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R v Bikic

R v Bikic

Case [2002] NSWCCA 227 20 June 2002

Appeal

Breach of Contract

Miscarriage of Justice

Proof Beyond Reasonable Doubt

Criminal Law

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CITATION: R v Bikic [2002] NSWCCA 227

FILE NUMBER(S): CCA 60298/01

HEARING DATE(S): 12 and 13 December 2001; 25, 26, 27, 28 February, 5 March 2002

JUDGMENT DATE:
20 June 2002

PARTIES :

Regina v Ned Bikic

JUDGMENT OF: Giles JA at 1; Sully J at 354; Levine J at 355

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : SC 70204/99

LOWER COURT JUDICIAL
OFFICER : Hidden J

COUNSEL : S J Odgers QC - Appellant
P G Berman SC & D M Howard - Crown

SOLICITORS: Peter Ash & Associates - Appellant
G Galanis - Crown

CATCHWORDS: CRIMINAL LAW - murder - appeal against convictions - further evidence - whether miscarriage of justice - principles to be applied whether or not fresh evidence - principles to be applied if fresh evidence - whether fresh evidence. CRIMINAL LAW - murder - appeal against convictions - whether misdirection on contemplation required for joint criminal enterprise - contemplation of killings not of crimes. CRIMINAL LAW - murder - appeal against convictions - whether failure to leave defence of provocation or self defence to the jury - realistic possibility as opposed to speculation. CRIMINAL LAW - murder - appeal against convictions - whether failure to give direction that guilt the only rational conclusion - no overarching requirement to give direction - directions concerning proof beyond reasonable doubt sufficed. CRIMINAL LAW - murder - appeal against convictions - whether convictions unreasonable - whether it was open to jury to be satisfied beyond reasonable doubt that appellant was present at crime scene - reliability of evidence of witness - compromised credibility and inconsistency with other evidence considered. inconsistent or otherwise incorrect.

CASES CITED:
Chamberlain v The Queen (No 2) (1984) 153 CLR 521;
Chan Wing-Sui v The Queen (1985) AC 168;
Craig v The King (1933) 49 CLR 429;
Doggett v R (2001) 182 ALR 1;
Gallagher v The Queen (1986) 160 CLR 392;
Grant v The Queen (1975) 11 ALR 503;
Green v The King (1939) 61 CLR 167;
Hui Chi-Ming v The Queen (1992) 1 AC 34;
Johns v The Queen (1980) 143 CLR 108;
Knight v The Queen (1992) 175 CLR 495;
Lawless v The Queen (1979)142 CLR 659;
M v The Queen (1994) 181 CLR 487;
Markby v The Queen (1978) 140 CLR 108;
McAuliffe v The Queen (1995) 183 CLR 108;
McGreevy v Director of Public Prosecutions (1973) 1 WLR 276;
Mickelberg v The Queen (1989) 167 CLR 259;
Mills v The Queen (1986) 61 ALJR 59;
Osland v The Queen (1998) 197 CLR 316;
R v Birks (1990) 19 NSWLR 677;
R v Clarke (CCA, 29 March 1995, unreported);
R v Hyde (1991) 1 QB 134;
R v Ilic (2000) 118 A Crim R 378;
R v Kear (1997) 2 VR 555;
R v Jenner & Masters (2000) 110 A Crim R 512;
R v Koeleman

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 [2002] NSWCCA 227
Case: [2002] NSWCCA 227
Decision Date: 20 June 2002

CaseChat Overview and Summary

In the case of R v Bikic, the appellant appealed against his convictions for murder, challenging the legal decisions and the sufficiency of the evidence presented at his trial. The appellant was convicted of participating in a joint criminal enterprise that resulted in the deaths of two individuals. The appeal was heard in the Court of Appeal, which examined various grounds for the appellant’s dissatisfaction with the trial court’s decisions. The central issues in the appeal revolved around the handling of fresh evidence, the jury’s understanding of the contemplation required for a joint criminal enterprise, the omission of defences such as provocation or self-defence, the adequacy of directions concerning proof beyond reasonable doubt, and the overall reasonableness of the jury’s verdict in light of the evidence presented.

The court was tasked with determining whether the trial court misapplied principles regarding fresh evidence, whether there was a misdirection concerning the legal requirements for a joint criminal enterprise, and whether the trial court failed to leave certain defences to the jury. Additionally, the court examined if the trial court erred by not providing a specific direction that guilt must be the only rational conclusion, and whether the jury’s verdict was unreasonable given the evidence. The court found that the trial judge correctly applied the principles concerning fresh evidence and did not misdirect the jury on the contemplation required for a joint criminal enterprise. The court also held that the trial judge adequately covered the proof beyond reasonable doubt and that the jury’s verdict was open to them based on the evidence presented.

The Court of Appeal held that the appellant's appeal was not successful on any of the grounds presented. The court concluded that the trial court’s handling of fresh evidence was appropriate and that there was no misdirection regarding the joint criminal enterprise. The court also determined that the trial judge had sufficiently covered the defences of provocation and self-defence, and that the jury’s verdict was open to them based on the evidence presented. Consequently, the appeal was dismissed, and the appellant’s convictions for murder were upheld.

Orders