Citation: R v Gordon (No 6) [2017] NSWSC 193
Court: Supreme Court of New South Wales
Date: 22 February 2017
Judge: Campbell J
Background
The accused stood trial for the murder of a man alleged to have been killed in the early hours of 7 November 2013 at a remote station property near Baryulgil in northern New South Wales. The Crown alleged the accused ran the deceased over with a motor vehicle and struck him with a large rock weighing approximately 21 kilograms. The accused and the deceased had been socialising together that evening and were both significantly intoxicated.
A key Crown witness was the accused's first cousin, who had been present at the property that night and accompanied the accused to the scene after the accused returned saying he had "hurt" the deceased. The cousin was the person who called the ambulance and went to intercept it given the remote location.
On day ten of the trial, defence counsel applied to have the jury discharged. The application arose from the manner in which the cousin's evidence was presented and from remarks he made, both in a recorded walk-through police interview and in court.
Legal Issues
- Whether certain statements made by a Crown witness in a walk-through police interview, which would have been inadmissible as oral evidence, rendered the trial fundamentally unfair.
- Whether gratuitous remarks made by that witness directly to the accused in open court compounded the prejudice to a degree that required discharge.
- Whether directions given by the trial judge to the jury were sufficient to cure any prejudice, or whether a fair-minded observer would conclude the jury could no longer bring an impartial mind to the case.
Decision
The cousin gave evidence reluctantly, appeared to feign a lack of recall, and at times addressed the accused in an Aboriginal language the accused did not understand. Because of his apparent reluctance, both parties consented to playing a DVD recording of his walk-through police interview conducted three days after the events. Defence counsel accepted that, in reviewing the material beforehand, the significance of certain inadmissible content in the recording was overlooked.
The DVD contained several passages that would not have been permitted as oral testimony. The witness volunteered conclusions suggesting something serious had occurred, remarked that in that area someone saying they had "hurt" another person meant either a bad fight or a serious altercation, and at the interview's conclusion stated that one of their ancestor's "little sons" had done this to a sacred place. These were opinion-based inferences and apparent conclusions about the accused's culpability. Additionally, during his in-court testimony, the witness made a direct remark to the accused that was described as gratuitous.
Campbell J directed the jury immediately after the DVD stopped playing. His Honour told the jury that the comments were not evidence, that witnesses are not permitted to express lay opinions about what may have happened, and that the jury should put those passages entirely out of their minds. A further reinforcing direction was to be given during the summing-up. The Crown Prosecutor submitted the direction was sufficient, though acknowledged the witness appeared to be tailoring his evidence and feigning poor recall.
The judge applied the test of whether the trial remained fundamentally fair, not whether it was perfect. Having observed the jury throughout the trial, His Honour was satisfied they were conscientious and would act on the directions given. The application for discharge was refused.
Orders Made
No formal orders were made in this decision. The application for discharge of the jury was refused.
Key Takeaways
- The test for discharging a jury is not whether the trial is perfect but whether it remains fundamentally fair, assessed from the perspective of a fair-minded observer asking whether jurors can bring impartial minds to the case.
- Where prejudicial material reaches the jury through a procedural course consented to by both parties, including content that would have been inadmissible as oral testimony, an immediate and clear direction to the jury may be sufficient to cure the prejudice rather than necessitating discharge.
- A trial judge's observations of the jury throughout the proceedings are a relevant factor in assessing whether the jury will act on corrective directions.
- The Supreme Court declined to make enquiries of the jury to ascertain whether the witness's conduct had caused them concern, noting that such enquiries were likely to be counter-productive in the circumstances.
- Reinforcing a curative direction in the final summing-up was identified as an appropriate additional measure where prejudicial remarks were made during a significant witness's evidence.
Legislation and Cases Referenced
No specific legislation or cases were cited in the text of the judgment provided.