R v Bikic - [2002] NSWCCA 227

No judgment structure available for this case.

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 (2000) 2 VR 20;
R v Lane (1983) VR 449;
R v Lowery and King (No 2) (1972) VR 560;
R v Markulevski (2001) 52 NSWLR 82;
R v Marshall (CCA, 17 July 1990, unreported);
R v Nguyen (1995) 36 NSWLR 397;
R v Powell (1999) 1 AC 1;
R v Sharah (1992) 30 NSWLR 292;
R v Stackelroth (CCA, 3 April 1996, unreported);
R v Tangye (1997) 92 A Crim R 545;
R v Thorpe (1998) 102 Cr App R 278;
Ratten v The Queen (1974) 131 CLR 510;
Shepherd v The Queen (1990) 170 CLR 573;
Van den Hoek v The Queen (1986) 161 CLR 158;
Whitehorn v The Queen (1983) 152 CLR 657;
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645.

DECISION: Appeal dismissed.

CCA 60298/01
SC 70204/99

GILES JA
SULLY J
LEVINE J
Thursday 20 June 2001

Regina v Ned BIKIC

The appellant was charged with murder of Y and U. He was found not guilty of the murder of Y but guilty of his manslaughter, and guilty of the murder of U. The victims were shot in an affray at a house in Bankstown. The Crown contended that the appellant and eight other men were at the house with rope and guns waiting to ambush Y and U. When they arrived, the affray broke out and Y and U were killed. The appellant appealed against the convictions on six grounds.

Grounds 2 and 2A – Directions as to joint criminal enterprise
These grounds were concerned with what had to be contemplated by the appellant as a possibility in the context of a joint criminal enterprise in order that he be criminally responsible for the killings of Y and U. The appellant submitted that it was necessary that he contemplated killings amounting to murder and that a direction to that effect was required. The direction was not required. It is not required where there is agreement to do an act and there is no reason to distinguish between criminal responsibility for an act which is agreed and criminal responsibility for an act which is contemplated as a possibility in carrying out a joint criminal enterprise. The appellant also submitted that it was necessary that what the appellant contemplated be more than a risk he could dismiss as negligible, and that a direction to that effect was required. On the facts that did not arise and the direction was not required.

Ground 3 – Defences of self-defence and provocation
Whether these defences should have been left to the jury as to the killing of U depended on whether there was a real possibility that the jury might reach a view on the facts that would leave open an arguable case of self-defence or provocation. Considering that U’s gun had not been fired, U had no defence injuries and U was set upon by eight men who had been waiting in ambush to restrain him and tie him up, the trial judge was correct in not leaving the defences to the jury.

Ground 5 – Assistance to jury on the drawing of inferences
A direction to the jury that guilt must be the only rational conclusion is no more than an amplification of the rule that the Crown must prove its case beyond reasonable doubt. There is no overarching requirement to give a direction of this kind, and in the circumstances, the directions given by the trial judge were sufficient.

Ground 6 – Whether convictions unreasonable
The appellant submitted that it was not open to the jury to be satisfied beyond reasonable doubt that he was present at the scene of the crime, as the evidence of the witness M was compromised and inconsistent with other evidence. The jury were properly warned, and M’s evidence was confirmed in many ways. On examination of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.

Ground 1 – Further evidence and fresh evidence
The appellant called evidence from a number of witnesses that they did not see the appellant at the scene on the night of the murders, and some gave evidence that another man was involved who could have been mistaken for the appellant. The appellant submitted that even if this was not fresh evidence, it established a miscarriage of justice.

In accordance with Ratten v The Queen (1974) 131 CLR 510, the court decided whether it believed the evidence, and acting on that belief and its own view of the evidence at the trial, whether it was satisfied that the appellant was innocent or whether there was such doubt as to his guilt that the verdicts of guilty could not stand. The court did not believe the evidence. The court then decided whether the evidence in whole or in part was or was to be regarded as fresh evidence, and whether it had the quality required of fresh evidence before it would ground a successful appeal. The evidence was not and was not to be regarded as fresh evidence, and even if it were, it followed from the lack of credibility of the witnesses that a reasonable jury was not likely to believe it.

Doubt was expressed as to the dual approach in accordance with Ratten v The Queen . In case the understanding of Ratten v The Queen was in error, the ultimate question of miscarriage of justice was addressed, and it was held that no miscarriage of justice had been established.

Orders

**********

CCA 60298/01
SC 70204/99

GILES JA
SULLY J
LEVINE J

Thursday 20 June 2002

Regina v Ned BIKIC

Judgment

1 GILES JA: The appellant was indicted on two counts of murder. By the first count it was charged that on 5 April 1998 at Bankstown in the State of New South Wales he murdered Orhan Yildirim. By the second count it was charged that on 5 April 1998 at Bankstown in the State of New South Wales he murdered Mehmet Unsal.

2 The trial before Hidden J and a jury began on 7 March 2001. On 14 May 2001 the appellant was found not guilty of murder but guilty of manslaughter on the first count and guilty of murder on the second count. On 6 July 2001 he was sentenced to an effective term of imprisonment until 5 September 2016 with a non-parole period to expire on 5 September 2011.

3 The appellant appealed against the convictions. He did not appeal against the sentences.

4 The grounds of appeal as filed were -

“1. A miscarriage of justice was caused by the absence at the trial of evidence to be adduced on the appeal.

2. The trial judge erred in his directions to the jury as to the elements of the offence of murder.

3. The trial judge erred in failing to leave the defence of provocation to the jury in respect of the death of Mehmet Unsal.

4. The trial judge misdirected the jury regarding the evidence as to the reputation of Mehmet Unsal and Orhan Yildirim.

5. The trial judge erred in failing to provide any assistance to the jury in respect of the drawing of inferences.

5 By the hearing of the appeal the submissions in support of ground of appeal 3 had taken up the defence of self-defence in addition to the defence of provocation. At the hearing of the appeal ground of appeal 4 was abandoned and a further ground of appeal was added; it can conveniently be regarded as ground of appeal 2A, and was -

“2A. The trial judge erred in his directions to the jury as to the elements of the offence of manslaughter.”

6 Yildirim and Unsal were shot in an affray at 71 Allum Street, Bankstown (“the premises”) on the evening of 5 April 1998. On the Crown case, the appellant and eight other men went to and were at the premises to ambush Yildirim and Unsall, taking guns and rope with which to tie them up; when Yildirim and Unsal entered the premises, there was the affray ending in their deaths. The other men were Raymond Curry, Goran Mackic, Mark May, Carl Mullany, Satuala (Nance or Nances) Nanai, Zeljko (Steve) Nitrovic, Russell Oldham and Arben (Benny) Puta.

7 The appellant underwent an earlier abortive trial. He and six of the other men were charged with the murders of Yildirim and Unsal, and went to a joint trial before Hidden J and a jury commencing on 3 April 2000. The six men were Curry, Mackic, Nanai, Nitrovic, Oldham and Puta. May and Mullany received indemnities against prosecution and gave evidence for the Crown. On 13 June 2000 the appellant was discharged from the joint trial. The joint trial continued in relation to his former co-accused, and all were found guilty of murder or manslaughter.

8 At the appellant’s separate trial he formally admitted a number of matters, including that Curry, Mackic, Nanai, Nitrovic and Oldham went to the premises on the evening of 5 April 1998; that Puta was present when they arrived; that Yildirim and Unsal then entered the premises; that there was a violent struggle; and that Yildirim and Unsal were shot and killed. May and Mullany again gave evidence for the Crown, in which they admitted their presence at the premises and their participation in the affray. The killings of Yildirim and Unsal, and the general participation of the appellant’s former co-accused and of May and Mullany, were common ground.

9 The Crown contended that the appellant also went to the premises and participated in the affray. The Crown did not assert that the appellant had shot either Yildirim or Unsal; on the Crown case, the appellant was criminally responsible for the murders of Yildirim and Unsal as a party to a joint criminal enterprise in pursuance of which the killings occurred. The case was left to the jury as one in which the central issue was whether the appellant was present at the premises at the time of the killings, and the jury was instructed that he should be found not guilty if they were not satisfied that he was present. It was expressly stated in the appeal that “the Crown case was never put on the basis of [the appellant] being anything other than present at the premises”.

10 May did not know the appellant and did not identify him as a person present at the premises on the evening of 5 April 1998, although he gave a description of a man who went to the premises and participated in the affray whom the Crown suggested was the appellant. Mullany did know the appellant, and identified him as a man going to the premises and participating in the affray. None of the appellant’s former co-accused gave evidence at the appellant’s separate trial.

11 The grounds of appeal were of three kinds: first, errors in the trial judge’s summing-up in relation to questions other than the central issue (grounds of appeal 2, 2A, 3 and 5); secondly, unreasonable verdicts with particular reference to the central issue (ground of appeal 6); and thirdly, miscarriage of justice in the light of further evidence.

The evidence in outline

12 In the two month trial there was a great deal of evidence. In the way the appeal was conducted, it is not necessary to canvass it all in detail. What follows is against the background that the appellant’s formal admissions included -

“3. The premises at 71 Allum Street, Bankstown were, as at 5 April 1998, residential premises and they were leased to Arben Puta and were the residence of Arben Puta and other persons.

4. The persons Steve Nitrovic, Raymond Curry, Goran Mackic, Russell Oldham and Satuala Nanai on the night of 5 April 1998 travelled with others from the 777 Café in Goulburn Street, Sydney to Bankstown stopping on the way at Central Avenue, Marrickfille. The persons travelled in two motor vehicles, a red Falcon registration number TKA 407 and a black BMW registration number 777 888. The red Falcon was driven by Nitrovic.

5. The two vehicles, the red Falcon and the black BMW, arrived at Bankstown at approximately 9.30 pm on 5 April 1998 and parked in Bower Street, Bankstown.

6. The occupants of the two vehicles then walked together to 71 Allum Street where they entered the premises.

7. When they entered the premises, Arben Puta was present.

8. After a period of time Puta left the premises.

9. At about 10.20 on 5 April 1998 Unsal and Yildirim entered the premises and a violent struggle ensued. Unsal and Yildirim were shot and died.”

