Citation: R v Jacobs (No 3) [2013] NSWSC 944
Court: Supreme Court of New South Wales
Date: 17 June 2013
Judge(s): Button J
Background
The accused stood trial for the shooting of a police officer. The defence case pointed to a third party, a man named Terry Price, as the real shooter. Price had been interviewed by police, denied involvement, and was under no obligation to answer their questions.
Immediately after the Crown Prosecutor delivered the opening address to the jury, defence counsel applied for the jury to be discharged. The application was deferred briefly to allow the parties and the court to review the transcript before argument.
The dispute centred on whether the Crown opening had crossed appropriate boundaries in three distinct respects.
Legal Issues
- Whether the Crown Prosecutor's opening address crossed the line from presenting expected evidence into impermissible forensic persuasion
- Whether a rhetorical question asked during the opening had the potential to reverse the onus of proof onto the accused
- Whether it was appropriate for the Crown Prosecutor to reveal that Terry Price, when interviewed by police, was under no compulsion to speak
Decision
Button J rejected all three grounds and refused the application. On the first ground, his Honour found the address was a clear exposition of the Crown case, covering both the anticipated evidence and the meaning the jury would be asked to draw from it. The tone, though firm, was never inflammatory, and its length reflected the number of discrete bases in the Crown case rather than any improper advocacy.
On the rhetorical question, Button J found it was directed at the prosecution case itself, asking why the evidence might show the accused acted as alleged, and was immediately followed by the anticipated evidence that could answer it. The question therefore carried no potential to reverse the onus of proof.
On the third ground, his Honour identified several reasons why the reference to Price's interview was not objectionable. Most jurors would not assume an Australian citizen is compelled to answer police questions. Evidence of the accused's own exercise of the right to silence was to be led at trial, requiring a direction that would likely speak in generalities. It would be anomalous to inform the jury the accused had a right to silence without the jury inferring the same of Price. Even if the Crown had impermissibly bolstered Price's credibility by the reference, that was not of sufficient moment to warrant discharge.
Button J went further, recording his view that the Crown Prosecutor's opening was "a soundly appropriate example" of an address by an officer of the court fulfilling both an advocate's and a minister of justice's role.
Orders Made
The application to discharge the jury was refused.
Key Takeaways
- A Crown opening address that explains the anticipated evidence and the inferences the jury will be asked to draw does not, without more, constitute impermissible forensic persuasion.
- Rhetorical questions in a Crown opening do not necessarily reverse the onus of proof; the key question is whether the rhetorical question is directed at scrutinising the prosecution case rather than demanding an answer from the accused or the defence.
- Where evidence of an accused's right to silence is to be led at trial, a reference to a third party also being under no compulsion to speak to police is unlikely to warrant a jury discharge, particularly where a direction on silence will be required.
- Button J confirmed that even a finding of some impropriety in an opening does not automatically justify discharge; the impropriety must be of sufficient weight to warrant that outcome.
- In dismissing the application, the Supreme Court reaffirmed that a Crown Prosecutor occupies a dual role as both advocate and minister of justice, and that an opening address can reflect both without becoming inappropriate.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.