R v Nikolovski (No 1) [2017] NSWSC 1450 (18 September 2017)

Last Updated: 25 October 2017

Supreme Court New South Wales

Case Name:	R v Nikolovski (No 1)
Medium Neutral Citation:	[2017] NSWSC 1450
Hearing Date(s):	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] NSWCCA 306; (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

2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

The Tendency Evidence

7. The tendency the Crown seeks to prove is a tendency to act in a particular way, namely to commit robberies with other people whilst armed with weapons. The substance of the tendency is to be found in three documents, being an undated 9 page statement of agreed facts which bears the signature of the accused Mr Nikolovski, and a 4 page statement of facts under the hand of a solicitor from the office of the Director of Public Prosecutions, and finally, a statement of facts from the Supreme Court of the Australian Capital Territory. The 9 page statement sets of the facts of three offences of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW) and one count of conspiring to commit such an offence, these being offences of which the accused has previously been convicted. The facts set out other offences that were dealt with by the sentencing court pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) including a further s 97(1) offence.
8. Briefly, the facts establish the following:
9. In the early hours of 21 April 2015, the accused Mr Nikolovski and another male, went armed with a baseball bat, a metal pole, and a knife to the Royal Hotel in Leichhardt. They were wearing dark hooded clothing, gloves and black material across their faces. The accused and his then co-offender waited at the rear of the hotel for staff to leave prior to locking the hotel for the night. As the staff emerged from the hotel, the offenders took hold of one man and forced him back into the building. Money was demanded of him and an amount of cash was taken. The offenders ran off. The robbery had been planned by Mr Nikolovski and his then co-offender.
10. Late on the evening of 11 May 2015, the accused and another three men confronted staff leaving the Red Lion Hotel in Rozelle at closing time. The offenders were armed with a meat cleaver and knives. One offender forced a staff member back inside the hotel whilst the others stood guard over remaining staff. An amount of cash was taken whereupon the offenders fled.
11. At about 1am on 19 May 2015, the accused and others waited outside the Henson Hotel in Marrickville for staff to leave at closing time. When they came out, the offenders, who were armed with knives, forced the staff back into the hotel. A sum of cash was stolen by the offenders, who then fled.
12. At closing time on the evening of 28 May 2015, the accused and others waited outside the Belfield Bowling Club. When a staff member came out he was tackled to the ground and forced to return to the club. The victim was assaulted and threatened with meat cleavers and forced to hand over cash. The offenders then fled. This robbery had been planned.
13. Between 5 June 2015 and 16 June 2015, the accused’s mobile telephone was lawfully intercepted. He participated in a number of conversations in which he discussed the commission of an armed robbery. Late on the evening of 16 June 2015 the offender and others went armed with meat cleavers and a machete and with faces disguised, to the near vicinity of the Victoria Hotel at Annandale. Police approached them and some offenders were arrested immediately. The accused who fled was arrested on 17 June 2015.
14. The facts of 9 July 2012, deal with two offences of robbery whilst armed with an offensive weapon. The Crown relies upon the document to prove the accused’s role in a robbery at the Fire Station Hotel and another robbery at the Blackbutt Hotel. It refers to the following offences:
15. On 4 May 2011, the manager of the Fire Station Hotel Wallsend locked up for the night and then sat down to count the nights takings. The door of the office he was in was kicked open and the accused, who was armed with what appeared to be a pistol and another man who was armed with a knife, entered. Both were dressed in dark clothes and wore gloves. The accused pushed the pistol against the manager’s head and warned him that he had a gun. Money was demanded. The manager gave the robbers the money that he had been counting and the offenders fled.
16. In the early hours of 17 May 2011, the accused and two others entered the Blackbutt Hotel at New Lambton which was closed, with only a cleaner on the premises. The offenders were armed with a pool cue, a stick and a knife. Using keys they found at the scene, the offenders opened the safe and a sum of money was taken. The robbers then left.
17. The third document is a statement of facts from the Supreme Court of the Australian Capital Territory. It refers to the commission by the accused of an offence in that Territory of aggravated robbery which was committed on 28 May 2011 with other men on the Gungahlin Lakes Golf Club.
18. Briefly the facts are that the offenders forced entry to the club before opening time and at a time when only a cleaner was present on the premises. The accused was said to be armed with what was described as a “long cylindrical object” held in the same manner as a long armed firearm. The facts speculates that it is possible the object was a broom handle or a shovel handle. A co-accused was armed with what is described as a black hand gun. During the robbery a quantity of cash was stolen from the golf club.
19. The charges that reflect each of these offences proceeded upon the accused’s pleas of guilty and he was subsequently sentenced.

