A NEWCASTLE Supreme Court jury has been directed to find Jesse Nikolovski not guilty of the murder of small-time cannabis dealer Robbie Parry due to insufficient evidence.
Justice Helen Wilson made the directed verdict at the conclusion of the prosecution case on Monday, ruling that Mr Nikolovski, 24, of Mayfield, could not have known the firearm allegedly used to shoot Mr Parry was loaded.
The murder charge against accused gunman Daniel Petryk, 25, of Windale, remains and both Mr Petryk and Mr Nikolovski are both still charged with armed robbery in relation to the alleged “drug rip” home invasion at Mr Parry’s home in Dickson Street, Wickham in the early hours of March 7, 2015.
“As a matter of law, I have concluded that the evidence does not in fact establish a charge of murder against Mr Nikolovski,” Justice Wilson told the jury on Monday afternoon.
“One of the things that the crown has to prove with respect to Mr Nikolovski, bearing in mind that the evidence is he did not have a gun on this night and he did not discharge a gun, is that Mr Nikolovski contemplated the possibility that the gun would be discharged as it was and it would kill someone. “Here, [the key witness in the trial] has given evidence that Mr Petryk said to her and Mr Nikolovski in a conversation that Mr Nikolovski was apart of that; firstly, the gun was not loaded and secondly, there was no ammunition.
“That means that the evidence with respect to Mr Nikolovski is that, in my judgement, there is simply no basis to conclude that he could have foreseen a possibility that the gun would be discharged and someone would be killed.”
The foreperson then formally delivered a not guilty verdict in relation to the murder charge against Mr Nikolovski.
Justice Wilson’s judgement and direction to the jury was precipitated by an application from Mr Nikolovski’s barrister, Philip Massey, who, at the conclusion of the prosecution case, submitted that there was no evidence to prove his client was guilty of murder under the principle of extended joint criminal enterprise.
Mr Massey said the evidence from the prosecution’s key witness, who says she was there at the time Mr Parry was killed, was that Mr Petryk had told Mr Nikolovski the gun wasn’t loaded and was just there to “look scary” in case they were confronted.