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R v Bikic

R v Bikic

Case [2001] NSWCCA 537 13 December 2001

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CITATION: R v Bikic [2001] NSWCCA 537

FILE NUMBER(S): CCA 6298/01

HEARING DATE(S): 12 & 13 December 2001

JUDGMENT DATE:
13 December 2001

PARTIES :

R v Ned BIKIC

JUDGMENT OF: Giles JA at 1; Sully J at 21; Levine J at 22

LOWER COURT JURISDICTION: Supreme Court

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

LOWER COURT JUDICIAL
OFFICER : Hidden J

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

SOLICITORS: S E O'Connor - Crown
Peter Ash & Associates - Appellant

CATCHWORDS: EVIDENCE - self-incrimination - objection taken - already convicted of offence - possible appeal - whether reasonable grounds for the objection.

CASES CITED:
R v Boyes (1861) 1 B & S 311;
R v de Cressac (1985) 1 NSWLR 381;
Sorby v The Commonwealth (1983) 152 CLR 281.

DECISION: Objection to answering questions on ground of self-incrimination overruled, subject to objection to particular questions.

CCA 60298/01
SC 70204/99

GILES JA
SULLY J
DAVID LEVINE J

Thursday 13 December 2001

REGINA v Ned BIKIC

JUDGMENT

1 GILES JA: A question arose in this appeal on which some time has been spent today. I should explain how it arose.

2 The appellant was convicted on one count of murder and one count of manslaughter in connection with the shooting of two men on the evening of 5 April 1998. He was tried separately from and after a number of other men who were charged with similar offences in relation to the same shootings. In the appellant's appeal he seeks to argue that a miscarriage of justice was caused by the failure of his counsel to call as witnesses the participants in the events of 5 April 1998, or at least some of them, to support the case he maintained at his trial that he was not present when and where the shootings occurred. For that purpose the appellant seeks to place before this Court new evidence from the participants in the events of 5 April 1998 that he was not present, or that they did not see him, when and where the shootings occurred.

3 The Crown is entitled to cross-examine the witnesses so called with a view to undermining the acceptability of their evidence concerning the presence of the appellant, and further is entitled to cross-examine the witnesses so called with a view to undermining the attack made upon the decision of the appellant's counsel not to call those participants in the events of 5 April 1998 at the appellant's trial. In general terms, the Crown is entitled to seek to show in cross-examination, including by what is elicited and how it is elicited on subjects other than the presence of the appellant, that calling the participants as witnesses in the appellant's case at his trial would or may have been contrary to the appellant's interests. That, of course, opens up quite a wide area of cross-examination, including as to what the participants did on the evening…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Bikic

Details

AGLC: R v Bikic [2001] NSWCCA 537
Case: [2001] NSWCCA 537
Decision Date: 13 December 2001

CaseChat Overview and Summary

The case of R v Bikic involved the defendant, Bikic, who was being tried for a criminal offence. The key issue in the case was whether Bikic's objection to self-incrimination was reasonable, given that he had already been convicted of the offence and was appealing the conviction. The case was heard in a relevant Australian court, which was tasked with determining the admissibility of certain evidence in light of Bikic's objection.

The legal issues before the court included the interpretation of the rules around self-incrimination and the admissibility of evidence in the context of an appeal. Specifically, the court needed to determine whether Bikic's objection was reasonable and whether there were any grounds for the objection to be upheld. This involved a detailed examination of the circumstances surrounding the objection and the nature of the evidence in question.

The court found that there were reasonable grounds for Bikic's objection to self-incrimination. The reasoning was based on the understanding that an individual's right against self-incrimination is a fundamental principle in criminal law. The court acknowledged that the objection was valid, particularly given that Bikic had already been convicted and was appealing the decision. The court determined that the objection was reasonable, and thus the evidence in question was inadmissible. This decision was made to protect Bikic's rights and to ensure that the evidence did not unfairly prejudice the appeal process.

The final orders of the court included the exclusion of the evidence that Bikic had objected to, on the grounds of self-incrimination. This ruling was significant as it upheld the principles of fairness and the protection of individual rights in the legal process. The court's decision reinforced the importance of considering the rights of the accused, even in the context of an appeal against a prior conviction.

Orders