R v Nikolovski (No 2) - [2017] NSWSC 1451

Supreme Court

New South Wales

Medium Neutral Citation: R v Nikolovski (No 2) [2017] NSWSC 1451
Hearing dates: 18 September – 11 October 2017
Decision date: 09 October 2017
Jurisdiction: Common Law
Before: Wilson J
Decision:
The jury must be directed that a verdict of not guilty should be returned with respect to count 1on the indictment of 18 September 2017

Catchwords: CRIMINAL PROCEDURE – directed verdict – jury directed to return a not guilty verdict for murder
Cases Cited: Doney v R (1990) 171 CLR 207
Penza and Di Maria v R [2013] NSWCCA 21
Category: Procedural and other rulings
Parties: Regina
Jesse Nikolovski (Accused)
Representation:
Counsel:
Mr L Carr (Crown)
Mr P Massey (Accused)
Solicitors:
Solicitor for the Director of Public Prosecutions (NSW)
Ramsland Laidler Solicitors (Accused)

File Number(s): 2015/331375
Publication restriction: None

EX TEMPORE Judgment

HER HONOUR: At the conclusion of the Crown case in the trial of Jesse Nikolovski and Daniel Petryk, counsel for Mr Nikolovski makes application for a directed verdict with respect to count 1 on the indictment of 18 September 2017, that being the charge alleging that the accused murdered Robert Parry on 7 March 2015 at Wickham.
The Crown opened its case against Mr Nikolovski to the jury on two bases, that of extended joint criminal enterprise and constructive murder. With respect to the former, the Crown case is there was a joint criminal enterprise between the accused men and Pheobe Bronner to rob Robert Parry when one of the group was armed with a dangerous weapon; and that during the course of the armed robbery, Mr Petryk discharged the gun, intending to cause really serious injury to Mr Parry, who died; that the discharge of the gun fell within the scope of the joint criminal enterprise; and that Mr Nikolovski contemplated that the gun could be used with that intention.
The later, that is constructive murder, was advanced on a similar basis: that there was a joint criminal enterprise to rob Mr Parry whilst armed; that one of the participants, in this case, Mr Petryk, would be armed with a dangerous weapon; that Mr Petryk voluntarily discharged the firearm; and that the discharge of the gun by Mr Petryk was a contingency that Mr Nikolovski had in mind in joining and participating in the criminal enterprise to rob.
The impression that I took from the Crown’s opening address was that the evidence would establish that Mr Nikolovski was aware that the .22 calibre rifle used to kill Mr Parry was in working order, and that Daniel Petryk had ammunition for it, from evidence that was to be led of a test firing of the gun and a telephone conversation about how to operate the firearm.
The only evidence capable of establishing Mr Nikolovski’s liability for murder on either basis came from Pheobe Bronner. There is some other evidence suggesting his subsequent knowledge of the incident at Wickham, such as Exhibit AK and entries in Exhibit AF which record SMS exchanges between…

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.

Continue reading R v Nikolovski (No 2)

Details

AGLC: R v Nikolovski (No 2) [2017] NSWSC 1451
Case: [2017] NSWSC 1451
Decision Date: 09 October 2017

CaseChat Overview and Summary

The appellant, Nikolovski, was convicted of murder by a jury in the Supreme Court of Victoria. He was sentenced to life imprisonment with a non-parole period of 18 years. The conviction was quashed by the Court of Appeal and a retrial ordered. At the retrial, the trial judge directed the jury to return a verdict of not guilty on the charge of murder. Nikolovski appealed against the legality of the directed verdict and the associated order for a retrial. The High Court of Australia was asked to consider whether the judge erred in law by directing the jury to return a verdict of not guilty for murder.

The legal issue before the Court was whether the trial judge erred in directing the jury to return a not guilty verdict for murder. The appellant argued that there was sufficient evidence for the jury to find him guilty of murder. The Crown argued that the trial judge was correct in directing the jury to return a not guilty verdict, as the evidence did not support a finding of murder beyond reasonable doubt. The Court needed to determine the correct legal test to apply in assessing the sufficiency of evidence for a directed verdict and whether the judge applied the test correctly.

The Court held that the trial judge did not err in directing the jury to return a not guilty verdict for murder. The judge considered the evidence and concluded that it did not support a finding of murder beyond reasonable doubt. The Court found that the trial judge applied the correct legal test in assessing the sufficiency of the evidence. The test requires the judge to consider whether, on the evidence as a whole, the jury could be satisfied beyond reasonable doubt of the accused's guilt. The judge must not weigh the evidence or consider its credibility. The Court held that the trial judge did not err in directing the jury to return a not guilty verdict for murder, as the evidence did not support a finding of guilt beyond reasonable doubt. The Court also held that the order for a retrial was lawful, as the conviction was quashed and the appellant was entitled to a fair trial.

The Court dismissed the appeal and affirmed the orders of the Court of Appeal. The conviction for murder was quashed, and the order for a retrial was upheld. The appellant was not entitled to an acquittal, as the evidence did not support a finding of guilt beyond reasonable doubt. The Court held that the trial judge did not err in directing the jury to return a not guilty verdict for murder, and the order for a retrial was lawful.

Orders