13 The admissions also included that the Ford was registered in the name of Nitrovic’s mother and that the BMW was registered in the name of Mercrest Pty Ltd and was available for the appellant’s use.

14 The premises were a small suburban dwelling. A hallway ran from the front door into a combined lounge room and kitchen/dining area at the rear of the premises. The hallway was a little wider for approximately the front half of its length than for the rear half, and it did not run straight from the front door to the entrance to the lounge room but had the rear half off-set to the right as one passed down the hallway from the front door by about half a metre. On the right as one passed down the hallway from the front door were doorways to three bedrooms, which became known as bedrooms 1, 2 and 3. The doorway to bedroom 1 was a little before the offset and the doorway to bedrooms 2 and 3 were after the offset. The doorway to bedroom 3 was near the entrance to the lounge room. On the left as one passed down the hallway from the front door were a doorway from the attached garage, before the offset and almost opposite the doorway to bedroom 1, and just after the offset a doorway to the bathroom opposite the doorway to bedroom 2. A linen cupboard on the offset faced the front door, between the garage doorway and the bathroom.

15 The hallway was about five and a half metres in length and quite narrow, a little over a metre wide for the front half and a little less than a metre wide for the rear half before the entrance to the lounge room.

16 When the police attended Yildirim’s body was lying in the hallway adjacent to the doorway to the garage. His feet were near the linen cupboard and his head was towards the front door. He had been hit twice on the head, the wounds being consistent with being hit with the butt of the Ruger automatic pistol later mentioned, and had been shot seven times. A bloodstain pattern indicated that Yildirim had been dragged a short distance from nearer the front door. Nitrovic’s blood was found on the wall of the hallway outside bedroom 1.

17 Yildirim had been shot in the back, although the track of one of the wounds was downwards and consistent with him being bent over facing the person firing the gun. Some of the wounds would have been received when Yildirim was not upright, perhaps when he was falling down. At least three of the wounds were from the Ruger automatic pistol, the bullets from that gun being found in his body. At least one of the wounds was from another gun, possibly the Smith & Wesson revolver later mentioned. From deposits left on and in Yildirim’s clothing and his wounds, the guns had been very close or close (up to 600 mm) to Yildirim when fired. As well, there were holes in or damage to Yildirim’s shirt, without corresponding wounds. One bullet had grazed his collar as if fired at Yildirim whilst he was facing the person firing the gun, and another had passed through his shirt in a manner indicating that his shirt had been pulled away from his body as if in a struggle.

18 Yildirim had a knife in his right hand when found. The DNA analysis matched Yildirim’s profile.

19 Unsal’s body was lying in the hallway outside the doorways to bedrooms 2 and 3, with his feet towards the front door and his head towards the entrance to the lounge room and approximately a metre from that entrance. There were two areas of bruising to his head, consistent with being hit with the butt of the Sportco rifle later mentioned, and he had been shot twice, in the head and neck: the neck wound would have brought immediate death. The gun which caused the head wound was fired from up to 450 mm away, and the gun which caused the neck wound was at one point said to have been fired from up to 150 mm away and at another point from up to 600 mm away. A bullet fired from a Ruger revolver was found in the lounge room, having struck the door jamb of bedroom 2 and been deflected into that room, and the neck wound was probably from this bullet. A bullet hole was found in the floor beneath Unsal’s head, but the bullet was not found. Unsal had no defence injuries.

20 A number of guns were found in and in the vicinity of the premises.

21 A Ruger automatic pistol was found in a garden bed in Bower Street some distance from the premises. A swab taken from the gun and subjected to DNA testing matched Nitrovic’s DNA profile, described as a profile occurring in 1 in 750,000,000 in the general population, and Nitrovic’s clothing had residue consistent with proximity to firing a gun. Six spent cases from the Ruger automatic pistol were found in the hallway of the premises. Apart from the bullets in Yildirim’s body, one bullet was found embedded in the floor in the hallway near the front door, one bullet passed through the floor near the front door and was found in the under-floor cavity, and the sixth bullet was not found.

22 A Ruger revolver was found in the lounge room. All five bullets in its chamber had been fired, and three bullets were found. One was the bullet which probably caused Unsal’s neck wound. Another passed through the linen press into the bathroom, having first been deflected from its normal axis of flight: the deflecting contact could have been with many things, including a person or item of clothing. Another bullet passed through the linen press door.

23 A Smith & Wesson revolver was found in a garden bed near the front door of the premises. Four of the six bullets in its chamber had been fired. One bullet was found on the carpet towards the front of the hallway. Some pieces of copper jacket were found in the under-floor cavity near the front door, either part of a single bullet or parts of two different bullets. The other bullets were not found.

24 A Glock automatic pistol was found on the grass verge of Braunbeck Street some distance from the premises. It was registered to Unsal, and a case found in the top pocket of Unsal’s coat had been fired from it, although it could not have come from a firing at the time. An unfired bullet for the Glock automatic pistol was found in another of Unsal’s pockets. When the Glock automatic pistol was found two bullets were jammed in the magazine, although at least one shot already in the chamber could have been fired before the gun jammed: there was no evidence that a shot had in fact been fired. A swab taken from this gun and subjected to DNA analysis matched the profile of Nitrovic. There was no gunshot residue on Unsal indicating that he had fired a gun.

25 A sawn-off Sportco rifle was found in the hallway not far from Yildirim’s body. Its magazine held seven bullets. No fired bullet cases or bullets were found in the premises. A box of identical bullets was found on the top of a cupboard in the lounge room. The box when unopened contained 50 bullets. It had been opened, and contained 43 bullets.

26 As well as the fatal wounds to Yildirim and Unsal, others were wounded in the affray.

27 Mullany was wounded in the right hand. The gun which fired the bullet was not identified.

28 Mullany gave evidence of Nitrovic shouting that Yildirim had a knife, that Yildirim was “thrashing wildly” with what appeared to be a knife, and that Nitrovic appeared to have been cut and “crumpled back” against a wall. A treating doctor gave evidence that Nitrovic had two stab wounds in his right arm and two in his left leg. The appellant’s formal admissions included that Nitrovic was wounded in the affray and was then taken by Curry to Liverpool Hospital.

29 Mullany also gave evidence that as he, May and Oldham ran out of the premises Oldham said “I am cut” and was holding his side. May gave evidence that the man who must have been Oldham said he had been shot. There was evidence that when examined in November 1998 Oldham had lesions consistent with a bullet wound to the chest and a tangential bullet wound to an arm.

30 Mullany gave evidence that Nanai had blood around his shoulder area at one point in the affray. There was evidence that when examined in November 1998 Nanai had a lesion on his right shoulder estimated at three to four months old.

31 Puta was shot in the right thigh. The bullet was not found and the gun from which the bullet was fired was not identified, but the gun was fired at a close distance.

32 Trails of blood led from the premises to the street and surrounding streets, and there was evidence of blood on clothing. By DNA analysis -

(b) blood found on Puta’s T-shirt mostly matched the DNA profile of Unsal, but some of it matched the DNA profile of Mullany;

(c) blood found on Puta’s jeans matched the DNA profile of Nitrovic; and

33 May and Mullany gave evidence of distribution of rubber gloves to the men and Mullany gave evidence of distribution of rope. Lengths of rope were found beneath Yildirim’s leg, in the bathroom and in the sink, and a coil of rope was found on the dining table from which the lengths appeared to have come. Rubber gloves were found in and outside the premises. A glove found in bedroom 3 showed DNA which could have been that of Mullany or Nanai. A pair of gloves found in Glassop Street carried blood matching Mullany’s DNA profile. Other gloves or pieces of gloves were found in and around the premises and in the surrounding streets. The appellant’s formal admissions included that the Ford was located by the police and contained Mackic’s mobile telephone and a box of Ansell rubber gloves, and that the box bore two of Nitrovic’s fingerprints. The rubber gloves were sold in boxes of fifty, and the box as found had 33 gloves.

34 The appellant was one of the lessees of premises in Goulburn Street, Sydney at which there was conducted the 777 Café. His close friend and business associate Tony Vincent was another lessee. They were the proprietors of the café. The stopping-place at Central Avenue, Marrickville on the way to Bankstown was Vincent’s home. The appellant’s formal admissions included that the appellant had been acquainted with Curry for about two years, with Mackic for about three years, with Nitrovic for about 15 or 16 years and with Puta for about 15 years, all before April 1998, and that as at 5 April 1998 Mullany was capable of recognising the appellant. They also included that Curry, Mackic, Nitrovic and Oldham were acquainted with each other; that Curry was acquainted with May, Mullany and Nanai; that Nitrovic was acquainted with Mullany and Puta; and that Mackic was acquainted with Mullany, all prior to 5 April 1998. Vincent also knew the appellant’s former co-accused, with the exceptions of May and Nanai, and as to some was a long-standing friend.

35 May and Mullany gave evidence of events prior to the affray itself, as well as of the affray.

36 May was a cousin of Curry, and was close to him. He had known Nanai for about three years, and Nanai was at his home when he received telephone calls from Curry. After the telephone calls May went in Curry’s car with Curry, Nanai and a man identified only as Colin to the 777 Café. On the way to the café they picked up Mullany. May said that he believed Curry “wanted us to go out with him. That was it, to probably go out, maybe just be with him.”

37 Curry, May, Mullany and Nanai were dropped at the café, and Colin took the car away. May and the others were introduced by Curry to “everybody” in the café, and took a seat at a table in a back corner.

38 May described some of the people in the café. Two men were playing pool, from the descriptions being Mackic and Oldham. There was also “an older guy with long hair” (“the older guy”): this is the man whom the Crown suggested was the appellant. May’s description of the older guy was -

NICHOLSON: And then he went back to his right shoulder and left shoulder and said “all the way round here”, that is what the witness demonstrated.

HIS HONOUR: That is right.

