Citation: R v Ahola (No 6) [2013] NSWSC 703
Court: Supreme Court of New South Wales
Date: 14 May 2013
Judge(s): Button J
Background
The accused stood trial in the Supreme Court on unspecified charges. During the trial, a fingerprint expert, a detective senior constable, gave evidence comparing crime scene fingerprints with prints taken from the accused at the time of his arrest.
In the course of that evidence-in-chief, the witness made a remark suggesting that "other comparisons are performed" and that going into those comparisons "might be prejudicial." He also referred to retrieving the accused's fingerprint impressions from the National Automated Fingerprint Identification System under a charge number predating his arrest for the current matter.
Defence counsel applied for the discharge of the entire jury on the basis that the jury would inevitably infer from those remarks that the accused held a pre-existing criminal record and that his fingerprints had been held by police prior to this matter.
Legal Issues
- Whether the fingerprint expert's remarks were sufficiently prejudicial to require the discharge of the entire jury
- Whether a high degree of necessity existed, as required by the established test, to warrant that discharge
- Whether an ameliorative judicial direction to the jury could adequately address any resulting prejudice
Decision
Button J confirmed that the applicable test for discharging a jury in a criminal trial requires a "high degree of necessity," drawn from the High Court's decision in Crofts v The Queen (1996) 186 CLR 427. The joint judgment in Crofts identified relevant factors including the seriousness of the occurrence, the stage of proceedings, the deliberateness of the conduct, and the likely effectiveness of a judicial direction.
His Honour reviewed a series of cases in which courts had declined to discharge juries following inadvertent exposure to prejudicial material, including prior convictions or other damaging information. Those cases demonstrated that a judicial direction is frequently an appropriate remedy, and that courts are not to take an overly sensitive approach to accidental receipt of prejudicial material.
Applying those principles, Button J identified several factors weighing against discharge. It was not clear that all jurors heard the offending passage, as the witness was not speaking loudly or forcefully. Even if heard, it was not certain the passage would necessarily be interpreted as revealing a prior criminal record. The extract had some flavour of the witness speaking in generalities rather than referring to this particular case. There was no observable reaction of consternation from the jury at the time. Additionally, the subsequent evidence made clear that the relevant comparison was between crime scene prints and prints taken at the accused's arrest for this matter.
Button J acknowledged the remark was a regrettable slip, but concluded he was not satisfied that the high degree of necessity for discharging the jury had been reached. He indicated he was prepared to give an appropriate direction to the jury, including one specifically asking the jury to disregard the evidence entirely if that was what defence counsel sought.
Orders Made
No formal orders were recorded in the provided text. The application for discharge of the jury was refused.
Key Takeaways
- The established test for discharging a jury in a criminal trial requires a "high degree of necessity," and trial judges retain a broad discretion in assessing whether that threshold is met.
- Under the framework in Crofts v The Queen, relevant factors include the seriousness of the inadvertent event, the stage of trial at which it occurred, the deliberateness of the conduct, and whether a judicial direction could adequately remedy the prejudice.
- A judicial direction is frequently an appropriate and sufficient response to accidental receipt of prejudicial material by a jury, and courts are not encouraged to take an overly sensitive approach to such slips.
- Absence of any visible reaction from jurors, uncertainty about whether they heard or understood the offending passage, and the ability of subsequent evidence to put matters in context are all relevant to the exercise of discretion.
- In dismissing the application here, the court found that several circumstances collectively fell short of the high degree of necessity required, particularly where uncertainty existed about what the jury had heard and how they may have interpreted it.
Legislation and Cases Referenced
Cases:
- Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
- Williams v The Queen [2000] FCA 1868; 119 A Crim R 490
- R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1
- Qing An v Regina [2007] NSWCCA 53
- Santo v R [2009] NSWCCA 269
Legislation: No specific legislation was cited in the judgment.