Reported Decision : 112 A Crim R 163 New South Wales Supreme Court CITATION : R v Bikic [2000] NSWSC 223 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70204/99 HEARING DATE(S) : 03/03/2000; 06/03/2000; 20/03/2000 JUDGMENT DATE : 22 March 2000 PARTIES : Nedjelko Bikic (applicant) Regina (respondent) JUDGMENT OF : Hidden J at 1 COUNSEL : G Nicholson QC (applicant) D Howard (Crown) SOLICITORS : Susan N Goodsell (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Several accused jointly charged with murder - application by one accused for separate trial - desire to call co-accused to support his defence LEGISLATION CITED : Evidence Act 1995 The Queen v Harbach (1973) 6 SASR 427 R v Knijff (1982) QdR 429 CASES CITED : R v Quiring and Kuipers (1974) 19 CCC (2d) 337 R v Agawa and Mallett (1975) 28CCC (2d) 379 R v Boulet (1987) 40 CCC (3d) 38 R v Middis & Ors (Hunt J, unreported 27 March 1991) DECISION : Application granted - accused will be tried separately from his co-accused and after they have been tried. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Wednesday 22 March 2000 Regina v Nedjelko Bikic No: 70204/99 Judgment: on application for a separate trial (ex-tempore) 1 HIS HONOUR: Mr Bikic has made a further application for a separate trial, and after careful consideration, I have determined that it must be granted. 2 A number of grounds were advanced in support of the application. However, I consider only one of them to be of substance: that is, the ground that he anticipates that his co-accused would support his alibi and he would wish to have them available as witnesses at his trial. That was the only ground argued at the time of the initial application which I determined on 1 December 1999. At that stage, however, no alibi notice had been filed and it was by no means clear what the nature of Mr Bikic's defence would be and in what manner his co-accused might support it. Since then notice of alibi has been filed and this application has been pursued accordingly. 3 The material before me is to the effect that Mr Bikic would claim at his trial that he was not present at the scene of the shooting or, indeed, at other places earlier in that day when other relevant events are said to have occurred. 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. 6 I observed when I dealt with the original application for separate trials that it is curious that there appears to be no reported cases in Australia dealing with situations such as this. I am indebted to the research that the Crown Prosecutor has undertaken since I made that observation, which confirms there is no reported case in Australia on this topic. The nearest one gets is an obiter observation in The Queen v Harbach [1973] 6 SASR 427 at 435 to the effect that the desire of one accused to call evidence from another might be a proper basis for directing a separate trial. 7 I was also referred to R v Knijff (1982) QdR 429, which dealt with the situation where the wife of the appellant's co-accused was called but, as she was not a compellable witness against the co-accused, cross-examination of her by counsel for the appellant was hampered. In that unusual situation the Court of Criminal Appeal considered a separate trial was called for. The facts of that case, of course, are significantly different from here. 8 It is to Canada where one must turn for some guidance for the situation which confronts me. The Crown Prosecutor referred me to three decisions from that country. In the first, R v Quiring and Kuipers (1974) 19 CCC (2d) 337, the court held that a separate trial had been rightly refused in circumstances where it had been sought on the basis of the appellant's assertion that his co-accused might give material evidence in his defence. It seems, however, there was no material to establish that that co-accused was prepared to give evidence nor, if he were, what that evidence might be. The court recognised that a desire of one accused to call another in his defence might ground an order for separate trials but found that there was no such basis demonstrated in that case. 9 In R v Agawa and Mallet (1975) 28 CCC (2d) 379 the appellants had been found guilty of a killing in a prison. Agawa had sought a separate trial on the basis that Mallet made a statement to police tending to implicate himself in the killing but to exculpate Agawa. However, he made the statement with the rider that, "if any of this is said outside, I will deny it". A separate trial was refused and, on appeal, held rightly so. As the court pointed out, it was not clear what evidence Mallet would have given if he had been called and, in any event, his preparedness to give evidence on behalf of Agawa appeared to be no more than a mere possibility in the light of the rider he made at the time of his statement to the police. 10 On that occasion the court had regard to the strength of the Crown case against Agawa and concluded that anything Mallet might have said would have been of very little weight. The court appeared to have considered that that was a proper matter to assess in determining the separate trial application. However, it must be borne in mind that, in any event, this was a case on appeal after conviction where the court was also examining, with the benefit of hindsight, whether the trial had miscarried having proceeded as a joint trial. 11 On the other hand, in R v Boulet (1987) 40 CCC (3d) 38 a majority of the Court of Criminal Appeal considered that a separate trial should have been granted. In that case the appellant was tried with three others for the murder of a prison guard in the course of a riot. It seems that the appellant was initially charged alone and he indicated at a preliminary hearing, before the other three had been charged, that he may wish to call them as witnesses in his case. The Crown case turned primarily on the evidence of another inmate who claimed to have seen the appellant strike the guard. In seeking a separate trial, counsel for the appellant had informed the trial judge that the three co-accused would say that, while they were present at the scene, they had not seen the appellant commit any act of violence against the prison guard. Counsel for the other three accused indicated to the trial judge that anything they might say would not be to the appellant's benefit. Nevertheless, as I have said, the majority of the court were persuaded that, in those circumstances a separate trial should have been granted. 12 Beauregard JA (at 42) said that the trial judge should have accepted and acted upon the statement of counsel for the appellant from the Bar table that the other three accused might have given evidence favouring his case. The other judge in the majority was Vallerand JA, who at 47ff distinguished the two earlier Canadian cases to which I have referred. There is no precise parallel between the case of Boulet and the case with which I am dealing. However, I do find it of some assistance in the determination of this application. 