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9
Court of Criminal Appeal 20 June 2002

R v Bikic

[2002] NSWCCA 227

Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTIONS FURTHER EVIDENCE WHETHER MISCARRIAGE OF JUSTICE WHETHER FRESH EVIDENCE. CRIMINAL LAW

Citation: Bikic v R [2002] NSWCCA 227
Court: Court of Criminal Appeal, NSW
Date: 20 June 2002
Judge(s): Giles JA; Sully J; Levine J

Background

The appellant was charged with two counts of murder arising from a shooting affray at a Bankstown house on 5 April 1998. The Crown alleged that the appellant and eight other men had gathered at the premises with rope and firearms, lying in wait to ambush the two victims. When the victims arrived, the affray erupted and both men were shot dead.

Following a trial before Hidden J and a jury, the appellant was found not guilty of the murder of the first victim but guilty of his manslaughter, and guilty of the murder of the second victim. He was sentenced to an effective term of imprisonment until September 2016, with a non-parole period expiring September 2011. He appealed against the convictions only, not the sentences.

The appeal raised six grounds, covering jury directions on joint criminal enterprise, failure to leave defences of self-defence and provocation to the jury, adequacy of directions on drawing inferences, whether the convictions were unreasonable, and whether further evidence called on appeal demonstrated a miscarriage of justice.

  • Whether the trial judge misdirected the jury on what the appellant needed to have contemplated within a joint criminal enterprise in order to be criminally responsible for the killings
  • Whether the trial judge erred in declining to leave the defences of self-defence and provocation to the jury in relation to the second killing
  • Whether the trial judge was required to direct the jury that guilt must be the only rational conclusion open on the evidence
  • Whether the convictions were unreasonable, given the alleged unreliability and inconsistency of the principal witness against the appellant
  • Whether further evidence called on appeal, including evidence from former co-accused and another witness, established a miscarriage of justice, and whether any of that evidence qualified as fresh evidence

Decision

Joint criminal enterprise directions (Grounds 2 and 2A): The Court held that no direction was required that the appellant must have contemplated killings amounting to murder. Where there is an agreement to undertake an act as part of a joint criminal enterprise, there is no principled basis for distinguishing between criminal responsibility for the agreed act and responsibility for an act contemplated as a possibility in carrying out that enterprise. The appellant's further submission, that what was contemplated had to be more than a risk dismissible as negligible, was rejected on the facts as simply not arising.

Self-defence and provocation (Ground 3): The trial judge was correct not to leave these defences to the jury in relation to the second killing. The evidence showed that the second victim's gun had not been fired, he had no defensive injuries, and he was set upon by eight men who had been lying in ambush. There was no realistic possibility on those facts that the jury could have reached a view supporting either defence; any such suggestion amounted to speculation rather than a real possibility.

Inference direction (Ground 5): A direction that guilt must be the only rational conclusion is simply an elaboration of the requirement that the Crown prove its case beyond reasonable doubt. No overarching obligation exists to give that specific direction, and the trial judge's directions on proof beyond reasonable doubt were sufficient in the circumstances.

Unreasonable verdicts and further evidence (Grounds 6 and 1): The principal witness against the appellant had been the subject of appropriate jury warnings, and her evidence was corroborated in significant respects. The Court was satisfied it was open to the jury to find the appellant's presence at the scene beyond reasonable doubt. As to the further evidence, the Court applied the approach from Ratten v The Queen (1974) 131 CLR 510, forming its own view of the witnesses' credibility: it did not believe them. The evidence was also found not to constitute fresh evidence, and even if it had qualified as such, its lack of credibility meant no reasonable jury was likely to accept it. The Court expressed some doubt about the dual analytical approach derived from Ratten, but addressed the ultimate question of miscarriage of justice in any event, finding none was established.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that, in a joint criminal enterprise, a participant need not contemplate that a co-offender's act will amount to a specific crime such as murder. Contemplation of the act itself as a possibility is sufficient to ground criminal liability.
  • Where the evidence discloses that a victim had not fired, bore no defensive injuries, and was ambushed by multiple assailants, no realistic factual foundation exists for leaving defences of self-defence or provocation to the jury. A mere speculative possibility does not suffice.
  • No overarching requirement exists to direct a jury that guilt must be the only rational conclusion open on the evidence. Proper directions on proof beyond reasonable doubt are capable of covering that ground.
  • When further evidence is called on appeal, the appellate court assesses credibility directly and, if it does not believe the witnesses, the evidence cannot ground a finding of miscarriage of justice, whether or not it qualifies as fresh evidence.
  • Some doubt was expressed by the Court about the dual analytical framework derived from Ratten v The Queen, signalling that the proper approach to further and fresh evidence on appeal may warrant future consideration.

Legislation and Cases Referenced

Key cases cited:
- Ratten v The Queen (1974) 131 CLR 510
- McAuliffe v The Queen (1995) 183 CLR 108
- Chan Wing-Sui v The Queen [1985] AC 168
- Johns v The Queen (1980) 143 CLR 108
- Osland v The Queen (1998) 197 CLR 316
- Gallagher v The Queen (1986) 160 CLR 392
- Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
- M v The Queen (1994) 181 CLR 487
- Mickelberg v The Queen (1989) 167 CLR 259
- McGreevy v Director of Public Prosecutions [1973] 1 WLR 276
- Shepherd v The Queen (1990) 170 CLR 573
- R v Markulevski (2001) 52 NSWLR 82
- R v Tangye (1997) 92 A Crim R 545
- Knight v The Queen (1992) 175 CLR 495

Legislation: No specific legislative provisions were identified in the provided text.