HER HONOUR: At the conclusion of the Crown case in the trial of Jesse Nikolovski and Daniel Petryk, counsel for Mr Nikolovski makes application for a directed verdict with respect to count 1 on the indictment of 18 September 2017, that being the charge alleging that the accused murdered Robert Parry on 7 March 2015 at Wickham.
The Crown opened its case against Mr Nikolovski to the jury on two bases, that of extended joint criminal enterprise and constructive murder. With respect to the former, the Crown case is there was a joint criminal enterprise between the accused men and Pheobe Bronner to rob Robert Parry when one of the group was armed with a dangerous weapon; and that during the course of the armed robbery, Mr Petryk discharged the gun, intending to cause really serious injury to Mr Parry, who died; that the discharge of the gun fell within the scope of the joint criminal enterprise; and that Mr Nikolovski contemplated that the gun could be used with that intention.
The later, that is constructive murder, was advanced on a similar basis: that there was a joint criminal enterprise to rob Mr Parry whilst armed; that one of the participants, in this case, Mr Petryk, would be armed with a dangerous weapon; that Mr Petryk voluntarily discharged the firearm; and that the discharge of the gun by Mr Petryk was a contingency that Mr Nikolovski had in mind in joining and participating in the criminal enterprise to rob.
The impression that I took from the Crown's opening address was that the evidence would establish that Mr Nikolovski was aware that the .22 calibre rifle used to kill Mr Parry was in working order, and that Daniel Petryk had ammunition for it, from evidence that was to be led of a test firing of the gun and a telephone conversation about how to operate the firearm.
The only evidence capable of establishing Mr Nikolovski's liability for murder on either basis came from Pheobe Bronner. There is some other evidence suggesting his subsequent knowledge of the incident at Wickham, such as Exhibit AK and entries in Exhibit AF which record SMS exchanges between Ms Bronner and Mr Nikolovski on 10 June 2015, after the events recorded in Exhibit AG, but nothing beyond Pheobe Bronner to establish count 1.
Ms Bronner's evidence does not appear, by comparison with the Crown's opening address, to have been given entirely as anticipated. As to the nature of the enterprise agreed between the accused men and Pheobe Bronner, Ms Bronner said this: she (and by implication, Mr Nikolovski) became aware that Daniel Petryk had a gun soon after he returned to the white sedan after it stopped at Mr Gorman's back fence line, and after Mr Petryk got out of the car to collect something (T482:25). Daniel Petryk told them that he was aware of a house where his brother used to buy pot and where the door was always open. Daniel Petryk planned to sneak in and grab the pot (T484 - T485). The gun was to be used to "look scary" if an occupant was encountered (T485:22-29). At transcript 497, line 38, Ms Bronner confirmed that the plan agreed between the three was that "Daniel was going to sneak in and if there was no one around he was just going to grab the pot and if there was someone around we were just there to look like scary so he can take it". She confirmed that they were there to just like look scary. When asked, "what were you going to scare them with" at the bottom of transcript 497, she said, "The weapons, like just to appear that way:" (T497:37 - T498:01).
That evidence is capable of establishing a joint criminal enterprise to commit an offence of armed robbery whilst armed with a dangerous weapon. It may be that that evidence could (inferentially) establish liability on one or both bases if that was as far as it went. However, Ms Bronner went on to give evidence that her knowledge and that of Jesse Nikolovski as to the gun was that it was not loaded and that Daniel Petryk had no ammunition for it by the time they arrived at Wickham.
The evidence from Ms Bronner was that Jesse Nikolovski did not want the gun in his car and so, after they were told it was not loaded, the gun was passed to Pheobe Bronner, who put it inside her clothing against her skin (T483:49 - T484:03). En route to Wickham the car stopped on what was referred to as a "really long road" that may have had trees along it. Contrary to the Crown's opening as I understand it to be, Ms Bronner when asked said she had no recollection of any telephone calls being made by Daniel Petryk or anyone else at this time (T486:14). She said that Daniel Petryk got out of the car whilst she and Mr Nikolovski remained in the car arguing together. Ms Bronner said she heard a bang (T486:44). There was no evidence led about the nature of the sound or its volume. There was no evidence comparing that sound with the sound of the .22 rifle being discharged at Wickham. Ms Bronner said that when Mr Petryk got back into the car after the bang, there was no discussion about it (T487:30; T488:15).
After hearing a bang and when all three were in the car, Ms Bronner put the gun inside her clothing next to her skin. She was specifically told that it was not loaded by Mr Petryk (T483:49 - T484:09). This conversation occurred in the confines of a car in circumstances where Jesse Nikolovski was said to be "freaking out" about a gun being in his car (T483:42) and was pacified to some extent by the gun being hidden by Ms Bronner. The inference is that he had heard the conversation about the gun not being loaded.
The Crown returned to this issue before Ms Bronner completed her evidence, presumably in an attempt to lead the expected evidence. She repeated that the firearm was to be used just to look scary and (at T560:25), "he [he being Mr Petryk] wouldn't use it". When asked about bullets Ms Bronner said that Daniel only had one bullet.
She was asked, "Any discussion about the bullets" and she said,
"When we were like unsure of like what the bang was, Daniel had said that he had one bullet. Another time I had assumed that that's what the noise was but it obviously had one more bullet left" (T560:39).
Whilst the transcript makes that comment sound a little confusing, my recollection of that evidence when it was given was a very clear impression that there had only been one bullet and that Ms Bronner at least understood that that bullet had been discharged with no further ammunition in Mr Petryk's possession.
