LAWYER CALLS FOR CORONIAL INQUEST INTO DISAPPEARANCE AND PRESUMED DEATH OF GORAN NIKOLOVSKI
Almost five years after Mr Goran Nikolovski disappeared, leading NSW criminal defence lawyer Mr Aaron Kernaghan is calling upon the NSW State Coroner to open an investigation and to hold hearings into the death of Mr Nikolovski who went missing in October of 2011. Mr Nikolovski’s burned-out car was found at Macquarie Pass on 1 November, 2011 and he has not been seen since his disappearance.
Lawyer for the Nikolovski family, Mr Aaron Kernaghan said:
“It’s a shocking state of affairs to find that my clients, grieving for the loss of one son while the Police accuse the other son of horrendous crimes, have no answers. How can it be that in this day and age, the NSW Police, with all its resources have no answers after five years? How can it be that the State Coroner has not been involved? How can it be that this case is just disappearing beneath the waves of Police business elsewhere? One of our fellow citizens is missing and it’s unacceptable to have nothing to show for what seems to be a massive coordinated Police investigation.”
Despite the fact that Police have been interrupting the grieving family’s life by checking that their remaining son, Robert Nikolovski, is complying with bail, they have nothing to tell the family about their son’s disappearance or presumed murder.
“The resources that NSW Police are investing in checking whether or not Mr Robert Nikolovski is at home with his mum each night perhaps need to be reshaped and redirected into finding out where one of our community members has vanished to. After five years, the very least that the family can expect is that there be an open inquiry by the Coroner to determine what has happened and, if necessary, why has the Police investigation so miserably stalled?”
Despite the horror of having to live with the disappearance of their eldest son, the Nikolovski family continue to have to confront serious allegations against their remaining son, Robert Nikolovski:
“The allegations against Robert Nikolovski add insult to injury – they are allegations bought for a second time after the Director of Public Prosecutions dropped the original charges, now they’re having another go. If only they showed so much interest in the disappearance of Goran, the family and the community might have more confidence. The problem is that when an investigation lacks transparency and lingers on for as long as this apparently has, it undermines the credibility of those doing the investigating. It is now necessary to review and consider the conduct of Police charged with the responsibility of finding answers for the community into the disappearance and presumed murder. Serious questions must also be asked about whether or not those investigating the disappearance of Goran are involved in the investigation against Robert and if so, to what extent a conflict of interest has spoiled their efforts.”
Mr Kernaghan heads a law firm specialising in criminal defence litigation and representation throughout New South Wales and Australia. Mr Kernaghan acts on behalf of Mr Robert Nikolovski in all court related proceedings.
On 14 April 2016 the Court of Criminal Appeal allowed an appeal against the sentence imposed upon Brenda Lee Haines for murder and made orders resentencing Ms Haines and releasing her forthwith. Today the Court published its reasons for that decision.
Ms Haines committed the offence on 3 March 2001 but was found unfit to be tried and remained in custody and under the supervision of the Mental Health Review Tribunal until April 2013, when the Tribunal formed the opinion that she had become fit to be tried.
On arraignment, she entered a plea of not guilty by reason of the defence of mental illness on the basis of an expert report which had been provided to Ms Haines’ legal advisers in which the author, a psychiatrist, expressed the opinion that such a defence was available.
However, prior to the trial, the psychiatrist provided a further report in which he withdrew his opinion as to the availability of the mental illness defence. Four days later, Ms Haines was re-arraigned and pleaded guilty.
The sentencing judge found that Ms Haines had not pleaded guilty at the first reasonable opportunity after she had been found fit to plead. Allowing for a discount of 15% for the plea, his Honour sentenced Ms Haines to imprisonment for 17 years with a non-parole period of 12 years and 9 months.
But the Court of Criminal Appeal found that, in the circumstances, Ms Haines had pleaded guilty as soon as reasonably possible, having done so almost immediately after it became apparent that the defence of mental illness was no longer available to her. The Court was of the view that, in the exceptional circumstances of the case, the reason for the delay in entering the guilty plea ought to have been taken into account and, accordingly, she was entitled to the maximum 25% discount for the plea. Adopting the same starting point as the sentencing judge, the head sentence on resentencing was one that expired on 2 March 2016.
Full Judgement here.
Extract below from the “Determination” section of the judgment:
- “In the present case, the challenge to the sentencing judge’s assessment of the discount for the guilty plea requires demonstration of error of the kind referred to in House v The King  HCA 40; (1936) 55 CLR 499 at 505. It is clear from his Honour’s reasons that he had in mind, when setting out the chronology of events in relation to the guilty plea, that the psychiatrist who had been retained on Ms Haines’ behalf had withdrawn his opinion as to the availability of the defence of mental illness () (and to the steps that had been taken to limit the length and complexity of the trial). Nevertheless, it is not apparent how that factor was taken into account, if at all, in his Honour’s assessment that Ms Haines did not plead guilty at the “first reasonable opportunity after she became able to do so” ().
- Having regard to her long history of mental illness, during which time his Honour accepted Ms Haines could not have pleaded guilty, and the reliance that one would expect to be placed by Ms Haines and her legal advisers on the assessment of a specialist forensic psychiatrist in determining the availability of a defence of mental illness, in all the circumstances it must be concluded that his Honour erred in finding that Ms Haines did not plead guilty at the first opportunity when it was reasonable for her to do so.
- In those circumstances the sentencing discretion miscarried. Having regard to the fact that there was almost no delay in her change of plea once Dr Giuffrida confirmed his change of mind and expressed the opinion that she probably did not have such a defence, it can be inferred that had Dr Giuffrida been from the outset of the view that he ultimately reached then there would have been a plea of guilty when Ms Haines was first arraigned. The delay caused by the vacation of the May trial date was clearly for the purpose of enabling certainty as to Dr Giuffrida’s assessment of her mental state at the relevant time.
- In the exceptional circumstances of this case, the reason for the delay in entering a guilty plea must be taken into account, as must the fact that Ms Haines had also co-operated in confining the issues to be dealt with at the trial, which was not to take place before a jury, to the testing of the evidence of the two psychiatrists. The effect of the latter is that the utilitarian value of the guilty plea, even though only shortly before the trial date, remained high.”
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The UN Office on Drugs and Crime(UNODC) released the results of the Global Study on Homicide 2013 (GSH) [official websites] which detailed the global prevalence of intentional homicides, finding 437,000 homicides in 2012. The UNODC collected [UN News Centre report] a wide breadth of statistical data including identities of perpetrators and victims, murder weapons, and murder rates by nation. The highest global murder rates were found in Africa and the Americas, and the data showed that nearly 750 million people live in the countries with the highest murder rates, meaning that almost half of all murders occur in countries home to only eleven percent of the world’s population.
The study also showed other findings, such as disparities between victim and perpetrator rates based on age and sex, and whether victims were more or less likely to have been killed by unknown person or by an acquaintance. Data showed that female victims were overwhelmingly more likely to be killed by people close to them and many of the murders were the result of domestic violence.
The study also collected extrinsic data, finding that 4 in 10 homicides involve a firearm as the murder weapon, and that the use of alcohol was involved in more than half of all homicides in certain countries. Conviction rates were also tracked, showing an average of 43 percent, but a large disparity across regions, with rates of 24 percent in the Americas, 48 percent in Asia, and 81 percent in Europe.
From Jurist.org – more information and full article here.