Citation: R v Biljuh [2015] NSWSC 660
Court: Supreme Court of New South Wales
Date: 28 May 2015
Judge(s): Button J
Background
The accused stood trial for murder before a jury in the Supreme Court. The trial commenced on 26 May 2015, with a jury empanelled and the first prosecution witnesses called.
On the second day of trial, defence counsel drew the court's attention to media reports that ICAC had recently referred documents to the Director of Public Prosecutions (DPP) concerning the Crown Prosecutor personally, in relation to possible offences against public justice. The trial judge directed the jury to disregard that publicity and gave stronger directions than those agreed between the parties. The trial continued that afternoon.
On the third day, the DPP withdrew the Crown Prosecutor's instructions. A second Crown Prosecutor took over the matter. The judge directed the jury not to draw any adverse inference from the change in representation, and then heard a formal application by the incoming Crown Prosecutor to discharge the jury entirely.
Legal Issues
- Whether adverse publicity about the Crown Prosecutor personally had created a "high degree of necessity" justifying discharge of the jury
- Whether it was impractical for a replacement barrister to be briefed in time to continue the trial without discharging the jury
Decision
Button J applied the established test from Crofts v The Queen (1996) 186 CLR 427: discharge requires the moving party to demonstrate a "high degree of necessity." His Honour acknowledged the situation was regrettable and accepted that the combined publicity and sudden departure of the first Crown Prosecutor had the potential to distract or deflect the jury to some degree. However, that potential for distraction did not meet the stringent threshold required.
Several factors weighed against granting discharge. Three timely and firm directions had already been given to the jury, each delivered promptly as each issue arose. Two witnesses who were adult children of the deceased had already given evidence, including evidence about discovering the body and participating in a distressing triple-zero call being played in court. Requiring those witnesses to repeat that process in a fresh trial carried real human cost.
His Honour also observed that the Crown case was relatively straightforward. Most Crown witnesses had already been called and excused. The principal area of anticipated contest, DNA evidence concerning secondary transfer, was a topic familiar to any experienced Crown Prosecutor in New South Wales. A brief to replacement counsel, while placing pressure on the DPP's office, was not impractical.
On the logistical ground, Button J held that administrative difficulty on the Crown's part could not play a determinative role in the discharge question. He was satisfied that sufficiently experienced and diligent counsel could be briefed and ready to proceed by the following Tuesday, and adjourned the trial to that date. The court indicated that transcripts, exhibits, and other practical assistance would be made available to incoming counsel.
Orders Made
- The application for the discharge of the jury is rejected.
- The trial is adjourned until 10 AM on Tuesday 2 June 2015.
Key Takeaways
- The test for discharging a jury on the basis of prejudicial material is a stringent one: the moving party must demonstrate a "high degree of necessity," not merely a risk of prejudice or distraction.
- Timely and firm judicial directions to the jury are a significant countervailing factor when assessing whether discharge is warranted, and the court found that three directions delivered promptly across three days weighed substantially against the application.
- Adverse publicity about a Crown Prosecutor personally, even combined with the mid-trial withdrawal of that prosecutor's instructions, does not automatically satisfy the high degree of necessity test.
- Logistical inconvenience or pressure on the prosecuting authority in briefing replacement counsel does not, of itself, provide a sufficient basis for discharging a jury.
- In evaluating discharge applications, courts weigh the human cost to witnesses of repeating traumatic evidence in a fresh trial alongside the nature of the prejudicial material and the stage of proceedings already reached.
Legislation and Cases Referenced
Cases:
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- Burrell v R [2009] NSWCCA 193
- Dupas v The Queen [2010] HCA 20
- R v Ahola (No 6) [2013] NSWSC 703
Legislation: No specific legislation was cited in the judgment.