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Supreme Court 6 February 2018

R v Stephen (No.2)

[2018] NSWSC 167

Homicide
CRIMINAL LAW PROCEDURE MURDER TRIAL TRIAL BY JURY PRACTICE AS TO ENTERING THE DOCK DISCUSSION OF COUNTERVAILING FACTORS

Citation: R v Stephen (No.2) [2018] NSWSC 167
Court: Supreme Court of New South Wales
Date: 6 February 2018
Judge(s): Button J

Background

The accused faced trial by jury on a charge of murder in the Supreme Court. Before and during the trial's commencement, her legal representatives applied for her to be seated at the bar table alongside her counsel and two instructing solicitors, rather than in the traditional dock. The Crown offered no opposition and actively supported the application.

The defence advanced several grounds for the application. These included that the accused had been on bail for many months, was of good character, posed no security or flight risk, and suffered from post-traumatic stress disorder, anxiety, and depression. The defence also argued that placing her in a visibly cage-like dock structure would create an impression of pre-judged guilt in the minds of the jury panel.

Further submissions were provided to the court on 6 February 2018, including more detailed evidence of the accused's psychological conditions. His Honour reconsidered the matter and declined to alter his original ruling.

  • Whether the court should exercise its discretion under s 34 of the Criminal Procedure Act 1986 (NSW) to permit the accused to sit outside the dock during the trial
  • Whether the accused's psychological conditions, bail status, and good character constituted exceptional circumstances warranting a departure from the usual practice of placing accused persons in the dock
  • Whether the dock's traditional, cage-like structure was likely to cause unfair prejudice to the accused in the eyes of the jury

Decision

Button J accepted several factual matters in the accused's favour: she was not a security or flight risk, she was in close physical proximity to her legal team even while in the dock, and she genuinely suffered from psychological conditions beyond ordinary trial stress. However, his Honour found these considerations insufficient to displace the usual practice.

His Honour identified several factors weighing against the application. The dock is a traditional symbol that conveys the gravity of proceedings, particularly in a murder trial in a traditional courtroom. It is common for persons on bail to remain in the dock when arraigned on serious charges. The accused was charged with the most serious offence known to law (apart from treason), and no frank physical or intellectual disability was present.

On the question of jury prejudice, Button J considered that the jury would expect to see a murder accused in the dock, given the courtroom's architecture and established convention. He also noted it was possible the accused's position might engender sympathy rather than prejudice. Any residual prejudice from the dock placement, including in light of the Crown's plan to play a recorded interview showing the accused in custody and handcuffed, could be addressed through directions to the jury.

His Honour concluded that nothing about the accused's circumstances, individually or in combination, was sufficiently exceptional to justify departing from the usual approach, and he exercised his discretion to require the accused to remain in the dock for the entirety of the trial.

Orders Made

  • The accused was required to remain in the dock throughout the entirety of the trial.

Key Takeaways

  • Under s 34 of the Criminal Procedure Act 1986 (NSW), a trial judge holds a discretion over where an accused person is seated during trial, but the default position remains placement in the dock.
  • Bail status, good character, and the absence of a security or flight risk do not, of themselves, constitute exceptional circumstances warranting departure from the usual practice of dock placement.
  • Psychological conditions such as PTSD, anxiety, and depression were acknowledged as relevant factors but did not, on the facts here, outweigh the traditional and symbolic function of the dock in a serious criminal trial.
  • The Supreme Court treated the dock as a conventional marker of the gravity of murder proceedings, distinct from proceedings in lower courts, and considered that a murder jury would expect the accused to be seated there.
  • Potential prejudice arising from dock placement may be addressed through jury directions, and a judge may take into account the directions they intend to give when weighing the risk of prejudice.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 34

Cases:
- No cases were cited in this judgment.