Citation: R v Biljuh (No 4) [2015] NSWSC 774
Court: Supreme Court of New South Wales
Date: 15 June 2015
Judge(s): Button J
Background
The accused was on trial in the Supreme Court for the murder of his mother. The defence position, as opened to the jury, was that the accused had not murdered his mother, with no dispute that someone else had done so.
During cross-examination, the Crown Prosecutor asked the accused a question about the timing and reasons for the accused developing highly negative relationships with members of his family. That particular evidence had not been led during the Crown case, though the Crown acknowledged it had been disclosed to the defence before trial.
The accused himself, both in examination-in-chief and in the early stages of cross-examination, had already accepted that he shared an extremely poor relationship with his mother, and to a lesser extent with his brother and sister. An objection was taken to the Crown's question.
Legal Issues
- Whether the Crown Prosecutor could elicit, during cross-examination of the accused, evidence that was relevant and admissible but had not been led as part of the Crown case.
- Whether the principles established in The Queen v Soma (2003) 212 CLR 299 applied to bar this course of questioning.
Decision
Button J upheld the objection and rejected the question. His Honour found that the evidence the Crown sought to draw out through the accused was relevant and otherwise admissible, and could properly have been led during the Crown case. That it was not led at that stage was the critical problem.
His Honour distinguished the circumstances from those involving a prior inconsistent statement. There had been no change in the accused's position since the trial began. The accused had consistently maintained, and indeed accepted, that he and his mother had an extremely poor relationship. The Crown's question was therefore not directed at testing a shift in his account.
Applying the reasoning of the plurality, McHugh J, and Callinan J in The Queen v Soma, Button J concluded that permitting the Crown to introduce this evidence during the defence case, through cross-examination of the accused, would be contrary to established principle. The objection was upheld accordingly.
Orders Made
No formal orders were recorded beyond the ruling upholding the objection and rejecting the Crown Prosecutor's question.
Key Takeaways
- The Supreme Court confirmed that where evidence is relevant and admissible and could have been led in the Crown case, the Crown cannot introduce it for the first time by cross-examining the accused during the defence case.
- The principle from The Queen v Soma (2003) 212 CLR 299 extends beyond prior inconsistent statements; it applies wherever the Crown seeks to adduce admissible evidence through the accused that was not part of its own case.
- A finding that the accused had not changed his position since the start of trial was material to the ruling: the cross-examination could not be justified as a response to any new or inconsistent stance taken by the accused.
- Disclosure of material to the defence before trial does not, of itself, cure the procedural problem of the Crown failing to adduce that evidence in its own case.
- This was an interlocutory evidentiary ruling made ex tempore during the course of a murder trial, and its significance is confined to the application of Soma principles in comparable circumstances.
Legislation and Cases Referenced
Cases:
- The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299 (the primary authority applied, particularly at [31]-[40] per the plurality, [58]-[65] per McHugh J, and [112]-[113] and [119] per Callinan J)
Legislation: No specific legislation was cited in this decision.