Citation: Regina v Mikel Fajloun; Regina v Raad Fajloun [2007] NSWDC 380
Court: District Court of New South Wales
Date: 16 November 2007
Judge(s): Cogswell SC DCJ
Background
Two accused were on trial facing criminal charges arising from events on 12 November 2005. The complainant (identified only as KF, subject to a non-publication order) was the key witness for the Crown.
During cross-examination by counsel for one of the accused, KF gave two unsolicited answers referring to a separate occasion on which the first accused had struck her on the leg, leaving a visible bruise. This prior violence was entirely outside the Crown case and had not been led in evidence.
Counsel for the first accused promptly applied to discharge the jury on the basis that the jury had been exposed to prejudicial material that could not fairly be cured by a direction.
Legal Issues
- Whether the unexpectedly elicited evidence of prior violence constituted unfair prejudice to the accused that outweighed any probative value, engaging section 137 of the Evidence Act 1995
- Whether the circumstances met the threshold for discharging the jury, as stated in Crofts v The Queen (1996) 186 CLR 437 and applied in Regina v Gilbert Adam (1999) 47 NSWLR 267
- Whether any prejudice could be adequately addressed by judicial directions rather than discharge
Decision
The court applied the four-factor framework drawn from Crofts v The Queen and adopted by the Court of Criminal Appeal in Adam: the seriousness of the occurrence in the context of the contested issues; the stage of the trial at which it arose; whether the disclosure was deliberate; and whether a judicial direction could adequately remedy the problem.
On the first factor, the court accepted that the evidence was significant but not very serious in context. Critically, the prejudicial material came from the complainant herself, a witness the defence was already inviting the jury to reject as untruthful. The court reasoned that a jury minded to disbelieve her principal allegations would likely apply the same scepticism to this additional evidence.
The court also noted that the evidence emerged relatively early in the trial, that the trial had already experienced considerable delays before commencing, and that the disclosure was not deliberate. Although the question asked was somewhat open-ended, the witness had been instructed beforehand not to venture into those matters.
Rather than giving a specific direction that might inadvertently draw attention to the disputed evidence, the court gave a deliberately broadened direction on contextual evidence, using other examples (including the first accused's driving record) to convey the principle that the jury should not reason from other conduct to tendency. The court was satisfied that direction was sufficient to address the risk of unfair prejudice, and the application to discharge was refused.
Orders Made
- The application to discharge the jury was rejected.
Key Takeaways
- The District Court confirmed that discharging a jury requires a high degree of need, and that need will yield where the court is satisfied a direction can adequately remedy any risk of an unfair trial.
- The four factors from Crofts v The Queen (seriousness of the occurrence, stage of trial, deliberateness of the conduct, and effectiveness of a curative direction) form the framework courts apply when prejudicial material emerges unexpectedly during a trial.
- Where prejudicial evidence comes from the same witness whose credibility is already squarely in contest, the court may treat the risk of unfair prejudice as reduced, since the jury is already being asked to approach that witness with scepticism.
- A targeted judicial direction can, in appropriate circumstances, suffice to address the impact of inadvertently disclosed bad character or prior conduct evidence, without resort to discharge.
- Refusing discharge was also informed by the practical reality that the trial had a history of difficulty getting started, making the desirability of reaching a verdict a relevant, if secondary, consideration.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137 (exclusion of evidence where prejudicial effect outweighs probative value)
Cases
- Crofts v The Queen (1996) 186 CLR 437 (High Court)
- Regina v Gilbert Adam (1999) 47 NSWLR 267 (NSW Court of Criminal Appeal)