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Court of Criminal Appeal 30 December 2021

Nikolovski v R

[2021] NSWCCA 327

Homicide

Citation: Nikolovski v R [2021] NSWCCA 327
Court: Court of Criminal Appeal, NSW
Date: 30 December 2021
Judge(s): Payne JA, Fullerton J, Lonergan J

Background

The applicant was convicted by a majority jury verdict of murder as an accessory before the fact, following a trial before Latham J in the Supreme Court in June and July 2018. The Crown alleged he encouraged and assisted the murder of Darko Janceski, who was shot dead outside his parents' home in Wollongong in April 2012, by supplying the gun to the shooter. The shooter was separately identified and tried.

The entire Crown case on the critical issue of gun supply rested on the evidence of two protected witnesses, referred to as "James Williams" and "Josh Baker". Both claimed the applicant had made oral admissions to them about supplying the gun. A third protected witness, "Tom Davies", gave evidence of admissions concerning the applicant's involvement more generally but said nothing directly about the gun.

Critically, before this trial, the Court of Criminal Appeal had twice found Mr Williams to be a witness of seriously impaired credibility in other proceedings. The trial judge refused a pre-trial application to exclude his evidence. After the applicant's conviction, the Court of Criminal Appeal again criticised Mr Williams' reliability in subsequent proceedings, describing him as "a seasoned criminal", "a serial liar", and "an entirely unreliable witness."

  • Whether the trial miscarried as a result of the admission of Mr Williams' evidence, given that this Court had twice found him to lack credibility
  • Whether the subsequent Court of Criminal Appeal decision further criticising Mr Williams (handed down after the applicant's trial) should have been before the trial judge, and whether its absence caused a miscarriage of justice
  • Whether the verdict was unreasonable and could not be supported by the evidence, having regard to the quality and reliability of the Crown witnesses

Decision

On the miscarriage of justice ground, all three judges agreed that no miscarriage arose from the decision to call Mr Williams. The Court confirmed that the Crown prosecutor bears sole responsibility for deciding which witnesses to call. Prior findings of credibility deficiency against a witness in other proceedings do not automatically disqualify that witness from giving evidence about different admissions in a different case. The Court also held that the absence of the later Koloamatangi decision at the time of trial did not itself cause a miscarriage, since that decision had not yet been handed down.

The Court unanimously affirmed that, subject to the unreasonable verdict jurisdiction, assessing the credibility and reliability of witnesses is a matter for the jury, properly instructed and with the benefit of cross-examination. There is no necessary inconsistency in different outcomes across cases involving different evidence from the same witness.

On the unreasonable verdict ground, Payne JA and Lonergan J (Fullerton J dissenting) held that the conviction could not stand. Mr Williams was found to be a practised and habitual liar on whom the jury, acting properly, should have placed no weight. Mr Baker's evidence was unrecorded and uncorroborated, and his status as a protected witness, extensive criminal record, and motivation to fabricate rendered his evidence an equally unsafe foundation. Mr Davies' evidence did not substantially support either of the other two witnesses, and may have led the jury toward impermissible reasoning.

Payne JA and Lonergan J concluded this was a rare case in which the evidence in the record lacked sufficient probative force on the critical issue. Even allowing for the advantages the jury held over an appellate court in seeing and hearing witnesses, it was dangerous in all the circumstances to allow the guilty verdict to stand. Fullerton J dissented, finding it was open to the jury, properly applying the evidence, to be satisfied of guilt beyond reasonable doubt.

Orders Made

The orders proposed by Payne JA (Lonergan J agreeing, Fullerton J dissenting) were:

  • Leave to appeal against conviction granted
  • Appeal against conviction allowed
  • Conviction quashed
  • Verdict of acquittal entered

Note: The orders section extracted in the source document contains Fullerton J's dissenting position, which proposed that the appeal against conviction be dismissed. The majority orders above are drawn from the headnote and reasoning sections of the judgment.

Key Takeaways

  • Prior Court of Criminal Appeal findings that a Crown witness lacks credibility do not automatically bar the Crown from calling that witness in a later, unrelated trial involving different accused persons and different alleged admissions.
  • A murder conviction will be quashed as unreasonable where the entirety of the evidence on the critical issue rests on witnesses whose credibility and reliability are so seriously compromised that no properly instructed jury could safely act on their accounts.
  • Where a subsequent appellate decision further discrediting a Crown witness is handed down after trial and conviction, its absence from the original proceedings does not of itself constitute a miscarriage of justice.
  • Assessing witness credibility remains primarily a jury function; however, the Court of Criminal Appeal retains jurisdiction to intervene where the evidence, considered as a whole, lacks sufficient probative force to support the verdict beyond reasonable doubt.
  • Fullerton J's dissent illustrates the narrowness of the unreasonable verdict jurisdiction: even on materially identical facts, reasonable appellate judges may differ on whether the jury's assessment of contested witness evidence was rationally open.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 346
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c), 6(1)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 91, 138, 165

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 33
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Koloamatangi v R; Popovic v R [2020] NSWCCA 52; (2020) 282 A Crim R 160
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- Decision Restricted [2020] NSWCCA 256
- O'Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103
- Campbell v R [2014] NSWCCA 175; (2014) 312 ALR 129
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
- Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
- AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58