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Court of Criminal Appeal 11 March 2021

Libdy v R

[2021] NSWCCA 34

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL LAW PREJUDICE TO ACCUSED WHERE APPLICATION OPPOSED WHETHER APPROPRIATE TO DISCHARGE JURY RELEVANT CONSIDERATIONS WHERE ACCUSED OPPOSES DISCHARGE

Citation: Libdy v R [2021] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 11 March 2021
Judge(s): Macfarlan JA, Walton J, Hamill J

Background

The accused was standing trial in the District Court on an indictment containing 20 counts, including dealing with proceeds of crime, drug supply, and firearms possession. He had pleaded guilty to five counts when arraigned before the jury. The trial commenced on 2 March 2021, evidence closed on 9 March 2021, and the Prosecutor was delivering closing submissions on 10 March 2021, the trial's sixth day.

During his closing address, the Prosecutor invited the jury to engage in tendency and coincidence reasoning, including references to a "modus operandi" and "methodology" involving secret compartments in motor vehicles. No tendency or coincidence notice had been served prior to trial, as required under sections 97 and 98 of the Evidence Act 1995 (NSW). Senior counsel for the accused objected at the first opportunity.

The trial judge raised the possibility of dispensing with the notice requirements, and the Prosecutor then made an application to that effect. The accused opposed that application and identified prejudice. Without either party seeking it, the trial judge discharged the jury. The accused promptly sought a stay and brought an urgent appeal to the Court of Criminal Appeal under section 5G of the Criminal Appeal Act 1912 (NSW).

  • Whether the trial judge's decision to discharge the jury was affected by House v The King error, making it appropriate for an intermediate appellate court to intervene.
  • Whether the discharge was unreasonable or plainly unjust in circumstances where neither party had applied for it and a less drastic remedy was available.
  • Whether it was a proper basis for discharge to allow the Prosecutor to run a tendency or coincidence case in a subsequent trial where no such case had previously been in contemplation.

Decision

The Court of Criminal Appeal granted leave and allowed the appeal with expedition, sitting the day after the matter was first drawn to the Registrar's attention. Hamill J, with whom Macfarlan JA and Walton J agreed, acknowledged that appellate courts ordinarily exercise considerable caution before interfering with a trial judge's decision to discharge a jury. Such a decision involves the exercise of judicial discretion, and only House v The King error, meaning error of the kind identified in the High Court's foundational decision on appellate review of discretion, will suffice to overturn it. The trial judge is also regarded as being in a far better position than an appellate court to assess the atmosphere in the courtroom.

Despite that caution, the Court found that several factors combined to make the discharge unreasonable and plainly unjust. The trial had nearly concluded after an efficient week of proceedings. No party had applied for a discharge. Senior counsel's proposal, that the Prosecutor withdraw the offending submissions and the jury be given "anti-tendency" directions, represented a sensible and available remedy. It is well established that juries ordinarily follow judicial directions, and there was no reason to conclude that appropriate directions could not have remedied the difficulty here.

The Court also identified an impermissible basis underlying the discharge. The reasoning, so far as it could be discerned from the transcript, appeared to be directed at giving the Prosecutor an opportunity to conduct a tendency or coincidence case at a subsequent trial in circumstances where no such case had ever been notified or contemplated. That was an extraneous and irrelevant consideration. The Court noted that, on appeal, the prosecuting authority did not advance any argument in support of the discharge order.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Order to discharge the jury vacated.
  • Matter remitted to the District Court for the trial to continue on 12 March 2021.

Key Takeaways

  • A trial judge's decision to discharge a jury engages the House v The King standard of appellate review, meaning intervention is confined to identifiable error such as taking into account irrelevant considerations or reaching an unreasonable outcome.
  • Discharging a jury to allow the prosecution to improve its case in a subsequent trial, by running a tendency or coincidence case it had never previously notified, is an extraneous and irrelevant consideration that constitutes House v The King error.
  • Where a prosecutor makes impermissible submissions during closing address, withdrawal of those submissions combined with appropriate jury directions is an available and less drastic remedy than discharging the jury.
  • The Court of Criminal Appeal confirmed that juries are generally taken to follow judicial directions, including "anti-tendency" directions, and that this principle was applicable in the circumstances here.
  • Under section 5G of the Criminal Appeal Act 1912 (NSW), appeals against decisions to discharge a jury must be dealt with as soon as possible, and the Court demonstrated that urgency by constituting a bench and hearing the matter within approximately 24 hours of it being drawn to the Registrar's attention.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5G
- Evidence Act 1995 (NSW), ss 97, 98

Cases
- Barber v R; Zraika v R [2016] NSWCCA 125
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- R v Grand (1903) 3 SR(NSW) 216
- R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135
- Trieu v R [2012] NSWCCA 169