R v Bikic [2001] NSWCCA 537 | Case summary

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 of 5 April 1998. 4 The question arose when one of the participants, Mr Mackic, was called. He had been found guilty at a trial together with the participants other than the appellant on two counts of manslaughter in connection with the shootings. Before this Court he gave evidence in chief that he did not see the appellant on the evening of that day, and that he met the appellant's counsel and solicitor, by inference at the time of the appellant's trial or at some time before it, and said that he would be happy to give evidence on behalf of the appellant. 5 When the Crown began to cross-examine Mr Mackic he took an objection, one which at the time was not entirely clear but was later clarified. Passing over intermediate debate, in due course the Crown provided a document, now MFI 1, in which it indicated the areas on which the Crown proposed to cross-examine Mr Mackic. Mr Mackic was able to have legal advice in relation to his position with that document to hand, and objected to giving evidence in the areas 7, 13 and 14 as stated in that document on the ground of self incrimination. 6 The three areas were, first, what occurred at Allum Street, Bankstown, (which is the address at which the shootings took place) and what Mr Mackic did there; secondly, Mr Mackic's presence at the time of the appellant's arrest and Mr Mackic's travelling thereafter to Queensland; and thirdly, any discussions Mr Mackic had with anyone about the events of 5 April 1998. I have used the words of the document, with the bracketed interpolation in relation to the address. 7 There thus arose the application of s 128 of the Evidence Act 1995 ("the Act"). Mr Mackic was informed by the Court, and was no doubt aware from the advice which he otherwise received, of the possible availability of the objection, and took it as I have said. 8 The first question is whether s 128 applies at all to what this Court is about. 9 By s 4(1) of the Act it applies in relation to all proceedings in a New South Wales court, and there are thereafter mentioned some specific kinds of proceedings none of which relate to what this Court is about. The definition of a New South Wales court in the dictionary includes "any court created by Parliament", and the Court of Criminal Appeal is such a court. The word "proceedings" is not defined, but is a word of wide scope. Under s 12 of the Criminal Appeal Act 1912 this Court may order persons to attend and be examined before the court, and that is how Mr Mackic came to be here, but that section does not in terms otherwise explain what this Court is doing when it receives evidence, as Mr Mackic's evidence is being received, in aid of a ground of appeal relying upon new evidence. It seems to me that, as this Court is undoubtedly receiving evidence and is sitting to determine a question raised between the appellant and the Crown, what it is doing is receiving evidence in a proceedings in the Court, and accordingly that the Act applies to the extent that s 128 comes into play. 10 The next question is whether s 128 applies in that, in accordance with s 128(1), a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law. 11 Mr Mackic has objected. The practical difficulty of identifying particular evidence has, I think, sufficiently been overcome by the Crown's identification of the areas on which it proposes to cross-examine. Subject to the qualification to which I will later come, it can be said that there has been an objection to giving particular evidence. The ground for the objection has not been fully elucidated. As explained by Mr Mackic, it came down to concern that the evidence might prejudice an appeal which he might bring in relation to his convictions. Mr Mackic has not yet appealed and is now out of time, but conceivably he could apply for an extension of time within which to appeal, obtain an extension of time and prosecute an appeal. I believe that what Mr Mackic was really saying was that the evidence he gives may tend to prove that he committed the offences for which he has been convicted, and thereby prejudice him in an appeal which he might hereafter be able to bring. 12 The next question, then, is whether as required by s 128(2) there are reasonable grounds for Mr Mackic's objection. If one concentrates on the offences for which Mr Mackic has been convicted, that throws up whether there are reasonable grounds for the objection when Mr Mackic has been convicted and there has not yet been an appeal, and when in an appeal the evidence Mr Mackic might give, if tending to prove that he committed the offences, cannot be used to his detriment. I take each of those matters in turn. 13 The words in s 128(2) are "reasonable grounds for the objection". The sub-section does not refer to reasonable grounds for the conclusion that the evidence may tend to prove that the witness has committed an offence. 