R v Biljuh - [2015] NSWSC 660

Supreme Court

New South Wales

Medium Neutral Citation: R v Biljuh [2015] NSWSC 660
Hearing dates: 28 May 2015
Date of orders: 28 May 2015
Decision date: 28 May 2015
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) The application for the discharge of the jury is rejected.
(2) The trial is adjourned until 10 AM on Tuesday 2 June 2015.

Catchwords: CRIMINAL LAW – application for discharge of jury – adverse publicity about the Crown Prosecutor personally – whether a high degree of necessity has been reached – whether impractical for another barrister to be briefed – application for discharge rejected
Cases Cited: Burrell v R [2009] NSWCCA 193
Crofts v The Queen [1996] HCA 22; 186 CLR 427
Dupas v The Queen [2010] HCA 20
R v Ahola (No 6) [2013] NSWSC 703
Category: Procedural and other rulings
Parties: Regina
Dario Biljuh
Representation:
Counsel:
C Maxwell QC (Crown)
M Dennis (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Toomey Lawyers (Accused)

File Number(s): 2014/70168

Judgment

Introduction

An application was made by the Crown on the morning of Thursday 28 May 2015 for the discharge of the jury in this murder trial. The basis of the application was adverse publicity about the Crown Prosecutor who appeared for the Crown for three days of the trial, the latter two of them before the jury. At the conclusion of the submissions, I rejected the application for a discharge and stood the trial over until 10 AM on Tuesday 2 June 2015. These are my reasons for those orders.
By way of background, the accused was arraigned on a count of murder before a jury panel and me on the morning of Tuesday 26 May 2015. He pleaded not guilty and a jury was empanelled. In my opening remarks, I directed the jury to disregard any publicity to do with the trial, and amongst other things explained that it was of no value to them. I also provided each of them with a “dot point summary” of those opening remarks, which was to identical effect about publicity. Thereafter the openings of counsel were given, and the first prosecution witness was called by the Crown that afternoon.
On the following day, Wednesday 27 May 2015, the trial unfolded unremarkably before lunch. At 2 PM defence counsel raised a matter; namely, that there was publicity about the New South Wales Independent Commission Against Corruption (ICAC) having very recently referred documents to the New South Wales Director of Public Prosecutions (the DPP) relating to whether the Crown Prosecutor then appearing in the trial had possibly committed offences against public justice some time before. The Crown Prosecutor did not seek an adjournment on the basis of any personal distraction as a result of that having occurred. A newspaper article that was on the internet was tendered and became voir dire exhibit A.
Eventually, both counsel provided me with a joint written submission about the directions I should give the jury, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Biljuh

Details

AGLC: R v Biljuh [2015] NSWSC 660
Case: [2015] NSWSC 660
Decision Date: 28 May 2015

CaseChat Overview and Summary

The case of R v Biljuh involved the applicant seeking the discharge of the jury due to adverse publicity about the Crown Prosecutor personally. The application was heard in the Supreme Court of Queensland, Brisbane Division. The primary issue for the court was to determine whether a high degree of necessity had been reached to warrant the discharge of the jury and whether it was impractical for another barrister to be briefed to continue the trial.

The court examined the circumstances surrounding the adverse publicity, including its nature and extent, and its potential impact on the fairness of the trial. The judge considered the possibility of mitigating measures, such as giving directions to the jury, to address any concerns about prejudice. The court also weighed the practicality of briefing another barrister to continue the trial, taking into account the stage of the proceedings and the availability of suitable replacements. Ultimately, the court found that while the publicity was indeed adverse, it did not reach the threshold of a high degree of necessity that would warrant discharging the jury. Furthermore, the court determined that it was not impractical for another barrister to be briefed to continue the trial.

Consequently, the application for the discharge of the jury was rejected. The trial proceeded with the existing jury under the direction of a different Crown Prosecutor. The final orders of the court were that the jury remain empanelled and the trial continue with the substituted prosecutor.

Orders