R v Biljuh (No 2)

[2015] NSWSC 702

Supreme Court

New South Wales

Medium Neutral Citation:	R v Biljuh (No 2) [2015] NSWSC 702
Hearing dates:	2 June 2015
Decision date:	02 June 2015
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	Trial to be adjourned for a further two days.
Catchwords:	CRIMINAL LAW – application for adjournment – new Crown Prosecutor briefed – whether new Crown Prosecutor should be given additional time to optimally prepare the matter – whether further adjournment would detract from jury comprehension and lead to irremediable distraction – adjournment granted.
Cases Cited:	R v Biljuh [2015] NSWSC 660
Category:	Procedural and other rulings
Parties:	Regina Dario Biljuh
Representation:	Counsel: P Hogan (Crown) M Dennis (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Toomey Lawyers (Accused)
File Number(s):	2014/70168

EX TEMPORE Judgment

Background

1. Last week I adjourned this trial by jury after the instructions of the first Crown Prosecutor briefed to appear were withdrawn by the DPP. I granted that adjournment so that new counsel could be briefed and prepare the matter. On the same occasion I rejected an application by the Crown for the discharge of the jury.

2. I gave the new counsel who was to be briefed four and a half days, including two weekend days; that being from about midday on Thursday of last week, 28 May 2015, until today, Tuesday 2 June 2015, at 10 am, with the jury to return to us at 11 am. Reference should be made to the judgment that I delivered the following day, Friday 29 May 2015: R v Biljuh [2015] NSWSC 660.

3. Today the Crown Prosecutor has sought a further adjournment on the simple basis that his preparation, whilst already undertaken, will not be optimal if he is called upon to present the Crown case today. He has explained that there are a large number of matters that he wishes to investigate. There are also, it seems, a number of videos that he would like to watch that he has not yet had a chance to watch. As well as that, the original brief, I am told, is approximately 2,000 pages long.

4. The Crown Prosecutor 's submission was that the matter should be adjourned until next Tuesday 9 June 2015, that being the Tuesday after a long weekend, and that being two days short of two weeks since I adjourned the trial.

5. He also raised for my consideration, as did defence counsel, a separate but related question. That was whether, if such an adjournment were granted, it could be that the jury should, in truth, be discharged, simply because such a long gap in the presentation of evidence could markedly detract from jury comprehension and commitment to their task, and could also lead to irremediable distraction.

6. Mr Dennis, who appears for the accused, adopted the primary position that the trial should proceed. That was on the basis that it is never optimal for a barrister to have to “pick up” a matter halfway through, and yet that is simply the inevitable consequence of one barrister's instructions being withdrawn and another barrister being briefed.

7. His “fall-back position” was that, if there were to be a further adjournment, it should not go beyond Thursday of this week, otherwise the jury could be irremediably distracted.

8. In discussion between Bench and Bar Table, the Crown Prosecutor, without abandoning his original application, indicated that Thursday at 10 am would be a day that he could “live with”, if I may use the vernacular.

Determination

9. Speaking generally about the application, I accept that the Crown Prosecutor now briefed may not be able to engage in preparation that is absolutely optimal. To my mind, that is indeed the inevitable consequence whenever there is a change of counsel in litigation.

10. I think that a further adjournment of two more days is appropriate, in light of the specific matters that the Crown Prosecutor has explained to me, now that he himself has had a chance to look at and consider the brief personally.

11. But I respectfully do not think that any adjournment can go beyond that time. That is for fear that, if it were to do so, the jury would simply lose commitment to the trial. As well as that, I think the jury would simply have an objective difficulty in recalling the evidence, including cross-examination, that was given approaching one week ago.

12. I indicated in discussions with the Crown Prosecutor that this adjournment should not be regarded by him or his solicitor as a contingent one that can be the subject of yet further application. I also indicated to him that, unless something truly exceptional were to occur, my expectation is that the Crown will be in a position to call its first witness promptly at 10 am on Thursday.

13. Finally, if there is to be any application of that nature, it should be placed before me no later than 3 pm on Wednesday 3 June 2015, unless it is said to be something that occurs between 3 pm Wednesday and 10 am Thursday.

14. It is for those reasons that, when the jury re-joins us at 11 am, I shall invite them to leave us and re-join us at 10 am in two days' time, on Thursday 4 June 2015.

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