39 May was about 5 feet 9 inches in height. In cross-examination May repeated that the hair of the older guy was straight and dark, and said that it was down to his shoulders, and “not thick” and “thin”. He agreed that it was “the sort of hair that would be taken by two hands and pulled around the head and put in a ponytail”. He also said that the older guy was fair skinned and “wasn’t dark or olive. He was Caucasian”, and was slimmer in build than the others. May had been shown an array of 20 photographs, amongst which was a photograph of the appellant, and had been asked to say if he recognised or identified anyone. He had not picked anyone. The photograph of the appellant had been taken at the time of his arrest in November 1988, when his hair was short.

40 To diverge for a moment from May’s evidence, the appellant gave evidence. He said he had asked Curry, in context after May’s evidence as to the older guy was known or anticipated and it was appreciated that the Crown case included that the older guy was the appellant, who the older guy was. He said that Curry had said that the older guy was a friend of Nitrovic and Puta; that he asked Nitrovic and Puta who the older guy was, and that they had declined to tell him, “No they never want to discuss between themselves even”. He said that Nitrovic and Puta “knew who this person definitely they knew”, that he had not found out from them, and “I been intending to call them but I get legal advice they explain who it was”.

41 Returning to May’s evidence, after about fifteen minutes Curry told May to follow him into the back room of the café. There was no one else there. Curry gave a bundle of money, about $1,000, to May, saying it was “just for coming here”. May said -

42 May said that he saw Mullany and Nanai also go into the back room with Curry and return.

43 About twenty minutes later a man “came up to us and told us where to go”. From May’s description the man was Nitrovic, as appears to have been accepted at the trial, and I will hereafter refer to him by name. May accompanied Curry, the older guy and another man to a dark blue or black two door sports car, and believed that Mullany, Nanai and “whoever was left at the cafeteria” went to a different car. The sports car must have been the BMW. Curry drove, May sat behind him, the older guy sat beside May in the back seat, and the other man sat in the front passenger seat. When asked about the other man in cross-examination May said he was able to say only that he was aged about 30; he had seen him in the café.

44 Curry drove to a street in Marrickville. During the journey the older guy produced a small hand gun, which was passed around and admired. There was talk in the car, although May could not remember saying anything. He tried not to look at the older guy because he wanted to keep to himself. He did not think that the older guy had an accent.

45 The Ford was at the street in Marrickville, and May saw a number of men sitting on a brick fence. Mullany and Nanai were amongst them. He joined the men, as did Curry and the older guy. May, Mullany and Nanai remained sitting on the brick fence, the other men were “sort of milling around and talking amongst themselves with Raymond”. A bag containing rubber gloves and maybe some surgical tape was produced, and the gloves were handed around. May put them on.

46 After a time the men went back to their cars. The occupants of the BMW were as before. They drove to a place in Bankstown. The two cars stopped together. Someone said, “Take off your jewellery”, and May saw Mullany “taking or maybe taking off a watch or something like that”. The group of men included Curry, May, Mullany, Nanai and the older guy. They walked to the premises and went in the front door. May saw at the premises another man whom he believed to be the owner and to be named Puta.

47 May, Mullany and Nanai sat at the dining table in the kitchen/dining area, and the other men were “just milling around the living room”. May marked the positions of the men on a plan of the premises, including the older guy sitting on the lounge. Nine men in all were marked, including “home owner” which must have been Puta. Nitrovic approached May and his companions, and -

48 May saw “some guns being handed around” by the cupboard in the lounge room. The only person he saw actually receive a gun was Nitrovic: it looked like an automatic silver pistol. Another gun looked like a cut down small rifle, and May thought there was a third gun. May heard Puta say, “’No guns, no guns, no shootings.’ Something to that effect.” After the guns had been handed out he heard Puta say, “I go get them. I go get them.” Puta walked towards the front door in the company of the older guy. May did not see either of them again.

49 Nitrovic broke the men up into groups. May and Nanai went into bedroom 3. After a little while Nitrovic came into the bedroom, and “he told us to grab the big guy. That he will be coming in first and that he’s got a gun.” Nitrovic also said, either before the men were separated into groups or to May and Nanai in bedroom 3, something like, “There is going to be no shooting. It’s only if they shoot.” May said he thought that Nitrovic “was just saying that to try and calm us down.”

50 The lights in the premises went out. After five or ten minutes May heard “some knocks on the front door”, and 20 or 30 seconds later some people walking down the hallway talking. He said -

“The lights went on. I heard someone, don’t know if they are the exact words but think I heard someone say ‘grab them’. Rushed out behind Nance because he was standing in front of me, down the hall say 20 [sic: ?2] metres, 8 feet away, looked like a bit of a scuffle, a bit of fighting. I just grabbed the nearest person facing me. I grabbed him from around the waist. I spun around. I was now facing a wall. A split second later I heard ‘bang, bang, bang’. I sort of froze for a sec. I spun around and saw what looked like one bloke lying on the ground and looked like another bloke over the top staggering. I jumped over him, grabbed the door. It was not locked, it was open, and I run out the door.”

51 This was amplified. The man May grabbed was near the linen cupboard, and May’s back was towards the front door. May marked the position of the man he grabbed on a plan. When he grabbed the man there were other men around, but he did not know what happened to them. The man must have been Unsal, since the man lying on the floor over whom May jumped must have been Yildirim. May heard “like six loud bangs, really loud bangs” and coming from behind him, that is in the direction of the front door, and heard something whistle past him which he thought was a bullet. There were other men in the area, “it seemed quite a few people around there”. The man standing over the man lying on the floor was Nitrovic. May was followed out the front door by three other men. From May’s descriptions two of the men were Mackic and Oldham, as appears to have been accepted at the trial, and again I will hereafter refer to them by name. The third man was Mullany. May had not seen Mullany since going into bedroom 3: when he went into bedroom 3, Mullany was at the dining table.

52 May said he thought that the man standing over the man on the floor (Nitrovic) had been shot, because he looked injured and was bent over. In cross-examination he said that Unsal was still “on his feet and alive” when he (May) released him. He said he thought Oldham said he had been shot, and that Oldham was bleeding from a shoulder wound: May gave his T-shirt to Oldham. As May was running down the street he saw that he had blood on his hands and was no longer wearing his gloves.

53 It is not necessary further to detail May’s evidence of what happened after he left the premises.

54 Mullany said that he was picked up by Curry, after a telephone call, at about 7 pm on 5 April 1998. May and Nanai were in the car, and were known to him. Also in the car was a person introduced as Colin.

55 Curry drove to the 777 Café, where the car was parked and its occupants entered the café. Mackic was there, and was already known to Mullany, and another man introduced himself as Russell. Mullany sat with May and Nanai. Mullany gave evidence -

Q. Had you observed any particular position he seemed to occupy there?

OBJECTION

56 Elsewhere in his evidence Mullany described what the appellant looked like that night; his description was -

“I would say in his 50’s, quite slim, and he had sort of medium wavy hair, it was a bit longer at the back, it hung down the back with little curls, his complexion was a bit rough.”

57 Curry took Mullany into the back room. The appellant was there. Mullany greeted the appellant, who greeted him back. Curry said to Mullany, “There is $600 dollars there for a standover job. It’s easy money.” Mullany agreed, and was given one of a number of piles of money on the table. He returned to where he had been sitting. He saw Mackic, May and Nanai go separately into the back room with Curry.

58 In cross-examination Mullany agreed that in the committal proceedings he had said that he had not seen the appellant before going into the back room with Curry. He said that he was probably confused.

59 Mullany then saw Curry talking to the appellant. Curry said to Mullany, “Okay, let’s go”, and told Colin to take the car home. Curry, Mackic, Nanai, Nitrovic, Oldham and Colin left the café. The appellant was still in the café when Mullany left. In cross-examination Mullany agreed that in the committal proceedings he had said that the appellant had already left the café when he (Mullany) left. Curry told Mullany, “You go with Steve”.

60 Mullany followed Nitrovic to the Ford. Nitrovic sat in the driver’s seat. Mullany sat behind him, with Mackic and then Nanai to his left in the rear seat, and Oldham sat in the front passenger seat. The BMW pulled alongside. In it were the appellant in the driver’s seat, Curry in the front passenger seat, and May in the rear seat.

61 The cars drove off. Nitrovic drove the Ford to Newtown, where he stopped near an Amcal chemist. There was a question at the trial and in the appeal over whether, in saying in his evidence that the Ford did not follow the BMW to Newtown, Mullany had contradicted what he had told the police in a statement: I will return to this. Mackic left the car, and returned with an Amcal chemist bag.

62 Nitrovic then drove to Marrickville. The BMW was already there. May, Mullany and Nanai sat on a small brick fence, and Mullany saw Curry and the appellant standing talking on the footpath. He saw Vincent come out of the house and engage Curry and the appellant in conversation. He himself exchanged hellos with Vincent.

63 Curry came over to Mullany and his companions sitting on the brick fence. May “asked him why there were so many guys and what we were getting involved in”. Curry replied, “It’s just a standover. We want this done quickly and quietly , no noise because of the neighbours.”

64 The men returned to their cars. Mullany saw Curry get into the driver’s seat of the BMW, and said that the appellant sat in the front passenger seat and May sat in the rear seat. There was no one else in the car.

65 The cars drove to Bankstown, where the men got out. Curry had a cardboard box in his hands, and from it gave a pair of rubber gloves to Mullany and told him to put them on. There was evidence indicating that the box of gloves had been purchased from the Newtown chemist. Some of the men did put gloves on, Mullany thought the appellant was one who did. Mullany did not put the gloves on at that time, but put them in his pocket. Curry also told Mullany to take his jewellery off, and Mullany did so and put his jewellery and his wallet in the BMW. The men walked to the premises and went in the front door. The door was opened by a man who was introduced to Mullany as Benny; he identified him from photographs as Puta.

66 Mullany went into the lounge room and sat on the lounge. May and Nanai sat with him. Curry, Mackic, and Oldham were there, and he saw Puta speaking to the appellant. Curry “was probably the most active, he was moving between most of the parties”. He saw one of the group of Mackic, Nitrovic and Oldham take a box of bullets from a bag on top of the cabinet in the lounge room.

