Citation: R v Scott; R v Widmer [2011] NSWSC 1463
Court: Supreme Court of NSW
Date: 6 December 2011
Judge(s): Buddin J
Background
Two accused, Cameron Scott and Michael Widmer, faced trial for the murder of a woman at Manly in March 2004. The Crown alleged that after she left a unit in the early hours of that morning, she was killed and her body transported to North Head, where skeletal remains were discovered over five years later. The Crown conceded it could not establish the manner or cause of death.
The trial proceeded against a backdrop of pervasive drug use. Evidence already before the jury included accounts of the accused, the deceased, and a key Crown witness all injecting drugs at the premises that night. The deceased had a longstanding drug addiction, and there was a suggestion she may have supported that addiction through drug sales.
During cross-examination of a neighbouring resident, counsel for Scott read from the witness's police statement a passage in which the witness said he had thought Widmer and his female companion might be dealing drugs. Counsel for Widmer applied to discharge the jury on the basis that question caused irreparable prejudice to Widmer.
Legal Issues
- Whether the question put to the witness, which elicited a lay opinion that the accused Widmer and his companion may have been dealing drugs, caused such irreparable prejudice that the jury should be discharged.
- Whether a direction withdrawing the question and addressing the jury adequately remedied any prejudice arising.
Decision
Issue 1: Whether irreparable prejudice arose from the question
Buddin J accepted that the question was objectionable. It called for the witness's opinion or belief, which had no probative value, and counsel for Scott could not offer a satisfactory explanation for its relevance. The judge also accepted that the question was asked deliberately.
However, His Honour rejected the submission that the question caused irreparable prejudice. The context was critical. The trial was already saturated with drug-related evidence involving all principal participants, including the deceased. The suggestion of dealing was directed equally at Widmer's female companion, who was the principal Crown witness and herself deeply involved in the drug milieu. Buddin J also noted the trial was likely to be conducted on a robust basis, given the prospect that each accused might attribute the deceased's fate to the other.
Issue 2: Whether directions to the jury were sufficient
After the jury returned to court, counsel for Scott withdrew the question and acknowledged it was improper. Buddin J directed the jury that the question itself was not evidence, that the witness's expressed thought was no evidence at all, and that the matter should be put entirely to one side. His Honour concluded that the withdrawal and directions removed any possible prejudice that may have arisen.
Orders Made
- Application to discharge the jury refused.
Key Takeaways
- The Supreme Court confirmed that the context and atmosphere of a trial are relevant factors when assessing an application to discharge a jury, particularly where the alleged prejudice concerns subject matter already pervasive in the evidence.
- An improper question calling for a lay witness's opinion or belief carries no probative value and is objectionable, but that does not automatically make any prejudice irreparable.
- Where the overall evidentiary landscape already involves extensive drug-related material, a single reference to possible drug dealing by an accused may not create the kind of distinct or novel prejudice that warrants discharging the jury.
- A prompt withdrawal of the offending question by counsel, combined with clear judicial directions that the question is not evidence and must be disregarded, can be sufficient to cure potential prejudice.
- No distinction was readily drawn in these circumstances between characterising an accused as a drug addict versus a drug dealer, given the degree to which drug activity permeated the entire factual background of the case.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated