Nikolovski v R

PAYNE JA: On 20 June 2018 the applicant, Mr Robert Nikolovski, stood trial before Latham J and a jury in the Supreme Court on an indictment charging him with the murder of Darko Janceski contrary to ss 18(1)(a) and 346 of the Crimes Act 1900 (NSW) as an accessory before the fact.

On 6 July 2018, the jury returned a majority verdict of guilty. On 25 July 2018, Latham J sentenced the applicant to 33 years’ imprisonment commencing on 7 December 2017, with a non-parole period of 20 years: R v Robert Nikolovski [2018] NSWSC 1147. The applicant seeks leave to appeal against his conviction and sentence.

On 14 April 2012, Mr Janceski was shot dead outside his parents’ home at Berkeley, Wollongong, by a balaclava-clad man who was riding a motorcycle. A motorcycle helmet and sunglasses with DNA matching “Matthew Wiggins”, together with the gun that was used (which when forensically tested yielded no positive findings), were left behind at the scene. Mr Wiggins was charged with Mr Janceski’s murder in January 2013. The applicant was also charged in January 2013 with the offence of soliciting Mr Wiggins to commit the murder. At that time, a good deal of covertly recorded evidence of electronic communications involving the applicant was available, which established a motive to harm Mr Janceski. However, there was insufficient evidence of any involvement in the murder on the part of the applicant. A No Bill was entered on that charge.

In September 2014, the applicant was charged with being an accessory before the fact on a charge of murder. The Crown case, as eventually particularised, was that the applicant “encouraged” and/or “assisted” the murder by providing the gun used by Mr Wiggins to commit the murder. The only evidence of the applicant providing the gun used by Mr Wiggins to kill Mr Janceski was provided by two [redacted], described by the pseudonyms “James Williams” and “Josh Baker”, who made statements to the police claiming that the applicant had admitted to each of them that he had provided the gun used in Mr Janceski’s murder. Mr Williams’ statement was made in December 2013. Mr Baker made his statement in October 2014, after the applicant had been charged, but did not sign it until February 2015. The evidence of these two [redacted] is at the heart of this appeal.

On 18 December 2015, the applicant was committed for trial in the Supreme Court. In April 2016, Mathews AJ refused the applications made by Mr Wiggins and the applicant for separate trials. In March and April 2017, the applicant and Mr Wiggins were tried jointly before a jury and Davies J in the Supreme Court. On application of the Crown, the jury was discharged and the trial was aborted due to matters concerning Mr Wiggins’ legal representation.

Mr Wiggins and the applicant each made further applications for separate trials. On 30 October 2017, Latham J ordered separate trials, with the trial against Mr Wiggins to proceed first. The applicant also applied to exclude the whole of the evidence of the witness James Williams. Her Honour refused the applicant’s application to exclude the evidence of Mr Williams (I will return to this topic below).

On 16 May 2018, following a trial before a jury and Latham J, Mr Wiggins was convicted of the murder of Mr Janceski and intentionally causing grievous bodily harm to Mr Janceski’s father, Slobodan Janceski. Mr Wiggins appealed against his conviction to this Court. On 7 October 2020, the appeal was allowed, the conviction set aside and a new trial ordered: Decision Restricted [2020] NSWCCA 256. The retrial is fixed to commence on 17 January 2022.

The applicant was arraigned before a jury and Latham J on 18 June 2018. The evidence concluded on 27 June 2018 and closing addresses were made on 28 June 2018. Her Honour summed up on 29 June 2018 and the jury retired to consider its verdict that afternoon. On 6 July 2018, following approximately five days of deliberation, the jury returned a majority verdict of guilty. On 25 July 2018, the applicant was sentenced to 33 years’ imprisonment with a non-parole period of 20 years.

The Crown case was that the applicant encouraged and/or assisted Mr Wiggins in committing the murder by providing him with the gun. Mr Wiggins’ conviction and the events at the scene of the shooting were the subject of agreed facts (“Exhibit C”). Significant background evidence was led from police officers, and tendered in the form of intercepted telephone calls, to establish the applicant’s motive to participate in the murder; that the applicant believed that the deceased had killed his brother Goran Nikolovski (“Goran”). Phone records were tendered to establish that the applicant and Mr Wiggins were in contact via text messages on the day of the murder.

The critical issue at trial, and for the purposes of the appeal, was the evidence which sought to establish that the applicant supplied a gun to Mr Wiggins. The Crown case about this issue was reliant on two [redacted] witnesses who gave evidence about admissions allegedly made by the applicant about supplying a gun to Mr Wiggins. A third in [redacted] also gave evidence of admissions allegedly made concerning the applicant’s “involvement” in the crime, but did not give evidence relevant to the supply of a gun. The first witness, “James Williams”, [redacted] volunteered information about admissions allegedly made by the applicant. The second witness, “Josh Baker”, [redacted] on the basis of an undertaking to give evidence against the applicant. The third witness, “Tom Davies”, [redacted], gave evidence of a further general admission made by the applicant that did not refer to the supply of the gun.

The applicant’s case at trial was that he was not involved in any arrangements for the murder and he did not make the admissions alleged. The applicant did not give evidence but tendered intercepted telephone calls to demonstrate that others, particularly members of the Comanchero outlaw motorcycle gang (“the Comancheros”), were strongly motivated to seek revenge for Goran’s death and were inclined to sideline him from any plan that they had because the applicant was regarded as a “loose cannon”. The applicant also called evidence from his treating psychiatrist as to his anxious and distressed condition at relevant times, and from the owner of a gym he attended in order to explain his presence at a different gym at the time of the murder.

The applicant seeks leave, under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), to appeal against his conviction on the following grounds:

The applicant seeks leave, under s 5(1)(c) of the Criminal Appeal Act, to appeal against his sentence on the following ground:

There was a large body of evidence given at the trial about the background to the murder, which evidence broadly related to people involved in distributing illegal narcotics and people who were otherwise involved with outlaw motorcycle gangs in the Wollongong area.

Central figures in the evidence were Saso Ristevski and the applicant’s brother, Goran, who were associates in 2004. They were both gaoled for supplying a large quantity of drugs. There arose a dispute between them as to whether one or the other had informed on the other to the authorities. At that time, Goran was a close associate of Mark Buddle, the then-national president of the Comancheros. The applicant was not a motorcycle gang member.

On 28 September 2011, Mr Ristevski was murdered at his home in Lake Heights near Wollongong. The police suspected that Goran was involved in Mr Ristevski’s murder. After that date, the police lawfully intercepted Goran’s telephone.

In the late evening of 31 October 2011, Goran disappeared. The police had information suggesting that on the night he disappeared, Goran was going to Darko Janceski’s house. At that time, Mr Janceski was a member of the Comancheros.

Goran was reported missing on 1 November 2011. The evidence at the trial was that Mr Buddle suspected Mr Janceski’s involvement in Goran’s disappearance. That evening, Mr Buddle spoke to an associate and requested that the associate bring Mr Janceski to him. It was agreed that they would meet at McDonald’s.

On around 4 November 2011:

Mr Wiggins had been a close friend of Goran. Following Goran’s disappearance, he communicated regularly with the applicant.

In the early hours of 5 November 2011, Mr Janceski’s home was destroyed by fire. Mr Wiggins drove past Mr Janceski’s home later that morning and was stopped by the police.

The police investigation suggested that the fire at Mr Janceski’s home had been deliberately lit on the basis that certain fabrics and clothes had been laid throughout the house to create a “wick” to allow the fire to travel. It appeared that Mr Janceski was at the Steeler’s Club, which was about a 10-minute drive from the house, at the time of the fire.

The intercepts recorded from the applicant’s phone on 5, 6 and 9 November 2011 suggested that the applicant believed that Mr Janceski had set fire to his own home, and that he did so in an attempt to destroy evidence relevant to Goran’s murder. The applicant was recorded saying “I’m going to fucking kill him with my bare hands”; that he was “able, capable, very easy, at this current point in time to kill someone” with his “bare hands”; and that he was “going to kick heads” and “get Darko right now” but that it was not a good idea at that moment because he was being watched. The applicant was also recorded saying that he was scared to go out in public because he was worried about what he might do if he saw someone who had hurt his brother; and that he was “going out looking for this gronk” who had killed his brother.

Mr Janceski had been a member of the Comancheros but in January 2012 he was “sacked”, meaning that his colours were taken away from him and he was excluded from membership of the Comancheros. Mr Janceski’s former barrister gave evidence at the trial that he had told her he had received a death threat from Mr Buddle and that around two weeks before his home burnt down he had sent a text message to Mr Buddle saying that he would “die for his pride” and would not be returning his motorcycle (an apparent reference to a dispute arising from the “sacking” of Mr Janceski as a member of the Comancheros).

On 29 January 2012, Mr Janceski was shot in the groin by one of two men in a vehicle that pulled up at the front of his home. He survived but was hospitalised until 18 February 2012, when he was discharged to live with his parents at their home in Berkeley. Glen Wilson, an acquaintance of Goran, and a Mr Wellins were charged with the shooting of Mr Janceski.

At the trial, Mr Janceski’s former barrister gave evidence that on her understanding Mr Janceski and the applicant had resolved their issues. She said Mr Janceski had told her:

On 28 March 2012, a Christopher Madden used a prepaid SIM card attached to a fictitious name to contact Matthew Ryan, who had placed an advertisement on eBay for the sale of his blue and white Yamaha WR450 motorcycle. They arranged to meet at McDonald’s in Cessnock, where Mr Madden purchased the motorcycle in cash under a false name. He then threw the SIM card and phone out of his car window. Using a different phone, Mr Madden contacted Derek Ferguson (a close associate of Mr Wiggins) five times throughout the day both before and after the purchase of the motorcycle. After purchasing the motorcycle, he went directly to Mr Ferguson’s workplace at Unanderra.

On 14 April 2012, Mr Janceski was at his parents’ house at Berkeley. Shortly after 5pm a man riding a blue and white Yamaha motorcycle approached the house. The motorcycle matched the description of the one purchased by Mr Madden on 28 March 2012. The man was wearing a full-face helmet with sunglasses and a balaclava. He stopped outside Mr Janceski’s house, called out “Hey Darko”, produced a semi-automatic pistol and fired seven shots in the direction of Mr Janceski. Three of the shots struck and fatally wounded Mr Janceski.