67 Curry came over to May, Mullany and Nanai. He said, “I want this done quickly and quietly, no noises because of the neighbours. Once on the ground I want you three to walk outside calmly.” Mullany put his rubber gloves on, and saw that “at that time everyone had their gloves on too”. He heard someone say, “gag them and tie their hands, no noise”, and Nitrovic say, “Benny will go and get them.” Puta left the lounge room.

68 A mobile phone rang, and somebody said, “They’ve arrived.” Nitrovic said, “There will be a warning knock and then they will come in.” Curry then told May, Mullany and Nanai that “there was to be two guys, one was larger and one was smaller. He said to Nance and Mark, ‘You guys take the first guy to the house from the third bedroom.’” Mackic produced some nylon rope and said “Gag them, tie their hands”, and demonstrated with the rope. Mullany was given a length of rope.

69 Curry told May and Nanai to go into bedroom 3, and they did so. Mullany went into bedroom 2 with Curry. Curry said to him, “You, Steve and Goran are to take the second guy into the house” and “the others will get them from the front”. Mullany saw Nitrovic and Mackic go into the bathroom.

70 After about ten minutes Mullany went out of bedroom 2 to the entrance to the lounge room. He saw the appellant sitting on the dining table accompanied by Curry and Oldham. He spoke briefly to Curry, then went back into bedroom 2.

71 After about five minutes there was a knock on the front door, and about two minutes later the front door opened. The only lights on were the lights in the lounge room. Mullany saw what he thought was a person pass the doorway to bedroom 2. He heard a loud thud from the direction of bedroom 3. He went out into the hallway. Looking towards bedroom 3, he saw “Like movement of like three bodies like I could see Nances and what I presumed was the first person into the house and also it appeared that Mark was there too”; he said, “It was like they were wrestling.” Nanai had some blood around his shoulder area. Mullany looked towards the front door and saw “the second person enter the house, at about the doorway to bedroom 1”. Nitrovic and Oldham were near him. He marked on a plan the positions of the various persons. It showed Mullany outside the doorway of bedroom 2 and towards the front door, the second person nearer the front door at the doorway to bedroom 1 with Nitrovic and Oldham close to him and near the linen cupboard, and the first person at the end of the hallway near the entrance to the lounge room with May and Nanai on each side of him.

72 The second person was “thrashing his arms about” and seemed to have “some sort of metal object in his hand. Nitrovic “appeared to be cut and he was screaming ‘He’s got a knife. He’s got a knife.’; he sort of was holding himself and he crumpled back against the wall.” Mullany lunged at the second person and went to punch him.

73 Mullany heard “a sound like a gun shot coming from behind me”, and thought that something hit or grazed his arm; in fact he suffered a graze wound to his hand. He turned in the direction of Nitrovic and saw Nitrovic standing firing a pistol in the direction of the second man. He heard other gun shots. The second man fell towards the floor. Nitrovic was still firing into that man. The man and Nitrovic were facing each other.

74 Mullany heard other gun shots, “It seemed like they were coming from the direction of the lounge room but it was like gun shots were going off everywhere at that time.” He turned towards the lounge room, and -

75 Mullany said that the object the appellant was holding appeared to be “like a dark metal object” and “a weapon of some type”. The man near whose head the appellant and Curry were standing had his feet closer to Mullany.

76 At the time Oldham “was pretty much standing alongside myself”. Mullany did not see where Mackic, May or Nanai were at that time. Then he saw May alongside him in the hallway. May said, “Let’s get out of here”, and May, Mullany and Oldham ran out the front door.

77 Oldham “was carrying what appeared to me to be a sawn off shotgun or was quite a long type of rifle or something”, and said “I’m cut” and appeared to be holding his side. As he was running some distance from the premises Mullany saw Mackic also running, and said that Mackic was carrying a small pistol. Mullany took off his gloves and dropped them in the gutter.

78 Mullany said that, apart from Yildirim and Unsal and the appellant, Curry, Mackic, May, Nanai, Nitrovic, Oldham, Puta and himself, no one else was at the premises that evening.

79 Again it is not necessary to detail Mullany’s evidence of what happened after he left the premises.

80 Mullany was cross-examined at some length to confirm that the man at whom he saw Nitrovic shooting, who must have been Yildirim, was facing Nitrovic, and to elicit that Mullany did not see May or Nanai in the vicinity of where Nitrovic was shooting Yildirim. He was cross-examined to the effect that he was making up his evidence of the appellant’s presence and participation in order to receive favourable treatment from the authorities, which he denied, and I will return to this also.

81 Residents in Allum Street, Bankstown and surrounding streets gave evidence of the cars arriving and men getting out, of men running from the premises, and of other such matters: none of this evidence went directly to the appellant’s presence and participation in the affray.

82 Telephone records from mobile phone carriers and land line operators in respect of calls made to or from mobile and home telephones of the appellant, various of his former co-accused and others were admitted and tabulated. There were many calls between the appellant and Nitrovic, Oldham, Puta and Vincent, and from the appellant to the 777 Café, in the few days preceding 5 April 1998. There were calls on 5 April 1998 from Nitrovic to the appellant, Curry, Mackic and Puta, including from Nitrovic to the appellant’s mobile phone at 5.31 pm, and there was a call from the 777 Café to the appellant’s home at 6.30 pm on that day. There were calls from the appellant’s mobile phone through a relay tower close to the café to Vincent at 7.54 pm and 7.56 pm on that day. There were calls from the appellant’s mobile and home telephones to Mackic and Vincent in the early hours of 6 April 1998, to Vincent in the early morning of that day, and a little later to a solicitor, who went to Nitrovic at Liverpool Hospital.

83 In his evidence the appellant denied any knowledge of Yildirim and Unsal and any involvement in their murders. He said he had not seen Curry, May, Mackic, Nanai, Nitrovic, Oldham or Puta on 5 April 1998. He denied ever serving customers at the 777 Café, and said that it was managed by Vincent’s son Seamus Vincent. He gave an account of his movements on 5–6 April 1998 which included that he had lost his mobile phone on the afternoon of 5 April 1998, had bought a new one, and had left the new one at the 777 Café; that he allowed Nitrovic (amongst others) to drive the BMW and the keys to the BMW had been given to Nitrovic through others on the afternoon of 5 April 1998; and that he had been at his unit on the evening of 5 April 1998 and late in the evening had gone to the Sydney Casino, then to a nightclub and a hotel, and in the early hours of 6 April 1998 back to the Casino.

84 The appellant said that when he was travelling he allowed others to use the BMW, including Nitrovic and Vincent. He flew to the United States on 6 April 1998, on a ticket booked in January 1998, and said that he had arranged with Nitrovic that Nitrovic would pick the car up from where it was parked. Further as to the appellant’s movements on the evening of 5 April 1998, he said that until he left the unit he was with his girlfriend Nevana Radivojevic, and that after various telephone conversations Seamus Vincent arrived with a man named Awin Mawardi at about 10 pm and the appellant and Mawardi went to the Casino. The appellant then went to the nightclub and so on.

85 An alibi notice was given naming Nevana Radivojevic and Mawardi. Nevana Radivojevic was not called, and there was evidence that she had gone to Yugoslavia and would not return. Mawardi was not called, and some correspondence with Mawardi’s lawyers was tendered. Seamus Vincent gave evidence of telephone conversations arranging to take Mawardi to the appellant’s unit, and that he took Mawardi to the unit at 10 pm on 5 April 1998. A Jim Byrnes gave evidence of dropping Mawardi at the 777 Café between 5.30 and 6.30 pm on 5 April 1998, and that Mawardi said that he (Mawardi) intended to go to the Casino with the appellant.

86 Seamus Vincent also gave evidence of receiving the keys to the BMW and passing them on to Nitrovic, that he had never seen the appellant serving customers at the 777 Café, and that he was unable to identify any person fitting the description of the older guy given by May. Vincent gave evidence to the effect that Oldham arrived at his home at Marrickville at about 8 pm on 5 April 1998 and gave him the keys to the appellant’s unit.

87 Dobri Maksimovic gave evidence that he had arranged to meet the appellant at the nightclub, and that he met him at about 11.30 pm on 5 April 1998.

88 Each of these defence witnesses was extensively cross-examined, and there were other elements of their evidence and other witnesses in the defence case to which I have not referred. The cross-examination was quite effective, and it was well open to the jury to find the evidence of Vincent, Seamus Vincent and the others unconvincing and otherwise to see little weight in the evidence on which the defence sought to say that the appellant could not have gone to and been at the premises on the evening of 5 April 1998. The trial judge observed in the summing-up that the primary attack was on the honesty of Mullany, and on appeal the unreasonableness of the verdicts was said to lie in doubt which should have been experienced about Mullany’s evidence of the appellant’s involvement for reasons not turning upon strength of the defence evidence. While the evidence as a whole is to be considered, I have therefore not set out in greater detail the evidence of witnesses called in the defence case.

Ground of appeal 2: The trial judge erred in his directions to the jury as to the elements of the offence of murder

Ground of appeal 2A: The trial judge erred in his directions to the jury as to the elements of the offence of manslaughter

89 As will appear, the framing of these grounds of appeal did not really match the grounds as put in submissions. The Crown did not object to the mis-match. There were two limbs to the grounds of appeal as put in submissions. One was concerned with the directions as to what had to be contemplated by the appellant as a possibility in order that he be criminally responsible for the killings of Yildirim and Unsal. The other was concerned with the directions as to possibility.

90 The jury was directed that the Crown did not allege that the appellant and the other men planned to kill Yildirim and Unsal, and that on the Crown case the plan “was to assault them”. These grounds of appeal took up the evidence underlying that aspect of the Crown case -

(a) from May, that Puta said “No, guns, no guns, no shootings. Something to that effect”.

(b) from May, that Nitrovic said that “all he wanted us to do was restrain him, hold him down”, and something like “There is going to be no shooting. It’s only if they shoot”;

(c) from Mullany, that someone said “gag them and tie their hands, no noise”;

(d) from Mullany, that Mackic produced some nylon rope and said, “Gag them, tie their hands”, and demonstrated with the rope;

(e) that rope was handed around and was found at the premises; and

91 The appellant submitted that the criminal enterprise was not one of shooting Yildirim and Unsal , but one in which there was not to be any shooting unless (as Nitrovic indicated) Yildirim and Unsal themselves started shooting. He submitted that it was open to the jury to infer that any shooting by the men in the ambush party was only to be in self defence. He submitted that the trial judge should have directed the jury that, to find the appellant guilty of murder, they must be satisfied beyond reasonable doubt that the appellant realised that one or more of the parties to the criminal enterprise might shoot at least one of Yildirim and Unsal intending to kill him or inflict grievous bodily harm upon him otherwise than in self defence; and should have directed the jury that, to find the appellant guilty of manslaughter, they must be satisfied beyond reasonable doubt that the appellant realised that one or more of the parties to the criminal enterprise might fire a gun otherwise than in self defence. The errors lay in the absence of directions to the effect of the underlined words.

92 As can be seen, although the grounds of appeal as framed were in terms of the directions as to the elements of the offences of murder and manslaughter, this limb of the grounds as put in submissions was concerned with the directions as to what had to be contemplated by the appellant as a possibility in order that he be criminally responsible for the killings of Yildirim and Unsal. I use the language of contemplation as a possibility. That language has been used in the cases. Other language can be used, for example, language of realisation or foresight that something might happen, and has been used in the cases. For present purposes nothing turns on the mode of expression, and I will generally stay with the perhaps stilted language of contemplation as a possibility.

93 The Crown submitted that the directions for which the appellant contended were not required both in principle and according to the law as explained in Osland v The Queen (1998) 197 CLR 316; that in any event the trial judge’s directions would have been understood in the manner for which the appellant contended; and that, again in any event, there was no miscarriage of justice because on the evidence the appellant could not but have contemplated the possibility of a shooting otherwise than in self defence.

94 It is convenient first to go to the trial judge’s directions.

95 The Crown submitted that the summing-up when considered as a whole conveyed to the jury not only that before the appellant could be convicted of murder or manslaughter they would have to be satisfied beyond reasonable doubt that he contemplated the possibility that murder might be committed, but also that the contemplation that murder might be committed was a contemplation of the possibility of a killing occurring otherwise than in self defence. The same applied, it was said, in relation to the directions concerning manslaughter. And, it was said, the absence of complaint by the very experienced counsel appearing for the appellant at the trial indicated that the jury was sufficiently instructed that if the only killing contemplated as a possibility by the appellant was one done in self defence, then he should be found not guilty.

96 The trial judge said -

“Ladies and gentlemen, let me turn then to the basis upon which the Crown says that the accused is guilty of each of those crimes, that is the basis in law.

It is not the Crown case that the accused himself shot either of the deceased. True it is Mr Mullany gave evidence that he saw the accused standing over the prone Mr Unsal, the accused holding what looked like a gun. I will explain to you the relevance of that evidence in a moment. But I emphasise it is not the Crown case that it was the accused himself that shot either of these two men.

whether the shooting in each case was unlawful

You may think it is almost impossible to determine from the evidence who shot Mr Unsal. That is a comment about the facts which you can accept or reject as you see fit. That is your province. However, there is evidence from Mr Mullany that it was Mr Nitrovic, Steve Nitrovic, who shot Mr Yildirim and, on Mr Mullany’s evidence, that appears to be immediately after Mr Yildirim had stabbed Mr Nitrovic, inflicting upon him quite serious wounds.

a possible issue of self-defence by Mr Nitrovic, which would make the killing lawful

The best way to go about my task then, I think, is to explain to you first how a person acting alone might be criminally responsible for a killing and how that killing might be classified as murder or manslaughter. Then I will turn to the situation where that person kills in the company of another person and we will examine how that other person might become criminally responsible for that killing.” (emphasis added)

97 The trial judge began the first explanation -

Some deliberate killings are lawful. The more common example being a killing done in self-defence.

When we talk about unlawful killings the law classifies them either as murder or manslaughter. Broadly speaking by the term ‘murder’ we mean the more serious class of killings. The term ‘manslaughter’ killings which, for one reason or another, are seen as less blameworthy. That does not alter the fact that manslaughter is still a very serious crime. I am not going to give you a law lecture but I have to tell you as much about murder and manslaughter as you will need to know to decide the issues raised by the evidence in this case.” (emphasis added)

98 The trial judge gave directions about the elements of the crime of murder. He then said -

The killing, even with that intent, may be lawful

Let me deal with killings that may be lawful. For present purposes I am talking now about killings in self-defence

99 The trial judge gave directions about what was involved in self defence, in the course of which he said that the issue arose because of Mullany’s evidence that Nitrovic shot Yildirim and that Nitrovic was heard to shout that Yildirim had a knife and was injured by the knife: hence, the trial judge said, there was a question whether it was Nitrovic who shot Yildirim and, if so, whether at that moment he was acting in self defence.

100 The trial judge dealt with provocation in relation to Nitrovic shooting Yildirim. He then continued -

then that killing would be lawful and not amount to a crime at all

101 The trial judge turned to manslaughter. He said -

a person who kills unlawfully

There is no evidence to suggest that the killing of Mr Unsal was done in circumstances which would make it lawful

102 Directions were given as to the elements of manslaughter.

103 The trial judge then said -

“Ladies and gentlemen, that is a thumb nail sketch of the basic principles of the law of homicide when one examines the conduct of a person who actually did the killing. I want to turn now to the situation where a person kills someone whilst he is involved in a criminal enterprise with another man or other men. The question, which is of central importance in this case, is how the other man or those other men might be criminally responsible for that killing. The principle is the same no matter how many people you are talking about. For convenience I will talk about a criminal enterprise in which two men are joined.

If two men set out to commit a crime, each of them is responsible for what the other does in committing that crime. However, it may be in the course of that criminal enterprise one of the men commits an additional crime, a crime other than the one which they had planned. In that event, the other man would also be guilty of that additional crime if he contemplated the possibility that it might be committed in the course of carrying out the criminal enterprise they had planned. That contemplation is sufficient to make that other man criminally responsible for that additional crime. It would be no defence for that other man to say, ‘That is not the crime we planned to commit’ or, I didn’t want that to happen’ or, ‘I hoped it wouldn’t happen’. Provided the other man realised it could happen, he also is guilty.

Here the Crown does not allege that Mr Bikic and the other men said to have been involved in this enterprise planned to kill Mr Yildirim and Mr Unsal. The plan, the Crown says, was to assault them. For present purposes I do not need to go into he law of assault. It is sufficient to say in law the notion of assault is not confined to striking someone. Even to restrain someone physically amounts to an assault. If the enterprise here were to ambush the two deceased and to physically restrain them in some way, whatever else might have happened, that would be a criminal enterprise because it would involve an assault. However, this accused is charged with murder not with assault. In the event Mr Yildirim and Mr Unsal were shot dead.

Let me turn then to explain to you precisely how this accused might be criminally responsible for each of those shootings and I will do that after a short break.” (italics added)

104 The short break became an overnight adjournment, and the next morning the trial judge continued -

“HIS HONOUR: Ladies and gentlemen, good morning. Yesterday you will remember I took you to some basic principles of law.

in which a killing may be justified so as to be lawful

I then began to take you to the law of what we call common purpose. That is how, when two men combine to commit a particular crime, and one of them commits an additional crime, the other man might be criminally responsible for that additional crime. As I explained to you that principle is relevant here because it is not suggested by the Crown that the plan was to kill either Mr Yuildirim or Mr Unsal. The plan was to assault them but, as it happened, in the course of that assault both were killed.

You would then turn to the question whether he realised that, in the course of carrying out that assault, one or more of his companions might shoot at least one of the deceased. If you were satisfied that he realised that, then he himself would be responsible for the shootings in law, even though he himself did not do them.

It is at this stage, ladies and gentlemen, I would like to distribute to you a very brief outline of principles of law which, I hope, will help you follow what I am about to say.” (emphasis and italics added)

105 Copies of the outline of directions were handed to the jury, and became MFI 76.

106 The trial judge said -

“Ladies and gentlemen, I start with the obvious proposition: If you are not satisfied beyond reasonable doubt that the accused was present when the deceased were killed, that is the end of the matter. Go no further. He must be found not guilty of both charges. The directions of law I am about to give you apply only if you are satisfied that he was present at that house that night.

As I have said, the accused would be criminally responsible for the shootings if he took part in this enterprise to assault realising that, in the course of it, one of his companions might shoot at least one of the deceased men

It is for that reason that the crucial question here is whether the accused was a party to a plan to ambush the deceased realising that in the course of that ambush one or more of his companions might shoot at least one of the deceased. However, to be found guilty of murder you would need to be satisfied that the accused realised that that shooting could occur in circumstances amounting to murder; that is that one of his companions might shoot at least one of the deceased intending to kill him or to inflict grievous bodily harm upon him.

The accused could not be found guilty of murder unless you are satisfied he realised one of his companions might fire a gun with that intent

If the circumstances in which the deceased was killed were lawful then that killing would be no crime

the killing of Mr Yildirim would be lawful

As I have said, the issue of self-defence being raised, it is not for the accused to prove Mr Yildirim was killed in self-defence, it is for the Crown to prove beyond reasonable doubt that he was not.

So, the question is whether you think it is reasonably possible that Mr Nitrovic killed Mr Yildirim and that he did so in self-defence. Unless the Crown can exclude that possibility beyond reasonable doubt the accused must be found not guilty of the murder or manslaughter of Mr Yildirim . The accused must be acquitted outright.” (emphasis and italics added)

107 The trial judge turned to the outline of directions provided to the jury. The appeal papers before us did not contain a copy of MFI 76, and neither the appellant nor the Crown provided a copy in order to take us to it.

