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

1. This is an application for adjournment of part heard proceedings on sentence that are currently listed before me on 16 October 2015.

2. 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.

3. 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.

4. 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.

5. 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sketch of the background, at an early stage of the trial the instructions of the original Crown Prosecutor were withdrawn by the DPP.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.

6. 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 matter in those circumstances, although I did receive all evidence available at that stage. I preferred not to receive oral submissions until all of the evidence had closed. Accordingly, without demur on the part of the Crown, the matter was adjourned until 16 October 2015 for receipt of the report, any necessary cross-examination of its author, and final oral submissions on sentence of both counsel.

7. In the meantime, defence counsel has contacted my Chambers and asked to have the matter relisted, and that has been done on an urgent basis. The problem that has arisen is that the treating psychiatrist will be able to provide a report, but only a few days before 16 October. Furthermore, it will be personally difficult for the psychiatrist to attend for any cross-examination on that day. Secondly, and quite separately, defence counsel needs to have urgent surgery with regard to a medical problem. Accordingly, the application of defence counsel is that the matter be adjourned until late November or December 2015.

8. The position of the Crown Prosecutor is, in a nutshell, that in all of the circumstances an adjournment of six weeks or so is not opposed. Indeed, I understand his position to be that the Crown would prefer to have some time to reflect, after the psychiatric report is received, and before the conclusion of the proceedings on sentence.

Determination

9. Turning to my determination, I reject any suggestion that, with regard to a verdict that was returned in June 2015, sentence should be imposed in February or March 2016. Such an approach would place far too much stress, and distress, upon those who loved the deceased, and indeed the offender. And I do not consider that the administration of justice can operate whereby a sentence for a murder is imposed such a long time after the jury has spoken.

10. It follows that the proceedings on sentence must conclude, not only this year, but also on a date that provides me with sufficient time to reflect deeply on the matter, to compose remarks on sentence, and to deliver them before the end of the Law Term 2015.

11. Secondly, it is clear that any psychological or psychiatric condition of the offender is an important - perhaps central - issue in the proceedings on sentence. I accept that it would be preferable if the report could be provided to the Crown well before the proceedings on sentence, and also that the psychiatrist be available to give evidence at the proceedings on sentence undistracted by other commitments. Having said that, if that were to become impossible in the future, so be it. It is well known that there are very many eminent forensic psychiatrists in Sydney.

12. Thirdly, it is true that it would be preferable for defence counsel to be able to stay in the matter. Having said that, as I said to the jury many months ago, it is not uncommon for counsel to change in the course of litigation, including criminal litigation. The entire transcript of the trial is available, as are, of course, all of the exhibits, by way of application to my Associate. And it will be recalled that I “forced on” the Crown to a degree, in circumstances in which its preparation and presentation of a trial of a very serious example of the most serious offence known to law was not optimal.

13. In short, if the medical difficulties of defence counsel subsequent to today make it impossible for him to appear on a date that will permit me comfortably to sentence on a date this year, that is regrettable, but again so be it.

14. In summary, there is no question of the proceedings on sentence being adjourned past 4 December 2015. Indeed, were it not for the fact that I have another commitment in court on 27 November 2015, I would have insisted that the proceedings on sentence must conclude on that earlier date.

15. Turning to whether the current date should be vacated at all, there are grounds for saying that that should not occur. After all, that date is over two weeks away, and I consider that alternative counsel could be briefed and properly prepared. Whether another forensic psychiatrist could provide a comprehensive report well before that date is less clear, but I consider that it is perhaps possible, if things were arranged as a matter of urgency.

16. To be weighed against those considerations is the fact that it is completely inevitable that the offender will spend many years in custody as a result of the verdict of the jury, whatever evidence is presented on the next occasion. I repeat that the Crown has submitted that medical evidence could be crucial to whether the ultimate sentence should be imposed. And I emphasise that my own impression, on the basis of a number of aspects of the evidence in the trial, is that it could well be that the offender has a significant medical condition of the kind under discussion.

17. In the circumstances, and with considerable reluctance, I am prepared to vacate the next hearing date of 16 October 2015, and to list the matter for hearing at 10 AM on 4 December 2015.

18. It should be noted that that date is almost six months after the date of delivery of verdict. Without seeking to bind myself, I indicate that only in truly exceptional circumstances will the proceedings on sentence not conclude on that day, on the application of either party. In particular, the unavailability of counsel, or the unavailability of psychological or psychiatric material, or indeed a combination of the two, will not find favour as a ground for yet another adjournment of these proceedings on sentence for a count of murder.

Orders

19. For those reasons I make the following orders:

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.

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Decision last updated: 01 October 2015