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Supreme Court 2 June 2015

R v Biljuh (No 2)

[2015] NSWSC 702

Other
CRIMINAL LAW APPLICATION FOR ADJOURNMENT NEW CROWN PROSECUTOR BRIEFED ADJOURNMENT GRANTED.

Citation: R v Biljuh (No 2) [2015] NSWSC 702
Court: Supreme Court of New South Wales
Date: 2 June 2015
Judge: Button J

Background

This was the second procedural judgment arising from a jury trial in which the DPP had withdrawn the original Crown Prosecutor's instructions partway through proceedings. In the first judgment ([2015] NSWSC 660, delivered 29 May 2015), Button J had adjourned the trial to allow newly briefed Crown counsel time to prepare, while refusing the Crown's application to discharge the jury entirely.

The new Crown Prosecutor was given approximately four and a half days to prepare, including two weekend days, before the trial was scheduled to resume on the morning of 2 June 2015. The brief ran to approximately 2,000 pages, and a number of videos remained unreviewed by incoming counsel.

On 2 June 2015, the new Crown Prosecutor applied for a further adjournment, to Tuesday 9 June 2015, on the basis that his preparation, while underway, was not yet optimal. Both the adequacy of preparation time and the potential effect of delay on the jury were squarely in issue.

  • Whether a further adjournment should be granted to allow the newly briefed Crown Prosecutor additional time to prepare, beyond the four and a half days already provided.
  • Whether, if a further adjournment were granted, the length of the resulting gap in proceedings would impair jury comprehension of earlier evidence or undermine the jury's commitment to the trial.
  • Whether those concerns about jury comprehension would, in themselves, make discharge of the jury the more appropriate course.

Decision

Button J accepted that the new Crown Prosecutor's preparation would not be "absolutely optimal" by the scheduled resumption date. However, his Honour regarded this as the inevitable consequence of any mid-trial change of counsel, not as a special circumstance justifying extended delay. The primary position advanced by defence counsel, that the trial should simply proceed, was noted as the logical implication of that reality.

His Honour granted a limited further adjournment of two days, to Thursday 4 June 2015 at 10 am. That period was considered sufficient to address the specific preparation gaps the Crown Prosecutor had identified, including reviewing outstanding videos and consolidating his understanding of the brief.

Button J declined to extend the adjournment further, expressing concern that a longer gap would cause the jury to lose commitment to the proceedings and create real difficulty in recalling evidence, including cross-examination, given approximately one week earlier. His Honour was not persuaded that these concerns rose to the level requiring jury discharge.

The Crown Prosecutor was informed that the adjournment was not to be treated as contingent on further applications. Button J stated clearly that only a truly exceptional development would justify any additional delay, and that any such application had to be made by 3 pm on Wednesday 4 June 2015.

Orders Made

  • Further adjournment granted to Thursday 4 June 2015 at 10 am for the Crown to call its first witness.
  • Jury to be stood down and directed to return at 10 am on 4 June 2015.
  • Any further application for adjournment to be filed no later than 3 pm on Wednesday 3 June 2015, unless arising from circumstances occurring after that time.

Key Takeaways

  • A mid-trial change of Crown Prosecutor does not, of itself, entitle the incoming counsel to an extended adjournment to achieve optimal preparation; some degree of imperfect preparation is treated as an unavoidable consequence of the change.
  • The Supreme Court weighed preparation adequacy against the risk of jury distraction and memory failure, treating both as live considerations when setting the length of any adjournment.
  • Where the gap in proceedings is long enough to undermine jury comprehension of earlier evidence, discharge of the jury becomes a question to be considered alongside adjournment, even if neither party presses for it.
  • Button J placed a firm limit on the adjournment and signalled that further applications would succeed only in truly exceptional circumstances, reinforcing that courts retain active control over the pace of jury trials.
  • The two-day adjournment granted reflected a balance struck on the specific facts, including the size of the brief and outstanding material, rather than any general rule about the time newly briefed counsel are entitled to expect.

Legislation and Cases Referenced

Cases:
- R v Biljuh [2015] NSWSC 660 (the immediately preceding judgment in the same proceedings, addressing the initial adjournment and the rejected application to discharge the jury)

Legislation: No legislation was cited in the judgment.