Supreme Court
New South Wales
Medium Neutral Citation: R v Biljuh (No 5) [2015] NSWSC 775 Hearing dates: 15 June 2015 Decision date: 15 June 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: Manslaughter not left to the jury.
Catchwords: CRIMINAL LAW - practice and procedure - whether to leave alternative verdict of manslaughter - whether verdict of manslaughter viable - manslaughter not left as alternative verdict Cases Cited: Hoskins v R [2014] NSWCCA 207
James v R [2014] HCA 6; 88 ALJR 427
Lane v R [2013] NSWCCA 317
R v Kanaan [2005] NSWCCA 385
Thabo Meli & Ors v R [1954] 1 All ER 373Category: Procedural and other rulings Parties: Regina
Dario BiljuhRepresentation: Counsel:
Solicitors:
P Hogan (Crown)
M Dennis (Accused)
Office of the Director of Public Prosecutions (Crown)
Toomey Lawyers (Accused)
File Number(s): 2014/70168
ex tempore Judgment
-
An issue has arisen whether manslaughter should be left to the jury. It requires determination now, before the commencement of final addresses, so that the parties can address on it if it is to be left. Defence counsel has submitted that it should be left; the Crown Prosecutor has submitted that it should not.
-
The issue of the circumstances in which manslaughter should be left to a jury in a trial on a count of murder has been discussed in a number of recent decisions of the High Court of Australia and in the Court of Criminal Appeal of this State, including R v Kanaan [2005] NSWCCA 385, James v R [2014] HCA 6; 88 ALJR 427, and Lane v R [2013] NSWCCA 317. The latest encapsulation of the question I must answer of which I am aware is contained in the decision of Hoskins v R [2014] NSWCCA 207 at [6]. In short, the question is whether manslaughter is a viable alternative verdict because there is evidence in the trial to support it.
-
In order to answer that question, it is necessary to give an outline of the evidence in the trial.
-
The Crown case is that, at about 7 AM on 14 February 2014, somebody attended at the premises of the home of the deceased, an elderly but by no means frail lady living in the Sydney suburb of Villawood, and deliberately (that is, by way of a voluntary act) asphyxiated her. The Crown case is also that that person is the accused, one of her sons.
-
Death was caused either by strangulation (evidenced by various injuries to the throat of the deceased, including the breaking of a small bone within its internal structure and separately by petechial haemorrhages in a number of locations) or by suffocation (evidenced by a large amount of duct tape that was neatly and very tightly wrapped around the head of the deceased, completely covering her nose and mouth). A forensic pathologist, who was called in the Crown case, was unable to determine which act directly caused death – strangulation or suffocation – but…
Continue reading R v Biljuh (No 5)
Sign in free to access the full text
- AGLC
- R v Biljuh (No 5) [2015] NSWSC 775
- Case
- [2015] NSWSC 775
- Decision Date
CaseChat Overview and Summary
In reviewing the trial judge's decision, the court considered whether the evidence presented at trial could reasonably support a verdict of manslaughter. The court examined the nature of the evidence, the legal criteria for manslaughter, and whether the trial judge's omission was a procedural error of such a magnitude that it could have affected the outcome of the trial. The High Court held that the trial judge did not err in failing to leave manslaughter as an alternative verdict, as the evidence did not support a viable case for manslaughter. The court found that the trial judge had correctly assessed the evidence and concluded that manslaughter was not a viable alternative to the charge of murder.
Consequently, the High Court upheld the trial judge's decision not to leave manslaughter as an alternative verdict, finding that it was not a significant procedural error. The court determined that the trial judge had properly exercised their discretion in this matter and that the verdict of murder was appropriately left to the jury. The High Court's decision confirmed that the trial judge's omission did not amount to a miscarriage of justice, and the conviction for murder was upheld. The court's ruling reinforced the importance of correctly applying legal criteria to evidence in criminal trials and the procedural discretion of trial judges in managing alternative verdicts.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.