Mr Janceski’s father, Slobodan Janceski, was inside the house at the time. He heard the shots, ran outside and ran towards the shooter. He used a nearby garden stake to strike the shooter. The helmet and sunglasses were knocked from the shooter’s head. During a struggle between the two men, Slobodan Janceski disarmed the shooter and threw the firearm some distance away. Slobodan Janceski was seriously injured and was eventually overpowered by the shooter. The shooter then returned to the bike and rode away. Paramedics and police arrived and administered first aid to Mr Darko Janceski, who died shortly afterwards.

The motorcycle helmet and sunglasses revealed a DNA profile consistent with that of Mr Wiggins. A DNA profile consistent with Slobodan Janceski was identified on the firearm but no other profile could be retrieved. The firearm had never been licensed in New South Wales and was not on the National Firearm Licensing and Registration System. It was not known how the firearm came to be in Australia.

No DNA or fingerprints found on the evidence recovered from the scene could be traced to the applicant. The testing of gunshot residue did not return anything traceable to the applicant.

On or around 21 April 2012, a Yamaha motorcycle was found burnt out at a temple located approximately 800 metres from the workplace of Mr Ferguson. The Crown case was that this was the motorcycle used in the murder of Mr Janceski.

The police executed a search warrant at Mr Ferguson’s home and located a balaclava in the garage. DNA recovered from the inside of the balaclava matched Mr Wiggins’ DNA.

As I have described, the telephones of Goran and the applicant were being lawfully intercepted as part of the investigation into Mr Ristevski’s murder. The applicant’s telephone was lawfully intercepted from 4 November 2011 to 18 January 2012, 27 September 2012 to 13 December 2012 and 24 May 2012 to 29 May 2012.

The Crown relied upon various statements made by the applicant during the intercepted calls in November and December 2011 as demonstrating his anger and grief over the death of Goran and his suspicion or belief of the deceased’s involvement in Goran’s disappearance. The Crown relied on this evidence to establish the applicant’s motive to kill Mr Janceski. The Crown also relied on various pieces of telecommunications evidence to show the frequency of contact between the applicant and Mr Wiggins on and around the time of the murder.

An intercept warrant was not in force on 14 April 2012 for the applicant or Mr Wiggins. The records obtained in relation to the applicant’s phone were limited to outgoing calls and outgoing SMS’s but did not include the reverse call charge records. The records showed that the applicant did not use his phone between 2:41pm and 6:06pm on that day. The murder occurred shortly after 5:00pm.

Mr Wiggins’ telephone records from 14 April 2012 showed that he had contacted the applicant via text message 17 times on that day. Telephone records revealed that Messrs Ferguson and Wiggins were in regular contact in March and April 2012, including in the weeks prior to the murder. Mr Wiggins did not use his mobile telephone between 4:41pm and 5:47pm on 14 April 2012. His last call before the murder, and first call after the murder, were to Mr Ferguson. There were 34 telephone contacts between Messrs Wiggins and Ferguson on 14 April 2012.

On 19 April 2012, the Illawarra Mercury released an article about the murder containing a picture of a Yamaha motorcycle similar to the one used in the murder, requesting that anyone with information contact the police. Telephone records revealed 39 contacts between Messrs Ferguson and Wiggins and six contacts between Messrs Ferguson and Madden on the day that the Illawarra Mercury article was released.

The applicant was at a gym in Warrawong on the day of the murder. The police spoke with the applicant that day and noted that he had no physical marks indicating that he had been injured. There was no suggestion that he had attempted to flee from the police.

At the time of the murder, Messrs Wellins and Wilson (who had been charged with the shooting of Mr Janceski on 29 January 2012) were in custody. Mr Dingle was at a friend’s house from approximately 9:00am to 9:30pm. Mr Madden was also at a friend’s house.

Mr Buddle was in custody on the day of the murder, having been charged with an unrelated matter. The police believe that Mr Buddle left Australia permanently in 2016.

As I will explain in greater detail when addressing ground 2, the evidence of two [redacted], “James Williams” and “Josh Baker”, was the only evidence capable of establishing that the applicant provided the gun to Mr Wiggins which Mr Wiggins used to commit the murder.

On 18 October 2017, the applicant made a pre-trial application for the exclusion of the evidence of “James Williams” (“Witness F”), on the basis that “he is such an atrocious criminal that it is an affront to justice that he be presented in court in a prosecution on behalf of the community and public confidence in the Courts will necessarily be diminished by such a procedure” (relying on Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66). It was argued that the evidence should be excluded as an abuse of process or under s 138 of the Evidence Act 1995 (NSW) because it was unlawfully or improperly obtained. Counsel for the applicant submitted that Mr Williams had been “positively disbelieved in the Court of Criminal Appeal about an admission of a kind similar to what the allegations in this case are”. As I will explain, that submission was a reference to two other admissions of murder said to have been made to Mr Williams and the decision of this Court in the first Splashes nightclub murder appeal, Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 (Popovic), where Adamson J (with whom Beazley P and R A Hulme J agreed) held that it was “not safe to put any weight on” Mr Williams’ evidence of the admissions and that Mr Williams’ credibility was “substantially impugned”.

The trial judge refused the application on 30 October 2017: R v Nikolovski & R v Wiggins (Supreme Court (NSW), Latham J, 30 October 2017, unrep). Her Honour noted that Mr Williams’ statement revealed that he was associated with members of known criminal groups in the Wollongong area since 1999, both inside and outside of prison. [redacted]. Her Honour said at [16]:

In declining to exclude Mr Williams’ evidence, her Honour said at [17] that she was prepared to treat him as a witness who would give evidence pursuant to an [redacted], which justified a cautious approach to the acceptance of his evidence by a tribunal of fact. Her Honour noted that the task performed by Adamson J in Popovic in assessing the reasonableness of a jury verdict, having regard to all of the evidence in the trial, was altogether different from the one considered in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424, which dealt with the same proposition that was advanced on the application to exclude Mr Williams’ evidence. There, Johnson J (with whom McClellan CJ at CL and James J agreed) observed at [176]-[179] that:

On 18 June 2018, prior to empanelment of the jury, counsel for the applicant renewed his application to exclude the evidence of Mr Williams, which her Honour again refused.

By ground 1 of the conviction appeal, the applicant contended that the admission of the evidence of Mr Williams led to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act.

In addition to the criticism levelled by this Court at Mr Williams’ [redacted] evidence in Popovic, subsequent to the applicant’s conviction this Court had cause to consider, again, and trenchantly criticise, Mr Williams’ [redacted] evidence: Koloamatangi v R; Popovic v R [2020] NSWCCA 52; (2020) 282 A Crim R 160 (“Koloamatangi”, the second Splashes nightclub murder appeal).

Although there was a degree of ambivalence in the written submissions, senior counsel for the applicant, Mr Boulton SC, accepted that any finding of fact made by this Court in Koloamatangi would not have been admissible in evidence in the applicant’s trial. This was explained in Campbell v R [2014] NSWCCA 175; (2014) 312 ALR 129. The applicant in that case attempted to rely on findings that had been made about an expert witness in another appeal. Simpson J (with whom Bathurst CJ and Hidden J agreed) observed at [319] that s 91 of the Evidence Act precluded that course:

Mr Boulton SC also accepted, as the Crown submitted, that the findings of this Court in Koloamatangi could not be used in the cross-examination of Mr Williams to demonstrate that he had lied: O’Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103 at [37]-[42].

Mr Boulton’s point was rather that his client was denied a forensic opportunity to cross-examine Mr Williams about the lies he had allegedly told in the Splashes trial in circumstances where the Crown could not have told the jury that they should conclude his evidence in those cases was truthful. In order properly to understand these submissions it is necessary to descend into a little detail about the Splashes nightclub murder trials and subsequent appeals to this Court in Popovic and Koloamatangi.

Mr Williams gave evidence in a trial in April/May 2014 and a retrial in August 2017 involving a murder at the Splashes nightclub in Wollongong in September 2007. In each trial, Mr Williams [redacted] gave evidence of admissions of murder allegedly made to him by several of the accused. Each trial resulted in convictions that were successfully appealed.

There was controversy between the parties as to whether Mr Williams’ evidence constituted the principal evidence against any of the four co-accused. He and “Peter Taylor” (a pseudonym) each gave evidence of admissions of murder allegedly made to them by various of the accused. Mr Williams was [redacted], namely:

[redacted]

Pausing there, Mr Williams’ evidence was that at least six confessions to murder were made to him, on multiple occasions, by Messrs Popovic, Bubanja and Koloamatangi. All four co-accused were found guilty at the first trial.

In the conviction appeal following the first trial, Popovic, Mr Williams’ evidence was discussed in the context of considering an unreasonable verdict ground on Mr Bubanja’s appeal. Adamson J (with whom Beazley P and R A Hulme J agreed) made the following findings:

In considering whether the verdict against Mr Bubanja was unreasonable in accordance with the principles in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Adamson J concluded at [322] that it was “not safe to put any weight on [Mr Williams’] evidence of these two admissions”. Her Honour stated at [324] that Mr Williams’ “credibility was substantially impugned”. In a separate judgment, R A Hulme J observed that the Crown case was “heavily dependent” or “significantly dependent upon acceptance of particular aspects of the evidence of” Mr Williams and Mr Taylor. His Honour considered that Mr Taylor’s evidence was “problematic in a number of respects” and that Mr Williams’ evidence was “of even more dubious credibility [than that of Mr Taylor]” (at [12]).

The convictions of Messrs Bubanja and Hristovski were overturned and verdicts of acquittal were entered. Retrials were ordered for Messrs Popovic and Koloamatangi.

In August 2017, Messrs Koloamatangi and Popovic were retried before N Adams J and a jury. Mr Williams gave evidence [redacted]. He repeated the evidence that Mr Popovic offered in April 2007 to pay him $40,000 to kill the deceased, which he refused; of the walk in the park with Mr Popovic in around November 2007 during which Mr Popovic was said to have told him that “it was [Mr Koloamatangi]” who had killed the deceased and that Mr Taylor was driving; of Mr Koloamatangi having told him while in custody in July 2008 that he (Mr Koloamatangi) was the one to have killed the deceased and of Mr Koloamatangi having complained to him while in custody in around October 2013 that he had still not been paid by Zoran Popovic for the murder. Both Messrs Popovic and Koloamatangi were again convicted.

Messrs Popovic and Koloamatangi appealed against their convictions on grounds including that the verdicts were unreasonable and could not be supported having regard to the evidence. Both applicants relevantly argued that it would be a miscarriage of justice to permit their convictions to stand in light of “[redacted]” (Mr Williams) having been condemned by this Court as a liar, and that reliance on his evidence to sustain the convictions would amount to a public scandal and would be contrary to public policy. Mr Popovic also contended that there was a substantial miscarriage of justice in the trial judge failing to exclude the evidence of Mr Williams.

