R v Kilincer (No. 8)

[2022] NSWSC 1735

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kilincer (No. 8) [2022] NSWSC 1735
Hearing dates:	25 August 2022
Date of orders:	25 August 2022
Decision date:	25 August 2022
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Application to adjourn the trial is refused.
Catchwords:	CRIME – TRIAL – accused standing trial for murder – further application for adjournment of trial – accused raised claim of ill health – limited and inadequate evidence to support claim – trial at advanced stage
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 renews this afternoon an application for an adjournment of his trial, relying upon documentation which was, contrary to the advice the Court was given yesterday, successfully obtained by his lawyers today from Dr Mok. Yesterday the Court was told that if it wanted further information it would have to get it for itself, but today it appears that the doctor has been prepared to give the accused’s solicitor some further information.

2. In my view it takes the matter no further. Indeed, it is perhaps rather less compelling than the material that was available yesterday. The letter confirms that Dr Mok is a Resident, that is, a very junior doctor, in the Emergency Department of Westmead Hospital. It appears that Dr Mok has no specialist expertise as a cardiologist or in the practice of cardiology.

3. His recommendation, as opposed to his certification of yesterday, is that the accused should not be present in Court to testify, but that does not rise to the level of certification on the grounds of a medical condition. Dr Mok’s letter appears to be no more than a cautious expression that, because there are investigations to take place into Mr Kilincer’s health, he should not be required to be in Court pending those investigations occurring.

4. He concludes his correspondence:

“I still recommend” – and, I interpose, rather less than the certification of yesterday – “that Mr Kilincer is reviewed by the cardiology team prior to his court hearing due to the potential risk of a cardiac event. However, if there is any issue regarding his medical fitness to testify in Court, this should be best commented upon by a cardiologist”.

5. That is, Dr Mok is unable to comment on the accused’s medical fitness to testify in Court. The nature of any “cardiac event” that might occur is not specified.

6. There is one advance in this letter and that is, it is at least now clear that Dr Mok is aware, as of today, of the nature of the proceedings in which the accused is involved. It seems he did not know that yesterday.

7. The correspondence does not advance the matter in my opinion. The Court is already aware that the accused is to have a cardiological review on Monday and, of course, time must be made available for that, but I do not propose to adjourn the trial until the Crown closes its case. I am told that that will occur tomorrow. I see no problem in the Court rising at the conclusion of the Crown case. The jury can be advised to return on Tuesday, and the accused’s case can commence that day. The application to adjourn the trial today is refused.

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Decision last updated: 15 December 2022