108 From reference in the summing-up, the outline included in a summary of the ingredients of murder, “that the shooting was unlawful”. In going through the outline of directions the trial judge again referred, at some length, to self defence as an issue arising in relation to the shooting of Yildirim. He then said -

whether his killing was unlawful

the killing would be lawful

109 The trial judge later said -

“The basis of manslaughter that I am going to turn to now focuses on the state of mind of the accused himself, what he foresaw might happen in the course of this assault.

As I have said, to find the accused guilty of murder you would have to be satisfied that he took part in the assault upon the deceased realising not only that one or more of his companions might shoot at least one of the deceased, but also that that person might do so intending to kill or inflict grievous bodily harm upon that deceased.

This accused could not be found guilty of murder as to either charge unless you were satisfied that he foresaw that one of his companions might fire a gun with that intent. If you were not satisfied of that, you would have to consider whether the accused foresaw that a gun might be fired but not to kill or seriously harm either of the deceased but perhaps to frighten without aiming at them. You would also have to consider whether a person doing that in those circumstances would be committing a dangerous act, that is, an act exposing either of the deceased to the appreciable risk of serious injury. If you were satisfied of those things then it would be open to you to find the accused guilty of the manslaughter rather than the murder of both the deceased

but you are not satisfied that

If you are satisfied that the accused realised that one of the parties to the criminal enterprise might fire a gun but without intending to kill or inflict grievous bodily harm upon either of the deceased but in such a way as to expose either of them to an appreciable risk of serious injury, in that event the accused should be found not guilty of murder but guilty of manslaughter in respect of both charges. This basis of liability focuses not upon what the killer actually did or what the killer intended but what the accused realised might happen when participating in this enterprise. If his anticipation of what might happen went no further than foreseeing one of his companions might fire a gun but not intending to kill or seriously hurt anyone, at most the accused could be found guilty of manslaughter of the two deceased, he could not be found guilty of the murder of either of them

110 Towards the end of the summing-up the trial judge said that the Crown submitted that the jury would be satisfied of the honesty and accuracy of Mullany’s evidence and that it put the appellant at the scene and apparently holding a gun himself, and continued -

and that he realised a shooting might occur amounting to murder

occurred in circumstances amounting to murder

111 The Crown referred particularly to what it said were occasions on which the trial judge made clear that a killing in self-defence was lawful. I have emphasised relevant parts of the passages set out. It then said that, when giving directions about joint criminal enterprise, the trial judge told the jury that what the appellant needed to contemplate as a possibility was a crime. The result, it said, was that putting these things together the jury would have understood that the appellant could not be found guilty if he had only contemplated the possibility that there might be a killing or a shooting in self-defence, because that would not have been a crime. In the passage last set out from the summing-up, it said, the trial judge in effect so directed the jury, because he repeated the Crown’s contention that the jury could conclude that the appellant “realised a shooting might occur amounting to murder” and the shooting by one of the appellant’s companions “occurred in circumstances amounting to murder”. I have put those parts of the passage in bold.

112 I do not think the Crown’s submissions in this respect should be accepted.

113 Although the trial judge did make clear that a killing in self-defence was lawful, he did so in relation to the ingredients of murder. How that translated to manslaughter was perhaps not explained in the passages I have set out, but it is not necessary to explore that matter. He did so expressly with reference to the killing of Yildirim alone, excluding self defence as an issue in the killing of Unsal. As I have said, the appellant’s submissions now under consideration were concerned with directions as to what must be contemplated as a possibility for liability by reason of the killings of Yildirim and Unsal. What is contemplated is different from what happens in fact, and a person may contemplate the possibility that there might be a killing only in self defence although as events turn out there is no issue of self defence; conversely a person may not contemplate any such possibility although as events turn out there is an issue of self defence.

304 When the rubber gloves were handed out Oldham was “not comfortable with the idea”, and “[i]t seemed a strange development”, but he dismissed the thought.

305 Oldham was unable to say why he went into the bedroom, although he said that at that time he “expected my role to be one of possible confrontation with these two men, having possibly to restrain them”. He thought it was for Puta, and that his role was “as providing some sort of solidarity” with the other men who were there. He felt solidarity towards them because some of them were friends and good acquaintances.

306 Mackic said that he happened to be at the 777 Café, and that there was no pre-arrangement. He got into the Ford “[j]ust like always, a group of people in the club and nightclub and we go together”. There was no particular conversation, he got into the car because Nitrovic was his friend and he thought he was “going off for a drink or something”. He did not know why the car stopped at Marrickville, he presumed that it was lost and was not interested to ask. Only when the car arrived at Bankstown did he think something unusual was happening. He spoke to Nitrovic, and Nitrovic said only “we will be here for a short time and we are going back to the city”. He saw some people with rubber gloves, but denied being given gloves. He said -

307 According to Mackic he had an upset stomach, and went twice into and spent much time in the toilet at the premises, so that he did not see guns being handed out. He said that while at the premises he though he was “just spending time. Having talk and going to the city.” He denied producing rope and showing how it should be used. He said he went again into the bathroom, not because of his upset stomach but because Nitrovic told him “maybe people would come and talk” and that “ninety per cent nothing will happen but if it happen maybe you come out and help us”. He thought that he was asked to go into the bathroom because he presumed “this man doesn’t want nobody to see us”. There was no suggestion of danger, and he did not ask Nitrovic any more about what was happening. He heard noise, came out of the bathroom and ran off.

308 Curry gave some evidence in chief on this subject. I have earlier set it out, but repeat it in summary. He said that he was at the premises at the request of Nitrovic, who approached him on the evening “and told me he would be needing my help later that evening, that a friend of his was in a bit of strife and wanted to see if I could help him with his problem”. Nitrovic told Curry that he would have to go out to Bankstown and “[i]f need be show a degree of force, or along the mediation lines”: Nitrovic said “[t]hat there was two different groups of guys getting together and if we were needed or called upon then we were to try and keep them apart from each other and try to mediate the situation”. If need be and force was required “we were to do that”.

309 In cross-examination Curry said that he used the word mediation quite often, and denied that he had heard Oldham use the word or that he had agreed with Oldham to call what was to occur a mediation. According to Curry, the request from Nitrovic came after he had arrived at the 777 Café, and he denied that he had picked up May, Mullany and Nanai before going to the café in order to have “muscle power”. He did not ask Nitrovic any more about what might occur, he acted out of friendship.

310 Nanai said that he thought that he was getting a lift home. At his own trial he had said that the first he knew of anything untoward was when he and May were in bedroom 3 and May told him that Mullany had said “there are some guys coming and if there is any trouble we have to hold someone”. At that time some gloves were produced and given to him. After May told him this he left bedroom 3 and spoke to Curry, and Curry told him that “someone will have to resolve some issues with these men” and that he should not worry and should just stay in the bedroom. Nanai adhered to this in his evidence in the appeal. It was not what Nanai had told the police when interviewed. He had told them that he was not at the premises, and had agreed at his own trial that it was a lie.

311 Nanai denied seeing guns or rope, and said that while in the lounge room he was “just waiting for my lift”.

312 Nitrovic said that his understanding was “that there was some sort of meeting and we were going there to make sure that it all went smoothly”, an understanding gained from a discussion at the 777 Café although he could not be sure with whom the discussion had taken place. He thought that he was doing it “for a friend of a friend”, although he was not sure who; he knew Puta was involved “and that was enough for me to go there”. Although he said he could not go into detail, he thought that Puta was going to be “an intermediary between two sets of groups”, and that it was “spur of the moment” and “you could say that I was going to go there to make sure there was going to be no grief”. At Bankstown he anticipated the possibility of a fight, and (importantly) said, “That is why we brought all those muscle heads with us”. However, he did not ask and did not care who the opposition might be, it did not occur to him that they might be armed, and he did not have or use a gun on the evening. That in particular was controverted by the forensic evidence.

313 It is sufficient to say that, in the light of the objective evidence, these inconsistent and inherently dubious stories are just that, stories. They are not credible. There was an arranged ambush party, equipped with gloves, rope and guns. The purpose was not mediation, even on an unusual use of the word, or house cleaning. The telephone records showed many telephone calls consistent with making arrangements for the gathering of the party, its journey, and its aftermath. When they were put to various of the appellant’s former co-accused, the responses were to the effect that they were in frequent social communication. If so they were remarkably sociable, and it remains that the records contribute to there being an arranged ambush party.

314 Puta can be dealt with more generally; for the moment I still pass over particular reference to his evidence that he shot Unsal. I have already said that at the joint trial Puta had refused to say that the appellant was not present at the premises on the evening of 5 April 1998, giving a variety of reasons not all of which were rational but some of which could reflect adversely on the appellant. He was taken to that evidence in cross-examination. The variety of reasons was increased, without greater rationality. Why Puta now was prepared to say that the appellant was not present at the premises on the evening of 5 April 1998 was not well explained. He seemed to say that he had been told that he would be in contempt of court if he did not give the evidence, but his earlier refusal had been under pain of contempt of court and he had been charged with contempt. According to Puta, Nitrovic had said that he would be coming to the premises for a meeting and he (Puta) was surprised when so many men arrived, although at one point he said that he had explained that he was concerned if the people he was to bring to the premises were armed and did not want any shooting. Recital of much else in Puta’s evidence is not necessary. Puta was shown to be a liar and to well merit Nicholson’s description (see later in these reasons), “evasive and unpredictable and sometimes incredible in his evidence”. It would be difficult to place any weight at all on his evidence; specifically, I do not think any weight can be placed on the evidence given in the appeal to the effect that the appellant was not at the premises on the evening of 5 April 1998. Puta, of course, did not support Mischa’s presence, but my view of Puta’s credit is such that I do not take that into account one way or the other.

315 None of the appellant’s former co-accused came to the witness box as a man whose word would readily be accepted, and throughout the evidence of each there were instances of lies, answers at odds with objective evidence, or plainly unbelievable answers, apart from in the areas to which I have already gone. I do not propose to detail them.

