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Supreme Court 10 February 2015

R v A (No 1)

[2015] NSWSC 65

Homicide
CRIMINAL LAW EVIDENCE POTENTIAL PREJUDICIAL EFFECT WHETHER JURY SHOULD BE DISCHARGED

Citation: R v A (No 1) [2015] NSWSC 65
Court: Supreme Court of New South Wales
Date: 10 February 2015
Judge(s): Bellew J

Background

The accused stood trial on a charge of manslaughter, with the trial in its seventh day of an estimated four-week hearing. The accused had been refused bail since her arrest and was therefore in custody throughout the proceedings. The Crown called the accused's de facto husband as a witness during its case.

During cross-examination by senior counsel for the accused, the witness gave answers that explicitly referred to the accused being in custody and incarcerated. This occurred despite the Crown having spoken with the witness during an adjournment specifically to impress upon him the need to avoid any such reference. The court was satisfied that neither the Crown nor defence counsel bore any blame for what occurred.

Senior counsel for the accused applied to have the jury discharged on the basis that the witness's repeated references to the accused's custodial status had caused irreparable prejudice. The Crown opposed the application, submitting that any prejudice was curable by judicial direction.

  • Whether the witness's inadvertent references to the accused's custodial status created prejudice that could not be remedied by a direction from the trial judge.
  • Whether the jury should be discharged, or whether an appropriate direction to the jury was a sufficient remedy.

Decision

Bellew J applied the principles governing jury discharge applications as stated by the High Court in Webb v The Queen; Hay v The Queen (1994) 181 CLR 41. The relevant test is whether the incident, notwithstanding any warning from the trial judge, gives rise to a reasonable apprehension on the part of a fair-minded and informed member of the public that the jury has not discharged, and will not discharge, its task impartially.

His Honour also applied the High Court's observations in Crofts v The Queen (1996) 186 CLR 427, which confirm that no rigid rule governs such applications. Relevant considerations include the seriousness of the occurrence, the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction.

Bellew J acknowledged that the witness made at least two, and possibly three, references to the accused's custodial status, and that such information is ordinarily and deliberately kept from juries. He also noted that the accused's prior good character had been raised in cross-examination before the incident occurred. However, he was not persuaded that these circumstances, taken together, created prejudice of a degree that warranted discharging the jury.

His Honour was satisfied that the matter could be adequately addressed by directing the jury to ignore the references, to bear in mind the presumption of innocence, and to treat the custodial references as having no bearing on their deliberations. He indicated he would hear counsel on the precise terms of the direction before giving it, and refused the discharge application.

Orders Made

• Application for discharge of the jury is refused
• Direction to be given to the jury to ignore references to the accused being in custody
• Jury to be directed to have regard to the presumption of innocence
• Jury to be directed that such matters have no bearing on their deliberations and are not to be taken into account

Key Takeaways

  • Refusing the discharge application, the Supreme Court confirmed that the mere inadvertent disclosure of an accused's custodial status does not automatically require a jury to be discharged.
  • No rigid rule governs discharge applications arising from inadvertent and potentially prejudicial incidents; the court must weigh the seriousness of the occurrence, the stage of the trial, the deliberateness of the conduct, and the likely effectiveness of a remedial direction.
  • A fundamental premise of criminal trials is that jurors will follow directions given by the trial judge, and the court found no reason to depart from that premise in the circumstances of this case.
  • Where custodial status is inadvertently disclosed, a direction to the jury to disregard the references, to apply the presumption of innocence, and to treat the information as irrelevant to their deliberations may constitute a sufficient remedy.
  • The Court of Criminal Appeal's decision in Elomar & Ors v The Queen [2014] NSWCCA 303 was noted as a recent application of the Crofts principles, reinforcing that while the principles are clear, their application to particular facts can be difficult.

Legislation and Cases Referenced

Cases:
- Webb v The Queen; Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- Elomar & Ors v The Queen [2014] NSWCCA 303

Legislation:
No specific legislation was cited in the judgment.