Citation: R v Hawi & ors (No 30) [2011] NSWSC 1676
Court: Supreme Court of New South Wales
Date: 31 October 2011
Judge: R A Hulme J
Background
This decision arose within a large and lengthy criminal trial involving multiple accused. One accused, referred to here as the accused Kisacanin, was represented by counsel who had opened the defence case on the basis that there was no evidence of any weapon on his client and no evidence linking him to any violent activity in the departure hall.
On 15 August 2011, during the Crown's response to an application for directed verdicts of acquittal, the Crown for the first time indicated it intended to submit to the jury that a person seen carrying a bollard in CCTV footage (called "the Deng footage") was consistent in appearance with the accused Kisacanin. This was later than counsel for the accused had expected.
A second issue arose from the evidence of a Qantas employee, Ms Redford, who described seeing a man in a dark grey singlet swing a bollard. She described the man as having tattoos. The accused Kisacanin wore a grey singlet and was of big build, but had no visible tattoos. The Crown did not seek to challenge Ms Redford's evidence about the tattoos by cross-examining her, yet later submitted the description was still consistent with the accused.
Legal Issues
- Whether the late notification of the Crown's reliance on the Deng footage caused irreparable prejudice to the accused Kisacanin such that the jury should be discharged.
- Whether the Crown's failure to cross-examine Ms Redford about the tattoo description constituted a breach of the rule in Browne v Dunn and, if so, whether that breach caused sufficient prejudice to warrant discharging the jury.
Decision
On the first ground, Hulme J accepted that the accused's counsel had not cross-examined witnesses about the Deng footage or about whether anyone in that area could have been the accused. However, counsel did not explain what useful cross-examination would have been conducted had the Crown's position been known earlier. The court reasoned that attempting to establish a negative through cross-examination, when the evidence was already essentially negative on that point, would have served no practical purpose and might even have been counterproductive by prompting witnesses to raise the possibility of the accused's presence.
On the second ground, the court found the Crown's conduct did not plainly breach Browne v Dunn. It was difficult to see on what basis the Crown could have cross-examined Ms Redford to positively assert that the man had no tattoos. At most, the Crown could have asked whether she was certain about the tattoos, and the utility of that for the accused's case was not apparent. Whether leave would even have been granted under sections 38 and 192 of the Evidence Act 1995 to cross-examine the Crown's own witness on this basis was itself uncertain.
The court also noted that, early in the trial, the Crown Prosecutor had raised the question of whether she needed to seek leave to cross-examine Crown witnesses whenever their evidence contained discrepancies the Crown did not accept. All counsel, including the accused's counsel, had responded that this was not necessary. No concern on this issue was raised again until the discharge application. Requiring the Crown to cross-examine every witness on every discrepancy would have extended an already lengthy trial with little practical benefit.
In both respects, individually and collectively, Hulme J was not persuaded that the accused Kisacanin had suffered prejudice sufficient to warrant discharge of the jury. The application was refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- Late disclosure of a Crown evidentiary submission does not automatically establish prejudice warranting jury discharge; the court will examine whether different conduct of the defence case would in fact have been available and useful.
- A failure to cross-examine a witness under the rule in Browne v Dunn does not give rise to a discharge application unless the accused can identify actual prejudice flowing from that failure.
- Where the practical value of the omitted cross-examination is not apparent, and where the Crown's ability to obtain leave to cross-examine its own witness was doubtful, no actionable prejudice arises.
- An early agreement between all parties that the Crown need not seek leave to cross-examine every witness on every discrepancy is a relevant contextual factor when a later Browne v Dunn complaint is made.
- Discharging a jury is a remedy of last resort; the court must be persuaded that prejudice to the accused is real and incapable of being remedied by less drastic means.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 192
Cases
- Browne v Dunn (1893) 6 R 67
- Causevic v R [2008] NSWCCA 238
- Puchalski v R [2007] NSWCCA 220
- R v Hawi & ors (No 27) [2011] NSWSC (preceding judgment in the same trial)
- R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34
- R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345