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Supreme Court 24 August 2022

R v Kilincer (No. 7)

[2022] NSWSC 1734

Homicide
CRIME TRIAL ACCUSED ON TRIAL FOR MURDER CROWN CASE CLOSE TO CLOSING SIGNIFICANT AMOUNT OF EVIDENCE TAKEN ACCUSED COMPLAINING OF ILL HEALTH

Citation: R v Kilincer (No. 7) [2022] NSWSC 1734
Court: Supreme Court of New South Wales
Date: 24 August 2022
Judge: Wilson J

Background

The accused stood trial on a charge of murder arising from the violent death of a man in December 1995. The trial had commenced on 1 August 2022, with a jury of 15 empanelled. By the time of this application, some 48 Crown witnesses had given evidence, four jurors had become unavailable, and the jury had been reduced to 11 members.

The accused failed to appear on 23 and 24 August 2022. His counsel informed the court that he had complained of chest pain during proceedings and attended Westmead Hospital's emergency department. The court granted an initial adjournment to allow for medical assessment.

The accused then sought a further adjournment of up to one week. The Crown opposed the application. The court had directed the accused's representatives to obtain better supporting information, but nothing further was provided by 3:30pm on 24 August.

  • Whether the medical evidence tendered was a sufficient basis to adjourn a part-heard murder trial before a jury
  • Whether the accused had discharged the obligation to provide satisfactory evidence in support of an adjournment application
  • What consequences might follow if the accused continued to absent himself

Decision

Wilson J refused the adjournment application. The medical material before the court consisted of a hospital discharge summary and a brief note from a Medical Officer, Dr Mok. The discharge summary recorded that investigations, including troponin tests and an ECG, were unremarkable, and that the accused's symptoms had been resolved with basic analgesics and other standard medications.

Dr Mok's note stated the accused would be "unfit for court hearings" until a cardiology review on 29 August 2022. Wilson J found this was insufficient. It was unclear whether Dr Mok was aware of the nature of the proceedings, the accused's role in them, or the consequences of his non-attendance. The court also noted that the hospital appeared unwilling to provide further information when approached by the accused's solicitor.

Her Honour emphasised that the obligation to provide satisfactory evidence in support of an adjournment application rests on the accused, not the court. The court is not an inquisitorial tribunal and it was not the court's role to seek out evidence on the accused's behalf, as had been suggested by his counsel.

Wilson J accepted the Crown's submission that the material before the court was insufficient to establish any serious risk to the accused's health or wellbeing if the trial proceeded. The adjournment was refused beyond 10am the following morning. Her Honour also noted that if the accused continued to absent himself, the court may conclude he had waived his right to be present, and the trial could proceed without him.

Orders Made

• Application for adjournment refused
• Trial to proceed at 10am the following day
• Sheriff to contact jurors and direct them to attend court the next morning

Key Takeaways

  • In a part-heard jury trial on a serious charge, the burden of providing satisfactory medical evidence to support an adjournment application rests on the accused, not the court.
  • A medical certificate stating unfitness for "court hearings" will carry limited weight where the underlying clinical investigations are unremarkable, symptoms were resolved with basic medication, and the certifying doctor's awareness of the nature of the proceedings is uncertain.
  • The Supreme Court confirmed it is not an inquisitorial court and declined to obtain supporting information itself, rejecting the suggestion that it should approach the hospital directly.
  • Refusing the extended adjournment, Wilson J made clear that an accused who continues to absent himself without adequate justification risks being found to have waived the right to be present, potentially allowing the trial to continue in his absence.
  • The advanced stage of the trial, the number of witnesses already called, and the reduced jury composition were all relevant contextual factors weighing against further interruption to the proceedings.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 18 (noted as the basis for a potential objection to a further Crown witness; not substantively decided in this judgment)

Cases
No cases were cited in this judgment.