Citation: R v Hunter (No 8) [2014] NSWSC 1151
Court: Supreme Court of New South Wales
Date: 10 July 2014
Judge(s): Button J
Background
The accused stood trial for the alleged fatal assault of the deceased, said to have been carried out with his brother and cousin in retaliation for an earlier attack on the accused with a metal weapon. The trial had been running for approximately two days when the application the subject of this judgment arose.
During evidence-in-chief, a Crown witness volunteered that the accused was "known for doing that stuff," referring to threats of violence the accused had allegedly made shortly before the fatal incident. The witness made this statement twice before the trial judge intervened and moved proceedings along.
Defence counsel applied for the discharge of the entire jury on the basis that this unsolicited evidence of the accused's reputation for violence was so prejudicial it could not be remedied by any judicial direction.
Legal Issues
- Whether the witness's unsolicited statements about the accused's reputation for violence were sufficiently prejudicial to warrant discharging the entire jury
- Whether the prejudice could be adequately cured by a judicial direction to disregard the evidence
- Whether the trial judge had a discretion to remove inadmissible material from any transcript provided to the jury
Decision
Button J refused the application. The governing test, drawn from the High Court's decision in Glennon v R, requires a "high degree of necessity" before a whole jury is discharged. His Honour was not satisfied that threshold had been met on the facts of this trial.
The judge assessed the impugned evidence in the broader context of the trial. He noted that the openings of both counsel and the voir dire evidence had already foreshadowed a substantial body of prejudicial material, including evidence of drug use, harsh threatening language, and the accused arming himself. Against that backdrop, the jury had already received a firm general direction against prejudice, and the inadmissible reputation evidence represented an incremental, rather than transformative, addition to the picture already before the jury.
Button J identified nine specific factors weighing against discharge. These included: the brevity and indirect nature of the offending evidence (approximately ten words describing the witness's belief about reputation, rather than specific prior acts); the fact that the judge had intervened sharply, consistent with prior interruptions of other witnesses, making the interruption unremarkable in context; the availability of a highly specific curative direction; the capacity to delete the inadmissible passage from any transcript provided to the jury; and the ability to manage cross-examination strictly to prevent repetition of the offending material.
His Honour acknowledged the evidence was a "blemish on the trial" and that it would have been preferable if it had not occurred. However, he concluded that, in the particular circumstances and context, the high degree of necessity required to discharge the jury had not been established.
Orders Made
• The application is refused.
Key Takeaways
- The threshold for discharging an entire jury following inadvertent disclosure of prejudicial evidence is a "high degree of necessity," as confirmed by the High Court in Glennon v R [1994] HCA 7.
- Inadmissible evidence does not warrant automatic discharge; the offending material must be assessed in the full context of all evidence led or foreshadowed at trial, including the contents of counsel's openings and voir dire material.
- A curative direction, even a highly specific one targeting a short passage of evidence, may be sufficient to address prejudice where the inadmissible evidence is brief and indirect rather than comprising direct evidence of prior disreputable acts.
- Button J expressed confidence, albeit without authority, that a trial judge has a discretion to delete inadmissible material from any transcript provided to the jury for use in the jury room, while leaving the official trial transcript intact.
- Where a witness has a tendency to volunteer inadmissible material, strict judicial enforcement of the requirement that witnesses answer direct questions directly (see Libke v R [2007] HCA 30) may be employed during cross-examination to limit further repetition.
Legislation and Cases Referenced
Cases:
- Glennon v R [1994] HCA 7; 179 CLR 1
- Libke v R [2007] HCA 30; 230 CLR 559
- R v Ahola (No 6) [2013] NSWSC 703
- R v Clark [2010] NSWCCA 94
- R v Helmhout [2000] NSWSC 218
- Trieu v R [2012] NSWCCA 169
Legislation: No specific legislation cited in the judgment.