R v Biljuh [2015] NSWSC 660

Supreme Court New South Wales

Medium Neutral Citation: R v Biljuh [2015] NSWSC 660 Hearing dates: 28 May 2015 Date of orders: 28 May 2015 Decision date: 28 May 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) The application for the discharge of the jury is rejected. (2) The trial is adjourned until 10 AM on Tuesday 2 June 2015. Catchwords: CRIMINAL LAW – application for discharge of jury – adverse publicity about the Crown Prosecutor personally – whether a high degree of necessity has been reached – whether impractical for another barrister to be briefed – application for discharge rejected Cases Cited: Burrell v R [2009] NSWCCA 193 Crofts v The Queen [1996] HCA 22; 186 CLR 427 Dupas v The Queen [2010] HCA 20 R v Ahola (No 6) [2013] NSWSC 703 Category: Procedural and other rulings Parties: Regina Dario Biljuh Representation: Counsel: C Maxwell QC (Crown) M Dennis (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Toomey Lawyers (Accused) File Number(s): 2014/70168

Judgment Introduction 1. An application was made by the Crown on the morning of Thursday 28 May 2015 for the discharge of the jury in this murder trial. The basis of the application was adverse publicity about the Crown Prosecutor who appeared for the Crown for three days of the trial, the latter two of them before the jury. At the conclusion of the submissions, I rejected the application for a discharge and stood the trial over until 10 AM on Tuesday 2 June 2015. These are my reasons for those orders. 2. By way of background, the accused was arraigned on a count of murder before a jury panel and me on the morning of Tuesday 26 May 2015. He pleaded not guilty and a jury was empanelled. In my opening remarks, I directed the jury to disregard any publicity to do with the trial, and amongst other things explained that it was of no value to them. I also provided each of them with a "dot point summary" of those opening remarks, which was to identical effect about publicity. Thereafter the openings of counsel were given, and the first prosecution witness was called by the Crown that afternoon. 3. On the following day, Wednesday 27 May 2015, the trial unfolded unremarkably before lunch. At 2 PM defence counsel raised a matter; namely, that there was publicity about the New South Wales Independent Commission Against Corruption (ICAC) having very recently referred documents to the New South Wales Director of Public Prosecutions (the DPP) relating to whether the Crown Prosecutor then appearing in the trial had possibly committed offences against public justice some time before. The Crown Prosecutor did not seek an adjournment on the basis of any personal distraction as a result of that having occurred. A newspaper article that was on the internet was tendered and became voir dire exhibit A. 4. Eventually, both counsel provided me with a joint written submission about the directions I should give the jury, and which remains on court file. The transcript will show that I gave the jury a far more fulsome and firm direction than the one that was agreed in by both counsel. Thereafter the trial continued as normal until 4 PM that day. 5. On the morning of Thursday 28 May 2015, the Crown Prosecutor informed me that her instructions had been withdrawn by the DPP. Accordingly, she concluded her appearance in the matter and left the Bar table. A second Crown Prosecutor appeared for the Crown. The jury re-joined us briefly. I told them that no doubt they had noted the change in counsel; that a change in representation is not uncommon in litigation; and directed them that they should not draw the slightest adverse inference against either party as a result. The jury then left us for a time so that I could hear further applications. Submissions 1. Thereafter, the second Crown Prosecutor submitted that the jury must be discharged on two bases: first, the jury had been irremediably prejudiced by the publicity about the former advocate for the Crown; secondly, it would be impractical for another barrister to be briefed without delaying the trial very markedly. 2. In support of the first proposition, a number of extracts from recent media reports pertaining to the first Crown Prosecutor were tendered on the voir dire. It was not disputed by the Crown that many of them, far from criticising the first Crown Prosecutor, criticised ICAC and supported the first Crown Prosecutor. 3. The Crown Prosecutor submitted that the publicity has the potential to deflect the jury from a focus on the evidence; to cause the jury inevitably to speculate on a connection between the publicity and the withdrawal of the first Crown Prosecutor; and to undermine the credibility of any Crown Prosecutor appearing in the trial. That was said to be especially damaging in light of the special position of a Crown Prosecutor as a Minister of Justice. 4. Defence counsel opposed the application. He submitted that two timely and powerful directions had been given; and that the test for discharge of a jury (which was not in dispute, and which I shall recount in a moment) had not been made out. Determination 1. Turning to legal principle, there was no dispute between the parties that the test I should apply is whether the party seeking discharge of a jury based upon prejudicial material has demonstrated a high degree of necessity for that course: see Crofts v The Queen [1996] HCA 22; 186 CLR 427. Determination of whether that test has been made out requires an evaluation by a trial judge of a multitude of factors, including the nature of the allegedly prejudicial material, the stage of the trial that has been reached, and whether any prejudice can be cured by direction or other steps. In my judgment in R v Ahola (No 6) [2013] NSWSC 703 at [11] - [18], I reviewed a number of examples of decisions about discharge of a juror or jury that have either been made at first instance or considered on appeal; I shall not repeat that review here. 2. Turning to logistical considerations first, it is true that the trial had only proceeded for two days before the jury. It is also true that I was informed by the sheriffs that, in all likelihood, another panel would be available for a fresh trial next Tuesday. Those facts weighed in favour of the application being granted. 3. To be weighed against the application was the fact that two adult children of the deceased (an elderly lady who was, on the Crown case, strangled to death), had given evidence already in the trial. The daughter of the deceased travelled from Melbourne to do so. The son of the deceased recounted how he had found the body of his mother. He also sat in the witness box and endured the gruelling process of the 000 call that he made as a result of his discovery being played in open court. I noted that he was visibly upset at that time. Avoiding those two witnesses going through that process again clearly counted against the application. 