There is however no evidence as to whether Mr Nikolovski had any knowledge of that particular conversation about the one bullet. It may be that, like Pheobe Bronner, he heard the comment about the one bullet and also assumed the bullet had been used, or it may be that he did not hear the conversation. The evidence is silent on that. However the evidence of Ms Bronner about the one bullet is interpreted, there is no evidence Mr Nikolovski knew anything about Daniel Petryk having one bullet or indeed any bullets at all.
The matter was not cleared up by the Crown where there was a later attempt to get the missing evidence from Ms Bronner, at T574:14 - 15. She said "there was one bullet", but again with nothing to link it to anything Mr Nikolovski may have known or understood.
There was nothing to suggest Mr Nikolovski heard the conversation, other than the fact that it took place in the car at some unspecified point after the car had stopped on the long road and then continued on its journey.
Again, if the evidence had gone no further than that, it may be that the Crown could make out its case on an inferential basis. But Ms Bronner again went further in her evidence. In cross-examination she returned to the subject of the firearm and whether it was loaded.
At T592 she said Mr Nikolovski wanted nothing to do with the gun. She said at T592:35 that Daniel Petryk had said the gun was "safe and it wasn't loaded". Jesse Nikolovski was a party to this conversation and remained a party when Daniel Petryk said that the gun was not loaded and, further, that there was no ammunition (T593:24 - 27).
The clear evidence that Jesse Nikolovski had proceeded with the enterprise to rob on the basis that the gun could not be discharged as a positive state of knowledge, is confirmed to a degree by Pheobe Bronner's evidence that, after the event, that is the shooting at Wickham, there was an argument between Daniel Petryk and Jesse Nikolovski because "Daniel had said it wasn't loaded" (T506:18).
That last piece of evidence from Ms Bronner that the gun was not loaded and that there was no ammunition for it is the evidence which in my view leaves the Crown without a case for murder against Jesse Nikolovski on either basis.
To make out murder on the basis of extended joint criminal enterprise the Crown must prove beyond reasonable doubt that during the course of the armed robbery with the firearm, the gun discharged and that its discharge was both within the scope of the joint criminal enterprise, and that Mr Nikolovski contemplated that, in carrying out the enterprise, the gun might be used with the intention of causing grievous bodily harm.
To make out constructive murder, the Crown would have to prove beyond reasonable doubt that the discharge of the gun was a contingency or possibility that Jesse Nikolovski had in mind when joining or continuing in the enterprise to rob Mr Parry.
The evidence, to the contrary, is that his participation was only after Daniel Petryk had told him and Pheobe Bronner that, not only was the gun not loaded, but there was no ammunition for it.
I cannot in those circumstances conclude that there is any evidence upon which Mr Nikolovski could have contemplated that the discharge of the gun was a possibility.
The Crown argues that taking the whole of the evidence together, the inference is available to be drawn that Mr Nikolovski did have sufficient information to contemplate the possibility that the gun would be used. The Crown has referred to the circumstances cumulatively including the journey to Mr Petryk's house to collect him, the journey together to Mr Gorman's house where something was collected by Mr Petryk, the direction by Mr Petryk of the car to a location at which it stopped and where having gotten out of the car, a bang could be heard, Mr Nikolovski's knowledge of the presence a gun in the car, the discussion about bullets, and the discussion about what was planned to occur at Wickham.
The Crown argues that the only inference that could be drawn on the basis of the whole of that evidence taken together, is an inference that there was a gun in the car to Mr Nikolovski's knowledge which was in working order. The Crown further argues that in going to the premises of the person who sold drugs, the participants to the enterprise may well have concluded that it was necessary for them to have a weapon.
The Crown says all of that evidence goes to establish that the accused Mr Nikolovski would have contemplated the possibility of the use of a gun.
This is not a case, however, similar to that of Penza and Di Maria v R [2013] NSWCCA 21, where the robbers understood it was likely they would meet vigorous resistance from the drug dealer occupant and they may need to use a loaded firearm to enforce their will on the occupant or to protect themselves from resistance. Whilst Mr Parry was a supplier of cannabis on the evidence, the Crown was at pains to point out that he was a small time dealer who sold very small amounts to friends and family only. There could be no basis upon which the jury could infer that Jesse Nikolovski believed that resort might need to be had to the use of a firearm to effect the robbery.
I have raised with counsel whether either is aware of any authority in which a person holding a positive state of knowledge that a firearm could not be discharged in circumstances such as those here, has nevertheless been held to be properly convicted of murder. Counsel are unaware of such a case and neither have I found any decision along those lines.
If the evidence was simply that a firearm was to be taken to a robbery, even without evidence that Mr Nikolovski knew it was operational or knew that there was ammunition available for it, it may be that it would be sufficient for the jury to draw an inference and for the case to go to them for decision.
Here, there is clear and uncontradicted evidence led from the Crown's only relevant witness that Mr Nikolovski's participation was on the basis of his knowledge that the gun was unloaded, that there was no ammunition for it, and therefore that it could not be discharged.
In my view there is no evidence capable of establishing the relevant elements of murder based on either extended joint criminal enterprise or constructive murder. That being the case, the jury must be directed that a verdict of not guilty should be returned with respect to count 1. That is, there is a defect in the evidence such that taken at its highest; it simply will not sustain a verdict of guilty: Doney v R (1990) 171 CLR 207 at 214 to 215.
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Decision last updated: 25 October 2017