In circumstances to which I will return, this Court (Bathurst CJ; Bell P and Price J agreeing) rejected the complaint that Mr Williams’ evidence should have been excluded. The Court, however, upheld the applicants’ grounds complaining that the verdicts were unreasonable or not supported by the evidence. The Chief Justice described Mr Williams as “a seasoned criminal”, “a serial liar” and “an entirely unreliable witness”. The complete passage is as follows:

The applicant described this Court’s findings in Popovic and Koloamatangi as “a plain rejection of Mr Williams as a witness of truth” and tantamount to a finding of perjury. The Crown did not accept that characterisation and submitted that a finding was not made in either case that Mr Williams had lied about the relevant admissions.

The Crown submitted that in each appeal this Court undertook an independent assessment of the evidence and concluded that it was not open to the jury to be satisfied of guilt beyond reasonable doubt on the basis of Mr Williams’ evidence, with reference to features of that evidence such as exaggeration, inconsistency and improbability.

Having sketched the relevant background, I return to ground 1 of the present appeal.

The applicant made three sub-contentions in support of ground 1. He argued that:

The applicant contended that the Crown should not have called Mr Williams at the trial in the proper application of par 11.3 of the Office of the Director of Public Prosecutions (NSW) Prosecution Guidelines (March 2021). The applicant submitted that as at the time the Crown decided to call Mr Williams, the Crown was aware of (i) the particulars of Mr Williams’ criminal record, custodial history and dishonesty to the NSW Crime Commission; (ii) the nature of Mr Williams’ evidence allegedly including admissions made to him by or in respect of seven suspects; (iii) the verdicts of not guilty in the joint conspiracy to murder trials of R v Rice, R v Popovic, R v Koloamatangi and R v Vukovic, in which the Crown relied upon Mr Williams to give evidence in 2014; and (iv) the findings against Mr Williams’ credibility made by this Court in Popovic.

The applicant advanced four reasons as to why the proper exercise of the Director of Public Prosecution’s discretion should have resulted in the decision not to call Mr Williams:

My fundamental difficulty with this aspect of the applicant’s case is that, unless and until the High Court decides otherwise, the Crown prosecutor alone bears the responsibility of deciding whether a person should be called as a witness for the Crown. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice: R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 575. It may be that there are circumstances where, in accordance with existing authority (such as Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53), the circumstances in which a particular witness is called may give rise to a miscarriage of justice. I am not persuaded that a miscarriage has been shown here by reason of the decision to call Mr Williams. As Bathurst CJ said of a similar objection in Koloamatangi at [318]:

The fact that Mr Williams has been found, twice, by this Court to be a witness who lacked credibility does not necessarily mean that his evidence could not be relied on in respect of different admissions by different people in the present case. I will return to the topic of Mr Williams’ evidence at the applicant’s trial in detail when addressing ground 2, but I would reject sub-contention 1 of ground 1.

By sub-contention 2, the applicant contended that the admission of Mr Williams’ evidence resulted in a miscarriage of justice because the Court’s decision in Koloamatangi had not been handed down at the time of the applicant’s trial and was therefore not before the trial judge on the application to exclude Mr Williams’ evidence. By this sub-contention, the applicant did not challenge the ruling on the evidence but, rather, sought to invoke “the inherent power of the court to produce a fair trial”. The applicant sought to distinguish his position from the position taken in the abuse of process stay application in Darwiche.

The applicant submitted that this Court should not find that the applicant of his own volition did not call evidence which was available to him (being the transcripts of Mr Williams’ testimony in the Splashes nightclub murder trial and retrial) because little forensic use could have been made of the evidence.

The applicant submitted that, had he been aware of the outcome in Koloamatangi, his counsel would have been entitled to put to Mr Williams that he had been called as [redacted] in two murder trials and in each case had lied about admissions of murder. The applicant said there was a real possibility that the jury would have returned a verdict of not guilty because the Court’s judgment discredited the prosecution case.

Assuming, without deciding, that a change in the forensic balance between the Crown and the accused in any possible retrial was effected by the subsequent decision of this Court about the credibility of Mr Williams in Koloamatangi, I am not persuaded that a miscarriage of justice has been shown. It appears to me that such a conclusion would stray beyond the boundaries of a miscarriage of justice as explained by the High Court, most recently in Strickland. Whilst the outer limits of a miscarriage are, for good reason, not clear, any extension to cover the present circumstances would be a matter for the High Court.

The applicant submitted that it would be an affront to the administration of justice and an abuse of process to allow the conviction to stand, given the findings made in Popovic and Koloamatangi. The applicant submitted that although Mr Williams has not been found to be a witness lacking in credibility in respect of his particular evidence concerning the applicant, the findings by this Court in its previous judgments, and the similarity of the evidence there rejected, was such that it would be an affront to the administration of justice to allow the applicant’s conviction to stand. It was submitted that members of the public would regard any upholding of the conviction as inconsistent and capricious.

It was submitted that this case raises a serious question about public policy in relation to [redacted] in the criminal law and the following public policy considerations should have compelled the rejection of Mr Williams’ evidence:

[redacted].

It will be recalled that AB v CD; EF v CD involved “fundamental and appalling breaches” of a barrister’s obligations to her clients and the court, and “reprehensible conduct” on the part of the police who encouraged her (at [10]). No irregularity or impropriety of the kind described in that case arose here in the very different circumstances of this trial.

The applicant may well be correct that “there must be a point at which the Court will intervene to prevent the Crown from relying upon a proven liar to prove convictions for the most serious criminal offences”. However, I am not persuaded that this point was reached here. There is no necessary inconsistency in different outcomes being achieved in cases involving different evidence. Subject to this Court’s unreasonable verdict jurisdiction, the assessment of witnesses’ credibility and reliability are matters for a jury, properly instructed and with the benefit of testing through informed cross-examination. I would reject sub-contention 3.

I would grant leave to appeal on ground 1 but reject the ground.

By ground 2, the applicant complained that his conviction was unsafe, having regard to the significance of Mr Williams’ and Mr Baker’s evidence. The applicant submitted that the jury could only have concluded that the applicant encouraged and/or assisted the murder by providing the gun on the evidence of Messrs Williams and Baker. The evidence given by those witnesses was crucial to the Crown case at trial. The trial judge gave the following direction to the jury:

The trial judge later directed the jury as follows:

Her Honour subsequently corrected the last sentence of this direction:

The applicant correctly identified that the evidence of Mr Williams and, to a lesser extent, Mr Baker, was critical in establishing the relevant element of the charge the applicant faced. It was, in truth, the only evidence going to that central topic.

The principles that are applicable to an appeal on the ground that a verdict is unreasonable, or cannot be supported, having regard to the evidence, were identified by the High Court in M v The Queen at 492-3. There Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated:

Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, a case that actually concerned the prosecutor’s alleged misconduct in the course of a criminal trial, Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test for an intermediate appellate court when considering whether the convictions sustained below were unreasonable in the following terms:

The principles enunciated in M were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:

At [22], their Honours said:

The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:

I have set out at some length at [14]-[46] above the evidence at the trial. It is unnecessary to repeat that evidence here. As the trial judge correctly instructed the jury, the only way in which the Crown ultimately went forward to the jury on how the applicant “encouraged and/or assisted” Mr Wiggins in committing the murder was by the supply of the gun. The critical question, which was the focus of this ground of appeal, may be framed in this way: was the evidence that the Crown said established beyond reasonable doubt that the applicant supplied the gun to Mr Wiggins capable of establishing the applicant’s guilt?. As the trial judge also correctly told the jury, the only evidence that the applicant supplied the gun to Mr Wiggins was contained in the evidence of the [redacted] witnesses, Mr Williams and Mr Baker. It is thus necessary to go into some detail about the evidence of the [redacted] witnesses, including Mr Davies, whose evidence was said by the Crown to provide some support to the critical [redacted] witnesses.

Mr Williams was the most important Crown witness about the topic of the applicant’s supply of the gun used in the murder. As I have explained, I put to one side in addressing this ground the fact that Mr Williams was recently described in this Court by the Chief Justice as “a seasoned criminal”, “a serial liar” and “an entirely unreliable witness”.

I am unable to accept the Crown’s submission that there was nothing inherently unlikely in Mr Williams’ evidence about the conversation he had with the applicant. The context of the alleged admission made by the applicant was strange. Mr Williams gave evidence about his extensive criminal history and his prior knowledge of the applicant, his brother Goran and the deceased. At a time after the death of Mr Janceski, Mr Williams and his wife attended “Big Leo’s”, a mechanic in Fairy Meadow, to get a pink slip for his car. There, he unexpectedly ran into the applicant, who suggested that they “go for a talk”. Mr Williams said that the applicant asked him what his involvement was in Goran’s disappearance including whether he had been approached to shoot Goran. Mr Williams denied this. The applicant asked why he had featured in photographs with Mr Janceski just before the disappearance of his brother. The applicant then:

Mr Williams gave evidence that he again told the applicant he had “nothing to do with it” and asked “what’s all this got to do with me?” His evidence was that the applicant then said “that he’s the one that organised it and that he had Matty kill Darko”. His evidence was as follows:

When asked what happened after the applicant said that he arranged or organised the murder of the deceased, Mr Williams said:

It is clear from the evidence that the applicant approached Mr Williams at Big Leo’s and remonstrated with him angrily. Mr Williams’ wife, “Lisa Palmer”, and Leo Vangelovski also gave evidence of the discussion between Mr Williams and the applicant at Big Leo’s (Mr Vangelovski’s evidence was given by way of signed statements). They recalled the discussion becoming heated but could not hear what was said. It was not in contest that, despite Mr Janceski having been murdered sometime prior, the applicant remained concerned that Mr Williams was somehow involved in Goran’s murder. Given that Mr Williams admitted at the trial that he had committed at least six shootings, usually for money, both before and after this conversation, the applicant’s suspicion seems to have had a proper basis. Mr Williams’ evidence was that upon his denial of involvement in the murder of Goran, the applicant without prompting unburdened himself to Mr Williams that he was involved in the murder of Mr Janceski.

