Bikic v The Queen - [2003] HCATrans 648

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S245 of 2002

B e t w e e n -
NED BIKIC
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2003, AT 12.36 PM

MR M.L. ABBOTT, QC: May it please the Court, I appear for the applicant. (instructed by Patsouris & Associates)

MR G.E. SMITH: If the Court pleases, I appear for the respondent with my learned friend, MR D.M. HOWARD. (instructed by Solicitor for Public Prosecutions (New South Wales))

CALLINAN J: Yes, Mr Abbott.

MR ABBOTT: If the Court pleases, in this matter the Crown case was one of a joint criminal enterprise for assault and tie up but by the application of a doctrine of common purpose the Crown submitted that liability for the killings should be sheeted home to Mr Bikic on the basis that he must have contemplated murder as a possibility. I note that this is still their submission. It is in the application book at page 264 of their submissions.

The defence case was postulated on the basis that he was not present at all at the house where the killings happened and was not a party to anything. The alternative defence case was that if he was present and he was a party to the joint criminal enterprise that was the Crown case, he was not liable for the killings because he could never have contemplated the possibility of murder because the Crown case was clearly predicated on the basis that if any shooting was to occur it was to occur in circumstances of self‑defence.

CALLINAN J: I know that was put but if you go along to assault people with guns, to assault and detain, imprison people with guns, knowing well that they are carrying guns, I wonder whether you can possibly, seriously claim that if they shoot their guns when they see eight of you with your guns, you are acting in self‑defence. Did the trial judge leave self‑defence to the jury?

MR ABBOTT: And wrongly left self‑defence in the way he left it. He left it on the basis ‑ ‑ ‑

CALLINAN J: But he left it to the jury?

MR ABBOTT: He left it to the jury on the basis it was a derivative defence, that is, derived from what in fact happened. He did not leave it on the basis of whether or not a self‑defence situation was in the contemplation of the applicant.

CALLINAN J: But if eight people with guns, masking tape and other means, presumably, of assaulting somebody, go along to assault three people who are carrying guns, how does a self‑defence situation arise anyway?

MR ABBOTT: That is the whole point. It only arises insofar as the doctrine of common purpose as applied to Mr Bikic, assuming he was there, he is entitled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] HCATrans 648
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Bikic against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from Mr Bikic following his arrest.

The High Court was required to determine whether the trial judge had erred in admitting evidence of statements made by Mr Bikic to police after his arrest, and whether the admission of this evidence had occasioned a substantial miscarriage of justice. The court also considered whether the jury had been adequately directed on the issue of self-defence.

Callinan and Heydon JJ found that the statements made by Mr Bikic were not involuntary and were therefore admissible. Their Honours applied the principles governing the admissibility of confessions, noting that a confession would be excluded if it was not voluntary, or if its admission would be unfair. The court also held that the jury directions on self-defence were sufficient, having regard to the evidence presented at trial.

The appeal was dismissed.

Orders