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Supreme Court 8 March 2017

R v Brooks (No 2)

[2017] NSWSC 260

Homicide
CRIMINAL LAW OPENING ADDRESS BY DEFENCE COUNSEL RIGHT OF DEFENCE TO RESPOND WHERE RESPONSE INAPPROPRIATE ADDRESS OTHERWISE APPROPRIATE DISCHARGE OF JURY NOT JUSTIFIED

Citation: R v Brooks (No 2) [2017] NSWSC 260
Court: Supreme Court of New South Wales
Date: 8 March 2017
Judge: Hamill J

Background

The accused stood trial for murder and a related wounding offence. At the close of the defence counsel's opening address to the jury, the Crown Prosecutor applied to have the jury discharged, arguing the opening had exceeded the statutory limits placed on defence openings under s 159 of the Criminal Procedure Act 1986 (NSW).

The specific complaint centred on a passage in which defence counsel told the jury that the accused had been "sitting in gaol for two years waiting to be able to give you his account of what happened." The Crown contended this was argumentative and emotive, and that it created an improper expectation that the accused would give evidence, when no decision on that question had yet been made.

Defence counsel accepted the passage was an "unnecessary flourish" but argued it was prompted by the Crown's own opening, which had already referred to the accused being in custody when a witness spoke to him about the alleged offending.

  • Whether the defence opening breached the limits imposed by s 159 of the Criminal Procedure Act 1986 (NSW), which restricts defence openings to matters disclosed in the prosecutor's opening and "matters to be raised by the accused"
  • Whether any breach was sufficiently serious to warrant discharging the jury
  • Whether directions to the jury could cure any prejudice arising from the impugned passage

Decision

Hamill J accepted that the passage referring to the accused sitting in gaol for two years was inappropriate. It was both emotive and argumentative, and it created an unwarranted expectation that the accused would give evidence. That portion of the opening went beyond what s 159 permits.

However, his Honour found that the rest of the opening address was appropriate. The reference to the accused's custodial status, while handled poorly, arose in part as a response to the Crown's own opening, which had itself introduced the fact of the accused being in custody. Defence counsel was entitled to respond to that matter; the problem lay in the manner of the response, not in addressing the subject at all.

On the question of whether to discharge the jury, Hamill J applied the established principle that discharge is only warranted where there is a "high degree of necessity." His Honour found that the breach, while real, was relatively minor, that a significant period would elapse before the jury retired to deliberate, and that appropriate directions could cure any prejudice to the prosecution. A direction was given telling the jury they could not take the accused's time in custody into account either as a matter of sympathy for him or as prejudice against him.

In those circumstances, there was no justification for aborting the trial. The application to discharge the jury was refused.

Orders Made

• The application to discharge the jury was refused.

Key Takeaways

  • Under s 159 of the Criminal Procedure Act 1986 (NSW), a defence opening address is restricted to matters raised in the prosecutor's opening and matters the accused intends to raise; argumentative or emotive passages that go beyond those boundaries are impermissible.
  • Where the Crown's own opening has introduced potentially prejudicial information, defence counsel retains a right to respond to that matter, though the manner of the response remains subject to the statutory constraints.
  • A reference to an accused person being in custody is not inherently fatal to a trial; Hamill J affirmed that such a disclosure is generally capable of being cured by a clear judicial direction to the jury.
  • Discharge of a jury is a remedy of last resort, available only where there is a high degree of necessity; a minor breach of the opening address rules, addressed by prompt judicial direction, will not ordinarily meet that threshold.
  • In assessing whether directions can cure prejudice, the timing of the breach matters: where considerable evidence and deliberation time remain before the jury retires, the curative effect of a direction is stronger.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 159
- Evidence Act 1995 (NSW), s 184
- Interpretation Act 1987 (NSW), s 34
- Criminal Law Consolidation Act 1935 (SA), s 288A (cited for comparison)

Cases:
- Crofts v R (1996) 186 CLR 427; [1996] HCA 22
- Harkins v R [2015] NSWCCA 263
- Khazaal v R [2011] NSWCCA 129; (2011) 265 FLR 276
- KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213
- Maric v R (1978) 52 ALJR 631
- Miller v R [2015] NSWCCA 206
- R v Boland [1974] VR 849
- R v Brooks [2017] NSWSC 188
- R v George (1987) 9 NSWLR 527
- R v Karapandzk (2008) 101 SASR 7; [2008] SASC 126
- R v McCullough [1982] Tas R 43; (1982) 6 A Crim R 274
- R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148
- Taleb v R [2015] NSWCCA 105