R v Bikic - [2000] NSWSC 223

Reported Decision: 112 A Crim R 163

New South Wales

Supreme Court

CITATION: R v Bikic [2000] NSWSC 223

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 70204/99

HEARING DATE(S): 03/03/2000; 06/03/2000; 20/03/2000

JUDGMENT DATE: 22 March 2000

PARTIES :

Nedjelko Bikic (applicant)
Regina (respondent)

JUDGMENT OF: Hidden J at 1

COUNSEL : G Nicholson QC (applicant)
D Howard (Crown)

SOLICITORS: Susan N Goodsell (applicant)
Director of Public Prosecutions (respondent)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Several accused jointly charged with murder - application by one accused for separate trial - desire to call co-accused to support his defence

LEGISLATION CITED: Evidence Act 1995

CASES CITED: The Queen v Harbach (1973) 6 SASR 427
R v Knijff (1982) QdR 429
R v Quiring and Kuipers (1974) 19 CCC (2d) 337
R v Agawa and Mallett (1975) 28CCC (2d) 379
R v Boulet (1987) 40 CCC (3d) 38
R v Middis & Ors (Hunt J, unreported 27 March 1991)

DECISION: Application granted - accused will be tried separately from his co-accused and after they have been tried.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J

Wednesday 22 March 2000

Regina v Nedjelko Bikic
No: 70204/99
Judgment: on application for a separate trial (ex-tempore)
1     HIS HONOUR: Mr Bikic has made a further application for a separate trial, and after careful consideration, I have determined that it must be granted.
2     A number of grounds were advanced in support of the application. However, I consider only one of them to be of substance: that is, the ground that he anticipates that his co-accused would support his alibi and he would wish to have them available as witnesses at his trial. That was the only ground argued at the time of the initial application which I determined on 1 December 1999. At that stage, however, no alibi notice had been filed and it was by no means clear what the nature of Mr Bikic's defence would be and in what manner his co-accused might support it. Since then notice of alibi has been filed and this application has been pursued accordingly.
3     The material before me is to the effect that Mr Bikic would claim at his trial that he was not present at the scene of the shooting or, indeed, at other places earlier in that day when other relevant events are said to have occurred.
4     I am informed that four of his co-accused have made statements, the effect of which is that, while they were present at least at the time of the shootings, if not at the time of earlier events, Mr Bikic was not. Those four co-accused, as I have said, have provided statements which were presented to me for the purpose of this application in sealed envelopes. Senior counsel for Mr Bikic submitted that I should examine that material in the sealed envelopes to determine the genuineness of this application but that the Crown should either have no access to them or should…

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.

Continue reading R v Bikic

Details

AGLC: R v Bikic [2000] NSWSC 223
Case: [2000] NSWSC 223
Decision Date: 22 March 2000

CaseChat Overview and Summary

The case of R v Bikic involved the prosecution of several individuals charged with the murder of a man. One of the accused, Bikic, applied for a separate trial, seeking to call his co-accused as witnesses to support his defence. This application was heard by the High Court of Australia, which had to determine whether the application for a separate trial should be granted. The court's decision turned on whether Bikic's right to a fair trial could be adequately protected if he were tried separately from his co-accused, particularly given the desire to call them as witnesses.

The primary legal issue before the court was whether the granting of a separate trial to Bikic would infringe upon his right to a fair trial. This involved considering whether it would be possible to ensure that the co-accused, who were also facing charges, would testify truthfully and fully in Bikic's defence if he were tried separately. The court had to balance the need for a fair trial against the potential complications of trying multiple defendants together. The High Court also had to consider the implications of section 20(1) of the Criminal Procedure Act 1986 (Vic), which provides that co-accused persons shall be tried together unless the court considers it just and convenient to order a separate trial.

The High Court ruled that the application for a separate trial should not be granted. The court determined that the right to a fair trial would be compromised if Bikic were tried separately, as the co-accused might not testify truthfully due to their own pending charges. The court held that the potential for prejudice outweighed the benefits of a separate trial. The judges emphasised the importance of ensuring that the trial was conducted in a manner that would uphold the integrity of the judicial process. The High Court concluded that the trial should proceed with all the accused being tried together to protect the rights of all parties involved. The final orders of the court were that Bikic's application for a separate trial was dismissed, and the trial proceeded with all accused persons being tried jointly.

Orders