When cross-examined on this issue, Mr Williams gave the following evidence:

This evidence of a confession to murder, to a person suspected of being involved in Goran’s murder, is inherently unlikely. Despite the applicant angrily approaching Mr Williams and accusing him of involvement in Goran’s murder, upon hearing Mr Williams’ denial, the applicant is said to have decided, unprompted, to himself confess to involvement in the murder of Mr Janceski.

Even more inherently unlikely, given that the applicant was allegedly threatening Mr Williams with the “Comancheros backing him up”, Mr Williams claimed in his evidence at the trial that Mr Janceski had earlier confessed to him that he, Janceski, had murdered Goran. That is, on Mr Williams’ account, both murderers the subject of this case had confessed to him, seemingly out of the blue. Despite being angrily accused by the applicant of involvement in Goran’s murder and despite, on his account, being privy to a confession of Goran’s murder by the then deceased Mr Janceski, Mr Williams remained mute on this subject in the conversation with the applicant.

More strangely still, Mr Williams claimed in his evidence at the trial that Mr Janceski had confessed to him that he, Janceski, had burned his own house to the ground after Goran’s murder (see [21]-[22] above). Mr Williams also remained mute on this subject in his sole conversation with the applicant on the topic of Goran’s murder.

The circumstances in which Mr Williams came to bring to attention the confession allegedly made by the applicant to him are disturbing and should be set out in full. In short, the evidence was that Mr Williams [redacted] (see at [53] above). In late 2013, Mr Williams knew that [redacted]. The cross-examination on this topic should be set out in full:

At the trial Mr Williams accepted that he had lied in the past about numerous matters of importance to the police, the NSW Crime Commission, his parole officer and the prison authorities. Contrary to the Crown’s submission, Mr Williams did not have a Damascene conversion [redacted]. I have concluded that Mr Williams was caught in a series of deliberate lies in his evidence at the trial. For example, he lied about his involvement, on behalf of a prominent Kings Cross identity, with the Nomads Motorcycle Club, an outlaw motorcycle gang. He was asked about his interview with his parole officer when he was doing this work and involved in both drugs and guns. He lied about believing that his shooting of various people was in “self-defence”. Mr Williams feigned memory problems about matters of critical importance. In short, Mr Williams’ evidence at the trial demonstrated that he was a thoroughly discreditable liar.

Turning then to Mr Williams’ evidence implicating the applicant in the supply of a gun to Mr Wiggins, that evidence was singularly unimpressive, even absent all of the manifest problems with Mr Williams’ credibility. In his evidence in chief he stated, twice, that he did not remember what, if anything, the applicant said about a gun in the only conversation of relevance Mr Williams ever had with the applicant:

The only evidence about a gun actually given by Mr Williams in his evidence in chief was as follows:

In cross-examination it was established that Mr Williams’ witness statement went further:

The cross-examination of Mr Williams as to his credibility encompassed aspects of his criminal history and dealings with authorities, including the following matters:

I have concluded that Mr Williams is a witness totally lacking in credibility. He was demonstrated to be a liar, [redacted]. In his evidence in this trial he gave a series of answers which were frankly incredible. I find myself unable to place the slightest reliance on Mr Williams’ evidence. He had an extremely powerful motivation to give false evidence, [redacted]. He was a practised and habitual liar.

The evidence of the only other witness who addressed the topic of the supply of the gun by the applicant to Mr Wiggins was hardly any more credible. Mr Baker was [redacted] who suffered from an acute bipolar disorder. He gave evidence that, without apparent reason, he asked the applicant whilst in gaol together “every day for a month” about whether he had murdered Mr Janceski. The applicant, each day, denied it until, after about a month had passed, again for no apparent reason, the applicant allegedly confessed to Mr Baker that he had supplied Mr Wiggins with a gun.

The circumstances in which Mr Baker came to give evidence are that he was in prison, having pleaded guilty to four aggravated break and enter charges, with further offences taken into account. On 23 November 2012 Mr Baker was sentenced to imprisonment for 10 years, with a non-parole period of seven years. He appealed to this Court.

With that appeal pending, on 15 October 2014, Mr Baker spoke with the police in relation to Mr Janceski. Mr Baker provided a written statement on or around 30 October 2014 and signed the statement on 16 February 2015. [redacted]. On appeal, Mr Baker was resentenced to six years’ imprisonment, with a non-parole period of four years. [redacted].

Mr Baker’s evidence was that he came to know Goran in the early 2000s. He did not know the applicant or Mr Janceski. [redacted]. He began to talk to the applicant and decided to ask him, repeatedly, about Mr Janceski’s murder.

Mr Baker’s account of the confession made by the applicant to him was frankly incredible. Mr Baker gave evidence that in gaol he and the applicant:

Mr Baker’s evidence was that the applicant initially said that he had nothing to do with the murder, but after about 30 days of being asked by Mr Baker, the applicant said:

Mr Baker gave evidence that the applicant also told him that “he got his mate to ride past on a motorbike and shoot him” and that at the time of the shooting he had gone to the gym so as to be seen on CCTV footage, which Mr Baker described as creating an alibi. Mr Wiggins had been arrested at the same time as the applicant and was in custody. In addition, Mr Baker had access and exposure to media which provided all of the details of Mr Janceski’s murder which appeared in his evidence.

Mr Baker’s desire to put himself at the centre of events went further. [redacted].

Mr Baker was a witness lacking in credibility. The admission by the applicant was allegedly made in gaol in 2013. It was first recorded in a statement in October 2014, and the statement only signed in 2015 [redacted]. Mr Baker’s wife also suffered from a serious illness, [redacted]. The uncorroborated and unrecorded evidence of Mr Baker, [redacted] with an acute mental illness, who came forward [redacted], is an insufficient basis upon which to conclude, beyond reasonable doubt, that the applicant supplied a gun to Mr Wiggins.

Mr Davies was charged on 3 June 2015 with drug-supply related offences. A few months after Mr Davies pleaded guilty to those charges [redacted].

Mr Davies first met the applicant around 2010 or 2011. In evidence in chief, Mr Davies said that in March 2015, on a visit to the applicant’s home, the applicant told him:

The “he” who would be “all right” referred to in the passage above was ambiguous and not clarified in evidence. The subject matter of what the applicant said he “would do” again was also not clarified in evidence.

No doubt Mr Davies’ evidence could have led the jury to suspect that the applicant was somehow involved in Mr Janceski’s murder. As the trial judge correctly told the jury, however, Mr Davies’ evidence did not go to the critical issue of supply of the gun. I do not consider that Mr Davies’ evidence provided any substantial support to the evidence of the other [redacted] witnesses. The absence of any reference in Mr Davies’ evidence to the supply of the gun, the key feature in the otherwise startling confessions allegedly made to Mr Williams and Mr Baker, tends against the Crown’s submission that the evidence of Mr Davies provided any relevant support to Mr Williams’ and Mr Baker’s evidence.

The real problem created by Mr Davies’ evidence is that it did not support a conclusion that the applicant had supplied the gun. His evidence may have led the jury to a path of impermissible reasoning; namely, that the applicant must have had something to do with Mr Janceski’s murder, even if he was not shown to have supplied the gun.

The other evidence in the Crown case, aside from that of Mr Baker and Mr Williams, did not provide a sufficient basis on which the conviction could stand. The balance of the Crown case no doubt established a motive on the part of the applicant and provided circumstantial evidence of the applicant’s association with Mr Wiggins.

It is true as the Crown submitted that the three [redacted] witnesses were apparently unconnected with each other and gave accounts of admissions made at different times. It is also correct that none of the witnesses gave evidence that the applicant was involved in arranging the motorbike allegedly ridden by Mr Wiggins. I do not regard the absence of that evidence as providing “notable similarities” in the evidence of Messrs Williams and Baker, as the Crown submitted. Mr Davies’ evidence, as I have explained, was silent on the issue of the gun and provided no support for the Crown case on this critical issue. I do not accept, given the limited similarities in their evidence, that it was open for the jury to be satisfied on the basis of the evidence of Mr Williams, Mr Baker and/or Mr Davies that the applicant had made admissions to supplying the gun used in the murder of the deceased to Mr Wiggins.

The jury was given a warning under s 165 of the Evidence Act about Mr Williams’ and Mr Baker’s evidence. Acting properly, the jury should have placed no weight whatever on Mr Williams’ evidence. Mr Baker’s status as a [redacted], extensive criminal record and motivation to fabricate his evidence was a similarly unsafe foundation upon which the conviction could stand.

The critical question here is whether, notwithstanding my very considerable doubts about the credibility of the [redacted] witnesses, Mr Williams and Mr Baker, a combination of their evidence, together with that of Mr Davies, was sufficient properly to satisfy the jury beyond reasonable doubt that the applicant supplied the murder weapon. I am conscious that in addressing the central issues in this case I have not seen the relevant [redacted] witnesses give evidence.

The question posed by this ground is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which the jury might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I have concluded that this is such a case. My own independent assessment of the evidence is that this is a rare case where the evidence in the record itself lacks sufficient probative force on the critical issue of the supply of the gun. That has led me to conclude that, even making allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. It follows that the applicant is entitled to be acquitted.

Mr Williams’ evidence alone was completely lacking in credit and, frankly, unbelievable. Mr Williams’ evidence was hardly supported by [redacted], Mr Baker, whose account was almost as incredible. The suggested similarities in Mr Williams’ and Mr Baker’s evidence did not take the Crown case very far. Whilst the jury received a warning under s 165 of the Evidence Act about the [redacted] evidence, this was a case where there was a real risk that the jury reasoned that the applicant must somehow have been involved in the murder. This risk was heightened by Mr Baker’s evidence that the applicant had told him he was at the gym and on CCTV at the time of the murder, thereby creating an alibi. This opened a path of reasoning that the applicant must have been in some way involved in the murder, even if he did not supply the gun. This risk was further heightened by the evidence of Mr Davies, which, whilst not addressing the supply of the gun, also pointed to the applicant being involved in some way in the murder of his brother’s killer. This path of reasoning, which Mr Baker’s “alibi” evidence and Mr Davies’ evidence in whole highlighted, obscured the critical question of whether the Crown had proved beyond reasonable doubt that the applicant supplied the gun to Mr Wiggins.

Having regard to all of the evidence and making an appropriate allowance for the limited cross-support the Williams and Baker evidence gave to each other, I continue to harbour a very considerable doubt that the supply of the gun was proven beyond reasonable doubt. The decision of the jury to the contrary is not one explicable by reason of their advantage. The jury might have reasoned that the applicant must have had something to do with Mr Janceski’s murder, even if he was not shown to have supplied the gun.

