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Court of Criminal Appeal 4 August 2023

Biljuh v R

[2023] NSWCCA 193

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE WHETHER FAILURE TO DISCLOSE EVIDENCE NO MISCARRIAGE OF JUSTICE

Citation: Biljuh v R [2023] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 4 August 2023
Judges: Stern JA, Fagan J, Yehia J

Background

The appellant was convicted by jury in June 2015 of murdering his mother, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The deceased was found in a granny flat at her home in Villawood with her hands and face bound in silver duct tape. The cause of death was asphyxia, either by manual strangulation or the application of the tape.

The Crown's case was entirely circumstantial. It alleged the appellant woke in the early hours of 14 February 2014, travelled to the deceased's home with a backpack containing cable ties, duct tape, and disposable gloves, and killed her after her other son had left for work. The appellant denied committing the murder.

Following conviction, the appellant was sentenced to 30 years' imprisonment with a non-parole period of 22 years and six months. Representing himself on appeal, he filed a notice of appeal in February 2023, well outside the three-month filing period. The Court granted an extension of time and leave to appeal across all grounds, but ultimately dismissed the appeal.

The appeal raised the following key questions:

  • Whether the conduct of the prosecution resulted in an unfair trial and a miscarriage of justice
  • Whether the prosecution's failure to disclose certain evidence caused prejudice that constituted a miscarriage of justice
  • Whether the trial judge's directions to the jury were adequate
  • Whether the jury's verdict was unreasonable or unsupported by the evidence
  • Whether conditions imposed on the appellant while on remand caused forensic disadvantage sufficient to impair the fairness of the trial
  • Whether the involvement of a particular senior Crown prosecutor (who withdrew partway through the trial) contributed to an unfair trial

Decision

Miscarriage of justice (Grounds 1, 2, 3 and 6): Stern JA examined each alleged instance of prosecutorial misconduct and non-disclosure in detail. The Court found that none of the specific complaints, assessed individually or cumulatively, established any unfairness amounting to a miscarriage of justice. Many of the complaints were contradicted by the trial record itself, including the Crown's opening and closing addresses and pre-trial communications between the parties.

Non-disclosure (Ground 2): The Court found no prejudice to the fairness of the trial arising from any non-disclosure. Relevant evidence had been tendered at trial without objection. Applying Edwards v R (2021) 273 CLR 585, the Court held that non-disclosure in those circumstances did not produce a miscarriage.

Jury directions (Ground 3): The Court found no error in the directions the trial judge gave. The directions were appropriate and sufficient, and no request for further directions had been made by defence counsel at trial.

Unreasonable verdict (Ground 4): All three judges independently reviewed the trial record. The Court described the Crown's case as a "compelling circumstantial case." It was entirely open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, and no reasonable possibility consistent with innocence could accommodate the many highly probative circumstances established by the evidence.

Forensic disadvantage (Ground 5): The Court accepted, as a matter of principle, that remand conditions could in some cases impair a trial's fairness sufficiently to constitute a miscarriage of justice. However, the circumstances here did not reach that threshold. None of the remand conditions identified by the appellant were found to have materially impaired his ability to receive a fair hearing.

Orders Made

• An extension of time for filing the notice of appeal is granted.
• To the extent required, leave to appeal is granted.
• The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that non-disclosure will not constitute a miscarriage of justice where the relevant evidence was ultimately tendered at trial without objection and no prejudice to the fairness of the proceedings is demonstrated, applying Edwards v R (2021) 273 CLR 585.

  • In dismissing all six grounds of appeal, the Court emphasised that complaints about prosecutorial conduct must be assessed against the actual trial record; assertions of unfairness that are contradicted by the transcript and documentary evidence carry no weight individually or collectively.

  • Where no objection was taken to a jury direction at trial, and no further direction was sought, the absence of a request from defence counsel is a relevant consideration in assessing whether any omission constituted an error.

  • A compelling circumstantial case can support a murder conviction even where the appellant identifies alleged inconsistencies between witnesses; the Court of Criminal Appeal confirmed that the jury's advantage in assessing credibility is a live consideration when reviewing the reasonableness of a verdict.

  • While the Court recognised that sufficiently severe remand conditions could, in principle, impair the fairness of a trial, such disadvantage must reach a level of material impediment to a fair hearing before it will ground a successful appeal against conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), ss 141, 142, 183, 188
- Director of Public Prosecutions Act 1986 (NSW), s 13(1)
- Evidence Act 1995 (NSW), s 137
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 83, 84, 85, 87, 93
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5, 4.15

Cases:
- Edwards v R (2021) 273 CLR 585; [2021] HCA 28
- Dansie v R [2022] HCA 25; (2022) 96 ALJR 728
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
- MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57
- R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1