13 The Crown's opposition to the application is founded primarily on the assertion that the application is not made bona fide. Put bluntly, the Crown said this application is a ploy to improve Mr Bikic's chances of being granted bail. He has previously been unsuccessful on a number of occasions in bail applications. One of those occasions was before Adams J in April of last year. On that occasion his Honour refused bail but added the observation that the question of bail might be viewed differently if it appeared there would be any significant delay in Mr Bikic coming to trial. 14 The Crown submission is that the alibi material is false and has been fashioned simply to give weight to a separate trial application. Obviously, if that application were successful the trial of Mr Bikic would have to proceed after the trial of his co-accused and it is from that, the Crown says, that the sort of delay of which Adams J was speaking may well result. 15 The Crown relies on a number of other matters to impugn the bona fides of this application. On the first application, which I refused, Mr Bikic was represented by a different barrister from senior counsel who has represented him since. The effect of what was said from the Bar table on that occasion was that Mr Bikic would claim an alibi and would be supported by several of his co-accused because they were with him at the place where he claimed to have been at the time of the shooting. Clearly, that is not the case. As I have said, what I have been told is that the co-accused would acknowledge being at the scene but would deny that Mr Bikic was there. 16 However, in this application I have the affidavit of the solicitor who was previously acting for the applicant (although he no longer does), the effect of which is that counsel formerly briefed simply misunderstood Mr Bikic's instructions and the solicitor did not see it necessary to point that out to him at the time. Frankly, that is an unsatisfactory state of affairs but that is the situation to which the solicitor has deposed and he was not required for cross-examination on that or any other matter. 17 The Crown also relies upon the fact that the alibi notice was served late and, indeed, only after the judgment in which I refused the previous application for a separate trial. The Crown said that in the investigation by the police thus far the alibi does not appear to be supported. In particular, the Crown draws attention to a statement taken from one of the persons named in the alibi notice which would appear, in some respects at least, to be inconsistent with Mr Bikic's assertions in the alibi notice in respect of his movements on the occasion in question. 18 The Crown relies on what is said to be substantial evidence of Mr Bikic's involvement in the planning and execution of these crimes. Indeed, the Crown says that the evidence points to his being central to the organisation of the enterprise. In particular, there is eye witness evidence which, if accepted, clearly puts Mr Bikic at the scene and at another place earlier where it is said arrangements were made for the execution of the enterprise. 19 I should interpolate at this stage that the Crown also sought to rely in this application upon some evidence which it does not intend to lead at trial. The Crown Prosecutor submitted that I could receive that evidence at this interlocutory stage pursuant to s75 of the Evidence Act. I say no more than that I do not consider it appropriate to do so, and I do not think that this is the sort of evidence to which s75 is directed. However, in any event, the outcome of the application would not turn on that material. 20 The Crown pointed out that part of its case is that Mr Bikic himself shot one of the victims, and the Crown Prosecutor submitted that his absence from the joint trial would distort the Crown case. The jury would not have the opportunity of seeing the totality of the case, including any answer that Mr Bikic might make to the evidence led against him. Of course, if Mr Bikic were granted a separate trial, the evidence of his having shot one of the victims would still be admissible in the trial of the others. Inevitably, directing a separate trial causes some distortion to the fabric of the Crown case. The question is whether the interests of justice override that. 21 All the matters the Crown Prosecutor raised in opposition to the application are of considerable weight and I have given them very careful thought. One might certainly entertain some suspicion about the true purpose for which this application is being made. As to that I can say only this. If the granting of this application is followed by a further bail application, that application will be dealt with on its merits in the light of the material then presented, although the delay in Mr Bikic coming to trial would be a relevant matter. 22 There are powerful reasons of policy for the joint trial of persons alleged to be involved in a joint criminal enterprise. For that proposition there are numerous authorities which I need not recite. The ultimate question, however, is what the interests of justice require. That involves balancing the interests of the community and the interests of the accused. 23 In R v Middis & Ors (unreported 27 March 1991) Hunt J (as he then was) expressed the opinion (at p5): An applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which - if it arises - would result in positive injustice to him. 24 I am presented with the situation in which senior counsel for Mr Bikic tells me that some at least of his co-accused could give evidence material to his defence. Those co-accused would not be compellable to do so at a joint trial. The only way to ensure their availability to Mr Bikic in his defence is to see them dealt with, one way or the other, before he goes to trial. 25 It is true, as the Crown Prosecutor pointed out, that a separate trial can be granted at any time. If, as it happened, all the co-accused chose to give evidence in a joint trial Mr Bikic's problem might well be solved. However, I have no way of knowing what course the other accused might take at their trial. 26 In all the circumstances, I consider it undesirable to wait until the trial is well under way to determine whether the interests of justice call for Mr Bikic's separate trial. As Hunt J observed in Middis at p6, sometimes in this circumstance it is not sufficient merely to discharge the jury in respect of a particular accused but it is necessary to discharge the jury in respect of the whole trial and to start again. 27 For those reasons I am satisfied that the application must be granted. Accordingly, I direct that Mr Bikic be tried separately from his co-accused and after they have been tried. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.