Citation: R v Ronald Edward Medich (No. 31) [2018] NSWSC 248
Court: Supreme Court of New South Wales
Date: 1 March 2018
Judge: Bellew J
Background
The accused was on trial for murder. During cross-examination conducted via Audio Visual Link, a Crown witness made a series of non-responsive and inflammatory statements, including an assertion that the accused had stolen money and shares from him. His Honour attempted to curtail the witness, who responded by raising his voice at the judge.
At the conclusion of cross-examination, the witness made a more serious unsolicited outburst. He stated, among other things, that the accused had "had people try to kill me," that he had been involved with the FBI, and that he was under armed guard. The Crown Prosecutor interrupted the witness before he could complete his statement, and the audio visual link was terminated shortly after.
Within less than a minute, and while the next witness was still entering the courtroom, Bellew J directed the jury to ignore the outburst completely, describing it as non-responsive and directing that it form no part of their deliberations.
Legal Issues
- Whether the witness's unsolicited outburst, particularly his statement that the accused had "had people try to kill" him, created a risk of miscarriage of justice sufficient to warrant discharge of the jury.
- Whether the immediate judicial direction to the jury was an adequate remedy in the circumstances.
- What additional steps, if any, should be taken at the summing-up stage.
Decision
Bellew J refused the application to discharge the jury. His Honour acknowledged that incidents of this kind are regrettable but observed that the discharge of a jury does not automatically follow from an utterance of this nature. The discretion to discharge is to be exercised only where discharge is necessary to prevent a miscarriage of justice, and a high degree of need must be shown before that course is ordered.
Applying the principles from Crofts v R (1996) 186 CLR 427, Bellew J considered several factors: the seriousness of the occurrence in context, the stage of the trial, the deliberateness of the conduct, and the likely effectiveness of a judicial direction. His Honour found that the outburst, while prejudicial in its terms, was isolated and non-responsive to any question. The direction had been given immediately and in specific terms designed to address the exact statement made.
Bellew J emphasised the foundational principle drawn from R v Glennon (1992) 173 CLR 592 and Gilbert v R (2000) 201 CLR 414: criminal trials necessarily proceed on the assumption that jurors are true to their oath and will comply with directions from the trial judge. There was no reason to depart from that assumption in the present case. The circumstances in which the outburst occurred, and the speed and clarity of the direction that followed, weighed wholly against discharge.
On the alternative relief sought, Bellew J accepted that any transcript of the witness's evidence provided to the jury should have the non-responsive passages excised. His Honour also indicated a present intention to remind the jury during the summing-up to disregard the statement, if asked to do so by senior counsel for the accused.
Orders Made
• The application to discharge the jury is refused.
Key Takeaways
- Refusing the discharge application, Bellew J confirmed that discharge of a jury following a prejudicial witness outburst requires a high degree of necessity and is not an automatic consequence of an inflammatory statement being made.
- The decision reaffirms the multi-factor approach from Crofts v R: courts assess the seriousness of the incident, its deliberateness, the stage of the trial, and the likely effectiveness of a curative direction before exercising the discharge discretion.
- A prompt, specific, and clearly framed direction to the jury is capable of overcoming prejudice arising from non-responsive witness statements, particularly where the direction is given within moments of the incident occurring.
- Criminal trials proceed on the foundational assumption, confirmed in R v Glennon and Gilbert v R, that jurors will follow the trial judge's directions; departure from that assumption requires compelling reason.
- Where transcripts of a witness's evidence are provided to the jury, excising non-responsive and prejudicial passages is an available and appropriate safeguard alongside any curative direction.
Legislation and Cases Referenced
Cases:
- Crofts v R (1996) 186 CLR 427; [1996] HCA 22
- R v Glennon (1992) 173 CLR 592; [1992] HCA 16
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- R v Ahola (No 6) [2013] NSWSC 703
- R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1
- Qing An v R [2007] NSWCCA 53
- Mikael v R [2015] NSWCCA 294
- R v Bolan [1974] VR 849
Legislation: No legislation was cited in this decision.