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Supreme Court 21 April 2015

R v Scott (No 5)

[2015] NSWSC 462

Homicide
CRIMINAL LAW LEGAL REPRESENTATION NEW COUNSEL INSTRUCTED ASSERTED PREJUDICE TO ACCUSED OTHER MATTERS GIVING RISE TO PREJUDICE APPLICATIONS REFUSED

Citation: R v Scott (No 5) [2015] NSWSC 462
Court: Supreme Court of New South Wales
Date: 21 April 2015
Judge(s): Wilson J

Background

The accused stood charged with the murder of a man in Cessnock in the early hours of 5 April 2013. The trial commenced on 10 March 2015 before a jury, with the accused initially represented by Mr Cavanagh of counsel. By the time the applications the subject of this judgment were heard, the trial was well advanced, with numerous witnesses having already given evidence.

Over the course of the trial, several incidents arose that the accused contended had prejudiced his right to a fair trial. These included a witness making an inadvertent reference to knowing the accused from "in and out of gaol," Crown evidence of phone calls made by the accused from prison while on remand, evidence of a letter the accused had passed to a Crown witness in the court's holding cells urging her to give favourable evidence, and the mid-trial withdrawal of his original counsel and the retention of new counsel, Mr Flynn.

The accused made multiple applications for the discharge of the jury across the trial, arguing that individually and cumulatively these matters had caused him prejudice that could not be cured by judicial direction. This judgment provides the reasons for refusing the applications made on 2 April 2015 and 7 April 2015, being the fourth and fifth such applications.

  • Whether inadvertent references to the accused's prior imprisonment created incurable prejudice warranting jury discharge.
  • Whether the mid-trial change of counsel, and any associated disadvantages, gave rise to a right to discharge the jury.
  • Whether multiple incidents of potentially prejudicial evidence, when considered cumulatively, produced a level of prejudice that rendered a fair trial impossible.
  • Whether judicial directions to the jury were an adequate remedy for any prejudice that had arisen, or might arise.

Decision

Wilson J refused all applications for jury discharge. On the first issue, the judge found that evidence of the accused's prior imprisonment, while capable of causing prejudice, did not generate incurable prejudice in the context of this particular trial. The social environment from which the case arose had already placed various criminal conduct before the jury, and the Crown's own remand-call evidence had already made the accused's imprisonment a feature of the case. A carefully crafted direction, one that addressed the issue without drawing undue attention to it, was sufficient to deal with any residual risk.

On the change of counsel, Wilson J accepted that the theoretical disadvantages of new counsel taking over a part-heard trial, including not having personally observed earlier witnesses and potentially conducting the case differently, could in principle give rise to prejudice. In practice, however, experienced and competent counsel had stepped in and the accused remained properly represented. No material prejudice in fact arose from the change.

The judge then turned to whether the cumulative effect of all the prejudicial incidents exceeded the sum of their individual parts. The references to gaol and drug possession had remained peripheral throughout the trial, with neither party drawing sustained attention to them. Wilson J concluded that appropriate directions remained a sufficient and effective remedy.

In declining the final application, the judge also weighed the advanced stage of the proceedings and the community's legitimate interest in trials being brought to finality. Those considerations reinforced the conclusion that discharge was not warranted.

Orders Made

• Declined the fifth application for the discharge of the jury

Key Takeaways

  • A court may refuse to discharge a jury where prejudicial evidence of prior imprisonment arose in a trial context already infused with evidence of criminal conduct, provided appropriate judicial directions can address the risk.
  • The presumption that juries follow judicial directions, affirmed in The Queen v Glennon, Gilbert v The Queen, and R v Dudko, underpins the court's confidence in directions as a curative tool for prejudice that is not inherently incurable.
  • Mid-trial change of counsel does not automatically warrant jury discharge; the key question is whether the accused is, in fact, properly and competently represented following the change.
  • Cumulative prejudice from multiple incidents requires an assessment of whether the combined effect genuinely exceeds what directions can cure, not merely whether each incident contributes some degree of risk.
  • The advanced stage of a trial and the community interest in finality are legitimate considerations that courts weigh alongside the accused's right to a fair trial when ruling on discharge applications.

Legislation and Cases Referenced

Cases:
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- M v The Queen [1994] 181 CLR 48
- Mansaray v R [2015] NSWCCA 40
- R v Alexandroaia (1995) 81 A Crim R 286
- R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R
- R v Scott (No 1) [2015] NSWSC 458
- R v Scott (No 3) [2015] NSWSC 460
- R v Scott (No 4) [2015] NSWSC 461
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592

Legislation: No specific legislation cited in the judgment text.