The Submissions of the Parties

20. The Crown argues that the evidence of the accused’s participation in these robberies has significant probative value, because it is based upon conduct admitted by the accused and it establishes that he had a tendency to commit such offences, a tendency which existed both before and after the alleged murder.
21. It is argued that the offences are factually similar to the present matter in that all were committed at night or in the very early morning, when the accused was both armed and disguised, and at the time when he was in the company of others. This is said to be factually identical to count 2 on the indictment in circumstances where count 2 is the foundational crime for constructive murder.
22. The Crown contends that the target of the robberies the subject of the tendency notice is unimportant.
23. The Crown submits that any prejudice that might be occasioned to the accused by the admission of this evidence can be addressed by appropriate directions and that any prejudice which may be occasioned is not unfair prejudice.
24. The accused disputes the admissibility of the evidence. He impugns both the form of the evidence and the validity of the s 97 notice. The s 97 notice itself is challenged on the basis that it does not comply with the Evidence Act 1995 (NSW), in that persons who saw the relevant conduct are not named on the notice. The form of the evidence is impugned because the documents before the Court, with the exception of one document, are statements of fact not adopted by the accused.
25. Setting aside the issue of the validity of the notice and the form of the evidence, the accused contends that the asserted tendency the Crown seeks to prove is so general as to be meaningless. It is submitted that whilst the evidence may reach the level of being held to be relevant, its probative value is limited because of the very general nature of the tendency sought to be proved and such probative value as the evidence may have is outweighed by the prejudicial effect of adducing the evidence.

Consideration

26. The starting point to consider the Crown’s application to lead this evidence and the accused’s dispute with it is to consider whether the evidence is relevant pursuant to s 55 of the Evidence Act since only evidence which is relevant is admissible. Evidence which if, it were accepted could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings is relevant evidence. As Mr Massey for the accused has conceded, the tendency evidence is relevant in that it could bear upon the issues to be decided in the trial.
27. The next step is to consider whether the evidence is admissible as tendency evidence. Section 97(1) of the Evidence Act relevantly provides:

“97 The Tendency Rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

28. There is no issue about the reasonableness of the notice to the accused of the intention to adduce tendency evidence.
29. In Hughes v Queen [2017] HCA 20, the majority (Kiefel CJ, Bell, Keane and Edelman JJ), said at [16]:

“The probative value of evidence is the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind or to act in a particular way to the likelihood that the person had the particular state of mind or acted in a particular way on the occasion in issue. The starting point requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence.”

30. The Court must consider whether the evidence has significant probative value, that is whether the tendency evidence should make more likely to a significant extent the facts that make up the elements of the charged offence. R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [125]. The evidence need not have this effect by itself, it is sufficient if the disputed evidence together with any other evidence to be placed before the jury has this effect.
31. In Hughes the majority said that:

“The assessment of whether the evidence has significant probative value involves consideration of two interrelated, but separate matters. The first is the extent to which the evidence supports the asserted tendency. The second is the extent to which the tendency makes more likely the facts making up the charged offence. There need not be any similarity of conduct between the tendency incident and the charged offence.”

32. From Hughes,

“...in summary there is likely to be a high degree of probative value where one the evidence by itself or together with other evidence strongly supports proof of a tendency and two, the tendency strongly supports the proof of a fact that makes up the offence charged” (at [41]).

