R v Biljuh (No 4)

[2015] NSWSC 774

Supreme Court

New South Wales

Medium Neutral Citation:	R v Biljuh (No 4) [2015] NSWSC 774
Hearing dates:	15 June 2015
Decision date:	15 June 2015
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	Question rejected.
Catchwords:	CRIMINAL LAW – EVIDENCE – objection to question of accused in cross-examination – particular evidence not part of Crown case – relevant and admissible evidence that could have been led in the Crown case – question rejected
Cases Cited:	The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299
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

1. Objection has been taken to a question asked by the learned Crown Prosecutor of the accused in the witness box with regard to the timing of, and reasons for, the accused developing very negative relationships with members of his family. Although there was other evidence to that effect in the Crown case, this particular evidence was not part of the Crown case, although I am told that it was disclosed to the accused's solicitors.

2. Each of the parties helpfully took me to the decision of The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299. They made a joint submission that that was the decision upon which I should focus my thinking. That was a case in which a prior inconsistent statement was put to an accused person without objection in the witness box when that statement had not been part of the Crown case. To state things very succinctly, the High Court came to the position that that should not have occurred, because the prior inconsistent statement was relevant and admissible and could have been led in the Crown case.

3. In this case, to my mind, there has not been any (or certainly any substantive) alteration in the position of the accused since the start of the trial. Defence counsel opened on the simple basis that the accused had not murdered his mother, and otherwise made it sufficiently clear that there would be no dispute that somebody else had done so.

4. It is also the case that, in examination-in-chief and in the early parts of his cross-examination, the accused accepted an important part of the Crown case; namely, that the accused had had a very negative relationship with his mother and, perhaps to a lesser extent, with his brother and sister.

5. In other words, it is not a matter of there being a prior inconsistent statement or anything else suggestive of some sort of change of position on the part of the accused. It is simply a matter of the accused maintaining his position, and indeed accepting the position, that he and his mother enjoyed an extremely poor relationship.

6. To my mind, the evidence that is now sought to be adduced, through the accused, was relevant and otherwise admissible evidence that could have been led in the Crown case. For me to permit it to be led in this way now, during the defence case, would be contrary to what was said by the plurality in The Queen v Soma at [31] to [40]; contrary to what was said by McHugh J at [58] to [65]; and inconsistent with what was said by Callinan J at [112] to [113] and at [119].

7. For those reasons, I propose to uphold the objection and reject the last question asked by the Crown Prosecutor.

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Decision last updated: 24 June 2015