Citation: R v Biljuh (No 5) [2015] NSWSC 775
Court: Supreme Court of New South Wales
Date: 15 June 2015
Judge(s): Button J
Background
The accused stood trial for the murder of his elderly mother at her home in Villawood, Sydney, in February 2014. The Crown alleged that the deceased was asphyxiated, either by strangulation or suffocation, and that the accused was the perpetrator. Defence counsel indicated in opening that the identity of the killer, not the nature of the offence, was the live issue at trial.
The physical evidence painted a stark picture. The deceased had injuries consistent with strangulation, duct tape had been wrapped tightly over her entire face covering her nose and mouth, and her body had been dragged from the house to a rear granny flat. A neighbour nearby heard no screams or sounds of struggle.
Before closing addresses commenced, the question arose whether the jury should also be directed to consider manslaughter as an alternative to murder. Defence counsel argued it should be left; the Crown opposed it.
Legal Issues
- Whether there was sufficient evidence in the trial to make manslaughter a viable alternative verdict to murder
- Whether it was possible, on the undisputed evidence, that the perpetrator lacked the intention to kill or inflict grievous bodily harm
Decision
Button J identified the controlling test as whether manslaughter is a "viable alternative verdict" because there is evidence in the trial to support it, drawing on the recent formulation in Hoskins v R [2014] NSWCCA 207.
Defence counsel constructed a hypothesis under which the perpetrator strangled the deceased into unconsciousness in anger but without intending grievous bodily harm, dragged her to the granny flat, and then applied duct tape believing she was already dead, perhaps to denigrate her or cause distress to another family member who lived in the flat. On this hypothesis, the perpetrator would have committed manslaughter rather than murder.
His Honour accepted the hypothesis was logically constructable but described it as "thoroughly fanciful." He found it simply not viable to conclude that a person who strangled an elderly woman into unconsciousness, dragged her body, inflicted injuries on her head and body, and then applied duct tape completely covering her face did not, at minimum, intend to inflict grievous bodily harm. Button J noted that applying tape over the nose and mouth carried the "absolutely inevitable consequence" that anyone still breathing would suffocate.
His Honour also had regard to the principle, drawn from Thabo Meli v R, that within a continuing course of conduct there need not be strict temporal concurrence between the mental element and the physical act causing death. Taking all of the evidence together, Button J concluded that directing the jury on manslaughter would serve no purpose and would risk bewildering them.
Orders Made
No orders were made in this decision.
Key Takeaways
- The applicable test for leaving manslaughter as an alternative verdict in a murder trial is whether it is a "viable alternative verdict" supported by evidence in the proceedings, as confirmed in Hoskins v R [2014] NSWCCA 207.
- A logically constructable hypothesis does not automatically make an alternative verdict viable; the hypothesis must have genuine evidential support, not merely be a theoretical possibility.
- Where the physical acts of a perpetrator carry an absolutely inevitable lethal or seriously harmful consequence, a court may find it is not open to conclude the requisite intention for murder was absent.
- The Supreme Court confirmed that, within a continuing course of conduct, strict temporal concurrence between the mental element of murder and the physical act causing death is not required, applying the principle from Thabo Meli v R [1954].
- Although trial judges are generally directed to err on the side of caution in leaving alternative homicide verdicts, this principle does not require an alternative verdict to be left where it lacks any viable evidential foundation.
Legislation and Cases Referenced
Cases:
- 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
Legislation: No specific legislation was cited in the judgment.