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Court of Criminal Appeal 13 December 2001

R v Bikic

[2001] NSWCCA 537

Public order & justice offences
EVIDENCE SELF INCRIMINATION OBJECTION TAKEN ALREADY CONVICTED OF OFFENCE POSSIBLE APPEAL

Citation: Bikic v R [2001] NSWCCA 537
Court: Court of Criminal Appeal, New South Wales
Date: 13 December 2001
Judge(s): Giles JA, Sully J, Levine J

Background

The appellant had been convicted of murder and manslaughter arising from a fatal shooting incident on 5 April 1998. In his appeal, he sought to introduce fresh evidence from other participants in those events, arguing that his trial counsel had erred by failing to call them as witnesses to support his alibi defence that he was not present at the scene.

One such participant, who had himself been convicted of two counts of manslaughter arising from the same shootings, was called to give evidence before the Court of Criminal Appeal. He gave evidence in chief that he had not seen the appellant on the night in question and had previously indicated a willingness to give evidence for the appellant at trial.

When the Crown began cross-examining this witness, the witness objected to answering questions in three identified areas on the ground that the answers might tend to prove he had committed an offence, thereby prejudicing any future appeal he might bring against his own convictions.

  • Whether section 128 of the Evidence Act 1995 (NSW) applies to proceedings before the Court of Criminal Appeal when receiving fresh evidence on an appeal.
  • Whether the witness's objection to answering questions on the ground of self-incrimination met the threshold requirement under section 128(1) of being an objection to "particular evidence."
  • Whether there were "reasonable grounds" for the objection under section 128(2), given that the witness had already been convicted of the relevant offences and had not yet appealed.

Decision

Giles JA (with Sully J and Levine J agreeing) first confirmed that section 128 of the Evidence Act 1995 applied to the Court of Criminal Appeal's receipt of fresh evidence in appeal proceedings. The Court is a court created by Parliament, "proceedings" is a word of wide scope, and the Court was plainly receiving evidence to determine a question between the parties.

On the question of whether the objection met the "particular evidence" threshold, the Court accepted that the Crown's document identifying three areas of proposed cross-examination was sufficiently precise to satisfy section 128(1), subject to a qualification that more specific objections could be raised if particular questions caused further concern.

The central question was whether there were "reasonable grounds" for the objection under section 128(2). Giles JA analysed the common law heritage of the test, drawing on the principle in R v Boyes and affirmed in Sorby v The Commonwealth, that a witness cannot refuse to answer where there is no real danger of conviction, including where the witness has already been convicted or acquitted of the relevant offence. His Honour held that the same concept underlies section 128(2), and that a convicted but unappealed witness faces no "reasonable grounds" to object on the basis that answers might tend to prove the very offences for which he has been convicted. In any future appeal, such evidence could not be used to the witness's detriment.

The Court ruled that the witness was required to answer questions in all three identified areas insofar as those answers related only to the offences for which he had already been convicted. The door was left open for the witness to take particular objections to specific questions if any answer might tend to prove a different, unconvicted offence, in which case he would need to explain the basis for that concern.

Orders Made

  • The witness's objection to answering questions on the ground of self-incrimination was overruled in respect of the identified areas, to the extent the evidence related to offences for which he had already been convicted.
  • Particular objections to specific questions in areas 13 and 14 were reserved, to be dealt with if and when raised during cross-examination.

Key Takeaways

  • The Court of Criminal Appeal confirmed that section 128 of the Evidence Act 1995 applies when that Court receives fresh evidence in the course of hearing an appeal, as this constitutes "proceedings" before a court created by Parliament.
  • A witness who has been convicted of the relevant offence and has not yet appealed cannot establish "reasonable grounds" for a self-incrimination objection under section 128(2) in respect of that offence, because no real danger of further prejudice arises.
  • The principle from R v Boyes and Sorby v The Commonwealth, that the privilege against self-incrimination does not protect a witness from questions about offences for which they cannot be convicted and punished, informs the construction of section 128(2), although the section is not confined by the common law.
  • The mere theoretical possibility of a future appeal (including out of time) does not change this position, because evidence given in such circumstances cannot be used to the witness's detriment in any subsequent appeal.
  • Where cross-examination areas are expressed in general terms, a witness may still take particular objections to individual questions if an answer might tend to prove commission of an offence other than those already the subject of conviction, provided the basis for that concern is explained.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 128
- Criminal Appeal Act 1912 (NSW), s 12

Cases
- R v Boyes (1861) 1 B & S 311; 121 ER 730
- Sorby v The Commonwealth (1983) 152 CLR 281
- R v de Cressac (1985) 1 NSWLR 381