R v Bikic [2001] NSWSC 571

New South Wales Supreme Court

CITATION : R v Bikic [2001] NSWSC 571 CURRENT JURISDICTION: Comon Law Division FILE NUMBER(S) : SC 70204/99 HEARING DATE(S) : 22/05/01; 29/06/01; 02/07/01 JUDGMENT DATE : 6 July 2001

PARTIES : Regina (Crown) Nedjelko Bikic JUDGMENT OF : Hidden J at 1

COUNSEL : D Howard - Crown G. Nicholson QC - Bikic SOLICITORS : Solicitor for Public Prosecutions - Crown Susan N Goodsell - Bikic CATCHWORDS : CRIMINAL LAW - Sentence - verdicts of guilty of murder and manslaughter arising from the same incident CASES CITED : R v Isaacs (1997) 41 NSWLR 374 DECISION : Seventeen years imprisonment with non parole periods aggregating twelve years (see para 15 for details on each count)

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Friday, 6 July 2001 Regina v Nedjelko Bikic

Remarks on Sentence

1 HIS HONOUR: The offender, Ned Bikic, was tried before me on an indictment charging the murders of Orhan Yildirim and Mehmet Unsal at Bankstown on 5 April 1998. Manslaughter was left to the jury as an alternative verdict in respect of each count. In the event, the jury found him guilty of the murder of Mehmet Unsal and the manslaughter of Orhan Yildirim. 2 He had earlier faced trial with six other men but, for reasons which I need not recite, it was necessary to discharge that jury from giving any verdict in respect of him. The trial of the other six men proceeded and each of them was found guilty of manslaughter in respect of each count. I sentenced those men on 30 March 2001: R v Puta & Ors [2001] NSWSC 225. I summarised the facts briefly in those remarks on sentence and it is unnecessary to set them out here. The present offender is the ninth man referred to in para 1 of those remarks. 3 It was not the Crown case that Mr Bikic himself shot either of the deceased. There was evidence from which it might be inferred that he had a gun at the house, but I do not find that evidence satisfactory and I would not make that finding against him. When sentencing the other six offenders, I did not find that it was Mr Nitrovic who shot Mr Yildirim and I dealt with each of them upon the basis that he contemplated that a gun might be fired but without the intent to kill or inflict grievous bodily harm. 4 The verdicts in the present case necessarily lead to different conclusions of fact for the purpose of sentence. The jury must have been satisfied that Mr Bikic was aware of the presence of a gun or guns and contemplated that a gun might be fired with the intent requisite for murder, but thought it reasonably possible that Mr Nitrovic shot Mr Yildirim under provocation. No other view of the facts is compatible with the verdicts and I propose to pass sentence upon that basis. 5 I am no better equipped than I was when sentencing the other six offenders to determine who shot Mr Unsal or in precisely what circumstances. Nor, apart from Mr Nitrovic, can I make any finding about who among the offenders had guns. Equally, I remain unable to determine who struck each of the deceased upon the head with the butt of a gun. From the nature of their gunshot wounds it is easily inferred that both deceased were shot with the intent to kill. On that, senior counsel for Mr Bikic did not wish to be heard to the contrary. 6 Implicit in the verdicts is the jury's acceptance that Mr Bikic was present at the 777 café when the offenders gathered there earlier in the evening, and that he was one of those who travelled via Mr Vincent's home at Marrickville to the house at Bankstown. I heard competing submissions about his role in the planning of the ambush, as I did in relation to the other six offenders prior to sentencing them. Again, I am no better placed than I was then to determine the motive for the ambush and I am unable to arrive at any firm conclusion about Mr Bikic's involvement in the planning and direction of it. In any event, I do not consider that it is a matter which needs to be resolved for the purpose of assessing his culpability for these crimes of homicide, for the same reasons I gave when dealing with the other six men: see paras 12 & 13 of those remarks. I remain unable to conclude who made the decision to carry guns or that that decision was made any earlier than after the offenders had gathered at the house.