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Supreme Court 2 March 2016

R v Rogerson; R v McNamara (No 29)

[2016] NSWSC 165

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE WHETHER SUCH REFERENCE IN FACT MADE WHETHER JURY SHOULD BE DISCHARGED APPLICATION TO DISCHARGE JURY REFUSED

Citation: R v Rogerson; R v McNamara (No 29) [2016] NSWSC 165
Court: Supreme Court of New South Wales
Date: 2 March 2016
Judge: Bellew J

Background

This decision arose during the joint murder trial of two accused men. The Crown alleged that both accused were involved in the shooting death of the deceased on 20 May 2014. A key witness, the daughter of one of the accused, gave evidence about observations she made of both men in a lounge room on the day of the killing, only hours after the deceased was shot.

During her evidence, the witness described seeing one of the accused touching what she called "a lump" in the right pocket of his trousers. The Crown's anticipated case was that this observation was consistent with the accused having a gun in that pocket, supported by evidence of gunshot residue found in those trousers.

An issue arose when counsel for one of the accused objected to a question asked by the Crown Prosecutor during this passage of evidence. Counsel and his client both asserted they had heard the Crown Prosecutor use the word "gun" in framing the question. The Crown denied this, and the matter was referred to a recording of the proceedings made for court reporters.

  • Whether the Crown Prosecutor had in fact used the word "gun" when asking the witness to describe the colour of the trousers worn by the accused.
  • Whether, even if the word "gun" had not been used, there remained a sufficient risk that jurors may have heard or perceived that word, giving rise to unfair prejudice warranting discharge of the jury.

Decision

Bellew J listened to the audio recording of the relevant exchange, as did counsel for both accused and the Crown. His Honour heard a sound beginning with the letter "G" but did not hear the word "gun." The sound appeared to be a word of more than one syllable, which was inconsistent with "gun." His Honour's assessment was that the word used was most likely "garment," consistent with the context of the question, which sought a description of clothing.

The Crown Prosecutor explained that he had been seeking to lead the evidence in as neutral a form as possible, being on notice that there was a potential issue about whether the accused was wearing long or short pants. Bellew J accepted that explanation and expressly found no impropriety on the Crown's part.

Counsel for the accused maintained, after hearing the recording, that he had heard the word "gun." His Honour noted that this account was at odds with that of every other party, including the Crown, co-accused's counsel, and the judge himself. Rogerson did not give evidence on the application.

Bellew J was satisfied on the evidence that the word "gun" was not used. The jury, being physically closer to the Crown Prosecutor than the recording device, was in a better position to hear what was actually said. On that basis, there was no danger of unfair prejudice to the accused and no basis to discharge the jury.

Orders Made

  • The application to discharge the jury was refused.
  • The audio recording of the relevant question was admitted as Exhibit 1 on the application and preserved for future reference.
  • Bellew J noted that an errata would need to be recorded in the transcript to correct the inaccurate transcription of the question, while expressly commending the court reporters for their generally impeccable accuracy.

Key Takeaways

  • Refusing the discharge application, the Supreme Court held that the threshold for discharging a jury on the basis of a potentially prejudicial word being uttered requires actual satisfaction that the word was used and heard by the jury, not merely a theoretical possibility that it was perceived.
  • Where an audio recording is available and reviewed by all parties and the judge, that recording constitutes evidence capable of resolving factual disputes about what was said in court.
  • A word of more than one syllable starting with a particular letter is not consistent with a monosyllabic word beginning with the same letter, and that distinction carried decisive weight in the court's reasoning.
  • The physical proximity of the jury to the speaker, relative to a recording device, is a relevant consideration when assessing whether jurors are likely to have heard any ambiguous sound in the way alleged.
  • No inference of impropriety against the Crown arose where the context of the question, the Crown's explanation, and the audio evidence all pointed against the use of the impugned word.

Legislation and Cases Referenced

No legislation or cases were cited in this decision.