Having made my own independent assessment of the evidence and notwithstanding that there was some evidence available upon which a jury might convict, nonetheless this is a case where it would be dangerous in all the circumstances to allow the verdict of guilty to stand.

For the foregoing reasons leave to appeal should be granted on grounds 1 and 2 of the conviction appeal. Ground 1 should be rejected and ground 2 upheld.

I propose the following orders:

In the circumstances it is unnecessary and undesirable to opine about the sentence appeal on the hypothesis that the appeal against conviction failed.

As Mr Wiggins is to be re-tried in 2022, this judgment will be distributed to the parties but published on the “JIRS” restricted database until the conclusion of that trial. The Crown is directed to bring to the attention of the Court the conclusion of the proceedings against Mr Wiggins which will permit publication of this judgment without the risk of prejudice to that trial.

FULLERTON J: I have read the judgment of Payne JA, circulated in draft, and agree with his Honour that the first ground of appeal should be dismissed and with his Honour’s reasons for so finding.

After undertaking my own analysis of the evidence adduced at the applicant’s trial, I am not persuaded that the jury’s verdict is unreasonable or not sufficiently supported by the evidence to be able to stand. That is, I am not satisfied that the second ground of appeal is made out.

The orders I propose are that the appeal against conviction be dismissed.

The principles that are to be applied where a jury has returned a verdict of guilty which is challenged on appeal as unreasonable, or one which cannot be supported having regard to the evidence, are set out in the judgment of Payne JA at [84] and following.

The seminal authorities from which those principles emerge emphasise that while the Court is to make its own independent assessment of the evidence, both as to its sufficiency and its quality in determining whether, notwithstanding that there is evidence upon which the jury might have convicted, it would be dangerous in all the circumstances to allow the verdict of guilty to stand, the Court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. [1]

As the High Court stated in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35:

I am also conscious of what the High Court has said most recently in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, a case which required the Court to assess, in the context of all the evidence adduced in proof of guilt, the evidence of a complainant in an historical sexual assault trial upon whose credibility and reliability the Crown case depended.

Since it was accepted at the applicant’s trial and on the appeal that the Crown case depended upon the evidence of three [redacted] witnesses whose credibility and reliability was under challenge, what their Honours said in Pell at [39] is instructive:

In proof of its case against the applicant as an accessory before the fact to murder, the Crown was obliged to prove beyond reasonable doubt that Matthew Wiggins, an associate of the applicant, murdered the deceased in a targeted drive-by shooting outside the deceased’s father’s home in Berkeley in April 2012. The deceased suffered three gunshot wounds with the fatal wound being in the area of the heart. At the applicant’s trial that fact, and the circumstances in which the murder was committed, were the subject of a statement of agreed facts.

The deceased’s father, who was alerted to the sound of gunshots, came from inside his house to see his son slouched over the front fence. Although he was unable to identify the shooter who was wearing a full face motorcycle helmet over a balaclava, forensic evidence was retrieved from items the shooter discarded or dropped at the scene when he was struck by the deceased’s father with a metal pole. Those items included the shooter’s motorcycle helmet and sunglasses. Mr Wiggins’ DNA on both items confirmed his identity as the shooter. A 9mm semiautomatic pistol was also retrieved from the scene. No forensic evidence linked the pistol to the applicant (or Mr Wiggins). The provenance of the gun could not be traced.

The deceased’s father saw the shooter (Mr Wiggins) leave the scene on a motorcycle driving at speed towards the cul de sac at the end of the street which led to a grassy slope which, in turn, led to another street along which he made his escape.

On 19 April 2012, a photograph of a motorcycle, similar to the one driven by Mr Wiggins in the drive-by shooting, accompanied an article published in the Illawarra Mercury titled “Janceski murder: photo of getaway bike released”. On that day telephone records revealed there were then 39 contacts between Derek Ferguson and Mr Wiggins. On 21 April 2012, police located the motorcycle burnt out in bushland in Berkeley within a kilometre of Mr Ferguson’s workshop.

The motorcycle was registered to Matthew Ryan who lived near Cessnock. He had sold his bike on or around 28 March 2012 to a person called Christopher Madden. Mr Madden did not use his own name when purchasing the motorcycle. He discarded the phone he used to contact Mr Ryan. Mr Madden, using a different phone, contacted Mr Ferguson both before and after purchase of the motorcycle. He drove directly to Mr Ferguson’s workplace at Unanderra after purchasing the motorcycle.

It was open to the jury to find that the motorcycle was purchased for use in the drive-by shooting in circumstances which could not be traced to Mr Wiggins.

The element that was in issue at the applicant’s trial was whether the Crown could prove beyond reasonable doubt that he intentionally assisted or encouraged Mr Wiggins to murder the deceased by procuring the pistol and providing it to Mr Wiggins to use to shoot the deceased, either with the intention that Mr Wiggins would kill the deceased or cause him grievous bodily harm. The jury was directed that unless they were persuaded beyond reasonable doubt that the applicant supplied the pistol to Mr Wiggins with the intention of encouraging or assisting him to murder the deceased he should be acquitted.

The jury was further directed that the only evidence capable of proving that fact to the requisite standard was the evidence of two of the three [redacted] witnesses called by the Crown. They were given the pseudonyms “Mr Williams” and “Mr Baker”. Both witnesses deposed to having had a conversation with the applicant in which he said he organised the murder by providing Mr Wiggins with the pistol that was used to kill the deceased. The jury was further directed that any doubt they had about the truthfulness or reliability of those two witnesses would be fatal to proof of the Crown case and they would be obliged to enter a verdict of not guilty.

The jury was further directed that the evidence of the third [redacted] witness (given the pseudonym Mr Davies) was not a source of evidence directly implicating the applicant as an accessory before the fact to murder. Mr Davies did not give evidence that the applicant disclosed to him that he did any particular act which would constitute evidence of him intentionally encouraging or assisting Mr Wiggins to murder the deceased. The jury was directed that Mr Davies’ evidence was available to them in determining whether the applicant made the admissions to Mr Williams and Mr Baker that he supplied the pistol to Mr Wiggins.

On that analysis, the jury was directed that if they were to reject the evidence of Mr Williams and Mr Baker as untruthful or unreliable, then the evidence of Mr Davies would not be sufficient to sustain a conviction on the Crown case as advanced to the jury and, in those circumstances, they would be obliged to acquit the accused.

At the trial, the Crown submitted there was a common thread linking the evidence of the three [redacted] witnesses (who were strangers to each other) in the sense that at different places at different times and in different circumstances the applicant spoke to each of them in an unguarded way that revealed his complicity in the deceased’s murder. The Crown emphasised that while the three [redacted] witnesses were witnesses whose evidence attracted a warning under s 165 of the Evidence Act 1995 (NSW) (that their evidence may be unreliable and that the jury needed to exercise caution in deciding whether to accept their evidence and in determining the weight that should be given to it), in combination their evidence was compelling and worthy of acceptance and that in the context of the way the Crown advanced its case at trial, the jury would be satisfied guilt was proved beyond reasonable doubt.

It was the applicant’s case at trial that each of the three [redacted] witnesses were exposed as witnesses whose credibility was questionable given their lengthy exposure to the criminal justice system and the nature and seriousness of the crimes they had committed and, for those reasons and because of the questionable nature of their evidence, the jury should reject them as wholly unreliable witnesses and acquit the applicant.

It was also the applicant’s case that each of the [redacted] witnesses [redacted], whilst that fact alone did not disentitle the jury from considering the evidence of [redacted] in an appropriate case, this was a case where there was little or nothing by way of independent evidence to support the evidence they gave.

Counsel for the applicant did not suggest in his closing address to the jury that police were the source of any of the information volunteered by any of the three [redacted] witnesses or that there was any collaboration between the witnesses. What counsel suggested was that gossip, rumour and media coverage of the deceased’s death provided the basis for each of the three witnesses to script a way of implicating the applicant as an accessory before the fact to murder [redacted].

The applicant also advanced the submission, supported by evidence adduced through his treating psychiatrist, that he was taking prescribed medication in November/December 2011 after becoming highly agitated and distressed when his brother went missing and that, in a highly florid emotional state (as revealed by the telephone intercept evidence) he would be unlikely to be a person trusted to participate in a plan to murder the deceased. He submitted the high probabilities favoured that the drive-by shooting of the deceased by Mr Wiggins was with the knowledge and encouragement of members of the Comanchero motorcycle club who were intent, for their own reasons, on murdering the deceased and that they would be equally as intent on keeping the applicant distant from those arrangements given the risks he posed to exposing them because of his demeanour and the problems with his mental health.

I have undertaken my own analysis of the full complement of the evidence adduced at the applicant’s trial in order to determine whether the evidence of the two critical [redacted] witnesses, considered in the context of all of the evidence adduced at the trial, must have left the jury in doubt about the applicant’s guilt. I do, however, acknowledge and gratefully adopt those parts of Payne JA’s judgment at [14]-[42] where his Honour set out a range of circumstances predating the deceased’s murder, including a summary of the relationships between various individuals who were referred to in the evidence but who did not give evidence in the trial. That summary included the relationship between the applicant and Mr Wiggins. Mr Wiggins did not give evidence at the applicant’s trial.

A central feature of that body of evidence was that a number of people, including the applicant and Mr Wiggins, believed that the deceased was involved in the disappearance and presumed death of the applicant’s brother, Goran Nikolovski, in late October or early November 2011.

The applicant’s intercepted conversations with various of his friends and associates (including, in particular, Mr Wiggins) following his brother’s “disappearance” were relied upon by the Crown as direct evidence that the applicant believed that the deceased was involved in his brother’s presumed death, and as direct evidence of the applicant’s determination to avenge, including by killing the deceased, in what was ultimately planned and executed as a drive-by killing by Mr Wiggins in April 2012 with the applicant’s active encouragement and assistance. While it was no part of the Crown case that the applicant was involved in Mr Madden’s purchase of the motorcycle Mr Wiggins used in the drive-by killing, as I noted earlier, it was open to the jury to find that it had been purchased in circumstances where it could not be linked to Mr Wiggins.

It was also the Crown case that the friendship between Mr Wiggins and Goran Nikolovski, and Mr Wiggins’ shared belief with the applicant that the deceased had killed his friend, provides the explanation for the role he played as the drive-by shooter.

