Citation: R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259
Court: Supreme Court of New South Wales
Date: 16 March 2016
Judge: Bellew J
Background
This decision arose during a lengthy murder trial involving two accused, Rogerson and McNamara. By the time of this ruling, the trial had run for 33 days, nearly 50 witnesses had given evidence, and the transcript exceeded 2,000 pages.
During cross-examination of a Crown witness, Steven Farley, a man who described himself as a close friend of Rogerson, an unexpected and non-responsive answer created a significant procedural difficulty. When asked how he knew McNamara, Farley volunteered that McNamara had been "a detective and drug dealer at Kings Cross." The trial judge immediately intervened, stopped further questioning, and discharged the jury from the courtroom.
Both accused applied to have the entire jury discharged. Counsel for McNamara made the formal application, and counsel for Rogerson joined in it. The Crown initially expressed some sympathy with the application but later opposed it, submitting that a carefully worded judicial direction to the jury would be sufficient to address any prejudice.
Legal Issues
- Whether the jury should be discharged following a witness making a gratuitous and non-responsive statement labelling one of the accused a "drug dealer"
- What test applies when a court is asked to discharge a jury on the basis of prejudicial material reaching the jury
- Whether any resulting prejudice to the accused could adequately be remedied by a direction to the jury to disregard the statement
Decision
Bellew J refused both applications to discharge the jury. His Honour's reasoning proceeded from the foundational principle that courts must act on the assumption that juries will follow and apply directions given by the trial judge. Discharging a jury is a remedy of last resort, reserved for cases where prejudice cannot be cured by a direction.
On the application brought by McNamara's counsel, his Honour accepted that the comment was gratuitous and non-responsive, and that it carried obvious prejudice. However, he was satisfied that a carefully framed direction to the jury to disregard the remark entirely, and to treat it as playing no part in their deliberations, was capable of adequately addressing that prejudice. The offending material amounted, in substance, to the two words "drug dealer," and his Honour saw no complexity in directing the jury to ignore it.
On the application brought by Rogerson's counsel, the argument was that the jury might infer Farley's statement had been made at Rogerson's instigation. Bellew J noted that no evidence supported such an inference, and the application therefore lacked a sufficient foundation.
His Honour also weighed the stage of the trial. With more than two thousand pages of transcript, nearly fifty witnesses, and a site view already completed, discharging the jury would cause substantial inconvenience. While acknowledging that inconvenience alone cannot justify continuing a fundamentally unfair trial, his Honour was satisfied that the trial remained fair and that the prejudice from the isolated remark was manageable. He noted that the accused in this trial were running what is commonly described as "cut-throat" defences against each other, a context that somewhat reduced the surprise of prejudicial remarks of this kind emerging.
Orders Made
• Applications to discharge the jury are refused
• The court intends to direct the jury to ignore the offending statement, subject to hearing from counsel on the specific terms of the direction
Key Takeaways
- The Supreme Court confirmed that the threshold for discharging a jury is high: discharge is appropriate only where prejudice cannot be adequately remedied by a judicial direction, not merely because a prejudicial remark has been made.
- A foundational principle applied in this decision is that courts must proceed on the basis that juries will accept and act upon directions given by the trial judge; departing from that assumption requires compelling justification.
- Where an application to discharge is grounded in a possible inference adverse to one accused (here, that a witness acted at that accused's instigation), some evidentiary foundation for that inference is required before the application can succeed.
- The isolated nature of the offending remark, the judge's immediate intervention to prevent further elaboration, and the advanced stage of a lengthy trial were all factors weighing against discharge, though none was individually determinative.
- Bellew J observed, with some candour, that the witness's non-responsive answer appeared somewhat calculated, though that characterisation was not necessary to resolve the discharge application and was not treated as a finding.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- An v R [2007] NSWCCA 43
- Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
- Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
- Mikael v R [2015] NSWCCA 294
- Munday v R (1984) A Crim R 456
- R v Ahola (No 6) [2013] NSWSC 703
- R v Bartle [2003] NSWCCA 329
- R v Boland (1974) VR 849
- R v Glennon (1992) 173 CLR 592
- R v Rogerson; R v McNamara (No 33) [2016] NSWSC 247
- Winsor v R (1866) LR 1 QB 390