Supreme Court New South Wales Medium Neutral Citation: R v Biljuh (No 5) [2015] NSWSC 775 Hearing dates: 15 June 2015 Decision date: 15 June 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: Manslaughter not left to the jury. Catchwords: CRIMINAL LAW - practice and procedure - whether to leave alternative verdict of manslaughter - whether verdict of manslaughter viable - manslaughter not left as alternative verdict Cases Cited: Hoskins v R [2014] NSWCCA 207 James v R [2014] HCA 6; 88 ALJR 427 Lane v R [2013] NSWCCA 317 R v Kanaan [2005] NSWCCA 385 Thabo Meli & Ors v R [1954] 1 All ER 373 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 1. An issue has arisen whether manslaughter should be left to the jury. It requires determination now, before the commencement of final addresses, so that the parties can address on it if it is to be left. Defence counsel has submitted that it should be left; the Crown Prosecutor has submitted that it should not. 2. The issue of the circumstances in which manslaughter should be left to a jury in a trial on a count of murder has been discussed in a number of recent decisions of the High Court of Australia and in the Court of Criminal Appeal of this State, including R v Kanaan [2005] NSWCCA 385, James v R [2014] HCA 6; 88 ALJR 427, and Lane v R [2013] NSWCCA 317. The latest encapsulation of the question I must answer of which I am aware is contained in the decision of Hoskins v R [2014] NSWCCA 207 at [6]. In short, the question is whether manslaughter is a viable alternative verdict because there is evidence in the trial to support it. 3. In order to answer that question, it is necessary to give an outline of the evidence in the trial. 4. The Crown case is that, at about 7 AM on 14 February 2014, somebody attended at the premises of the home of the deceased, an elderly but by no means frail lady living in the Sydney suburb of Villawood, and deliberately (that is, by way of a voluntary act) asphyxiated her. The Crown case is also that that person is the accused, one of her sons. 5. Death was caused either by strangulation (evidenced by various injuries to the throat of the deceased, including the breaking of a small bone within its internal structure and separately by petechial haemorrhages in a number of locations) or by suffocation (evidenced by a large amount of duct tape that was neatly and very tightly wrapped around the head of the deceased, completely covering her nose and mouth). A forensic pathologist, who was called in the Crown case, was unable to determine which act directly caused death – strangulation or suffocation – but one of them unquestionably did so. 6. She also indicated that, in older people, the bone in question is rather brittle, and she was unable to estimate the degree or duration of force that would have been required to be applied to the throat of the deceased in order to break the bone and inflict the other injuries in that area. She also accepted that the various bruises and lacerations to the deceased may not have been inflicted with a weapon. 7. The other pertinent evidence in the Crown case is as follows. The deceased was found in a granny flat at the rear of her home. Grass was found on and near her body. That, combined with the position of the dress she was wearing, permits one safely to infer that the body had been dragged from the home to the granny flat, thereby coming into contact with some part of the back lawn. 8. A neighbour heard a voice coming from the vicinity of the granny flat that one can infer was that of the perpetrator. The neighbour was very close to the granny flat, but heard no sign of a struggle or any screams or cries of the deceased. 9. There were some injuries to the person of the deceased generally, including her face and her right shoulder, but none that could have been fatal, or that one would expect to have caused unconsciousness. 10. To my mind, the deceased must have been strangled into at least unconsciousness in her home. If it had been otherwise, and the deceased was conscious as she was being dragged to the granny flat, the neighbour would surely have heard struggles or cries. In all likelihood, the duct tape was applied in the granny flat, a proposition supported by the finding of a roll of similar (but by no means identical) tape at Marker H within that structure, although it is true that the possibility that the head of the deceased was taped in the home cannot be ruled out. 11. The fact that the duct tape was applied so neatly leads inevitably to the conclusion that the deceased was either unconscious or dead or (to my mind, a slim possibility) very rigorously restrained at the time of its application. 12. Finally, by way of background, in his opening to the jury, I understood defence counsel to be informing them that there would be no issue that someone murdered the deceased; the only question for their determination would be whether they were satisfied beyond reasonable doubt that that person was the accused. 13. It is in that evidential and procedural context that it was submitted that manslaughter is available. In support of that, it was submitted that there is a hypothesis on the undisputed evidence that is consistent with the absence of an intention to inflict grievous bodily harm or death on the part of the perpetrator. That hypothesis was said to arise as follows. 14. The perpetrator strangled the deceased into unconsciousness, but without intention to kill or inflict grievous bodily harm; perhaps he or she was acting in a rage. Then, he or she bodily dragged a 70-year-old unconscious woman some distance to the granny flat without intention to inflict grievous bodily harm or death. Thereafter, believing the deceased to be already dead, the perpetrator applied the duct tape, not with an intention to kill by way of suffocation, but rather to denigrate the deceased or perhaps to inflict great mental suffering on Mr Nenad Biljuh, another son of the deceased, who lived in the granny flat and whom one would expect would find the body. 15. In other words, the 70 year old deceased was bashed, strangled, dragged and had tape applied to the entirety of her face without an intention to inflict grievous bodily harm. 16. In short, it was submitted that it is possible to construct a hypothesis whereby all of these things were done by the perpetrator to the deceased, but without an intention to kill or inflict grievous bodily harm. Consequently, it was submitted that manslaughter should be left to the jury. 17. I agree it is possible to construct such a hypothesis. But I mean no disrespect whatsoever to defence counsel when I describe it as a thoroughly fanciful one. 18. To my mind, it is not viable to say that the perpetrator, in strangling an elderly woman into unconsciousness, dragging her some distance, inflicting injuries upon her body and head, and thereafter placing duct tape over her entire face (with the absolutely inevitable consequence that any person still breathing would suffocate) did not, at the very least, intend to inflict grievous bodily harm. Indeed, to my mind there is a very strong case that the perpetrator intended to kill the deceased. 19. In undertaking my analysis, I have borne in mind that, as a practical matter, a trial judge should err on the side of caution in leaving the alternative form of homicide; that the positions of the parties are not determinative of the question; and the principle that, within a continuing course of conduct, there need not be strict temporal concurrence between the necessary mental element for murder and the physical element of a voluntary act causing death: Thabo Meli & Ors v R [1954] 1 All ER 373. 20. In short, on the undisputed evidence in the Crown case, the proposition that the perpetrator merely committed the offence of manslaughter is, in my opinion, simply not viable. There is no evidence in the trial to support it. I do not accept that these acts were able to be committed without an accompanying intention to inflict at least grievous bodily harm. And for me to direct the jury about manslaughter in those circumstances would, I consider, thoroughly bewilder them. 21. It is for the foregoing reasons that I do not propose to leave manslaughter to the jury. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2015