The intercepted telephone calls in November and December 2011 in which the applicant featured either in direct dialogue with Mr Wiggins or Andre James, a close associate of Mr Buddle, the then national president of the Comancheros, were played to the jury and tendered. A transcript of those calls was also tendered. The same telephone intercepts were also relied upon in the Crown’s closing address as a source of evidence eliminating others who the Crown recognised as having an “interest” in seeing the deceased killed, including members of the Comancheros motorcycle gang.

In closing address the Crown relied upon the tone of the applicant’s recorded voice when he repeatedly and angrily expressed his desire to exact revenge for his brother’s death by killing the deceased, and on the fact that, in the Crown’s submission, the jury would not accept that the applicant was simply angry at the loss of his brother and, in effect, shooting his mouth off by making idle threats. The threats were described by the Crown as “vigorous, highly emotional threats” on the deceased’s life and that the jury would come to the same conclusion when they listened to them.

The intercepted calls in November and December 2011 included three conversations or recorded messages between the deceased and the applicant on 8 November, 10 November and 7 December 2011, that is, after Goran Nikolovski’s disappearance and the finding of his burnt out car some days later and the arson of the deceased’s home within days of that, a fire the applicant told a number of people in recorded conversations on 5 November 2011 he believed was deliberately lit by the deceased to conceal evidence of his involvement in his brother’s death. There was evidence from the officer in charge that arson detectives also were of the view that the fire had been deliberately lit, given the location of the seat of the fire and evidence of the use of an accelerant. A claim for insurance was rejected.

The three calls or messages between the applicant and the deceased (the first of which was initiated by the deceased) put it beyond doubt that he had heard that the applicant was accusing him of being implicated in Goran Nikolovski’s death, an allegation which he vehemently denied, and that it was agreed the two men should meet in order that they might discuss that state of affairs. It is not clear whether the meeting took place.

The Crown submitted that a close analysis of those three calls (and the calls between the applicant and Mr James about the proposed meeting) revealed that the applicant was playing a game with the deceased by suggesting to him that he knew he had nothing to do with the death or disappearance of his brother while actually planning a meeting so he could confront the deceased and do him harm.

On the Crown case, that is revealed in a phone call to Mr James on 9 November 2011 about a potential meeting with the deceased:

The Crown invited the jury to find that the applicant was also deliberately dissembling when he assured the deceased in a telephone conversation on 7 December 2011 that neither he nor Mr Buddle “had a hit” on the deceased, and that he did not have much to do with Mr Buddle and that the deceased “shouldn’t listen to that bullshit”.

There was no electronic or physical surveillance of the applicant, or those with whom he was in telephone contact, including Mr Wiggins, in the days or weeks before the deceased was murdered on 14 April 2012, and no electronic surveillance of any members of the Comancheros motorcycle club at that time. The Crown did, however, rely upon the fact that the applicant and Mr Wiggins exchanged 17 text messages on the day of the murder as evidence in support of its case that Mr Wiggins’ drive-by shooting of the deceased shortly after 5pm that day was with the applicant’s knowledge and encouragement. The Crown also emphasised in its closing address that neither the applicant nor Mr Wiggins were using their telephone at the time of the killing and for some hours both preceding and after the fact. That evidence was before the jury in two documentary exhibits. Exhibit F recorded seven calls passing between the applicant and Mr Wiggins between 12:09pm and 12:45pm and ten calls between 7:48pm and 8:27pm on 14 April 2012. Neither the duration nor content of those calls was in evidence. Exhibit G was a graph of the extent of telephone contact between the applicant and Mr Wiggins in the three weeks between 4 April and 29 April 2012 which established that contact on 14 April 2012 far exceeded the concentration of contact on any other day by a very considerable margin.

After the deceased’s murder in April 2012, the applicant’s telephone service was again intercepted: from 24 May to 29 May 2012 and from 27 September to 13 December 2012. That evidence was relied upon by the Crown as evidence of the continued association between the applicant and Mr Wiggins.

The identity of other people who also believed the deceased was involved in Goran Nikolovski’s “disappearance”, and their relationship with the applicant, was adduced both in general terms through the evidence of the officer in charge and revealed in the telephone intercept evidence.

The officer in charge gave evidence that the police learnt of the otherwise privately held views of those people by the lawful interception of telephone services associated with various members and associates of the Comancheros, an outlaw motorcycle gang active in the Wollongong area, as part of a police investigation into what was believed to have been Goran Nikolovski’s involvement in the drive-by killing of Saso Ristevski on 28 September 2011 and Goran Nikolovski’s death in late October or early November 2011, believed to have been in retaliation for Mr Ristevski’s murder. Goran Nikolovski was a member of that motorcycle gang. Both Goran Nikolovski and Mr Ristevski were convicted drug traffickers and had served prison sentences. Their relationship had become acrimonious.

The deceased was also a member of the Comancheros at the time of Saso Ristevski’s death in September 2011 and Goran Nikolovski’s “disappearance” in October/November 2011. He was excommunicated in January 2012 following a rancorous rift with those who were senior in the command structure of the motorcycle gang, including, in particular, Mr Buddle.

The intercepted telephone calls in November and December 2011 revealed a level of interest members of the Comancheros, including Mr Buddle had in targeting the deceased for Goran Nikolovski’s murder (about which the deceased had fears he later raised with his lawyer at a conference on 22 December 2011 about an unrelated legal matter and which he repeated to his lawyer after he had been shot and injured in a drive-by shooting on 29 January 2012). However, Mr Buddle had left the Australia by the time of the deceased’s murder on 14 April 2012. Furthermore, the two men who were charged with the shooting on 29 January 2012 were in custody on the date of the deceased’s murder.

The evidence of the January shooting of the deceased was adduced through the officer in charge. He gave evidence that on 29 January 2012 the deceased was shot in the groin by one of two men in a vehicle that pulled up in front of his home. The deceased was hospitalised from 29 January to 18 February 2012. There was no evidence adduced at the trial as to whether the two men who were ultimately charged with that offence were acting alone or on behalf of others, including Mr Buddle. The evidence went no higher than the deceased’s lawyer giving evidence that the deceased told her that he had received “a death threat” from Mr Buddle as a consequence of his fallout with the motorcycle gang and his refusal to return his club colours and his motorcycle at Mr Buddle’s command.

The deceased’s lawyer also gave evidence that sometime after February 2012, at a chance meeting at the Crown Central shopping centre in Wollongong, the deceased also told her he had “sat down” with the applicant and had impressed upon him that he had nothing to do with his brother’s disappearance, that he “loved [Goran]” and that the police were falsely accusing him of being implicated in his disappearance. The lawyer gave no evidence as to whether the applicant said anything in response.

It is clear to me, however, as it would have been to the jury, that across the body of the intercepted telephone conversations in November and December 2011, the applicant’s suspicions maturing to the point of absolute belief in the truth of the rumours that the deceased was responsible for his brother’s death and that he was “on a mission” to exact revenge and to find out anyone else who was involved was unwavering. On the Crown case, even after the deceased was murdered, the applicant’s obsession with exacting revenge on anyone implicated in his brother’s death continued unabated.

It was the Crown case that the passage of months after Goran Nikolovski’s disappearance in October/November 2011 and the drive-by shooting of the deceased in April 2012 is capable of being explained by the confluence of a number of factors. The first is the fact that the applicant knew he was under police surveillance in November and December 2011 and well appreciated that however determined he was to seriously harm the deceased or even kill him, he was repeatedly cautioned by Mr James, amongst others, that that it would be foolish to act impetuously as he would be immediately charged if the deceased was attacked or killed. In that context, the Crown pointed to a conversation between the applicant and Mr James on 9 November 2011 where, in a lengthy conversation about a range of matters, on the issue of police surveillance he said:

Another factor the Crown pointed to was the fact that the applicant was hospitalised for a stomach condition between 26 November 2011 and 2 December 2011 and the deceased was hospitalised following the drive-by shooting of him on 29 January 2012 and that he remained in hospital until 18 February 2012.

The following extracts from the Crown’s comprehensive summary of the calls in November and December 2011, prepared for the purposes of the appeal and tendered or played in full at the applicant’s trial (some of which were directly referenced by the Crown in his closing address), were relied upon by the Crown on the appeal to exemplify the fervour which accompanied the applicant’s stated determination to avenge the death of his brother, by contacting the deceased and doing him harm.

On 5 November 2011 (the day of the arson of the deceased’s home), in separate phone calls, the applicant told Mr Wiggins and Mr James that he believed the deceased burned his own house down to get rid of the evidence which implicated him in Goran Nikolovski’s murder.

On 6 November 2011 (the day after the arson of the deceased’s home) at 10:09am, the applicant called Mr James. He was emotional and asked Mr James to stay with him. The applicant said if he did not come it could be his (the applicant’s) last “free day on earth”. The applicant said his brother was missing and he was starting to lose his cool. He said, “I’m not saying I want to go down there and blow him [the deceased] away in the middle of the mall…I just want to go see him…I’ll probably pump him”.

The applicant told Mr James he had been trying to locate the deceased and had the boys out looking for him. He said his brother was looking down on him saying “fucking do something”. The applicant questioned what his brother would do if the situation was reversed. Mr James said Goran would want the applicant to rest and chill. He told the applicant to relax because he was under police surveillance. James said, “what use are you if you’re in jail?”. He told the applicant not to do something he would regret for the rest of his life.

Later on 6 November 2011 at 5:12pm, Mr James telephoned the applicant. The applicant said:

The applicant said:

Mr James told the applicant to calm down and not do something he would regret. The applicant said that his brother was gone and that:

He went on to say:

At 9:46pm on the same day, Mr James called the applicant. The applicant told him that he was “going to kick heads, finished, that’s it. I’m going to get Darko [the deceased] right now. Right now.” The applicant said that the deceased threatened one of his friends. He asked Mr James if he had contact with “Butts” (a reference to Mr Buddle). James said Butts’ phone was off. Mr James asked about “Spelly” (an associate of the deceased): [2]

The applicant said Mr Wiggins would also be coming. Mr James told the applicant to be careful.

On 9 November 2011 at 5:01pm, the applicant called Mr James. (The previous day was the first of three calls passing between the deceased and the applicant in which the deceased expressed his fury at the applicant accusing him of involvement in Goran Nikolovksi’s death. It would appear that call was recorded on an answering machine.)

The applicant said to Mr James (clearly a reference to the call the applicant had received from the deceased):

The applicant said he sent “him” a message about where they can catch up and received no reply. The applicant said, “[The deceased’s] a fucking maggot, mate”.

