Citation: R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110
Court: Supreme Court of New South Wales
Date: 22 August 2017
Judge(s): N Adams J
Background
Two accused, referred to here as the first accused and the second accused, stood trial for the 2007 murder of a man shot dead at a Wollongong nightclub. The Crown alleged the first accused paid the second accused to carry out the killing, arising from a dispute involving associates of both men. The Crown case relied substantially on two indemnified witnesses, CCTV footage, and telephone records.
During the Crown's case, the deceased's widow gave evidence about the prior relationship between her husband and the first accused. In the course of that evidence, she volunteered that her husband had visited the first accused in gaol "a few times" before the relevant period, and that after his release they had been together frequently.
Counsel for the first accused applied to discharge the jury on the basis that this answer had irreparably prejudiced his client by revealing he had previously been imprisoned for an unrelated matter.
Legal Issues
- Whether the evidence given by the deceased's widow, revealing the first accused had previously been in gaol, created prejudice so serious that the jury could not be expected to put it aside
- Whether any identified prejudice could be remedied by a judicial direction, making discharge unnecessary
- Whether the high threshold required to discharge a jury, described in the authorities as a "high degree of necessity," had been met
Decision
Adams J refused the application to discharge the jury. The threshold for discharging a jury is a demanding one: the court must be satisfied of a high degree of necessity before taking that step. Discharge is a remedy of last resort, and courts must proceed on the assumption that jurors are true to their oaths and will follow judicial directions.
The court identified several reasons why the prejudice, while real, was not of the kind that required discharge. The Crown case was not one involving a momentary act; it alleged planned, organised conduct. In that context, the jury would not be surprised to learn the first accused had some prior connection to custody or criminal circles. Furthermore, the reference to the first accused being in gaol came in passing, as a brief unremarkable observation rather than as evidence deliberately tendered to highlight bad character.
The court also noted that the first accused's own case would necessarily involve the jury learning that the second accused had been in custody, since evidence about admissions made while the second accused was in gaol formed part of the Crown case. The background of custody, drugs, and criminal association was already woven into the trial narrative through other evidence, including the testimony of the indemnified witnesses.
Adams J accepted that an appropriate direction to the jury, if sought, could address the prejudice by reminding jurors that there are many reasons a person may be in custody, and that the first accused's prior custodial status had no bearing on the charges before them. Notably, defence counsel indicated he preferred no direction at all if the application failed, and the court accepted that course, while leaving open the possibility of a direction if counsel later changed his mind.
Orders Made
• The application to discharge the jury is refused.
Key Takeaways
- The Supreme Court confirmed that discharging a jury is a remedy requiring a "high degree of necessity," and courts must exhaust less drastic remedies, including judicial directions, before taking that step.
- A conviction in a planned murder prosecution is not automatically undermined when the jury incidentally learns the accused had a prior period of imprisonment, particularly where the broader trial narrative already involves criminal associations and prior custody.
- Reliance on the capacity of jurors to follow directions is fundamental to the jury system. The court cited both Crofts v The Queen and Gilbert v R for the principle that the criminal trial proceeds on the assumption that jurors are true to their oaths.
- Where a prejudicial answer emerges unexpectedly from a witness rather than being deliberately elicited by the Crown, that circumstance is relevant to the assessment of whether discharge is necessary.
- Defence counsel retains the right to elect against receiving a curative direction, on the basis that such a direction may only draw further attention to the prejudicial material, and the court will generally respect that forensic choice.
Legislation and Cases Referenced
Cases Cited:
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Mikael v Regina [2015] NSWCCA 294
- R v Ahola (No 6) [2013] NSWSC 703
- R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329
- R v Glennon (1992) 173 CLR 592
- R v Hunter (No 8) [2014] NSWSC 1151
- R v Mark William Helmhout & Anor [2000] NSWSC 218
- R v Qaumi (No 40) [2016] NSWSC 807
- R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259
- R v Scott (No 1) [2015] NSWSC 458
- Santo v R [2009] NSWCCA 269
Legislation: No specific legislation was identified in the provided text.