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District Court 3 November 2021

R v Munshizada

[2021] NSWDC 598

Public order & justice offences
CRIMINAL LAW APPLICATION TO DISCHARGE JURY OFFENCE OF AFFRAY WHETHER CROWN PROSECUTOR CROSS

Citation: R v Munshizada [2021] NSWDC 598
Court: District Court of New South Wales
Date: 3 November 2021
Judge: Abadee DCJ

Background

The accused faced a single count of affray under s 93C(1) of the Crimes Act 1900 (NSW), arising from a physical altercation at Parklea Correctional Centre on 1 September 2019. Both the accused and the alleged victim, a fellow inmate, were involved in a broader melee involving several other inmates. The central factual dispute at trial was whether the accused acted in self-defence.

The Crown case relied on CCTV footage and evidence from Corrections officers, establishing not only the fight between the accused and the alleged victim but also a separate attack on another inmate, Mr Bernie. The Crown's case statement indicated a degree of pre-planning among the accused and co-participants, though it explicitly acknowledged the Crown did not know the specific nature of any arrangement.

During cross-examination of the accused, the Crown prosecutor foreshadowed that he would put to the accused a specific proposition: that the accused had an arrangement with another inmate, Mr Shamim, to attack Mr Bernie while the accused fought the alleged victim. Defence counsel did not object in real time but applied for a discharge of the jury after the luncheon adjournment on the second day of trial.

  • Whether the Crown prosecutor's foreshadowed cross-examination proposition exceeded what had been disclosed in the Crown case statement.
  • Whether the proposition had any evidentiary basis in the Crown case as closed.
  • Whether any resulting unfairness to the accused was incurable, such that discharge of the jury was the only appropriate remedy.

Decision

Abadee DCJ accepted that the impugned foreshadowed proposition was improper. The Crown case statement had referred to pre-planning but had expressly stated the Crown did not know the content of any arrangement. The foreshadowed proposition went further, suggesting the accused had specifically arranged for Mr Shamim to attack Mr Bernie. There was no evidentiary basis for that proposition in the Crown case as closed, and it exceeded what the case statement had conveyed.

Despite finding the proposition should not have been put, his Honour expressed doubt that any actual unfairness had been occasioned. The jury was aware the trial turned on self-defence, and the form of the question was innocuous in character. The prosecutor had, in effect, been telegraphing where he intended to take the cross-examination, and the accused's response indicated he understood the proposition was being foreshadowed rather than immediately asserted.

Critically, his Honour held that even if some unfairness had occurred, it was not incurable. A jury discharge is an extreme remedy, warranted only where no lesser measure can address the prejudice. Here, appropriate directions to the jury could cure any potential unfairness: the jury would be directed that counsel's telegraphing of future questions is not evidence, that only answers constitute evidence, that the Crown would not pursue the impugned proposition, and that the jury should disregard the exchange.

The application for discharge was refused accordingly.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that a Crown prosecutor's cross-examination must stay within the bounds of what was disclosed in the Crown case statement. Propositions that go beyond that disclosure, and that lack evidentiary support in the closed Crown case, are improper.
  • A foreshadowed question (one telegraphed to a witness as something the prosecutor intends to put, rather than put directly) carries less inherent prejudice than a direct assertion, and its form is a relevant factor in assessing whether unfairness results.
  • Discharge of a jury is a remedy of last resort. Where potential unfairness can be cured by judicial direction, discharge will be refused.
  • Appropriate curative directions may include instructing the jury that counsel's statements about intended questions are not evidence, directing that the jury base deliberations only on evidence actually given, and directing the jury to disregard an improper exchange.
  • Delay in objecting, such as raising a discharge application only after a luncheon adjournment rather than in the moment, does not necessarily defeat the application but remains part of the overall context a court may consider.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C(1) (offence of affray)

Cases cited:
No cases were cited in this judgment.