Citation: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 7) [2017] NSWSC 1518
Court: Supreme Court of New South Wales
Date: 14 October 2016
Judge(s): Rothman J
Background
Three accused were on trial together: two brothers each charged with murder, and a third accused charged as an accessory. A key prosecution witness, Mr Gallo, gave evidence against all three accused and was subject to significant cross-examination about his credibility. The trial judge had indicated that if the jury did not accept Mr Gallo's evidence beyond reasonable doubt, all three accused would be required to be acquitted.
During her closing address to the jury, the Crown Prosecutor relied on evidence that had been admitted only against the accessory accused. That evidence was used both to implicate the two murder accused directly and to corroborate Mr Gallo's evidence against them. This was a significant procedural irregularity, as evidence admitted against one accused in a joint trial is not admissible against co-accused.
The two murder accused applied to have the jury discharged on the basis that the Crown's address had caused irreparable prejudice and that no direction from the court could adequately remedy the damage done.
Legal Issues
- Whether the Crown Prosecutor's address to the jury, in relying on evidence admitted only against a co-accused, gave rise to a miscarriage of justice requiring discharge of the jury.
- Whether any appropriate direction from the trial judge could overcome the prejudice caused by the improper address.
- Whether, if the jury were discharged against the two murder accused only, the trial could fairly continue against the accessory accused alone.
Decision
Rothman J refused the application to discharge the jury. His Honour accepted that the Crown's address had been problematic, but concluded that an appropriately framed direction to the jury could remedy the prejudice caused. The court was satisfied that such a direction could be crafted without criticism of the Crown and without causing further unfairness to any of the accused.
His Honour also signalled that he would direct the jury to disregard entirely the evidence of the witness referred to as CL, one of the sources of the improperly deployed material. That direction, combined with the corrective direction on the Crown address, was considered sufficient to neutralise the risk of a miscarriage of justice.
The court also addressed the alternative course of discharging only the two murder accused and continuing the trial against the accessory. Rothman J held that course would itself create unfairness: without explanation the jury would likely speculate about the brothers' absence, and any explanation would tend to prejudice either the Crown or the remaining accused.
His Honour acknowledged that if he was wrong and an appellate court took a different view, the consequences were limited. The only additional steps remaining before verdict were the defence addresses and the summing-up, meaning any wasted time would be minimal.
Orders Made
No formal orders were extracted in this decision beyond the refusal of the discharge application.
Key Takeaways
- Rothman J confirmed that a jury discharge is not automatically required when a Crown address improperly relies on evidence admitted only against a co-accused, provided an appropriate corrective direction can be fashioned.
- The discretion to discharge a jury must be exercised judicially, with the fundamental aim of ensuring a fair trial. Mere inconvenience cannot justify continuing a flawed trial, but neither does procedural irregularity automatically compel discharge.
- Where partial discharge would leave a severed trial in place, a court must consider whether proceeding against fewer accused would itself generate unfairness, particularly through jury speculation about why co-accused have disappeared from the dock.
- A trial judge's perception of the jury's attitude and receptiveness to directions is a legitimate factor in assessing whether a corrective direction will be effective.
- Refusing discharge does not foreclose appellate review. The court noted that if its assessment of the curative direction proved wrong on appeal, no irreversible opportunity for acquittal would have been lost given the limited steps remaining in the trial.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata.