Regina v Nedjelko BIKIC [2000] NSWCCA 106 | Case summary

1 SULLY J: This is an appeal brought by right and pursuant to section 5F of the Criminal Appeal Act 1912 (NSW) by the Director of Public Prosecutions. The appeal seeks to have vacated an interlocutory order made by Hidden J of this Court in a judgment delivered on 22 March instant. Hidden J ordered that there be a separate trial of Mr Nedjenko Bikic, the respondent to the present appeal, who is one of seven persons whom the Crown wishes to present on Monday next for trial by Hidden J and a jury. It is proposed to indict all seven persons jointly upon an indictment charging them with having murdered two named victims. 2 It is expedient to stress at the outset that there is one, and one only, question for the present decision of this Court: That is to say, whether Hidden J fell into error in the approach taken by his Honour to the particular question whether there should be a separate trial of the respondent. His Honour had an undoubted judicial discretion to grant or to refuse the respondent's application for a separate trial. It is trite that his Honour's exercise of that discretion will not be overturned lightly by this, or any other, appellate Court. It is, of course, equally trite that, should the appellant be able to demonstrate error by his Honour, then this Court both can, and should, intervene. The principles in that regard are well established. They are conventionally stated by reference to the exposition contained in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936)55CLR 499 at 504,505. It is not necessary to set out in detail what is there said. 3 The decision of Hidden J to grant the respondent a separate trial depended upon the following process of reasoning. The respondent wishes to raise at his trial an alibi defence. He wishes to support that defence, in part, by calling evidence from certain of his proposed co-accused. In any joint trial, they are competent, but they are not compellable, witnesses. They are not willing to give their relevant evidence in a joint trial; but they are willing to give that evidence in a separate trial of the respondent, provided always that they can do so without thereby placing themselves in jeopardy. To refuse the separate trial would be tantamount to depriving the respondent of a fair opportunity of presenting his foreshadowed alibi defence. There should be, therefore, a separate trial of the respondent; and it should take place after the conclusion of the joint trial of the remaining six proposed co-accused. 4 That paraphrase of Hidden J's reasoning needs to be expanded, in fairness to his Honour, by reference to the following portions of his Honour's judgment, which portions summarise the relevant course of events at the hearing before his Honour. "4. I am informed that four of his co-accused have made statements, the effect of which is that, while they were present at least at the time of the shootings, if not at the time of earlier events, Mr. Bikic was not. Those four co-accused, as I have said, have provided statements which were presented to me for the purpose of this application in sealed envelopes. Senior Counsel for Mr. Bikic submitted that I should examine that material in the sealed envelopes to determine the genuineness of this application but that the Crown should either have no access to them or should have access on a limited basis only: that is, on the basis that the material could not be used in the course of the trial. 5. I do not consider it appropriate to examine the material in the sealed envelopes on either of those bases. It seems to me that, if that material is to be relied upon, it must be available to the Crown for all purposes as any other material tendered would be. That said, however, I have the assurance from the Bar table of senior counsel representing Mr. Bikic that those statements reveal that each of those four co-accused is prepared to give evidence for Mr. Bikic in circumstances where he himself is not placed in jeopardy, and that that evidence would tend to support Mr. Bikic's case. Obviously, what weight the evidence might have is a matter I am not in a position to determine and which need not be determined at this interlocutory stage." 5 The events which his Honour thus describes, and his Honour's approach to them, raise for consideration the question whether there was before his Honour evidence capable, if accepted, of proving on the probabilities facts sufficient to justify a departure from the normal rule, well sanctioned by the highest authority as it is, that persons who are alleged to have taken part in a common criminal purpose should be tried together. The relevant authorities are collected and analysed by a differently constituted bench of this Court in Regina v Fernando & Anor [1999] NSW CCA 66 at paras. 197-211 both inclusive. 6 In order to come to a conclusion upon that evidentiary question, it is appropriate to take as a starting-point the relevant provisions of section 405A of the Crimes Act 1900(NSW). They are: "(1) On a trial on indictment the defendant shall not without the leave of the Court adduce evidence in support of an alibi unless, before the end of the prescribed period, he or she gives notice of particulars of the alibi. (2) Without prejudice to subsection (1), on a trial on indictment the defendant shall not without the leave of the Court call any other person to give evidence in support of an alibi unless: (a) the notice under that subsection includes the name and address of the person, or, if the name or address is not known to the defendant at the time he or she gives the notice, any information in his or her possession which might be of material assistance in finding the person; (7) "evidence in support of an alibi" means evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time he or she was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission; "the prescribed period" means the period of ten days commencing at the time of the committal of the defendant for trial. 7 It is to be noted that the statutory notice was not given by the respondent until a date which was not only very much out of time; but also postdated a decision of Hidden J refusing an earlier application for a separate trial, that refusal having resulted from a complete failure of the respondent to propound in any way at all the precise nature of the alibi defence which he was asserting to be available to him. It is clear from the judgment of Hidden J on the second application that his Honour recognised that a reasonable mind might well entertain, to quote his Honour, "some suspicion about the true purpose for which this application is being made". That consideration would not be, however, sufficient to warrant the refusal of a separate trial, were there in fact evidence reasonably capable of justifying the grant of one. 8 The second application of the respondent to Hidden J was supported, at least, by a formal notice purportedly complying with the relevant requirements of section 405A. It is necessary for present purposes to have careful regard to what the notice says. 9 The notice takes the form of a letter written to the Director of Public Prosecutions by the respondent's solicitor. It alleges as follows the relevant movements of the respondent on the day in question: "- In the afternoon of 5 April 1998 my client was at his home at unit 18, 120 Saunders Street, Pyrmont. - From approximately 3.00 pm. onwards on 5 April 1998 Navena Radivojevic was also present at the unit. - At approximately 10.00 pm to 10.30 pm Arwin Mewarti arrived at the unit. - Between approximately 10.30 pm and 11.00 pm my client was at the Sydney Star Casino with Arwin Mewarti. - At approximately 11.45 pm my client went to "Dancers" in Kings Cross where he met with Lisa. - From approximately 12.00 am for ½ - 1 hour my client was at Iguana Café, Kellet Street, Kings Cross with Lisa and Dobrivoje Maksimovic - Mr. Bikic thereafter went to the Sheraton Hotel in Elizabeth Street, Sydney, with Lisa and Dobrivoje Maksimovic, and thereafter to Star City Casino. - Mr. Bikic also saw Joe whilst at the Casino. - Mr. Bikic and Lisa then returned to the Sheraton Hotel with Lisa. My client checked out of the hotel at approximately 9.30 am to 10.00 am." 10 The letter continues with the following statement of the identities and known locations of the witnesses whom it is intended to call to give evidence in support of the foreshadowed alibi: "1. Nevena Radivojevic, address and telephone number at this stage unknown. Ms Radivojevic is residing in Yugoslavia at present and my client is attempting to ascertain her contact details. 2. Lisa. Lisa's name and contact details are at this stage unknown and again my client is attempting to ascertain same. However Lisa was, at 5 April 1998, a dancer employed by "Dancers" club in Kings Cross. 3. Dobrivoje Maksimovic. Mr. Maksimovic's address is unknown. However his phone number if 0416 386 575. I note this phone number appears in the telephone records included in your brief of evidence. 4. Arwin Mewarti. Mr. Mewarti usually resides in Indonesia. His mobile telephone number is 6281 1156993. His address and local phone number in Indonesia is at this stage unknown. 5. Joe. Regrettably my client has no further details about this person at this stage and is attempting to locate him. 6. Arben Puta. MRRC Silverwater Correctional Centre, Holker Street, Silverwater. Phone 9289 5100. 7. Steve Nitrovic, 218 Green Valley Road, Green Valley. 8. Raymond Arthur Curry, MRRC, Silverwater Correctional Centre, Holker Street, Silverwater, New South Wales. Phone 9289 5100. 9. Russell Oldham, MRRC, Silverwater Correctional Centre, Holker Street, Silverwater, New South Wales. Phone 9289 5100 10. Goran Mackic, MRRC, Silverwater Correctional Centre, Holker Street, Silverwater, New South Wales. Phone 9289 5100." 11 The persons named in items 6, 8, 9 and 10 are those of the proposed co-accused who are said to be witnesses available to support the proposed alibi. 12 The letter concludes, relevantly, as follows: "In respect of the abovenamed persons who are co-accused with Mr. Bikic I understand that those persons do not wish to speak directly to police or any member of your office. Please contact those persons through their respective solicitors who are on record, by their Notice of Appearance in the Supreme Court. In respect of the abovenamed persons whose full contact details are not known, I confirm my client is attempting to locate those persons." 13 The first thing that stands out upon a fair reading of the alibi notice, is, in my opinion, that the notice does not give any idea of how the persons nominated in items 6, 7, 8, 9 and 10 can provide evidence satisfying the statutory definition in section 405A(7) of "evidence in support of alibi." 14 Nor, so far as I can see, was there any other evidence before Hidden J on that point. The stance adopted before Hidden J by both parties, and the approach thereupon of Hidden J himself, entailed that his Honour never had sight of, let alone an opportunity for a properly considered evaluation of, whatever it is that is actually said by the four proposed co-accused in their sealed statements. The "assurance from the Bar table" of which his Honour speaks in paragraph 5 of his Honour's judgment, does not appear to have been very forthcoming in terms of hard detail. Even had the fact been otherwise, it is one thing to accept such an assurance; it is an entirely different thing to elevate such an assurance into evidence of the facts asserted by the terms of the assurance. 15 For my part, I would not think it correct to deal with an application for a separate trial made in the circumstances of the present case upon any other basis than that of properly admissible evidence adduced by the applicant for the separate trial. Reflection upon the present particular case will show, in my opinion, the dangers inherent in the taking of any more relaxed approach by a primary decision maker. 16 There has been a great deal of argument about the suggested "normal" or "usual" way in which a separate trial application should be conducted; and in particular about the extent to which there should be formal evidence put before the Court to which the application is made. The circumstances of the present case are such that it is, in my opinion, unnecessary to deal with that question in terms of general principle. It suffices, in my opinion, to say that where the bona fides of the expected evidence of the co-accused is at the very heart of the application, that issue of bona fides must itself be resolved; and it cannot be resolved properly save upon the basis of relevant evidence properly adduced. 17 As matters stand, it is impossible to know what each co-accused says for himself that he is proposing to give in evidence in support of the suggested alibi. Very importantly, it is impossible to assess how any such evidence, if given truthfully, will jeopardise the particular co-accused who gives the evidence. 18 If the evidence of a proposed co-accused is, simply, that he was at the crime scene, and that he can say therefore that the accused was not at that scene, then I doubt that the evidence satisfies the relevant statutory decision. Such evidence says nothing about the presence anywhere of the respondent. All it does is say something about his absence from a nominated place at a nominated time. Such evidence would be, at best, supportive of alibi evidence in the strict sense, given by the witnesses named in the first section of the formal alibi notice. 19 And in what precise way, it might be asked, is any evidence of a proposed co-accused given in support of the suggested alibi, going to jeopardise that co-accused? If the co-accused is intending to say at his own trial that he, himself, was not at the crime scene, then that version is either true or false. If true, he cannot be jeopardised by saying in a joint trial that he can vouch for the respondent's having been seen by him at a time and place of the kind described in the statutory definition. If false, then there is no justification for enabling him to assert the falsehood forensically at his own trial; and then to say the opposite at the subsequent trial of the respondent. If, on the other hand, the particular co-accused is going to say that he was in fact present at the crime scene, but that he did not take part in either of the two murders, then he is no more jeopardised if he says at a joint trial that the respondent was not there. 20 Of course, if the respondent's application for a separate trial had been required to show cause based upon admissible evidence which had been both admitted and accepted, then the sealed statements must have been tendered properly at the primary hearing. I do not see any possible justification for permitting the respondent to dictate, in effect, terms and conditions for the tender of that material. A fortiori, I would wish to say with emphasis, the proposed co-accused themselves. 21 It seems to me that there is no escaping the simple proposition that the respondent had an onus to discharge if he was to show proper cause for his being granted a separate trial. That onus was not capable of being discharged, in the circumstances of the present case, without the adducing by the respondent of credible evidence in support of his application. It cannot be correct, in my opinion, to suppose that such an onus can be discharged by the resourceful shuffling of sealed documents in a fashion designed to hobble a proper testing of the Crown of the contents of those documents, either on the interlocutory application itself, or at a supervening trial. The contrary approach would entail, in my opinion, the improper curtailment of the legitimate public interest to see that crime is detected, brought justice, and dealt with according to law. 22 In my respectful opinion, Hidden J made the order under appeal without having in hand evidence properly admitted and properly accepted by his Honour, being evidence capable, on a proper view of its probative value, of justifying the departure from normal practice of the joint trial of the alleged joint offenders. 23 In my opinion the appeal should be allowed; and the order of Hidden J for a separate trial should be vacated. 24 STEIN JA: I agree with Sully J, with his reasons and with the orders which he proposes. The simple fact is that the material before Hidden J, and to which he had regard in granting the respondent's application for a separate trial, was insufficient to justify the decision. 25 KIRBY J: I also agree with the reasons given and the order proposed. 26 STEIN JA: Accordingly, the orders of the Court are:

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Regina v Nedjelko BIKIC

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