9 and 10 you can see each other's pods and he was talking to a guy and I asked him who it was and he said it was the bloke that got done for the murder, the one that actual done it.Q. I think he was referred to as Mr Wiggins?
A. Wiggins.Q. Sorry, I might have mislead you there. I was more so asking you in relation to anyone else apart from the accused and Mr Wiggins who had been charged with something as a result of the murder?
A. Oh, I remember he said that, he said he was like a young kid in the cells and he got charged for supplying the motorbike.Q. Supplying the motorbike?
A. Yeah. He felt sorry for him.Q. Did he say why he felt sorry for him?
A. Just looked like a kid.[10][10] T 265.
Cross-examining counsel invited Mr Baker to confirm that he suffered from a bipolar disorder which sometimes caused him to engage in repetitive behaviour. That question appeared to have been asked in the context of the witness having, on his own account, repeatedly asked the applicant about Goran Nikolovski’s disappearance.
It was put to Mr Baker that the applicant kept saying “he hadn’t done anything about it, and it was all bullshit” to which the witness responded “Not that words. He just said he had nothing to do with it” (something he had said every day for about a month).[11]
[11] T 266.
[redacted]. He rejected that proposition as he did the further proposition that the admissions he attributed to the applicant were “invented”.
Of critical significance, as I see it, is that whilst Mr Baker accepted that he [redacted] to be CCTV cameras in operation at the gymnasium he was visiting at the time of the shooting or that that information was otherwise publicly available. Despite that alibi being an integral part of the applicant’s case at trial (The Crown did not put in issue that the applicant was at the gymnasium at the time of the shooting), no attempt was made by cross-examining counsel to attribute a source of Mr Baker’s knowledge of that fact other than from the applicant himself. The applicant’s whereabouts at the time of the shooting formed no part of any media reporting.
[redacted] in which, as the evidence at trial revealed, the applicant had spoken about him strangling the deceased with his “bare hands”. The veiled suggestion that Mr Baker had accessed that information from the brief of evidence served on the applicant and retained by him in his cell was not pursued and certainly not put. Insofar as concerns that part of the conversation in which the applicant admitted to organising the murder and getting the gun, in my view, having regard to all of the evidence in the trial (including Mr Williams who gave similar evidence), it was open to the jury to be satisfied that the applicant did in fact consider it was a perfect plan (for Mr Wiggins to shoot the deceased from a motorbike he was riding with a full motorcycle helmet) but that plan came unstuck because the deceased’s father came out to confront Mr Wiggins, who then left the gun behind.
Although the circumstances in which the deceased was shot were the subject of a report in the Daily Telegraph published on 16 April 2012[12] (a report which included the fact that the gun pistol had been left behind by the shooter after he was attacked by the deceased’s father) it was not put to Mr Baker that that is where he garnered the information from which he then styled into a conversation he said he had with the applicant in a carefully constructed but wholly fabricated account. The cross-examiner did not seek to contradict the witness or challenge his claim to having no memory of what the cross examiner suggested was the “newspapers mentioning a gun”. Finally, there was no attempt at all to challenge Mr Baker’s evidence that the applicant spoke to Mr Wiggins from inside the jail (as the shooter) on the occasion he spoke of in his evidence, or any attempt to undermine the truthfulness or reliability of his attributing to the applicant feeling sorry for “the young man” who was charged in relation to the motorcycle.
[12] While the handwritten date “16 September 2012” appeared on the face of the exhibited article, other records confirm the publication date as being 16 April 2012.
My assessment of Mr Baker’s evidence
I do not consider Mr Baker’s evidence to be incredible or implausible. To the contrary; it is consistent with crucial features of Mr Williams’ evidence (with no suggestion of collaboration between them) as well as including features of the critical conversation that could only have been volunteered by the applicant, the reference to his “alibi” being the most obvious.
Mr Davies
Finally, the Crown adduced evidence from Mr Davies, a third [redacted] witness. He gave evidence that at the time of the applicant’s trial in June 2018 he was in custody pending a sentence hearing in the Local Court after pleading guilty to a number of drug offences, possession of a prohibited weapon without a permit and having possession of a knife in a public place.
He also gave evidence that in June 2015 he had been arrested and charged with a number of offences, the most serious alleging supply of a prohibited drug in a commercial quantity, supply of a prohibited drug in an indictable quantity, together with a series of ongoing drug supplies to an undercover police officer. He gave evidence that three months after he was charged with those offences and refused bail, but before he ultimately entered pleas of guilty to the drug supply counts, [redacted].
[redacted]
[redacted]
Mr Davies gave evidence in chief that he knew the applicant, having met him briefly in 2010 or 2011, and that he developed a closer connection with him in which he visited his home on half a dozen occasions “or ten at the most” in 2014 or 2015.[13]
[13] T 216.
