Citation: R v Pratten (No 2) [2012] NSWSC 1665
Court: Supreme Court of New South Wales
Date: 21 March 2012
Judge(s): Rothman J
Background
The accused faced seven counts of obtaining a financial advantage by deception, relating to alleged failures to declare income in personal tax returns. The trial had reached the point where both the Crown and the accused had delivered their opening addresses to the jury, but no evidence had yet been called.
After the accused's counsel delivered the opening address, the Crown made an application to discharge the jury. The Crown submitted that the defence opening had gone significantly beyond what is permitted under s 159 of the Criminal Procedure Act 1986 and had created irremediable unfairness to the prosecution.
The Crown's senior counsel acknowledged he had never encountered such an application in 30 years of criminal law practice. Rothman J described the application as "a most unusual course."
Legal Issues
- Whether the Crown had standing and a legal basis to apply for discharge of the jury following the accused's opening address
- Whether the defence opening address exceeded the scope permitted by s 159 of the Criminal Procedure Act 1986
- Whether the content of the opening created unfairness that could be remedied by judicial directions to the jury
- What principles govern an application to discharge a jury where the alleged unfairness arises from a party's own opening address
- Whether, and to what extent, the AAT proceedings and the ATO assessment were relevant to the criminal trial
Decision
Issue 1: Jurisdiction and applicable principles
The court confirmed that its inherent power to protect the administration of justice and prevent abuse of process applies equally to civil and criminal proceedings, and extends to ensuring that the court's processes are used fairly by state and citizen alike (at [11]-[12]). Drawing on the High Court decisions in Dupas, Batistatos, and Williams v Spautz, Rothman J held that these principles, while most commonly invoked in applications by accused persons, are not confined to that context (at [4]). The court also noted that a trial judge is ordinarily better placed than an appellate court to assess whether prejudice from an opening can be remedied by direction (at [6]).
Issue 2: Whether the defence opening exceeded s 159
Section 159 of the Criminal Procedure Act 1986 permits an accused to address the jury immediately after the Crown's opening, but confines that address to prescribed matters. Rothman J found that the defence opening went beyond what s 159 permits (at [32]). The opening contained eight categories of complaint, including suggestions that the ATO audit material had been deliberately withheld from the jury, that the timing of the arrest was unfair, that the Crown had misrepresented the accused's expenditure, and that the accused risked conviction in this court while the AAT might simultaneously determine that no tax was payable (at [16]-[21]).
Issue 3: Whether unfairness was remediable
The court found that the opening created significant unfairness through remarks directed at the conduct of the prosecuting authorities and the Director of Public Prosecutions (at [32]). Rothman J acknowledged that directions to the jury might theoretically address that unfairness, but concluded that any direction sufficient to do so would risk being perceived as criticism of the accused or defence counsel, thereby creating a countervailing unfairness to the accused (at [34]-[35]). That "lose-lose" dynamic left the court unable to identify any direction that would cure the problem, making the unfairness irremediable (at [35]).
Issue 4: Relevance of the AAT proceedings and tax assessment
Rothman J noted that the AAT does not determine the same questions as the criminal court, because it exercises a discretionary function the criminal court cannot replicate (at [44]). However, the court expressed the preliminary view that the fact of a tax assessment and its method of calculation could rationally affect the probability of facts in issue in the proceedings (at [41]), and that the AAT proceedings might be relevant to the extent they bear on a hypothesis inconsistent with guilt (at [45]). These observations were flagged as preliminary thinking rather than concluded rulings, with the court inviting the parties to be heard if formal determinations were required (at [36], [46]).
Orders Made
- The jury was discharged.
Key Takeaways
- An application by the Crown to discharge a jury on the basis of the accused's opening address is, in the assessment of this court, an extremely rare procedural step, acknowledged as without precedent in the Crown's own 30 years of practice (at [1]-[4]).
- The court's inherent power to safeguard the administration of justice applies equally to the Crown and the accused, requiring that court processes are used fairly by all parties, not merely by the state against an accused (at [11]-[12]).
- Where a defence opening exceeds the scope of s 159 of the Criminal Procedure Act 1986 and creates unfairness to the prosecution, the trial judge retains power to discharge the jury, even before any evidence is called (at [32], [35]).
- A judicial direction will not always cure an unfair opening: where any curative direction would itself risk creating a countervailing prejudice to the accused, the unfairness may be irremediable and discharge the appropriate response (at [34]-[35]).
- Matters of alleged unfairness in the conduct of proceedings are for the court to address, not for counsel to ventilate before the jury in an opening address (at [38]-[39]).
Legislation and Cases Referenced
Legislation
- Criminal Law Consolidation Act 1935 (SA)
- Criminal Procedure Act 1986
Cases
- Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
- Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
- Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
- Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1
- Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
- R v Hansen [2002] SASC 208; (2002) 84 SASR 54
- R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148
- Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509