Citation: R v Bloodsworth; R v Errington (No 3) [2017] NSWSC 1484
Court: Supreme Court of New South Wales
Date: 24 October 2017
Judge(s): Adamson J
Background
Two accused, Bloodsworth and Errington, were tried jointly for offences connected with a death. During the trial, the court had already directed the jury that the contents of Errington's recorded police interview could only be used as evidence against Errington, and could not be used against Bloodsworth. This kind of direction is a standard safeguard in joint trials where out-of-court statements by one accused may implicate another.
Towards the end of the Crown's closing address to the jury, the Crown prosecutor reminded the jury of that direction but then, despite that reminder, went on to highlight several passages from Errington's recorded interview in which Errington had attributed specific acts and statements to Bloodsworth. Those attributed acts included suggestions that Bloodsworth proposed burning down the house, fabricated an account of a rape allegation, held a knife to the deceased's throat, and directed the use of bleach to remove her DNA.
Counsel for Bloodsworth applied for the jury to be discharged on the basis that the Crown's address had irreparably prejudiced his client's fair trial rights.
Legal Issues
- Whether the Crown's highlighting of Errington's recorded interview statements, in the context of the case against Bloodsworth, was admissible or permissible under section 83 of the Evidence Act 1995 (NSW)
- Whether the prejudice caused by the Crown's address was so serious that a discharge of the jury was necessary to preserve Bloodsworth's right to a fair trial
- Whether any lesser remedial steps could adequately cure the unfairness
Decision
Issue 1: Admissibility of the highlighted material against Bloodsworth
Adamson J accepted without hesitation that the passages the Crown highlighted from Errington's recorded interview were plainly inadmissible against Bloodsworth by reason of section 83 of the Evidence Act 1995 (NSW) (at [4]). The Crown's decision to emphasise those passages in his closing address was described as "apparently ill-advised" and "highly unfortunate, to say the least" (at [5]).
Issue 2: Whether discharge was required
Despite accepting the seriousness of the error, her Honour concluded that a jury discharge was not necessary (at [5]-[6]). The court found that the unfairness to Bloodsworth could be sufficiently remedied by a combination of prompt corrective action from the Crown and an explicit reinforcing direction from the trial judge (at [4]-[5]).
Issue 3: The remedial steps
The court adopted the course that Bloodsworth's counsel had originally proposed before instructions were obtained to seek a discharge (at [4]). That course required the Crown to expressly withdraw any suggestion that anything Errington said in his recorded interview about what Bloodsworth did or said could be used against her, and for the trial judge to then reinforce the direction to the jury that the recorded interview evidence could not be used against Bloodsworth (at [4]).
Orders Made
- Application for a discharge of the jury refused
Key Takeaways
- Under section 83 of the Evidence Act 1995 (NSW), statements made by one accused in a recorded interview are inadmissible against a co-accused, and a Crown prosecutor who highlights such statements in closing address acts contrary to that restriction (at [4]).
- A jury discharge is not automatically required where a Crown address has improperly drawn attention to inadmissible material; the court may instead consider whether the prejudice can be adequately cured by corrective steps (at [4]-[5]).
- The Supreme Court held that a combination of a Crown withdrawal of the impugned suggestion and a reinforcing judicial direction to the jury was sufficient to preserve the co-accused's right to a fair trial in the circumstances of this case (at [4]-[5]).
- The threshold for discharging a jury remains high; where a practical and effective remedy short of discharge is available, that remedy may be preferred (at [5]-[6]).
- Prefatory acknowledgment of an evidentiary limitation by the Crown does not cure the prejudice of then proceeding to emphasise the very material subject to that limitation (at [2]-[3]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 83
Cases
- Not stated