He gave evidence that on one occasion in March 2015 when he was visiting the applicant he was shown his brother’s car in the garage. He described the car (a six cylinder VL Commodore sedan with a pearl finish with a purple violet overlay) as “like a show car”.[14]
[14] T 216.
He then gave the following evidence:
Q. Do you recall the conversation that you had with [the applicant] at that point in time?
A. Yeah, yeah.Q. And was it just the two of you there at the time?
A. Yeah, just the two ever us.Q. And were you in the garage area?
A. Yes.Q. I think that is below the house, is it?
A. Underneath, yeah.Q. What did [the applicant] say to you?
A. Well, we’d spoken about a few things and then he mentioned that he’d been in court. And one the things that he mentioned was that a couple of detectives come up and said hello to him before, outside the court, and that he got upset with them and got up, told ‘em not to talk to him, not to say hello to him.[15] And then‑‑Q. Did you then say something?
A. Yeah, I said to him: “Oh you’d think they’d give you a bit of a break knowing that he killed your brother.” And he said, yeah he’ll be all right if everyone keeps their mouth shut. And I just, I just said, “Okay then.” And he just, he said: “Oh, fuck them anyway, that was me brother, I would do it again.” Then I said: “Oh all right, don’t worry about you’ll be right, you’ll beat it.” And then he just went on a bit of a rant about a [the deceased] being out of control‑‑Q. Sorry, I can't hear you.
A. That [the deceased] was out of control, on drugs, like he was a crack head. I didn’t say much after that, that I had to go. Me girlfriend was waiting outside in the car so we left by that, at that.[16][15] The applicant was on bail for an extended period (from 2015-2018) after being charged with accessory before the fact to murder in September 2014 after the charge of solicit to murder was not proceeded with.
[16] T 217-218.
In cross-examination Mr Davies rejected the proposition put to him that “his version” of the conversation with the applicant in the garage was invented to falsely incriminate the applicant [redacted]. It was not put to him that he had invented the meeting in the applicant’s garage where he was shown Goran Nikolovski’s car or that there was no conversation at all on that occasion about the applicant being at Court when he was approached by police and rebuffed them. Neither was it suggested by the cross-examiner that there was no discussion at all about the deceased or any suggestion of his involvement in the death of the applicant’s brother.
In cross-examination it was suggested to Mr Davies that he knew at the end of 2014 that the applicant had been charged with being an accessory before the fact to the murder of the deceased and that there had been a lot of publicity about him that time.[17] He denied having been aware of the publicity being a person who did not read the newspaper or watch the television news. There was in fact no evidence adduced at the trial about any publicity at the time the applicant was charged. There was evidence that the disappearance of Goran Nikolovski in October/November 2011 and the murder of the deceased in April 2012 generated what was described as “very considerable publicity in the media”.[18] The accused tendered an article published in the Daily Telegraph on 16 April 2012 entitled “Victim’s father turns on assassin” and an article published in the Illawarra Mercury in September 2012 entitled “Gong murders, disappearance linked: police”. The applicant was not mentioned as a suspect in the deceased’s murder in either publication. Neither was Mr Wiggins mentioned as a suspect. The first article fairly reported the circumstances of the deceased’s murder. The second article focused on the apparent connection between the deceased’s murder in April 2012, Goran Nikolovski’s disappearance and the finding of his burnt out motorcar in November 2011 and the drive-by shooting of Saso Ristevski some weeks earlier.
[17] The evidence in the trial was that the applicant was originally charged in January 2013 with soliciting Mr Wiggins to murder the deceased and refused bail but that charge was not proceeded with after the DPP entered a nolle prosequi. In September 2014, the applicant was charged with accessory before the fact to murder. It would appear this was after Mr Williams supplied his statement to police but before Mr Davies gave his statement.
[18] T 141.
No evidence was adduced in cross-examination as to the circumstances in which Mr Davies’ statement was prepared by police other than his evidence that he did not write it, from which I assume it was typed by police before being signed by Mr Davies.
The cross-examination focused on Mr Davies’ criminal record and the multiple entries it contained for a range of offences.
My assessment of Mr Davies’ evidence
To the extent that there was a latent ambiguity in Mr Davies’ account of the conversation as to who he was referring to when he attributed to the applicant the words of reassurance that “he’ll be alright if everyone keeps their mouth shut” and no elaboration of the subject matter of what the applicant meant when he said he “would do it again”, in my view, given the context of the relatively brief conversation in which the applicant (in an unguarded moment) revealed his involvement in the deceased’s murder whilst also revealing, by implication, that others, Mr Wiggins in particular, were also involved the jury would have been left in no doubt that the applicant was saying he would be alright, if others remained silent. Mr Davies’ evidence that he sought to reassure the applicant by saying “don’t worry about [it], you’ll be right, you’ll beat it” gives further context to the fact that they were speaking about the applicant’s then pending trial for murder.
