R v Biljuh (No 5) - [2015] NSWSC 775

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 373
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

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…

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 (No 5)

Details

AGLC: R v Biljuh (No 5) [2015] NSWSC 775
Case: [2015] NSWSC 775
Decision Date: 15 June 2015

CaseChat Overview and Summary

The case of R v Biljuh (No 5) was heard by the High Court of Australia, where the defendant was charged with murder. The court was required to decide on the procedural issue of whether the trial judge erred by not leaving the alternative verdict of manslaughter to the jury. The defendant argued that the trial judge's failure to consider manslaughter as a viable alternative verdict was a significant procedural error that could have impacted the fairness of the trial. The High Court was tasked with reviewing the trial judge's decision and determining whether this omission constituted a miscarriage of justice.

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