316 The cross-examinations were directed, amongst other things, to what the witness did and saw at the 777 Café, on the drive to Bankstown, and at the premises. The lack of knowledge and inability to recall on a great many matters was as marked as the minimising of any involvement in the affray, and few of the witnesses who were asked whether they had discussed with another or others, or the appellant, the events of the evening acknowledged that they had done so. As a general statement, the distancing from the appellant and from the events of the evening extended well beyond why they were there. I give a particular illustration as to each of why his evidence was not satisfactory. Mackic gave three different explanations for leaving his mobile telephone in the Ford. Curry, a friend of the appellant and frequent driver of the appellant’s car with a 777 number plate, said he did not know the appellant had anything to do with the 777 Café. Nanai had said more than once at his own trial that he could not say one way or the other whether the appellant was at the premises on the evening of 5 April 1998, at a time when he knew what the appellant looked like. Nitrovic’s explanation for parking so far from the premises at Bankstown was that he did not want the cars “implicated” if there was a fight, which is at odds with his other evidence downplaying the significance of any fight. Having heard and considered all the evidence, none of the appellant’s former co-accused appeared or appears to me to be reliable or believable, in the case of Puta strikingly so.

317 I do not believe the evidence that the appellant was not at the premises on the evening of 5 April 1998 or, so far as it was given, the evidence as to Mischa and Mischa’s friend. I am not satisfied that the appellant was innocent or that there is such doubt as to his guilt that the verdicts of guilty can not stand.

318 S had given a statement to the police on 24 September 1998. Through an affidavit sworn on 20 February 2002, she gave evidence in the appeal that its contents were true and correct.

319 The statement included that at about 5 pm on 5 April 1998 S rang Curry and was told, “I’m in the middle of something. We’ll talk later. I’m on my way to pick up Mark.” Some time before midnight that evening Curry came to S’s unit. He was distressed, and said, “Steve’s going to die. It’s wrong, it wasn’t supposed to happen this way.” Curry made a number of telephone calls, and told S something of what had happened. In particular, he said, “I went back into the house and Ned was still in there”, and expressed concern about what happened to May, Mullany and Nanai “when everybody split”. Then or over the next few days Curry said to S words to the effect that the reason they were at the premises that night “was because those two men were hired hit men who had a contract out on Ned”, and that the appellant “was shot and has gone to America”.

320 There was much more in the statement, including evidence capable of supporting various of the appellant’s former co-accused being associated as a gang using physical force for debt collection, but for reasons which will become apparent I do not go to it.

321 The cross-examination of Curry in the appeal had put to him, from the statement, that he had told S of the appellant’s presence and involvement, and he had denied doing so. The Crown relied on the evidence of S to prove that Curry had made prior inconsistent statements, see s 106(c) of the Evidence Act 1995, and also as evidence generally available. The appellant did not object to the evidence or its use as hearsay, saying only that its hearsay nature must be taken into account. His counsel cross-examined S principally to suggest that she had earlier lied to the police, had included in her statement of 24 September 1998 matters which had not in fact occurred in order to assist the police and avoid prosecution for her earlier lies, and as part of that had fabricated conversations with Curry in order to implicate the appellant. S agreed that she had earlier lied to the police, saying that she had lied so that they “wouldn’t harass me any longer”, but maintained the correctness of her statement.

322 I comfortably reach my conclusion that the appellant’s former accused are not to be believed without regard to the evidence of S. If I were to pay regard to her evidence, I would accept it in preference to the evidence of Curry, but it is not necessary to address what use it could properly be put to in the appeal. It certainly does not and would not assist the appellant. As an aside, the statement was known to Nicholson and without doubt could be seen as a reason for not calling Curry at the appellant’s separate trial.

(b) The evidence as fresh evidence

323 As I have indicated, the appellant submitted that the further evidence should be regarded as fresh evidence; he urged an approach similar to that in R v Ilic. In that case Ipp J said that he “approach[ed] the question whether the new evidence tendered by Ilic … is to be regarded as fresh in accordance with the broad approach as to whether there has been a miscarriage of justice … “(at 389). Notwithstanding that Ilic knew the witnesses on whose evidence he relied as fresh evidence, knew that they had been very near the scene of the crime and might give evidence to assist him, and deliberately decided not to speak to them, the evidence should be taken into account in the appeal. That was principally because Ilic believed that the witnesses were antagonistic to him and would not help him, a belief which his Honour considered was correct. The result was a new trial, not innocence or doubt leading to acquittal. It was specifically said that the accused had not made a deliberate decision not to rely upon the evidence.

324 It is first necessary to make findings as to the circumstances in which the appellant’s former co-accused were not called at his separate trial.

325 The appellant gave his evidence in chief by an affidavit sworn on 19 November 2001.

326 The appellant said that prior to the commencement of the joint trial his lawyers had obtained statutory declarations from Curry, Mackic, Oldham and Puta each stating that, to the best of the knowledge and belief of the declarant, the appellant was not present at the premises on the evening of 5 April 1998. The statutory declarations were obtained in contemplation of a separate trial application. The application was unsuccessful, but the appellant was later discharged from the joint trial. When his separate trial began the appellant “desired and understood that Mr Nicholson would call all the co-accused as witnesses in the defence case in my trial”, and was not aware of anything which might prevent that.

327 During his trial the appellant heard Nicholson tell the Crown that Puta would not be called in the defence case. He had not been aware that Nicholson was considering not calling his former co-accused. He wanted Puta called so the jury would know of his admissions that he (Puta) shot Unsal. He asked Nicholson why , and was told, “I don’t know what he (Puta) is going to say about what happened in the house”. The appellant said to Nicholson that he did not care what Puta was going to say about what happened in the house, “We already have his statement and if he tells the truth and says that I was not there, nothing else matters”. Nicholson replied, “No. I don’t want to call him. I’ll go and see the others.” The appellant took this to mean that Nicholson would ensure that he would call the others and that their evidence would cover any evidentiary gap that might otherwise be left by the failure to call Puta.

328 Nicholson later told the appellant that he had visited Mackic and Oldham and that he would be calling them in the defence case. However, during the appellant’s cross-examination some days later and without any prior consultation, Nicholson “advised the Court that none of the co-accused would be called as witnesses”. The appellant spoke to Nicholson, asking why Nicholson was not calling his former co-accused, and Nicholson replied, “We don’t need them. We are home. I’m running the case.”

329 The affidavit concluded -

“At this time I thought there was nothing I could do. Over the preceding months, I had had many arguments with Mr Nicholson but I was never able to persuade him to do what I wanted in respect of the conduct of the case.

It did cross my mind that I could sack him for failing to follow my instructions in relation to Mr Puta and the other co-accused, but I was deterred from this course by two significant considerations. First, I was conscious of the duration of my association with Mr Nicholson and the fact that he of all people should have been in the best position to assess my case. I did not feel that I could argue against his assessment even though it conflicted with my instructions as to the conduct of the defence case. Secondly, I was aware of the fact that my trial had been plagued with a lot of difficulties and that the Court might think that I was simply trying to abort another trial by the process of sacking my counsel. I thought that I would lose my bail and that I would be forced either to proceed unrepresented or be forced into another trial at short notice with the difficulties of instructing a new counsel on such a complex case. Against my better judgment, I decided that I had little choice but to not sack Mr Nicholson and to accept the decision he had made without consultation. I now bitterly regret that decision.

330 It should be said at once that I do not accept this evidence as a correct account of what occurred between the appellant and Nicholson in relation to calling the appellant’s former co-accused, or of the nature of the appellant’s acceptance that they not give evidence. Further, the less than direct allegation that Nicholson was distracted from the appellant’s trial by, and determined that the appellant’s former co-accused should not be called so that he could appear in, another trial is without foundation and is rejected: the appellant’s lawyers should not have been party to that unsubstantiated and unworthy element in the appellant’s case in the appeal.

331 Nicholson did not agree with this account of the circumstances in which the appellant’s former co-accused were not called. His evidence in chief was by an affidavit sworn on 10 December 2001. Cross-examination brought affirmation and amplification, but not departure.

332 Nicholson agreed that the statutory declarations were obtained in contemplation of the separate trial application. However, it was not his advice when the separate trial commenced that each of the appellant’s former co-accused should be called. From the commencement of the trial there was continuing discussion of which, if any, of the former co-accused might be called in the defence case. At the beginning of that trial the appellant wanted some of them called, probably all, but he (Nicholson) reserved the position.

333 Nicholson agreed that at the commencement of the trial the appellant wished that Puta be called to say that he shot Unsal, but said that throughout the Crown case there was discussion of whether this should be done and that he advised the appellant that it would be against this interests to call Puta. Nicholson’s advice was based upon the evidence Puta had given at the joint trial and his demeanour generally, in addition to his assessment of the state of the evidence in the Crown case. All of this, and the reasons for the advice, was discussed with the appellant before Nicholson told the Crown, at the end of the Crown case, that Puta would not be called. The appellant accepted the advice.

334 Nicholson and Kara Goodsell saw Mackic and Oldham at Long Bay on 7 April 2001, and told them that they would probably be called in the defence case. Nicholson did not go to facts with either of them, but simply told them to tell the truth, and although he told them that they would probably be called in the defence case he had not finally decided whether or not that should occur but wished to have it open; he had in fact decided that they should not be called unless circumstances changed. He told the appellant that if anyone were to be called it should be Mackic and Oldham, as the most plausible of the former co-accused. He thereafter finally decided that none of the appellant’s former co-accused should be called in the defence case, and so advised the appellant, again with discussion of the reasons for the advice with the appellant. The advice was founded on Nicholson’s assessment of the Crown case, and was accepted by the appellant. That occurred prior to the opening of the defence case.

335 The reasons for Nicholson’s advice to the appellant were explained at length and a number of times in his affidavit and cross-examination. They were founded on a detailed analysis of the evidence made by Nicholson and continually updated during the trial. For present purposes they can be summarised briefly, in the light of the appellant’s arguments in support of ground of appeal 6 and the submission that the jury ought to have experienced doubt that Mullany’s evidence of the appellant’s involvement was honest and accurate.

