Citation: R v Mitchison; R v Wells; R v Whelan (No 2) [2016] NSWSC 464
Court: Supreme Court of New South Wales
Date: 7 April 2016
Judge(s): R A Hulme J
Background
Three accused were being tried jointly for offences arising from the death of a man who sustained a fatal head injury during an incident at his home in East Maitland in March 2014. The Crown case was that the deceased was assaulted by some combination of the three accused. Each accused advanced a version of events that attributed primary or exclusive responsibility to at least one of the others.
During the trial, a witness who was the half-sister of one accused and the daughter of another gave evidence about a conversation she claimed to have had with a neighbour who had already given evidence for the Crown. According to that account, the neighbour had said she would "cover" for the first accused in court and that the second accused "deserved to be in gaol." The neighbour denied making those statements.
Two of the accused applied to have the jury discharged in their favour, arguing that this evidence had caused them unfair prejudice in the joint trial. If the applications had succeeded, the trial would have continued only against the third accused.
Legal Issues
- Whether evidence about an alleged out-of-court statement by a Crown witness, admitted for the purpose of challenging that witness's credibility, caused unfair prejudice to the two applicants in the joint trial.
- Whether the joint trial should continue or whether the jury should be discharged in respect of those two applicants, effectively severing their trials from that of the third accused.
Decision
Hulme J refused both applications. His Honour concluded that the situation amounted to what he described as a "storm in a teacup," finding no basis for concluding that the evidence created a real risk of unfair prejudice to the two applicants.
The central concern raised on behalf of one applicant was that the jury might speculate that the Crown witness had seen him do something to the deceased that she was unwilling to reveal, and that she had instead chosen to inculpate the third accused. Hulme J rejected this reasoning. There were four other people present at the scene, all of whom had given or were expected to give accounts of what occurred, and none of those accounts attributed violence to that applicant beyond what he himself had acknowledged.
His Honour also noted the fragility of the evidence giving rise to the application. The witness who reported the alleged conversation conceded that the Crown witness had not explicitly said she was going to lie in court. Her conclusion that dishonesty was intended was, by her own account, simply "the vibe I got." The applicants retained the ability to argue to the jury that the witness had misinterpreted what was said to her.
Hulme J also noted that any residual concern could potentially be addressed through appropriate jury directions, though he expressed doubt that any direction was immediately necessary, and indicated he would hear submissions on that question at the close of all evidence.
Orders Made
- The applications for discharge of the jury in respect of the first and third accused were refused.
Key Takeaways
- In a joint trial, evidence admitted solely to attack a Crown witness's credibility does not automatically warrant a jury discharge in respect of other accused, even where that evidence would not have arisen in a separate trial.
- The Supreme Court assessed prejudice in context, weighing the challenged evidence against the totality of the evidence already before the jury from multiple witnesses at the scene.
- Where a witness's account of an allegedly prejudicial statement rests on her own interpretation rather than any explicit admission of intended dishonesty, the cogency of that evidence is diminished as a basis for a discharge application.
- An accused's capacity to address potentially prejudicial evidence through submissions and cross-examination is a relevant consideration when a court evaluates whether unfair prejudice has been established.
- Jury directions remain available as a remedy for residual concerns about prejudice, with the timing of any such direction a matter for determination at the close of evidence.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38 (leave to cross-examine own witness), 106 (rebuttal of denial by other evidence)
Cases:
- R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463 (related pre-trial severance application)
- R v Pham [2004] NSWCCA 9