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Supreme Court 9 October 2017

R v Nikolovski (No 2)

[2017] NSWSC 1451

HomicideTheft & propertyFirearms & weapons
CRIMINAL PROCEDURE DIRECTED VERDICT

Citation: R v Nikolovski (No 2) [2017] NSWSC 1451
Court: Supreme Court of NSW
Date: 9 October 2017
Judge: Wilson J

Background

The accused, Jesse Nikolovski, stood trial alongside a co-accused, Daniel Petryk, for the murder of Robert Parry on 7 March 2015 at Wickham. The Crown alleged that the three participants, including a third person, Pheobe Bronner, had agreed to rob Parry while armed with a .22 calibre rifle, and that during the robbery Petryk discharged the weapon, killing Parry.

The Crown pursued two theories of liability against Nikolovski: extended joint criminal enterprise and constructive murder. Both theories depended on establishing that Nikolovski had contemplated the possibility that the firearm might be discharged in the course of the robbery.

At the close of the Crown case, counsel for Nikolovski applied for a directed verdict of not guilty on the murder charge. Wilson J heard the application and delivered judgment ex tempore (that is, orally and immediately, without a reserved written decision).

  • Whether the evidence led by the Crown was capable of establishing that Nikolovski had contemplated the gun being discharged, as required for both extended joint criminal enterprise murder and constructive murder.
  • Whether the Crown's only relevant witness, Pheobe Bronner, had given evidence sufficient to sustain a guilty verdict on either murder theory when taken at its highest.
  • Whether a directed verdict of not guilty was therefore required under the principles in Doney v R (1990) 171 CLR 207.

Decision

The Crown's case relied entirely on the evidence of Pheobe Bronner to establish Nikolovski's liability for murder. Bronner's evidence was that the plan was for the rifle to be used only to "look scary," that Petryk had told both her and Nikolovski that the gun was not loaded and that there was no ammunition, and that Nikolovski had been so troubled by the presence of a gun in his car that he insisted it be concealed under Bronner's clothing.

Critically, Bronner also gave evidence in cross-examination that Petryk had told both her and Nikolovski that the gun was "safe and wasn't loaded" and that there was no ammunition. This was uncontradicted. The post-incident argument between Petryk and Nikolovski, in which Nikolovski complained that Petryk had said the gun was not loaded, further confirmed Nikolovski's positive state of knowledge that the firearm could not be discharged.

Wilson J rejected the Crown's submission that other circumstantial matters, such as the apparent test-firing of the rifle and knowledge that the premises was a drug house, were sufficient to allow the jury to infer that Nikolovski had contemplated the gun being used. Her Honour distinguished this case from Penza and Di Maria v R [2013] NSWCCA 21, where robbers could reasonably have anticipated needing a loaded weapon to overcome resistance from a drug dealer. Parry was, on the Crown's own case, a minor cannabis supplier, and there was no comparable basis for inferring that Nikolovski believed lethal force might be necessary.

Taking the Crown's evidence at its highest, Wilson J found it incapable of establishing the requisite contemplation for either form of murder. Applying Doney v R, her Honour directed the jury to return a verdict of not guilty on count 1.

Orders Made

  • The jury was directed to return a verdict of not guilty in respect of count 1 (murder) against Jesse Nikolovski.

Key Takeaways

  • Both extended joint criminal enterprise murder and constructive murder require proof that the accused contemplated the possibility that the weapon would actually be discharged; a belief that the firearm was unloaded and had no ammunition negates this element.
  • Where the Crown's sole relevant witness affirmatively establishes a positive state of knowledge inconsistent with guilt, the evidence cannot be rescued by drawing inferences from peripheral circumstances.
  • The Supreme Court applied the Doney v R threshold: a directed verdict is appropriate where the evidence, taken at its highest, is incapable of sustaining a conviction.
  • A distinction exists between cases where robbers might reasonably anticipate needing a loaded weapon (as in Penza and Di Maria) and cases involving a minor, low-risk target; the latter does not support an inference that a participant contemplated lethal force.
  • No authority was located, by counsel or the court, in which a person holding a positive and uncontradicted belief that a firearm was both unloaded and had no ammunition was nonetheless properly convicted of murder arising from its discharge.

Legislation and Cases Referenced

Cases:
- Doney v R (1990) 171 CLR 207 (High Court of Australia): the governing test for directed verdicts, requiring that evidence taken at its highest be capable of sustaining a conviction.
- Penza and Di Maria v R [2013] NSWCCA 21: considered and distinguished on the facts.

Legislation: No specific legislation was cited in the judgment.