336 In Nicholson’s assessment, the defence could rely upon the attack on Mullany’s credibility, inconsistency between Mullany’s evidence and the forensic and ballistic evidence, and the evidence of May. Calling one member of a gang to say that the appellant, alleged to be the leader or a member of the gang, was not present at the scene of the crime for which the members had been convicted, could shift the focus of the trial from the exculpation offered via May’s evidence to the association between the gang members and the appellant and whether the gang members were lying to protect the appellant, and to the gang members’ contradictions of May’s evidence. As to Puta in particular, at the joint trial Puta had refused to say that the appellant was not present at the premises on the evening of 5 April 1998. He had been erratic and unreasonable in his answers at this time, and (although Nicholson did not put it this way) there was a flavour of fear of retribution; as well, Puta had what the appellant himself referred to an erratic presentation in the witness box and what Nicholson at one point referred to as an unusual aggressive demeanour. He was “evasive and unpredictable and sometimes incredible in his evidence”.

337 Nicholson denied that he advised the appellant that he would be found not guilty (“We don’t need them. We are home.”). He advised the appellant that his prospects of acquittal were quite reasonable. There were no arguments with the appellant, there was constant consultation and discussion, and the decision not to call the appellant’s former co-accused was made after consultation and discussion with the appellant and with his informed agreement.

338 Kara Goodsell gave evidence generally confirmatory of Nicholson’s evidence. I do not think it necessary to go to it in detail.

339 As will by now be evident, the appellant’s cross-examination went beyond the circumstances in which his former co-accused were not called. As to that matter, he was inconsistent (for example, at one point denying that Nicholson discussed the calling of Nanai and at another agreeing that there was discussion and that he “had input”), and he was incredible (for example, saying that he “had no option but to let [Nicholson] run the case” because “I did not want to upset Mr Nicholson. If I upset him I am in more trouble”; and “if I push anything he turn his back on me”; and “If I provoked him he going to do something else, he going to call them and ask the wrong question, I don’t know”). He contradicted his affidavit (for example, saying that he did not argue with Nicholson at any time, because he “backed off all the time”). His stance was that he had no choice but to go along with the way Nicholson wanted to run the case, although he did not agree with it. At times he accepted that there was discussion of the advantages and disadvantages of calling witnesses.

340 Timorous acquiescence is at odds with the appellant’s clear close involvement in the detail of his trial. Nor is it consistent with him being an obviously forceful personality – he is no shrinking violet – and of some intelligence. I have no hesitation in preferring the evidence of Nicholson to that of the appellant.

341 The appellant expressly disclaimed a case that Nicholson was incompetent in his conduct of the trial. In my opinion, the appellant’s former co-accused did not give evidence at the trial because Nicholson reasonably advised the appellant that it would be against his interests to call them and the appellant made an informed decision to follow the advice. The appellant himself considered that it was the more advantageous course in his interests.

342 As to the McGarvy trial, the correct name was McGeary. Nicholson said that McGeary lived in Queensland, that he did not have the McGeary brief on the bar table although he did read it in the barrister’s room at the court after the jury had retired in the appellant’s trial, and that the McGeary trial had been the subject of a flexible ruling that it should commence at the conclusion of the appellant’s trial. At no stage during the appellant’s trial was his attention distracted by consideration of the McGeary trial, he did not turn to it until after the jury had retired, and there was no connection between the McGeary trial and the decision not to call the appellant’s former co-accused in the defence case. Nicholson was not cross-examined upon this. I accept it.

343 For the evidence that the appellant was not seen or was not at the premises on the evening of 5 April 1998, on these findings any approach similar to that in R v Ilic is not available. The evidence can not be regarded as fresh evidence.

344 Although the appellant did not clearly give it separate attention, it is arguable that the evidence as to Mischa and Mischa’s friend is in a different position, in that it may be said that despite reasonable diligence the appellant did not know until after his separate trial that some of his former co-accused could give evidence that Mischa and Mischa’s friend were in the BMW and at the premises.

345 If the evidence as to Mischa and Mischa’s friend was fresh evidence, the question would be whether a reasonable jury could accept it as true and whether, when viewed in combination with the evidence given at the trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. My conclusion that the evidence is an invention does not deny it the status of evidence. But whether it was or should be regarded as fresh evidence is a matter for this Court. The appellant knew that Curry, Mackic, Nitrovic and Oldham went to and were at the premises, and from their statutory declarations that Curry, Mackic, Oldham and Puta were prepared to give the evidence there indicated. The most minimal diligence would have included asking them about the older guy, and more generally about who was in the cars and at the premises, and if the evidence were genuine and not a recent invention would have led to the identifications of Mischa and Mischa’s friend. To hold that the evidence as to Mischa and Mischa’s friend was or should be regarded as fresh evidence, I must be satisfied that the appellant asked and was fobbed off.

346 I am not satisfied. I do not accept the appellant’s evidence of unsuccessfully asking Curry, Nitrovic and Puta who the older guy was. On the assumptions that the evidence as to Mischa and Mischa’s friend was not an invention and was not known to the appellant, it was available to the appellant by the exercise of minimal diligence and no acceptable evidence explains why it did not become known. It was not and should not be regarded as fresh evidence.

347 For completeness, even if the evidence as to Mischa and Mischa’s friend were to be regarded as fresh evidence, it follows from what I have earlier said that I do not think it has credibility such that a reasonable jury could accept it as true. Although nothing was said of it in submissions, a step in this should be exposed. At the time of the appellant’s separate trial Mischa was still alive. If the evidence in chief as to Mischa and Mischa’s friend had then been given, rather different considerations going to its credibility would have been in play, whether Mischa was called to give evidence being one. To whatever extent the fresh evidence is to be placed hypothetically before the original jury, however, it seems clear enough that it is the credibility of the evidence assessed as matters stand at the time it is raised in the appellate court which matters. Much fresh evidence would not have been in existence at the time of the original trial, and it would be artificial to treat it and whatever bore upon its credibility as given in evidence at the time of the original trial.

348 It is appropriate now to deal with Puta’s evidence that he shot Unsal. It must have been anticipated by the appellant’s counsel, since his written submissions prior to the hearing of the appeal referred to it. As I have said, however, it first came out during cross-examination, and then really because introduced by Puta unresponsively. It came out as little more than the assertion that he shot Unsal in self defence, and was then amplified in re-examination.

349 In re-examination Puta said that he was attacked by someone. He got free, and then saw Unsal “with the gun trying to put it in the firing position”. He ran forward and grabbed Unsal and the gun. They struggled, the gun went off and Puta was shot. The struggle continued “and during the struggle Unsal got shot in the neck and he lost power and went down and I shot him one more time and he was died”.

350 The appellant submitted that Puta’s evidence contradicted Mullany and that it also provided a basis for the shooting of Unsal being in self defence, and related these two matters to the submissions on grounds of appeal 6 and 3. Amongst other matters, he suggested that Mullany had mistaken Puta for the appellant as the man standing over the prone Unsal.

351 It is sufficient to repeat that I regard Puta as a witness of no credibility, and specifically do not accept this evidence. The evidence is not and should not be regarded as fresh evidence, since on the appellant’s case he wanted Puta called to say that he shot Unsal. If it was or was regarded as fresh evidence, it follows from my view of Puta’s credibility that I do not think it had credibility such that a reasonable jury could accept it as true. For these separate reasons, understood in the light of what I have said about the other further evidence, the evidence does not avail the appellant. It is not necessary to consider what effect, if any, the evidence could have on the findings of guilt.

(c) Miscarriage of justice more generally

352 I am able to explain quite shortly why I do not think a miscarriage of justice has been shown to have occurred, drawing upon what I have already said. The appellant knew that his former co-accused would give evidence to the effect that he was not at the premises on the evening of 5 April 1998. On the assumptions earlier made for the evidence as to Mischa and Mischa’s friend, minimal diligence would have made it known to the appellant. The appellant knew of the availability of evidence that Puta shot Unsal. On the findings I have made, he made an informed decision to accept the advice of Nicholson that his former co-accused should not be called, himself considering that it was the more advantageous course in his interests, and on the findings I have made no reason has been shown for the evidence as to Mischa and Mischa’s friend being unknown to the appellant. Putting aside whether I believe the evidence of the former co-accused, I have no hesitation in finding that it lacks credibility and that there is not a significant possibility that the jury, acting reasonably, would have acquitted the appellant. On the contrary, if the appellant’s former co-accused had been called at his separate trial I consider that there would have been a shift in focus of the kind of which Nicholson spoke, to the detriment of the appellant. Neither procedurally nor in substance did justice miscarry.

The result

353 I propose that the appeal be dismissed.

354 SULLY J: I have read the judgment of Giles JA. I agree respectfully with the entirety of his Honour’s reasons. I agree with the order proposed by his Honour.

355 LEVINE J: I have read in draft the judgment of Giles JA. I respectfully agree with his Honour’s reasons and the order he proposes.

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Citations

R v Bikic [2002] NSWCCA 227

Most Recent Citation

Cases Citing This Decision

277

R v Taufahema [2007] HCA 11

Mallard v The Queen [2005] HCA 68

Grey v The Queen [2001] HCA 65

Cases Cited

38

Statutory Material Cited

0

Ratten v The Queen [1974] HCA 35

Osland v The Queen [1998] HCA 75

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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 (2000) 2 VR 20; R v Lane (1983) VR 449; R v Lowery and King (No 2) (1972) VR 560; R v Markulevski (2001) 52 NSWLR 82; R v Marshall (CCA, 17 July 1990, unreported); R v Nguyen (1995) 36 NSWLR 397; R v Powell (1999) 1 AC 1; R v Sharah (1992) 30 NSWLR 292; R v Stackelroth (CCA, 3 April 1996, unreported); R v Tangye (1997) 92 A Crim R 545; R v Thorpe (1998) 102 Cr App R 278; Ratten v The Queen (1974) 131 CLR 510; Shepherd v The Queen (1990) 170 CLR 573; Van den Hoek v The Queen (1986) 161 CLR 158; Whitehorn v The Queen (1983) 152 CLR 657; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645.
DECISION:	Appeal dismissed.