Citation: R v Do (No. 3) [2015] NSWSC 144
Court: Supreme Court of New South Wales
Date: 4 March 2015
Judge(s): Davies J
Background
The accused was on trial for what appears to be a homicide involving a deceased female partner. The defence had opened its case on the basis of the accused's good character and the absence of any violence in the relationship between the accused and the deceased.
Prior to trial, the Crown and defence reached an agreement that certain material from the statements of two witnesses, Aminda Huynh and Anna Huynh, would not be led in evidence. That material suggested the accused had pushed the deceased down the stairs on two occasions in early 2012.
During cross-examination by senior counsel for the accused, Anna Huynh volunteered that her mother had told her the accused had pushed the deceased downstairs. The defence had not asked anything that called for that information, and the incident had in fact occurred well outside the time period about which counsel was questioning the witness. The defence then applied to have the jury discharged.
Legal Issues
- Whether the volunteering of inadmissible evidence by the witness caused irreparable prejudice to the accused
- Whether any such prejudice could be adequately cured by a direction to the jury
- Whether the jury should be discharged
Decision
Davies J found that the witness had gone beyond the scope of the questions asked. The cross-examination was limited to a specific five-week period before the deceased's death, and the staircase incident had occurred much earlier, in early 2012. The judge was satisfied there was no criticism of the way senior counsel had framed his questions.
However, the Court rejected the submission that the prejudice was irreparable. The Crown confirmed it was not asserting any violence in the relationship and agreed to say so in its final address. The Crown also confirmed it accepted the accused's good character. These concessions were regarded as powerful factors weighing against the need for discharge.
The Court also noted that Aminda Huynh had already given evidence without mentioning the staircase incident. Because Anna's knowledge of the incident derived entirely from what Aminda had told her, and Aminda had not raised it, the evidential weight of Anna's volunteered statement was further diminished.
Davies J concluded that a clear direction to the jury, combined with the Crown's undertaking to make favourable statements in its final address, was sufficient to address any prejudice. The application to discharge the jury was refused, and the Court indicated it would give a direction to the jury upon their return.
Orders Made
• The jury should not be discharged
• A direction to the jury will be given when they return
Key Takeaways
- The Supreme Court confirmed that not every instance of a witness volunteering inadmissible evidence will warrant discharging a jury, even where a prior agreement existed that the evidence would not be led.
- Irreparable prejudice is the threshold that must be established before a discharge will be granted; where a clear jury direction can adequately address the harm, the threshold is unlikely to be met.
- The Crown's willingness to make explicit concessions in its final address, including accepting the accused's good character and disavowing any reliance on the volunteered evidence, was treated as a significant counterweight to the prejudice caused.
- Where the witness's knowledge of an event was entirely derivative of another witness who had already testified without mentioning that event, this was relevant to assessing the weight and impact of the volunteered information.
- No criticism of counsel arises where a witness volunteers information that falls outside the scope and time period of the question asked.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.