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Supreme Court 19 March 2015

R v Scott (No 1)

[2015] NSWSC 458

Homicide
CRIMINAL LAW APPLICATION TO DISCHARGE JURY WITNESS EVIDENCE WITNESS MET ACCUSED IN GAOL WHETHER JURY HEARD THAT EVIDENCE

Citation: R v Scott (No 1) [2015] NSWSC 458
Court: Supreme Court of New South Wales
Date: 19 March 2015
Judge: Wilson J

Background

The accused stood trial on a charge of murder. By the seventh day of proceedings, the Crown had called all witnesses present at the scene of the death, meaning the substantive Crown case was at least half complete.

During testimony on the sixth day, a civilian witness named Russell Payne gave an unresponsive answer in which he mentioned knowing the accused "in and out of gaol a few times." Mr Payne was described as having significant intellectual limitations, extremely quiet and difficult-to-understand speech, and the remark came only five to ten minutes into his testimony.

The accused applied to have the jury discharged on the basis that this evidence of prior custodial history had irreparably prejudiced the trial.

  • Whether a civilian witness's spontaneous reference to the accused's gaol history was sufficiently heard by the jury to cause prejudice.
  • Whether any such prejudice was capable of cure, or whether it was so serious that the accused could no longer receive a fair trial.
  • Whether discharge of the jury was the appropriate remedy at an advanced stage of the Crown case.

Decision

Wilson J refused the application to discharge the jury. Her Honour found there was good reason to doubt that most, or possibly all, jurors heard the remark at all. Mr Payne spoke very softly and quickly, and the comment came early in his testimony before the jury had adjusted to his unusual manner of speech. The judge noted that neither her associate nor her tipstaff heard the evidence, and that jurors showed no visible reaction to it.

Her Honour also observed that the stage of the trial weighed against discharge. Citing Wu v The Queen, she noted that the considerations favouring discharge at a very early stage of a trial were not engaged here, given that the Crown case was well advanced.

Even if some jurors had heard the remark, Wilson J held the prejudice was not incurable. The jury already knew from other evidence that the accused had been in custody since at least June 2013 on this charge, and had already been directed not to draw adverse inferences from that fact. An expanded direction in the summing-up, addressing the accused's custodial status generally without specifically drawing attention to Mr Payne's comment, would be sufficient to address any residual risk.

Her Honour also directed that the relevant portion of the transcript be edited before it could be provided to the jury during deliberations, so that those jurors who had not heard the remark would not be informed of it through that means.

Orders Made

• The jury will not be discharged
• The transcript will be edited to remove the prejudicial reference to the accused's custodial status
• The judge will provide an expansive direction to the jury regarding the accused's custodial status at any time, instructing them that such evidence is neutral and cannot be used adversely against the accused

Key Takeaways

  • The Supreme Court refused to discharge the jury after a witness made an unsolicited reference to the accused's custodial history, finding the prejudice was curable rather than fatal to a fair trial.
  • A jury's apparent lack of reaction to a piece of evidence, combined with the demonstrable difficulty of hearing it, can support an inference that the evidence was not in fact absorbed by the jury.
  • Where a jury has already received evidence of an accused's custodial status and been directed accordingly, an expanded summing-up direction on that topic may cure prejudice from an additional, inadvertent reference to gaol history.
  • Editing a trial transcript to excise a prejudicial remark before it is provided to the jury is a recognised remedial step that can work alongside a judicial direction.
  • The stage of proceedings at which an application to discharge is made is a material consideration: in Wu v The Queen, the High Court addressed the dynamics of early-stage applications, which Wilson J distinguished on the facts here.

Legislation and Cases Referenced

Cases:
- Wu v The Queen [1999] HCA 52; 199 CLR 99

Legislation:
No specific legislation was cited in this decision.