Citation: R v Kelu; R v Millner (No 3) [2023] NSWSC 1539
Court: Supreme Court of New South Wales
Date: 19 June 2023
Judge: Cavanagh J
Background
The accused Millner was on trial alongside a co-accused in a matter involving the purchase of gold bullion. The gold had originally been purchased from a company called ABC Gold Bullion, and its CEO, Ms Simpson, appeared on the Crown's witness list throughout the proceedings.
At the end of the third week of trial, the Crown informed the co-accused's legal team that it no longer intended to call Ms Simpson. This notification came late on the Thursday evening. The reason given was that Ms Simpson had attended a conference with her legal representative and refused to answer questions before leaving, raising Crown concerns about her reliability as a witness.
Counsel for Millner applied to have the jury discharged. She argued that the defence had conducted its case to that point on the express assumption that Ms Simpson would give oral evidence, and that the late change of position caused significant forensic prejudice to her client.
Legal Issues
- Whether the Crown was obliged to call Ms Simpson, given she appeared on the witness list and the defence had shaped its conduct of the trial around her anticipated evidence.
- Whether the Crown's decision not to call Ms Simpson, in the circumstances, gave rise to a substantial risk of a miscarriage of justice sufficient to justify discharging the jury.
- Whether the high threshold for jury discharge, requiring satisfaction "to a high degree of necessity" that a substantial risk of miscarriage of justice exists, had been met.
Decision
Cavanagh J refused the application to discharge the jury. His Honour accepted the well-established principle, drawn from Whitehorn v The Queen and Diehm v DPP, that a prosecutor must call all available witnesses unless there is good reason not to do so, and that the obligation is to ensure a fair trial. However, the Crown retains a discretion as to which witnesses to call, provided that discretion is exercised consistently with fairness to the accused.
On the facts, His Honour was satisfied that the Crown had a legitimate reason for not calling Ms Simpson: she had declined to cooperate at conference, attended with a lawyer, and refused to answer questions. The Crown's concern about her reliability was a genuine basis for exercising the discretion not to call her. His Honour also noted that the Crown had offered to call Ms Simpson without examination-in-chief and make her available for cross-examination, but declined, a course the Crown was not obliged to adopt in these circumstances.
The central forensic concern raised by the defence related to documentary evidence about a company called Lucky Jade, commission payments, and agreements signed by a group referred to as the "Korean holidaymakers." The defence feared the jury might infer that Millner had received special or dishonest treatment from ABC. His Honour found those concerns to be "somewhat overstated" in light of the Crown's clear statements that it would not invite the jury to draw adverse inferences from that material and would not suggest the relevant agreements were fraudulent.
The Crown also offered an agreed fact dealing with Millner's introduction of the Korean holidaymakers to Ms Simpson, which further addressed the residual prejudice concern. In those circumstances, His Honour was not satisfied to the requisite standard that leaving the jury in place would result in a substantial risk of miscarriage of justice, and dismissed the application.
Orders Made
• The application for discharge of the jury is refused.
Key Takeaways
- The Supreme Court confirmed that the Crown retains a discretion as to which witnesses to call, but that discretion must be exercised with fairness to the accused and not merely to avoid inconvenient or inconsistent testimony.
- A witness appearing on the Crown's witness list does not create an enforceable undertaking to call that witness; the Crown may depart from the list where there is good reason, such as genuine concerns about a witness's reliability or cooperation.
- The threshold for discharging a jury is high: the court must be satisfied "to a high degree of necessity" that failing to discharge the jury would create a substantial risk of miscarriage of justice.
- Forensic decisions made by the defence in anticipation of a Crown witness being called do not automatically generate the level of prejudice required to justify discharge, particularly where the Crown offers concessions, agreed facts, or other curative measures.
- In assessing prejudice, the court considered the Crown's stated intentions regarding the use of contested evidence, finding that explicit Crown statements about the limits of its own case can reduce the weight of a discharge application founded on feared jury inference.
Legislation and Cases Referenced
Cases:
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
- R v Soma (2003) 212 CLR 299; [2003] HCA 13
- Diehm and Anor v The Director of Public Prosecutions (2013) 303 ALR 42; [2013] HCA 42
Legislation: No specific legislation was cited in the judgment.