Nikolovski v R [2021] NSWCCA 327

Nikolovski v R [2021] NSWCCA 327

Although admission of James Williams' evidence did not itself occasion a miscarriage of justice, the conviction could not stand because the only evidence capable of proving the critical fact that the applicant supplied the gun to Mr Wiggins came from James Williams and Josh Baker. The majority held that Mr Williams was totally lacking in credibility and that Mr Baker's uncorroborated and unrecorded evidence was also an unsafe foundation for conviction. Tom Davies' evidence did not prove supply of the gun and risked impermissible reasoning that the applicant must have been involved in some way. On an independent assessment of all the evidence, and notwithstanding the jury's advantages, it...

Jurisdiction
Australia
Judgment Date
30 December 2021
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal in the Court of Criminal Appeal From Conviction and Sentence in the Supreme Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; conviction quashed; verdict of acquittal entered.
Legal Topics
['murder' 'accessory Before the Fact' 'unreasonable Verdict' 'miscarriage of Justice' 'reliability and Credibility of Witnesses' 'admissions Evidence' 'section 165 Warning' 'exclusion of Evidence']
['criminal Law' 'criminal Procedure' 'evidence' 'appeals'] ['murder' 'accessory Before the Fact' 'unreasonable Verdict' 'miscarriage of Justice' 'reliability and Credibility of Witnesses' 'admissions Evidence' 'section 165 Warning' 'exclusion of Evidence']

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal in the Court of Criminal Appeal From Conviction and Sentence in the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether the trial miscarried because the evidence of James Williams was admitted for the jury's consideration." 'Whether the verdict was unreasonable and could not be supported by the evidence because the jury ought not have relied on the evidence of James Williams or Josh Baker.' 'Whether, on all of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant supplied the gun used by Matthew Wiggins to murder Darko Janceski.']

Ratio Decidendi

Although admission of James Williams' evidence did not itself occasion a miscarriage of justice, the conviction could not stand because the only evidence capable of proving the critical fact that the applicant supplied the gun to Mr Wiggins came from James Williams and Josh Baker. The majority held that Mr Williams was totally lacking in credibility and that Mr Baker's uncorroborated and unrecorded evidence was also an unsafe foundation for conviction. Tom Davies' evidence did not prove supply of the gun and risked impermissible reasoning that the applicant must have been involved in some way. On an independent assessment of all the evidence, and notwithstanding the jury's advantages, it...

Court Disposition

Leave to appeal granted; appeal allowed; conviction quashed; verdict of acquittal entered.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' "Quash the applicant's conviction." 'Enter a verdict of acquittal.']