Payne JA at [1]; Fullerton J at [132]; Lonergan J at [250]
Decision:
1. Leave to appeal granted; 2. Appeal allowed; 3. Quash the applicant’s conviction; 4. Enter a verdict of acquittal.
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 CRIME — appeals — appeal against conviction — unreasonable verdict — unreliable witnesses — whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt
Office of the Director of Public Prosecutions (NSW) Prosecution Guidelines (March 2021)
Category:
Principal judgment
Parties:
Robert Nikolovski (Applicant) Crown (Respondent)
Representation:
Counsel: P Boulten SC with L-C Hutchinson and T Woods (Applicant) K Jeffreys (Crown)
Solicitors: Katsoolis + Co. Solicitors Solicitor for Public Prosecutions (NSW) (Crown)
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: a. [Redacted] be known as “James Williams”; b. [Redacted] be known as “Lisa Palmer”; c. [Redacted] be known as “Josh Baker”; and d. [Redacted] be…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Nikolovski v The Queen [2021] NSWCCA 327
Case
[2021] NSWCCA 327
Decision Date
CaseChat Overview and Summary
In the matter of Nikolovski v The Queen, the applicant, Nikolovski, appealed against his conviction, arguing that a miscarriage of justice had occurred due to the admission of evidence from a witness, Mr Williams, whose credibility had been previously questioned. The Court of Criminal Appeal was tasked with determining whether the Crown's reliance on Mr Williams' testimony was appropriate and whether it was reasonable for the jury to be satisfied of Nikolovski's guilt beyond reasonable doubt, given the witness's dubious past.
The central legal issue was whether the Crown's decision to present Mr Williams' evidence at trial was in line with the prosecutorial guidelines and whether this evidence was reliable enough to support a conviction. Nikolovski contended that the Crown should not have led Mr Williams' evidence due to his unreliability and the potential for misleading the jury. The applicant argued that Mr Williams' evidence lacked detail and specificity, that his claims of multiple confessions were highly improbable, and that the risk of confusing the jury with unrelated criminal activity was too great. Furthermore, Nikolovski asserted that allowing Mr Williams to testify again would be against public policy.
The Court of Criminal Appeal considered the arguments presented and concluded that the Crown's decision to call Mr Williams was not in accordance with the prosecutorial guidelines. The court found that Mr Williams' evidence was not sufficiently detailed or credible to exclude the possibility that it was derived from external sources. Additionally, the court noted the improbability of multiple confessions to Mr Williams and the risk of overburdening the jury with unrelated evidence. Given these factors, the court found that the jury could not have been satisfied of Nikolovski's guilt beyond reasonable doubt based on Mr Williams' testimony alone. Consequently, the Court of Criminal Appeal allowed the appeal and quashed Nikolovski's conviction, ordering a retrial or other appropriate disposition.
Orders
Orders of the court
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Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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.