4. Speaking more generally, I accepted that the position that has developed is a regrettable one, and it would have been preferable for it not to have occurred. I also accepted the proposition that the combined effect of the publicity about, and the sudden departure of, the first Crown Prosecutor has a potential to distract or deflect the jury to some degree. 5. But it is to be recalled that, on the first day of the trial before the jury, I directed them to disregard all publicity. On the second day of the trial, I directed them to disregard any publicity with regard to the Crown Prosecutor. On the third day of the trial, I directed them that they must not draw the slightest inference against either party as a result of the departure of the first Crown Prosecutor. All of those directions were given very soon after each issue arose. And, of course, I would be open to any reasonable further direction sought by a Crown Prosecutor in order to minimise any possible adverse consequences arising from what has occurred. 6. Quite apart from that, it is not uncommon in criminal trials for some inadmissible prejudicial material about an accused person to be placed before a jury by way of a slip, or by way of a portion of an exhibit that should have been edited but was missed, or by way of a witness not answering a direct question directly. Merely because such a thing happens by no means results in the automatic discharge of the jury; rather, it is a matter of considering whether the test promulgated by the High Court of Australia has been made out. 7. Separately, it is not uncommon for trial by jury to proceed in New South Wales when there is recent or extant condemnatory publicity about an accused person on the internet. Nor is it uncommon for there to be material on the internet about the criminal record of the accused, arising from reporting of his or her initial bail application upon arrest. Indeed, it is not unheard of for trials by jury to be conducted with regard to a count of murder when there has been ample publicity about the conviction of an accused person for an entirely separate murder, and that material remains on the internet: see, for example, Burrell v R [2009] NSWCCA 193 and Dupas v The Queen [2010] HCA 20. Such trials proceed to verdict on the understanding that juries obey the directions of trial judges to disregard that material. 8. Of course, each application for a discharge of a jury must turn on its own facts, and the particular circumstances that arise. I only refer to those other cases in order to demonstrate that the test that must be made out by the moving party, whether it be the Crown or the accused, is a stringent one. 9. To my mind, at its absolute highest the publicity that founds the application could cause the jury to have some disquiet about the conduct or character of the first Crown Prosecutor. And it was clear that the trial, if a discharge had not been granted, would need to be delayed for some days. I considered that, a few days after that time, the first Crown Prosecutor will, to a substantial degree, have faded from the consciousness of the jury. 10. As well as that, the stage of the trial at which the first Crown Prosecutor withdrew means that she had engaged in no exercises in advocacy (such as making a closing address intended to persuade, or cross-examining the accused) that could perhaps have been undermined by a loss of personal credibility on her part. 11. In short, I did not consider that the test of a high degree of necessity had been made out in the circumstances that I have summarised. In particular, in light of the three separate and firm directions that I had given to the jury already, I was confident that the jury will regard the question of the alleged conduct of the Crown Prosecutor who appeared for the first two days of the trial as little more than a fleeting distraction. 12. It was for the foregoing reasons that I rejected the application for a discharge of the jury. Length of adjournment 1. There was no question of the Crown being forced on without an adjournment sufficient for new counsel to familiarise himself or herself fully with the trial. The only issue for determination was how long any such adjournment should be. And I have borne firmly in mind that the allegation is of the most serious offence known to law. 2. It can be seen that, when I made my orders at about midday on Thursday and stood the matter over for further hearing at 10 AM the following Tuesday (with the jury to return at 11 AM), I was granting an adjournment of the trial of four and a half days (two of which are weekend days). I considered that that was sufficient time for a suitably experienced and senior advocate, whether a member of the public or private Bar, to master the brief. I came to that view because the material already placed before me by way of openings and evidence shows that the Crown case is a relatively straightforward circumstantial one. As I understand it, it is founded, in a nutshell, on the following alleged factors: motive (namely an intense hatred on the part of the accused for the deceased); relationship evidence; lies told by the accused to the Police; scientific evidence including DNA; and the finding of certain incriminating items at the premises where the accused was staying. 3. I was told that there would be no more than 26 witnesses called in the Crown case. Seven of those witnesses have been called, examined, and excused. Defence counsel also made it clear that the evidence of no more than three Crown witnesses would be in substantial dispute. It seems that two of those witnesses have already been called and excused; a remaining witness whose evidence will be the subject of substantial cross-examination is a DNA expert. Defence counsel has made it clear that the main thrust of that cross-examination will be about secondary transfer, a phenomenon with which every Crown Prosecutor in New South Wales would be well familiar. 4. Undoubtedly, acceptance of a brief to appear four days or so thereafter in a part-heard murder trial will place substantial pressure not only on the advocate in question but also on the office of the DPP generally. But in all the circumstances, I was not prepared to delay the trial further. That is because I was confident that the solicitor for the DPP (who remains in the matter) will be able to find counsel of sufficient expertise and diligence to have the matter prepared and ready to be further presented by next Tuesday morning. 5. In particular, in the circumstances that have arisen, I did not consider that logistical problems experienced by the Crown could or should play a determinative role, in the question of whether the jury should be discharged, by delaying the recommencement of the trial for an impractically long period. 6. Finally, I indicate to the parties that, of course, my Associate stands ready to assist the new counsel briefed for the Crown by way of such things as provision of transcripts, access to the exhibits already tendered, and any other reasonably practical and appropriate step. Orders 1. It is for those reasons that yesterday I made the following orders: 1. The application for the discharge of the jury is rejected. 2. The trial is adjourned until 10 AM on Tuesday 2 June 2015.