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Supreme Court 30 September 2015

R v Biljuh (No 6)

[2015] NSWSC 1451

Homicide
CRIMINAL LAW APPLICATION FOR ADJOURNMENT DELAY IN OBTAINING PSYCHIATRIC REPORT DEFENCE COUNSEL UNAVAILABLE ADJOURNMENT GRANTED

Citation: R v Biljuh (No 6) [2015] NSWSC 1451
Court: Supreme Court of New South Wales
Date: 30 September 2015
Judge: Button J

Background

The offender was convicted by jury of murder on 22 June 2015. The victim was his own mother, and observations made during the trial, including the offender's recorded police interviews, his conduct in the witness box, and the circumstances of the killing, gave Button J reason to suspect the offender may have a significant psychiatric or psychological condition. The Crown had foreshadowed in written submissions that any such condition could be the deciding factor between a very long determinate sentence and life imprisonment without the possibility of parole.

Sentencing proceedings had been listed for 14 August 2015, but were adjourned to 16 October 2015 after the treating psychiatrist was unable to complete a report due to personal commitments, and defence counsel was unwell. All available evidence was received at that stage, with oral submissions deferred pending receipt of the psychiatric material.

Before the October date arrived, defence counsel contacted the court urgently. Two fresh problems had emerged: the treating psychiatrist could now provide a report, but only a few days before 16 October and was not available for cross-examination on that date, and defence counsel required urgent surgery. Defence counsel applied to adjourn the matter to late November or December 2015.

  • Whether the sentencing proceedings should be adjourned from 16 October 2015 given the unavailability of the treating psychiatrist's report and the medical unavailability of defence counsel.
  • What outer limit, if any, should be placed on further adjournments in proceedings on sentence for murder.

Decision

Button J granted the adjournment with considerable reluctance, but placed a firm outer limit on any further delay. His Honour rejected outright any suggestion that sentencing could be deferred to February or March 2016, finding that imposing a murder sentence so long after the jury's verdict would place unacceptable stress on those who loved the deceased and would be inconsistent with the proper administration of justice.

The central reason for granting the adjournment was the potential significance of the psychiatric evidence. His Honour accepted that the offender's mental condition was, at least potentially, a central issue in sentencing, and that the Crown itself had acknowledged it could affect whether the ultimate sentence was imposed. Given that the offender would inevitably spend many years in custody regardless of the outcome, Button J considered it preferable that the psychiatric material be properly before the court before sentence was pronounced.

His Honour also noted that, in principle, the 16 October date need not have been vacated at all: alternative counsel could have been briefed, and there was at least a possibility that another forensic psychiatrist could have provided a report in time. However, the combination of factors, including the potential centrality of the psychiatric evidence and the inevitable length of custody, tipped the balance in favour of granting the adjournment.

The court was explicit that 4 December 2015 would be the hard deadline. His Honour stated that only in truly exceptional circumstances would the matter not conclude on that day, and made clear that further unavailability of counsel or psychiatric material would not be accepted as grounds for another adjournment.

Orders Made

  • The hearing date of 16 October 2015 is vacated.
  • The matter is listed for proceedings on sentence at 10 AM on 4 December 2015.
  • The bail of the offender continues to be refused.

Key Takeaways

  • Button J confirmed that sentencing proceedings for murder must conclude within a reasonable time after verdict, and that administration of justice concerns weigh against extended delays even where complex psychiatric evidence is in issue.
  • A combination of factors, being the potential significance of psychiatric evidence to the choice between a determinate and a life sentence, and the medical unavailability of both the treating psychiatrist and defence counsel, justified a limited adjournment in these circumstances.
  • The Supreme Court emphasised that the unavailability of counsel or medical evidence will not, by itself, automatically warrant further adjournments once the court has set a firm outer date.
  • Where defence counsel becomes unable to appear, the availability of trial transcripts and exhibits means that substitute counsel can take over proceedings, including in serious criminal matters.
  • In setting the 4 December 2015 date, the court signalled that it would be guided by the interests of those who loved the deceased, as well as the offender, in ensuring sentence is not unduly delayed after verdict.

Legislation and Cases Referenced

Cases Cited:
- R v Biljuh [2015] NSWSC 660 (earlier ruling on Crown adjournment application during trial)
- R v Biljuh (No 2) [2015] NSWSC 702 (further ruling on the same issue during trial)

Legislation: No specific legislation was cited in this decision.