33. Here I have little difficulty in concluding that evidence of the accused’s participation in seven armed robberies and a conspiracy to commit a further such offence in the periods May 2011 and April to June 2015, supports a conclusion that the accused is a person with a tendency to commit armed robberies.
34. The crimes for which the accused has been sentenced were committed, excluding the time the accused spent serving a custodial sentence, immediately before Mr Parry was killed and immediately after. Each offence involved the accused participating in a joint criminal enterprise with others to rob when armed with an offensive weapon.
35. The crimes were all committed in the hours of darkness or the very early morning and on all but one occasion, the accused wore some sort of facial covering to disguise his face. I am satisfied that the evidence of the accused’s participation in these crimes taken by itself strongly supports proof of a tendency to commit robberies when armed and in company.
36. I am not persuaded however that the tendency evidence strongly supports the proof of a fact that makes up the offence charged, whether considering count 1 or count 2 on the indictment, and even having regard to other evidence.
37. The tendency which the Crown seeks to adduce evidence of is a tendency to commit robberies with other people whilst armed with weapons. The tendency as particularised is very general. It could apply to any person with criminal history that includes the commission of offences contrary to s 97(1) and would establish precisely the same thing, that the individual has committed armed robberies.
38. In my assessment such evidence says little or nothing about the facts that go to make up the elements of the charged offences. It does not strongly support proof of any relevant fact. That is so, even when regard is had to the other evidence available to the Crown against this accused. The Crown’s case rests on Ms Bronner and her evidence will fall to be assessed in the context of the indemnity which she has been granted and her participation in the charged offences, to an apparently greater extent than that alleged against Mr Nikolovski.
39. The only other evidence is the circumstantial evidence of the car seen in the area and that of the intercepted conversations. The tendency evidence does not materially add to that evidence in my view.
40. The tendency evidence is capable of establishing that the accused has a tendency to commit armed robberies and more particularly armed robberies carried out using a particular method upon victims who fall within a particular category of person. But it is not capable of establishing anything of greater relevance to the charged offence.
41. It is perhaps not inapposite to observe that the sort of armed robbery charged against the accused here falls within a category of armed robberies which are sufficiently distinctive from other examples of the crime as to have attracted a colloquial name, being “home invasion”.
42. That an individual has a tendency to carry out armed robberies on commercial licensed premises using a distinctive methodology does not of itself go to make it more likely that the same individual would carry out a home invasion on a domestic residence. Indeed, it could arguably suggest the opposite proposition.
43. For the evidence to be admissible as tendency evidence there is no need that it show that the accused used a consistent modus operandi or that there was a similar pattern of conduct, but it does need to say something about the facts in issue. Here the dissimilarities arguably render the evidence incapable of supporting the proof of any element of either count 1 or count 2.
44. In Hughes the majority said at [64],

“...the assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency, but it will also mean the tendency cannot establish anything more than relevance. In contrast a tendency expressed at a level of particularity will be more likely to be significant.”

45. That the evidence is only capable of establishing that the accused is someone who has a tendency to commit armed robberies in a general sense limits its probative value. That is particularly so in circumstances where the armed robberies particularised in the tendency notice show many marked dissimilarities to the charged offences, including the venues targeted for robbery (the tendency incidents relating to licensed public bars as opposed to a private domestic residence), and the weapons used (always an offensive weapon in the tendency incidents but a dangerous weapon in the charged offences).
46. Even if I am wrong in this assessment I would not regard the evidence as satisfying the second barrier to the admission of tendency evidence, that posed by s 101 of the Evidence Act, which provides:

“101 Further Restrictions on Tendency Evidence and Coincidence Evidence Adduced by Prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.”

47. The probative value of the tendency evidence is limited in that it can do no more than establish that the accused is a person with a tendency to commit armed robberies of a very distinctive character, a character wholly dissimilar to the charged offences. The prejudicial effect of the evidence is, by contrast, likely to be considerable.
48. One can readily foresee how such evidence could be misused by a jury, even a jury to which strong directions have been given. The jury may consider that its enquiry stops with the receipt of the tendency evidence as jurors may reason that because the accused has committed armed robberies on other occasions he must have committed the robbery of Mr Parry in which Mr Parry was shot. Or the jury might reason that the accused must be one of the two men seen by Alan Parry in his home that night, because he is an armed robber, without considering how many offenders share the tendency imputed to the accused. Or, the jury may reason that the accused is a bad person because of his many convictions for serious armed robbery offences and give that conclusion undue weight in considering the evidence and the question of whether the Crown has proved the offences beyond reasonable doubt.
49. The potential for substantial prejudice is high and I am not satisfied that there is any direction I could craft which could overcome that prejudice.
50. The disputed evidence amounts to little more than evidence of bad character without any of the probative significance that would make it admissible as tendency evidence. It could not be said that the probative value outweighs the prejudicial effect to any extent, let alone substantially.
51. On that basis I excluded earlier this morning the evidence set out in the tendency notices of 21 August 2017 and 12 September 2017.

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