14 The words used are similar to those found in the common law cases by which it was necessary that the court see that there are reasonable grounds to apprehend danger to the witness from his being compelled to answer. I have taken that phrase from R v Boyes (1861) 1 B & S 311 at 330; 121 ER 730 at 738, cited by Gibbs CJ as a frequently approved statement of the law in Sorby v The Commonwealth (1983) 152 CLR 281 at 289. Because that was the common law approach, a witness could not refuse to answer a question which tended to show that he had committed a crime for which he could not be convicted and punished, for example because he had received a pardon or a protective certificate or because he had already been convicted or acquitted of the crime, see the statement to that effect and supporting cases cited by Gibbs CJ in Sorby v. The Commonwealth at 290. 15 In my view the same concept underlies the words in s 128(2). Those words must, of course, be construed for their proper meaning and effect without being confined by pre-conceptions from the common law. But it seems to me to be a matter of commonsense that reasonable grounds for an objection must pay regard to whether or not the witness can be placed in jeopardy by giving the particular evidence. 16 Then as to any appeal Mr Mackic may bring, in R v de Cressac (1985) 1 NSWLR 381 it was held that evidence emerging after the trial capable of being seen as a confession of guilt could not be taken into account in order to find that, notwithstanding a substantial miscarriage of justice, an appeal should be disallowed under the proviso in s 6(1) of the Criminal Appeal Act. The reasoning appearing at 390 in the judgment of Street CJ, with which O'Brien CJ Cr D agreed, was that where there had been a substantial miscarriage of justice so that the appellant had not had the trial the law said he should have had, the confession of guilt could not be taken into account: the appellant was entitled to substantive and procedural justice, and having not had it, should have his new trial notwithstanding the confession of guilt. On that reasoning, to the extent to which answers by Mr Mackic given in cross-examination in areas 7, 13 and 14 might be thought to adversely impact on his appeal, they cannot be taken into account. Fear that his answers may be used against him in that respect is not a reasonable ground for his objection. 17 Drawing these matters together, it seems to me that where Mr Mackic has not appealed so that there are unimpugned convictions, the position as stated by Gibbs CJ in Sorby v The Commonwealth holds good for the purpose of s 128(2). The possibility of a late appeal does not alter the position because there will be no prejudice in any such appeal. 18 It follows, in my view, that at this point in the application of s 128 Mr Mackic must give evidence despite his objection, that is, that the embargo in s 128((2) in the words "the court is not to require the witness to give that particular evidence" does not apply. It does not apply because the pre-condition that there are reasonable grounds for the objection has not been satisfied. 19 What this means is that in all probability Mr Mackic will be required to answer the questions put to him within area 7, what occurred at Allum Street, Bankstown and what Mr Mackic did there, because as presently advised I cannot readily see that any offences other than the offence for which Mr Mackic has already been convicted could be involved in the answers he might give. The qualification earlier foreshadowed must then be recognised. Of necessity the areas identified by the Crown do not go into detail. If there is any other evidence causing concern to Mr Mackic, it will be necessary that he take particular objection if and when the question put to him so requires. 20 It is not quite so clear in relation to areas 13 and 14, which are expressed in more general terms. So far as any answer to a question put to Mr Mackic within those areas might tend to prove that he had committed the offences for which he has been convicted, he must answer the question. It is possible, and I am able only to use the word possible because of the generality in the expression of the areas, that Mr Mackic will be concerned about some other offence when asked a question in those areas. If so, it will be necessary for him to take particular objection to that question. Any particular objection Mr Mackic takes will require explanation from him as to the tendency of an answer to prove that he has committed an offence, I repeat, being an offence other than the offences for which he has been convicted. 21 That is, therefore, the ruling which I propose, albeit one leaving open to Mr Mackic some particular objections in the manner I have sought to describe. 22 SULLY J: I agree with the ruling. 23 DAVID LEVINE J: I agree. 24 GILES JA: The ruling of the Court is as I have proposed.

R v Bikic

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