Citation: R v Michael Anthony Ryan (No. 5) [2012] NSWSC 1159
Court: Supreme Court of New South Wales
Date: 18 September 2012
Judge: S.G. Campbell J
Background
The accused was standing trial in the fifth week of proceedings on two counts: manslaughter by an unlawful and dangerous act, and assault occasioning actual bodily harm. Both offences were alleged to have occurred on the same evening, involving two related complainants. CCTV footage from cameras positioned in and around the Fitzroy Hotel in Windsor formed a significant part of the Crown case.
During the trial, the jury sent a note indicating they had experienced difficulty seeing the CCTV footage clearly from their position in the courtroom. The jury also noted they were uncertain whether they would have the opportunity to view the footage properly once they retired to deliberate. His Honour acknowledged that, despite an earlier undertaking, a laptop had not been placed in the jury room to allow the jury to view the exhibits privately.
Following the jury's note, defence counsel applied to discharge the jury on the basis that the difficulty in viewing the footage meant the accused could not receive a fair trial.
Legal Issues
- Whether the jury's difficulty in clearly seeing the CCTV footage from the courtroom created a real possibility of unfairness to the accused.
- Whether the circumstances warranted discharge of the jury in the interests of a fair trial.
Decision
Campbell J refused the application. His Honour reasoned that the jury's note, properly understood, did not indicate the jurors had failed to perceive the substance of the evidence as it was given. Rather, the note reflected a concern about whether they would be able to review the footage in close detail during deliberations, a concern the jury itself clarified in a subsequent note by explaining the footage did not carry undue importance in their minds.
His Honour also noted that the CCTV footage, while not of high quality, had been played in court with counsel guiding witnesses through the relevant passages during examination and cross-examination. That process, combining the footage with closely framed questions from experienced counsel, assisted comprehension in a way that mere passive viewing would not. The judge observed that he had himself watched both the personal monitor and the courtroom screen during the trial and had been able to follow the evidence clearly.
Campbell J found that the court's equipment was reasonably modern and that no better configuration was apparent. The jury's divided attention among the witness, the cross-examiner, and the screen is an inherent feature of this type of evidence. The substance of the jury's concern did not establish even the possibility of prejudice of the kind described in the case law, nor did it demonstrate that the fairness of the trial had been compromised.
Orders Made
No formal orders were recorded beyond the refusal of the application; however, the court directed that the jury would have full access to the CCTV exhibits upon retirement to deliberate.
Key Takeaways
- A jury's expressed difficulty in clearly viewing CCTV evidence from the courtroom does not automatically give rise to a right to discharge; the court assessed the realistic effect of that difficulty on the fairness of the proceedings as a whole.
- The interactive process of examining witnesses about footage, guided by counsel familiar with the material, can adequately convey the substance of video evidence even where the image quality is imperfect.
- Where a jury clarifies through a subsequent note that its concern was limited to access during deliberations rather than a failure to perceive the evidence, that clarification is a relevant and significant factor in assessing any discharge application.
- Refusing the discharge application, the Supreme Court applied the principle that the relevant question is whether there has been, or possibly has been, prejudice to the accused sufficient to undermine the maintenance of trial fairness, drawing on the test articulated in earlier case law.
- An inadvertent failure by the trial judge to fulfil an undertaking to provide exhibits to the jury room does not necessarily result in unfairness where the underlying concern is remedied before verdict.
Legislation and Cases Referenced
Cases:
- Cesan v The Queen (2008) 236 CLR 358
- Crofts v The Queen (1996) 186 CLR 427
- R v H [1999] 2 Qd R 283
- R v Rohatgi (unreported, NSWCCA, 4 November 1992)
Legislation: No specific legislation was cited in this decision.