R v Kilincer (No. 7)

[2022] NSWSC 1734

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kilincer (No. 7) [2022] NSWSC 1734
Hearing dates:	24 August 2022
Date of orders:	24 August 2022
Decision date:	24 August 2022
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Application to adjourn trial refused.
Catchwords:	CRIME – TRIAL – accused on trial for murder – application for an adjournment of the trial – Crown case close to closing – significant amount of evidence taken – accused complaining of ill health – inadequate evidence tendered to support claim
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural rulings
Parties:	Regina (Crown) Kubilay Kilincer (Accused)
Representation:	Counsel: B Hatfield (Crown) E Ozen SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Abbas Jacobs Lawyers
File Number(s):	2020/30002
Publication restriction:	Nil

Ex TEmpore JUDGMENT (revised)

1. HER HONOUR: The accused makes application through his counsel for an adjournment of his trial until, either, this Friday 26 August, or Tuesday 29 August 2022. The accused himself is not present, having failed to appear before the Court yesterday, 23 August, or today, the 24^th of August. Some medical documentation which I have marked for identification 68 has been provided to the Court to explain his failure to appear, supplemented by an affidavit of his solicitor affirmed today, which has been read in support of the application.

2. The Crown opposes the application for an adjournment and has provided the Court with some further documentary information concerning contact with Westmead Hospital. I have marked that email correspondence for identification 70.

3. It is useful to set out the history of this matter in considering the present application.

4. The allegation of murder relates to the violent death of Hasan Dastan on 11 December 1995. The accused was charged with Mr Dastan’s murder on or about 29 January 2020. The Court’s record reveals that conditional bail was granted to the accused on 8 April 2020. One of the conditions of bail is that the accused appear at court on those days on which the proceedings are listed.

5. The accused’s trial was listed to commence on 1 August 2022, and a jury of 15 was empanelled, with counsels’ opening addresses given that day. Since commencement, some time has been lost due to juror or counsel unavailability, but the trial has proceeded steadily with evidence taken from something like 48 witnesses in the Crown case. That case is nearing completion, with one of the final witnesses presently in evidence.

6. It is understood from the Crown that a witness is to be returned to evidence, the officer in charge of the investigation, and there may be one further witness to be called, although that is subject to a possible objection pursuant to s 18 of the Evidence Act 1995. The Crown case was expected to close yesterday or today, had the last two days not been lost to the accused’s absence.

7. Over the course of the trial, four jurors have become unavailable, two due to infection with COVID‑19, and two due to perceived connections with persons closely associated with the trial. The jury is now constituted by 11 members.

8. Yesterday morning, at a time when Dr Isabella Brouwer, a Forensic Pathologist, was in evidence, the Court was advised that the accused, who had been in counsel’s chambers in the city, had complained of chest pain and been advised by counsel to go directly to hospital. It appears that the accused travelled from the city to Westmead Hospital and attended the emergency department there. The Court granted an adjournment of the trial to enable the accused to obtain medical attention and assessment. Jurors were allowed to separate and directed to await further advice as to their attendance at court today, 24 August.

9. As no definitive information had been received from the accused by 7.30 last night, the Office of the Sheriff, at the Court’s request, contacted all jurors at that time and advised them not to attend court this morning. Jurors were again directed to await further information.

10. At 9.11 this morning, the Court received via email to my associate a Discharge Summary from 19.46 on 23 August, together with a short note from a Medical Officer Mok. The former indicated that the accused had presented with reported chest pain, vomiting and excessive sweating. Investigations to measure troponins - indicative of heart damage - and an ECG were “unremarkable”.

11. The accused’s symptoms were successfully treated with analgesics, aspirin and an anti‑angina - or anti‑chest pain - medication. Further treatment was suggested as: monitoring by a general practitioner, education as to abstinence from smoking, and a cardiology review, the latter to occur on 29 August 2022 at 8.30am. Dr Mok’s note, which was titled, “Medical Attendance Certificate,” stated that the accused would be “unfit for court hearings” until further review on 29 August 2022.

12. When Court convened this morning, the accused sought a further adjournment of his trial for one week, an application opposed by the Crown in the absence of better information.

13. The Court advised the accused’s representatives that the information, the note from Dr Mok and the discharge summary, was not an adequate basis upon which to adjourn the trial proceedings, particularly given their nature, for the period of a week. The Court requested further information and stood the matter down until 3.30pm today for that information to be provided.

14. Nothing further has been provided from the accused, with the Court invited, via an email sent at 12.14pm by the accused’s counsel, marked for identification 69, to secure the information by itself approaching Westmead Hospital.

15. This is not an inquisitorial court, and it is not the Court’s role to seek out information or evidence. The accused asks for an extended adjournment in a part heard trial before a jury on a charge of murder. The obligation falls on the accused to provide satisfactory evidence in support of the application. What has been provided is not, in my view, sufficient for that purpose.

16. The material says no more than that the accused has complained of symptoms that were readily resolved with basic medication, and Dr Mok, apparently on a precautionary basis, since medical tests have revealed nothing untoward, considers him unfit for “court hearings”. The doctor or the hospital was apparently unwilling to say anything more when requested to do so by the accused’s solicitor. There is some further, and to some extent conflicting, information which has been obtained by the Crown and is contained in MFI 70. It is not at all clear whether Dr Mok, whose expertise and experience is unknown, is aware of the nature of the “court hearings”, or of the accused’s role in the proceedings, or indeed, of the consequences of the accused’s non‑attendance.

17. The information is an inadequate foundation to interrupt the accused’s trial on a very serious charge which is at an advanced stage. It is to be regretted if the accused is unwell, but without better information than is presently available, I do not intend to adjourn the trial further than 10am tomorrow. I accept the Crown’s submission that there is insufficient evidence before the Court to conclude that there is any serious risk to the accused’s health or wellbeing in proceeding. If the accused chooses to absent himself tomorrow, he should understand that that may be a basis for the Court to conclude that he has waived his right to be present, and the trial could well proceed in his absence.

18. The Sheriff will be asked to contact jurors this afternoon and direct them to attend court tomorrow. The application for an adjournment is, as I have indicated, refused.

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Decision last updated: 15 December 2022