Citation: R v Smith [2020] NSWSC 1583
Court: Supreme Court of New South Wales
Date: 10 November 2020
Judge(s): Harrison J
Background
The accused stood trial for the fatal stabbing of a man at a residential address on 5 January 2019. The deceased and the accused had both been involved, to varying degrees, in a relationship with the same woman, and there had been increasing tension between them over this.
On the second day of trial, that woman gave evidence as a Crown witness. During cross-examination, she made an unsolicited remark that the accused had, during an argument with the deceased on the night in question, stated that he wanted to kill his former partner. This comment was unresponsive to the question asked and had not been part of her police statement.
Defence counsel applied immediately for the jury to be discharged, arguing that the comment was so prejudicial to the accused that no direction from the trial judge could adequately cure the harm. The Crown opposed the application.
Legal Issues
- Whether the witness's unsolicited comment about the accused was sufficiently prejudicial to warrant discharging the jury.
- Whether a direction to the jury to disregard the comment would be adequate to cure any potential prejudice.
Decision
Harrison J refused the application to discharge the jury. His Honour accepted that the comment was unresponsive and gratuitous, and that the witness had in fact been warned by the Crown before giving evidence not to refer to the matter. However, these same features informed the conclusion that a strong direction to disregard would be effective.
A significant factor in the analysis was that the jury had been forewarned, before the witness took the stand, that she had sustained a recent injury resulting in cognitive difficulties, and that her evidence might present some unusual features. This pre-existing warning provided a ready and credible basis upon which the jury could contextualise and dismiss the outburst.
Harrison J also noted that the unsolicited nature of the comment, and the obvious motivation of the witness to portray the accused unfavourably, were themselves features that would tend to isolate the remark as unexplained and lacking context. Those characteristics made it more, rather than less, likely that the jury would treat a direction to disregard with seriousness.
His Honour was satisfied that appropriate directions could be framed to eliminate, or at least adequately reduce, the risk that the jury would form an unfavourable view of the accused as a result of the comment.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that an unsolicited and unresponsive comment by a witness does not automatically warrant discharge of the jury; the question is whether a direction to disregard can adequately cure the prejudice.
- Where a jury has been pre-warned of a witness's cognitive difficulties before that witness gives evidence, this context can strengthen the court's confidence that a curative direction will be understood and followed.
- The obvious irrelevance of a gratuitous remark, and a witness's apparent motive to disparage the accused, are factors that can reduce rather than increase the risk of lasting prejudice from that remark.
- A court assessing a discharge application will consider the totality of the circumstances, including the capacity to frame directions that adequately address the specific content and character of the impugned evidence.
- Discharge of a jury remains a serious and discretionary step; here, the combination of a pre-existing warning about the witness, the unresponsive nature of the comment, and the feasibility of curative directions was sufficient to deny the application.
Legislation and Cases Referenced
Legislation: No legislation was cited in the judgment.
Cases: No cases were cited in the judgment.