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Court of Criminal Appeal 7 November 2007

McMullen v R

[2007] NSWCCA 306

Assault & violenceTheft & property
CRIMINAL APPEAL EVIDENCE NOT PREJUDICIAL APPEAL DISMISSED

Citation: McMullen v R [2007] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 7 November 2007
Judge(s): Handley AJA, Howie J, Price J

Background

The appellant was tried in the District Court alongside a co-accused for aggravated robbery under s 97(2) of the Crimes Act 1900. The charge arose from an armed robbery at a Croatian club in January 2004, in which approximately $32,900 was stolen. All three participants wore balaclavas and could not be identified by eyewitnesses; the Crown case relied substantially on evidence from a co-offender, corroborated by other material.

During the trial, police played a video recording of the execution of a search warrant at premises associated with the appellant. In the course of that footage, an officer removed items from the appellant's wallet and described them to camera. One item was identified as an "MRRC Temporary Inmate identification card" in the appellant's name. That segment lasted approximately four seconds.

It was common ground that "MRRC" stood for the Metropolitan Reception and Remand Centre at Silverwater, and that cards of that type are issued to prisoners serving weekend (periodic) detention. The tape was not available to the jury during deliberations, no transcript was tendered, and no juror raised any question about the card.

  • Whether the inadvertent display of the periodic detention card to the jury constituted unfairly prejudicial evidence.
  • Whether that evidence caused a miscarriage of justice sufficient to warrant quashing the conviction and ordering a new trial under s 6 of the Criminal Appeal Act 1912.
  • Whether the trial judge's directions to the jury were adequate to cure any prejudice, or whether the prejudice was incurable.

Decision

The Court dismissed the appeal, finding that the four-second segment was not unfairly prejudicial to the appellant. The initials "MRRC" and the phrase "Temporary Inmate" were, without further context, meaningless to an ordinary juror. There was no other reference in the evidence to the Metropolitan Reception and Remand Centre, to Silverwater as a penal institution, or to any link between those terms and the appellant's prior history.

The Court reasoned that even accepting that one or more jurors might have recognised the card for what it was, they would have had no way of knowing what offence the appellant had previously committed. The Court noted that periodic detention is associated with offences of moderate criminality, which would have been an unlikely basis for adverse inference in a trial for aggravated robbery.

Handley AJA characterised the argument for prejudice as requiring speculation to be built upon speculation, founded on four seconds of unremarked and routine evidence. The trial judge had also given careful directions, both during the trial and in the summing up, instructing the jury to disregard any references to gaol or related associations as entirely irrelevant to guilt. In the circumstances, the point raised in the appeal failed, and the Court did not need to consider the proviso to s 6 of the Criminal Appeal Act 1912.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that inadvertently disclosed evidence will not constitute unfair prejudice unless it could reasonably have influenced the jury adversely to the accused.
  • A passing reference lasting four seconds, containing initials and phrases that would be meaningless without specialist knowledge, was insufficient to establish prejudice in the context of a serious criminal trial.
  • Where potentially prejudicial evidence is inadvertently placed before a jury, appropriate judicial directions can be sufficient to address any risk of unfairness, provided the evidence itself does not carry an obvious and impactful prejudicial meaning.
  • The proviso to s 6 of the Criminal Appeal Act 1912 did not require consideration because the primary finding was that no unfair prejudice had been established.
  • Periodic detention cards of the MRRC type were found, in this case, to carry no clear message to a lay juror about the nature or seriousness of any prior offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (aggravated robbery)
- Criminal Appeal Act 1912 (NSW), s 6 (including the proviso)

Cases cited: No cases were cited in the judgment text.