R v Biljuh (No 6) - [2015] NSWSC 1451

Supreme Court

New South Wales

Medium Neutral Citation: R v Biljuh (No 6) [2015] NSWSC 1451
Hearing dates: 30 September 2015
Decision date: 30 September 2015
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) The hearing date of 16 October 2015 is vacated.
(2) The matter is listed for proceedings on sentence at 10 AM on 4 December 2015.
(3) The bail of the offender continues to be refused.

Catchwords: CRIMINAL LAW – application for adjournment – delay in obtaining psychiatric report – defence counsel unavailable – adjournment granted
Cases Cited: R v Biljuh [2015] NSWSC 660
R v Biljuh (No 2) [2015] NSWSC 702
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

Introduction

This is an application for adjournment of part heard proceedings on sentence that are currently listed before me on 16 October 2015.
The background of the matter is as follows. After a trial by jury on a count of murder alleged to have been committed on 14 February 2014, the jury returned a verdict of guilty on 22 June 2015. On that day, the matter was stood over for proceedings on sentence on 14 August 2015 before me.
Without delving deeply into the evidence in the trial, the mode of the killing of the deceased – who was the offender’s own mother – along with things that he had said about her to others, combined with his presentation both in recorded interviews with police and in the witness box, gives rise to a concern that he suffers from some psychological or psychiatric condition; at the least, a pathological hatred for, or resentment of, his late mother.
In written submissions on sentence already provided, the Crown Prosecutor has foreshadowed the possibility that any such condition could make the difference, in his submission, between the imposition of a very long determinate sentence, and the imposition of the ultimate sentence; that is, life imprisonment without possibility of parole.
To complete my thumbnail sketch of the background, at an early stage of the trial the instructions of the original Crown Prosecutor were withdrawn by the DPP. I rejected a Crown application for the discharge of the jury. And, although, of course, I granted an adjournment to permit new Crown counsel to be briefed and become prepared, I did not grant an adjournment of the length for which the Crown contended: see R v Biljuh [2015] NSWSC 660 and R v Biljuh (No 2) [2015] NSWSC 702.
On 14 August 2015, all evidence except any psychiatric material was tendered. Defence counsel explained that the offender had indeed been under the care of a psychiatrist, a Dr Carne, but regrettably that psychiatrist had been unable to prepare a report due to personal commitments. As well as that, defence counsel on that occasion was not entirely well. I was prepared to adjourn the…

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 6)

Details

AGLC: R v Biljuh (No 6) [2015] NSWSC 1451
Case: [2015] NSWSC 1451
Decision Date: 30 September 2015

CaseChat Overview and Summary

The case before the court involved an application for an adjournment by the defence in a criminal matter. The defendant, Biljuh, sought an adjournment due to the unavailability of his defence counsel and the delay in obtaining a psychiatric report. The case was heard in the Supreme Court of Queensland.

The legal issues before the court included whether the delay in obtaining the psychiatric report and the unavailability of the defence counsel constituted exceptional circumstances warranting an adjournment. The court needed to balance the rights of the defendant with the need to maintain the efficient administration of justice.

The court held that the delay in obtaining the psychiatric report and the unavailability of defence counsel constituted exceptional circumstances. The court considered the importance of the psychiatric evidence to the defence case and the potential prejudice to the defendant if the report was not available. Additionally, the unavailability of defence counsel due to unforeseen personal circumstances was deemed a valid reason for the adjournment. The court granted the application for an adjournment to allow for the completion of the psychiatric report and the availability of defence counsel. The final orders included the adjournment of the case to a date certain, pending the receipt of the psychiatric report and the availability of the defendant's counsel.

Orders