R v Nikolovski (No 1) [2017] NSWSC 1450

Supreme Court New South Wales

Medium Neutral Citation: R v Nikolovski (No 1) [2017] NSWSC 1450 Hearing dates: 18 September 2017 – 11 October 2017 Decision date: 18 September 2017 Jurisdiction: Common Law Before: Wilson J Decision: The evidence set out in the tendency notices of 21 August 2017 and 12 September 2017 is excluded Catchwords: CRIMINAL PROCEDURE – tendency evidence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: Hughes v Queen [2017] HCA 20 R v Ford (2009) 201 A Crim R 451 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 1. HER HONOUR: The Crown seeks to lead evidence in the trial of Jesse Nikolovski to establish that he had a tendency to commit armed robberies. On 21 August 2017, it served notice on the accused of its intent to do so. On 12 September 2017, a further updated notice was served. The accused, by notice of motion dated 8 September 2017, objects to the admission of the tendency evidence.

The Allegation Against the Accused 1. On 15 September 2017, the accused was arraigned before me on indictment charging that he did on 7 March 2015, at Wickham in the State of New South Wales, murder Robert Parry. He is further charged that on the same date and at the same place, whilst armed with a dangerous weapon, he robbed Mr Parry of a small quantity of property. 2. The Crown's case is summarised by a Crown case statement which is in evidence on the motion. In brief, it is alleged that the accused was one of three individuals involved in an armed robbery, during the course of which Mr Parry was shot and killed. The Crown relies significantly on the evidence of Pheobe Bronner, who has been given the benefit of an indemnity from prosecution with respect to her role in the alleged murder. Ms Bronner is expected to tell the jury that she and the two accused men drove to Wickham in the early hours of 7 March 2015, in a car used by Mr Nikolovski. Mr Petryk had a gun and an axe. When Mr Nikolovski would not take the axe from him, Ms Bronner armed herself with it. Mr Petryk retained the gun. All three wore gloves and covered their faces. When the three arrived at the deceased's home the front door was open. Mr Petryk is said to have urged Mr Nikolovski to enter the house with him but he stayed outside with Ms Bronner. When Ms Bronner went into the house from she says, curiosity, Mr Nikolovski followed her up the front steps and may have stepped inside the doorway of the premises. 3. The deceased came out of his bedroom and saw Mr Petryk. He told him to "fuck off" and made a move as if to "whack" him. At that stage there was only a metre and a half or so between the two men. Mr Petryk may have demanded money and drugs from Mr Parry. The gun discharged and Mr Parry dropped to the floor. Mr Petryk went into another room and emerged soon after with some cannabis and cigarettes. The deceased's father came out of his bedroom. He saw a man in the front doorway wearing dark clothes and a face covering. As I understand the Crown case, this man was the accused Mr Nikolovski. Mr Parry then saw another man emerge from the deceased's bedroom. This is alleged to have been Mr Petryk. Mr Parry thought the man was holding a gun and a knife. He demanded money and drugs and said, "You're next." Ms Bronner and the accused Mr Nikolovski ran from the premises. The accused Mr Petryk followed soon after. 4. Mr Parry was pronounced dead at 3.55am from a gunshot wound to the abdomen. There is evidence that a car broadly consistent with that driven by the accused, Mr Nikolovski was seen in the area at the relevant time. There is some other evidence of what could be construed as admissions made by Mr Nikolovski in conversations which were lawfully recorded. There is evidence against the accused Mr Petryk that he had possession of a gun at the material time, the gun being later matched to the bullet that killed the deceased. 5. The Crown casts its case against the accused on the basis either that, 1. he was a participant in a joint criminal enterprise to commit armed robbery with a dangerous weapon during which Mr Petryk shot Mr Parry with an intention to inflict grievous bodily harm or to kill. The accused foresaw the possibility that grievous bodily harm could be inflicted and continued nevertheless to participate in the enterprise; or 2. that the accused participated in a joint criminal enterprise to carry out a robbery whilst armed with a dangerous weapon, during which Mr Petryk shot and killed Mr Parry.