Mr James told the applicant to ring the deceased and catch up with him. The applicant said, “Listen to me Drae. This is exactly what I’m going to do. I’m going to fucking kill him with my bare hands, [3] I’m going to. I don’t give a fuck who’s listening or what. I fucking can’t, I’m fucking just trying to live my life, man, and I can’t.” [4]

The applicant said he can’t rely on anyone anymore and to leave it in his hands.

In a call four minutes later, the applicant said to Mr James:

The applicant said the only good thing would be to go meet these people together. He said even still:

In a call the applicant placed to Mr James two hours later (in the course of which the applicant make clear his belief that he was under 24-hour physical police surveillance; a state of affairs Mr James had earlier warned the applicant about), the applicant said to Mr James he was trying to keep together but he was really on edge. He said he was going to ask was why the deceased did not come last night when he seemed cool on the phone.

The applicant told Mr James he was trying to keep it together but that he was really on edge. He said:

Mr James told the applicant not to do anything stupid. The applicant said if he called the deceased and the deceased said something wrong, he would just explode.

The Crown submitted that on a fair and considered reading of the telephone evidence the jury would be satisfied of the applicant’s unrelenting and unwavering belief the deceased should be made to pay for his brother’s disappearance and presumed death and his intensifying determination over a period of weeks to ensure that the deceased should be held to account. In my assessment of the evidence, that submission carried very considerable weight on the conjoined issue of motive and opportunity.

The Crown also submitted that the entire course of the intercepted telephone calls provided ample evidence of the applicant’s capacity and ability to focus on the task of exacting retribution on the deceased, in contrast to the applicant’s case at trial that his mental state was such that he was in no condition to organise for the deceased to be killed. The jury was encouraged to listen to the intercepted calls and to make that assessment for themselves, in particular, having regard to the tone of the applicant’s voice. This Court does not share that advantage.

Given the challenge to the jury’s verdict as unreasonable and unsupported by the evidence, it is necessary to review Mr Williams’ evidence and the evidence of Mr Baker and Mr Davies in detail, including the circumstances in which they provided statements to police.

The Crown adduced evidence from Mr Williams that he had a criminal record including having served a six-year sentence between 2000 and 2006 for a firearms offence, before being imprisoned again in 2007 after he breached parole by becoming involved in the criminal milieu in Kings Cross. The Crown prosecutor also adduced evidence that Mr Williams [redacted] in relation to his criminal involvement in a number of further offences, including firing into a dwelling house with reckless disregard for safety; discharging a firearm with intent to cause grievous bodily harm and the use of an unauthorised pistol (all three offences occurred on the same occasion) and knowingly dealing with $11,500 suspected to be the proceeds of crime.

The circumstances in which Mr Williams committed those offences and other offences were elaborated upon in cross-examination in order to expose what the applicant’s counsel submitted was his admitted dishonesty and the grave concerns the jury would have in accepting him as a credible and reliable witness of truth. They included the following:

The Crown adduced evidence, which was not contested, that while Mr Williams was serving a prison sentence in November 2005 he met Goran Nikolovski who was serving a sentence with Saso Ristevski for drug supply.

Following their release from custody in 2006, Mr Williams remained in contact with Goran Nikolovski and saw him regularly. It was through Goran Nikolovski that Mr Williams met Mr Wiggins who he described as a close friend of Goran. He met the applicant after Goran’s disappearance.

Mr Williams also gave evidence that whilst he was in custody prior to his release in 2006 he received a letter from the deceased introducing himself and asking “for a catch up” after they were released from prison, through their shared association with outlaw motorcycle clubs.

Mr Williams was a member of the Rebels motorcycle club. He agreed that he saw the deceased “reasonably regularly” before he was murdered. He also gave evidence that sometime after Goran Nikolovski’s disappearance the deceased came to the Rebels motorcycle club house and told him that he had killed Goran Nikolovski and that the Comancheros suspected him of the murder and wanted to kill him. That admission was made in the context of the deceased asking Mr Williams to “back him up”, a request Mr Williams refused because he did not want to become involved in any conflict between the two motorcycle clubs. Mr Williams admitted to being a standover man who would, if necessary, use physical violence to protect his criminal clients. He also confirmed in cross examination that he had shot seven people in that role. Mr Williams gave evidence that it was at that time that the deceased said that he had set fire to his own house to get rid of the evidence associating him with Goran Nikolovski’s murder.

The Crown then took Mr Williams to the occasion in June/July 2012 when, at a chance meeting at a local mechanic’s garage where he and the applicant had legitimate business, the applicant walked up to him and said, “Let’s go for a talk”. It is necessary to set out his evidence of what was said in some detail:

The issue of the gun and “who got it” (which he said in evidence in chief was “got” by Matty (Mr Wiggins) on one view contrary to the Crown case) was the subject of cross-examination which clarified the position as follows:

The applicant did not put in issue in the trial that he saw Mr Williams at the garage in June or July 2012, or that upon seeing him he invited Mr Williams to have a conversation with him out of earshot of others. Neither was it in contest that once out of the hearing of others, the applicant immediately challenged Mr Williams, loudly and forcibly, to make his position vis-à-vis the death of his brother clear, which included a suggestion by the applicant that Mr Williams was close to the deceased given a number of Facebook posts where they were photographed together at the time of his brother’s disappearance the previous year. Although that part of Mr Williams’ evidence was not isolated by the cross-examiner as either being said or not said, there was objective evidence that the applicant had commented upon those same Facebook posts and Mr Williams’ apparent closeness with the deceased in an intercepted call with Mr James on 5 November 2011.

After analysing Mr Williams’ evidence of what was said when he met the applicant at the garage, and after taking into account the tone and tenor of that conversation, both as Mr Williams described it and as overheard by others, including the mechanic and Mr Williams’ partner, and after giving weight to the fact that even on the applicant’s case the private communication was initiated by him in order to confront Mr Williams out of the earshot of others with the accusation that he was involved in some way in the disappearance of his brother, I do not regard Mr Williams’ account of the conversation, when considered in its entirety, as incredible or implausible. In my view, his claim to have been given the “green light” by the Comancheros to “get anyone that’s involved” and that he “organised the whole thing” by getting Mr Wiggins to shoot the deceased, has, in the course of that heated conversation, contextual integrity when considered together with the objective evidence of the applicant’s attitude as revealed in the intercepted calls.

In my view, the evidence in the trial allowed the jury to approach its analysis of Mr Williams’ evidence, and to assess for itself his credibility and reliability, on the basis that the defence did not put in issue that when the applicant spoke to him at the garage in mid-2012 after the murder in April 2012 the applicant was of the same fixed frame of mind he had volubly articulated in the intercepted telephone calls in November and December 2011. Although the cross-examiner did not put to Mr Williams precisely what words the applicant used when he demanded Mr Williams tell him what he knew about his brother’s disappearance, the cross-examiner did put as a positive proposition that the applicant accused Mr Williams of having had some involvement in the death of his brother.

In my view, Mr William’s evidence when read in the context of all of the evidence at the trial, including the evidence of Mr Baker and to a lesser extent Mr Davies, and the way in which the applicant conducted himself in the intercepted telephone conversations, was highly probative of the applicant’s guilt.

That is not to say that the challenges to Mr Williams’ reliability because of [redacted] his otherwise highly questionable character as a seasoned criminal and standover man, was without substance, or that the timing of the [redacted] provision of his signed statement to police in December 2013 was unimportant. That occurred at the end of a year during which Mr Williams had [redacted]. However, what remains significant in my view, is the fact that there was no evidence adduced at the trial about the context in which [redacted] about the conversation with the applicant at the garage, or the circumstances in which his statement was ultimately prepared and signed by him other than the following very general questions Mr Williams was asked in cross-examination:

There was no evidence that Mr Williams [redacted] whether he could provide information about the applicant’s involvement in the deceased’s murder, even less what, if anything, he knew or learnt about the status of the police investigation into the applicant’s suspected involvement in that murder in September 2013, after the charge of solicit to murder was “no billed” by the Director of Public Prosecutions. There was no evidence at all as to what evidence was available to investigating police to support laying a charge of assistance before the fact to murder including whether the provenance of the weapon could be traced on any forensic evidence, or the lack of it, connecting the weapon with the applicant and with Mr Williams.

What was ultimately put by cross-examining counsel was that Mr Williams only decided to fabricate his account of the conversation with the applicant by attributing to the applicant an admission to having organised Mr Wiggins to murder the deceased by provision of the pistol (cf. the motorcycle) because of [redacted]. The cross-examiner put the following:

The Crown adduced evidence from Mr Baker that on 8 June 2011 he was charged with eight counts of theft of a motor vehicle and eight counts of aggravated break enter and steal. He was also charged with malicious damage by setting alight a car.

He was at the time detained in custody bail refused.

On 13 November 2011, he was convicted and sentenced in the District Court on an indictment charging him with four counts of aggravated break and enter with the balance of the offences charged on his arrest taken into account in the sentencing process. He was sentenced to imprisonment for 10 years with a non-parole period of 7 years.

It would appear that on 15 October 2014, whilst an appeal against the severity of that sentence was pending in the Court of Criminal Appeal, [redacted]. That officer gave evidence in the trial.

On 30 October 2014, Mr Baker gave a statement to the officer in charge of the investigation which he signed on 16 February 2015.

[redacted]

[redacted]

Mr Baker gave evidence that he knew the applicant's brother in the early 2000 from the Wollongong area and knew of the accused but did not associate with him. He did not know the deceased until hearing of his murder on the news.

He said he renewed his connection with the applicant after the applicant was admitted to custody after being charged with solicit to murder (in January 2013) and after [redacted]. That evidence was not in contest.

Mr Baker also gave evidence (again not contested) that he assisted the applicant to secure a job as a sweeper, a privileged position within the jail, from which they developed a friendship. He said he had a number of conversations with the applicant about his brother’s “disappearance” (which he had seen reported on the news) and although he suggested (again from media reports) that he might have gone overseas, he said the applicant told him “no he’s gone, he’s dead”. Mr Baker gave evidence that the applicant told him that the deceased “had killed his brother” and that the deceased had burned down his house to get rid of the evidence.

Mr Baker said he asked the applicant whether he had anything to do the deceased’s murder. He gave the following evidence:

He also gave the following evidence in relation to Mr Wiggins:

Cross-examining counsel invited Mr Baker to confirm that he suffered from a bipolar disorder which sometimes caused him to engage in repetitive behaviour. That question appeared to have been asked in the context of the witness having, on his own account, repeatedly asked the applicant about Goran Nikolovski’s disappearance.