I also regard it as of significance, and a matter capable of being taken into account by the jury as a source of objective support for Mr Davies’ evidence, that he described the applicant’s “rant” about the deceased being out of control on drugs. The applicant’s proven obsession with the deceased as responsible for his brother’s death framed the conversation with Mr Davies in March 2015 in the same way as it framed the conversation he had with Mr Williams three years earlier.
[redacted], in my view, the jury was entitled to treat the conversation he attributed to the applicant as without any of the obvious hallmarks of fabrication. It was neither verbose, detailed, nor overstated. In my view, there cannot be any sustained criticism of the probative weight of his evidence because he did not attribute to the applicant any admission to having provided the pistol to Mr Wiggins. The weight the jury was entitled to give Mr Davies’ evidence in considering whether the Crown had proved the applicant’s guilt beyond reasonable doubt based upon his alleged admissions to Mr Williams and Mr Baker, rested on what Mr Davies said the applicant volunteered, including his implied admission of being involved with others in the murder of the deceased, not on what he did not say.
Given the very careful directions by the trial judge as to the way in which the jury was obliged to approach the evidence of Mr Davies, and given the use to which the Crown sought to put his evidence as supporting its case that the applicant had made admissions to different people in different circumstances and at different times but with a distinct commonality of content, I do not consider that Mr Davies’ evidence, considered together with the full complement of the evidence in the Crown case, had any potential to lead the jury along a path of impermissible reasoning in the sense that they would conclude the applicant must have had something to do with the deceased’s murder, even if the Crown were unable to prove that he supplied the pistol to Mr Wiggins.
Conclusion
I am confidently of the opinion that the evidence adduced at the applicant’s trial, as I have assessed and reviewed it, and the advantage the jury had to make its own critical judgment of the credibility of the three [redacted] witnesses that this Court does not have satisfies me that their verdict should not be disturbed. That is, I am not persuaded that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt as an accessory before the fact to the murder of the deceased by Mr Wiggins.
LONERGAN J: I have had the advantage of reading the judgments of Payne JA and Fullerton J in draft.
I too agree that ground 1 of the appeal should be dismissed for the reasons set out in the judgment of Payne JA. Liars, even inveterate ones, sometimes have truth to tell.
However I am of the view that the verdict is unreasonable and cannot be supported by the evidence and so ground 2 of the appeal has been made out.
I have carried out my own analysis of the evidence and agree with the reasons outlined by Payne JA and in particular, his observations regarding the inadequacy of the nature and content of the evidence of Mr Williams and Mr Baker regarding what they say were separate assertions made to them by the applicant about supply of the gun used in the shooting of Darko Janceski.
Mr Davies’ evidence amounted to nothing more than a recount of indeterminate posturing on the part of the applicant allegedly some time in 2015 which would be almost irrelevant unless it was used to reason that the content of the conversation was in fact a reference to “getting the gun” to kill Darko. I agree with Payne JA that this evidence creates the problem with impermissible reasoning identified by his Honour at [119].
I agree with Fullerton J that the evidence of conversations recorded in the telephone intercepts, particularly in November 2011, is an important part of the evidentiary matrix that must be carefully considered and analysed. However I respectfully take a different view from her Honour as to what this material reveals.
It is unsurprising in the applicant’s milieu that he would speak in colourful terms about avenging his brother’s disappearance and presumed death, particularly in November and December 2011 being the days and weeks after the disappearance. I do not consider the material in these conversations however sheds anything more than emotional or motivational light on the applicant. It does not cross the line into evidence that reveals that he actually planned or took any active step in pursuit of those articulated desires for violence and revenge.
As observed by Payne JA, in truth, the only evidence going to the central topic of “getting the gun” was the evidence of Mr Baker and Mr Williams. Their evidence, for the reasons explained in the judgment of Payne JA, provides an unsafe basis upon which to convict, and when considered in combination with all of the other evidence led at the trial, it would in my opinion be dangerous to allow the guilty verdict to stand.
For these reasons and those articulated by Payne JA in his judgment, I agree with the orders proposed by Payne JA.
**********
Amendments
23 September 2022 - Publication restriction lifted following the acquittal of Mr Wiggins by a jury in the Supreme Court on 16 September 2022.
Paragraphs [4], [10], [12], [42], [44], [45], [48], [52], [53], [54], [56], [59], [60], [61], [67], [72], [75], [76], [89], [99], [100], [104], [105], [106], [108], [109], [113], [114], [115], [118], [121], [122], [123], [125], [139], [147], [148], [150], [151], [152], [153], [155], [200], [201], [206], [207], [212], [213], [214], [218], [220], [221], [223], [229], [230], [231], [234], [235], [236], [237], [241], [247] and [249] have been redacted in accordance with Order 2(d).
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