It was put to Mr Baker that the applicant kept saying “he hadn’t done anything about it, and it was all bullshit” to which the witness responded “Not that words. He just said he had nothing to do with it” (something he had said every day for about a month). [11]

[redacted]. He rejected that proposition as he did the further proposition that the admissions he attributed to the applicant were “invented”.

Of critical significance, as I see it, is that whilst Mr Baker accepted that he [redacted] to be CCTV cameras in operation at the gymnasium he was visiting at the time of the shooting or that that information was otherwise publicly available. Despite that alibi being an integral part of the applicant’s case at trial (The Crown did not put in issue that the applicant was at the gymnasium at the time of the shooting), no attempt was made by cross-examining counsel to attribute a source of Mr Baker’s knowledge of that fact other than from the applicant himself. The applicant’s whereabouts at the time of the shooting formed no part of any media reporting.

[redacted] in which, as the evidence at trial revealed, the applicant had spoken about him strangling the deceased with his “bare hands”. The veiled suggestion that Mr Baker had accessed that information from the brief of evidence served on the applicant and retained by him in his cell was not pursued and certainly not put. Insofar as concerns that part of the conversation in which the applicant admitted to organising the murder and getting the gun, in my view, having regard to all of the evidence in the trial (including Mr Williams who gave similar evidence), it was open to the jury to be satisfied that the applicant did in fact consider it was a perfect plan (for Mr Wiggins to shoot the deceased from a motorbike he was riding with a full motorcycle helmet) but that plan came unstuck because the deceased’s father came out to confront Mr Wiggins, who then left the gun behind.

Although the circumstances in which the deceased was shot were the subject of a report in the Daily Telegraph published on 16 April 2012 [12] (a report which included the fact that the gun pistol had been left behind by the shooter after he was attacked by the deceased’s father) it was not put to Mr Baker that that is where he garnered the information from which he then styled into a conversation he said he had with the applicant in a carefully constructed but wholly fabricated account. The cross-examiner did not seek to contradict the witness or challenge his claim to having no memory of what the cross examiner suggested was the “newspapers mentioning a gun”. Finally, there was no attempt at all to challenge Mr Baker’s evidence that the applicant spoke to Mr Wiggins from inside the jail (as the shooter) on the occasion he spoke of in his evidence, or any attempt to undermine the truthfulness or reliability of his attributing to the applicant feeling sorry for “the young man” who was charged in relation to the motorcycle.

I do not consider Mr Baker’s evidence to be incredible or implausible. To the contrary; it is consistent with crucial features of Mr Williams’ evidence (with no suggestion of collaboration between them) as well as including features of the critical conversation that could only have been volunteered by the applicant, the reference to his “alibi” being the most obvious.

Finally, the Crown adduced evidence from Mr Davies, a third [redacted] witness. He gave evidence that at the time of the applicant’s trial in June 2018 he was in custody pending a sentence hearing in the Local Court after pleading guilty to a number of drug offences, possession of a prohibited weapon without a permit and having possession of a knife in a public place.

He also gave evidence that in June 2015 he had been arrested and charged with a number of offences, the most serious alleging supply of a prohibited drug in a commercial quantity, supply of a prohibited drug in an indictable quantity, together with a series of ongoing drug supplies to an undercover police officer. He gave evidence that three months after he was charged with those offences and refused bail, but before he ultimately entered pleas of guilty to the drug supply counts, [redacted].

[redacted]

[redacted]

Mr Davies gave evidence in chief that he knew the applicant, having met him briefly in 2010 or 2011, and that he developed a closer connection with him in which he visited his home on half a dozen occasions “or ten at the most” in 2014 or 2015. [13]

He gave evidence that on one occasion in March 2015 when he was visiting the applicant he was shown his brother’s car in the garage. He described the car (a six cylinder VL Commodore sedan with a pearl finish with a purple violet overlay) as “like a show car”. [14]

He then gave the following evidence:

In cross-examination Mr Davies rejected the proposition put to him that “his version” of the conversation with the applicant in the garage was invented to falsely incriminate the applicant [redacted]. It was not put to him that he had invented the meeting in the applicant’s garage where he was shown Goran Nikolovski’s car or that there was no conversation at all on that occasion about the applicant being at Court when he was approached by police and rebuffed them. Neither was it suggested by the cross-examiner that there was no discussion at all about the deceased or any suggestion of his involvement in the death of the applicant’s brother.

In cross-examination it was suggested to Mr Davies that he knew at the end of 2014 that the applicant had been charged with being an accessory before the fact to the murder of the deceased and that there had been a lot of publicity about him that time. [17] He denied having been aware of the publicity being a person who did not read the newspaper or watch the television news. There was in fact no evidence adduced at the trial about any publicity at the time the applicant was charged. There was evidence that the disappearance of Goran Nikolovski in October/November 2011 and the murder of the deceased in April 2012 generated what was described as “very considerable publicity in the media”. [18] The accused tendered an article published in the Daily Telegraph on 16 April 2012 entitled “Victim’s father turns on assassin” and an article published in the Illawarra Mercury in September 2012 entitled “Gong murders, disappearance linked: police”. The applicant was not mentioned as a suspect in the deceased’s murder in either publication. Neither was Mr Wiggins mentioned as a suspect. The first article fairly reported the circumstances of the deceased’s murder. The second article focused on the apparent connection between the deceased’s murder in April 2012, Goran Nikolovski’s disappearance and the finding of his burnt out motorcar in November 2011 and the drive-by shooting of Saso Ristevski some weeks earlier.

No evidence was adduced in cross-examination as to the circumstances in which Mr Davies’ statement was prepared by police other than his evidence that he did not write it, from which I assume it was typed by police before being signed by Mr Davies.

The cross-examination focused on Mr Davies’ criminal record and the multiple entries it contained for a range of offences.

To the extent that there was a latent ambiguity in Mr Davies’ account of the conversation as to who he was referring to when he attributed to the applicant the words of reassurance that “he’ll be alright if everyone keeps their mouth shut” and no elaboration of the subject matter of what the applicant meant when he said he “would do it again”, in my view, given the context of the relatively brief conversation in which the applicant (in an unguarded moment) revealed his involvement in the deceased’s murder whilst also revealing, by implication, that others, Mr Wiggins in particular, were also involved the jury would have been left in no doubt that the applicant was saying he would be alright, if others remained silent. Mr Davies’ evidence that he sought to reassure the applicant by saying “don’t worry about [it], you’ll be right, you’ll beat it” gives further context to the fact that they were speaking about the applicant’s then pending trial for murder.

I also regard it as of significance, and a matter capable of being taken into account by the jury as a source of objective support for Mr Davies’ evidence, that he described the applicant’s “rant” about the deceased being out of control on drugs. The applicant’s proven obsession with the deceased as responsible for his brother’s death framed the conversation with Mr Davies in March 2015 in the same way as it framed the conversation he had with Mr Williams three years earlier.

[redacted], in my view, the jury was entitled to treat the conversation he attributed to the applicant as without any of the obvious hallmarks of fabrication. It was neither verbose, detailed, nor overstated. In my view, there cannot be any sustained criticism of the probative weight of his evidence because he did not attribute to the applicant any admission to having provided the pistol to Mr Wiggins. The weight the jury was entitled to give Mr Davies’ evidence in considering whether the Crown had proved the applicant’s guilt beyond reasonable doubt based upon his alleged admissions to Mr Williams and Mr Baker, rested on what Mr Davies said the applicant volunteered, including his implied admission of being involved with others in the murder of the deceased, not on what he did not say.

Given the very careful directions by the trial judge as to the way in which the jury was obliged to approach the evidence of Mr Davies, and given the use to which the Crown sought to put his evidence as supporting its case that the applicant had made admissions to different people in different circumstances and at different times but with a distinct commonality of content, I do not consider that Mr Davies’ evidence, considered together with the full complement of the evidence in the Crown case, had any potential to lead the jury along a path of impermissible reasoning in the sense that they would conclude the applicant must have had something to do with the deceased’s murder, even if the Crown were unable to prove that he supplied the pistol to Mr Wiggins.

I am confidently of the opinion that the evidence adduced at the applicant’s trial, as I have assessed and reviewed it, and the advantage the jury had to make its own critical judgment of the credibility of the three [redacted] witnesses that this Court does not have satisfies me that their verdict should not be disturbed. That is, I am not persuaded that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt as an accessory before the fact to the murder of the deceased by Mr Wiggins.

LONERGAN J: I have had the advantage of reading the judgments of Payne JA and Fullerton J in draft.

I too agree that ground 1 of the appeal should be dismissed for the reasons set out in the judgment of Payne JA. Liars, even inveterate ones, sometimes have truth to tell.

However I am of the view that the verdict is unreasonable and cannot be supported by the evidence and so ground 2 of the appeal has been made out.

I have carried out my own analysis of the evidence and agree with the reasons outlined by Payne JA and in particular, his observations regarding the inadequacy of the nature and content of the evidence of Mr Williams and Mr Baker regarding what they say were separate assertions made to them by the applicant about supply of the gun used in the shooting of Darko Janceski.

Mr Davies’ evidence amounted to nothing more than a recount of indeterminate posturing on the part of the applicant allegedly some time in 2015 which would be almost irrelevant unless it was used to reason that the content of the conversation was in fact a reference to “getting the gun” to kill Darko. I agree with Payne JA that this evidence creates the problem with impermissible reasoning identified by his Honour at [119].

I agree with Fullerton J that the evidence of conversations recorded in the telephone intercepts, particularly in November 2011, is an important part of the evidentiary matrix that must be carefully considered and analysed. However I respectfully take a different view from her Honour as to what this material reveals.

It is unsurprising in the applicant’s milieu that he would speak in colourful terms about avenging his brother’s disappearance and presumed death, particularly in November and December 2011 being the days and weeks after the disappearance. I do not consider the material in these conversations however sheds anything more than emotional or motivational light on the applicant. It does not cross the line into evidence that reveals that he actually planned or took any active step in pursuit of those articulated desires for violence and revenge.

As observed by Payne JA, in truth, the only evidence going to the central topic of “getting the gun” was the evidence of Mr Baker and Mr Williams. Their evidence, for the reasons explained in the judgment of Payne JA, provides an unsafe basis upon which to convict, and when considered in combination with all of the other evidence led at the trial, it would in my opinion be dangerous to allow the guilty verdict to stand.

For these reasons and those articulated by Payne JA in his judgment, I agree with the orders proposed by Payne JA.