Supreme Court New South Wales Medium Neutral Citation: R v Scott; R v Widmer [2011] NSWSC 1463 Hearing dates: 22 September 2011 Decision date: 06 December 2011 Jurisdiction: Common Law - Criminal Before: BUDDIN J Decision: Application refused Catchwords: Discharge of jury - no relevant prejudice Category: Interlocutory applications Parties: Regina Cameron Scott Michael Widmer Representation: Counsel: J Kiely SC (Crown) J Spencer (Scott) C McNamara (Widmer) Solicitors: S Kavanagh (Director of Public Prosecutions) Audix Legal (Scott) Smirilios & Co (Widmer) File Number(s): 2010/18009; 2010/25763 Judgment 1Cameron Scott, who is represented by Mr Spencer, and Michael Widmer, who is represented by Mr McNamara, are each charged with the murder of Melloney Menhennitt at Manly on 12 March 2004. Michael Widmer is also charged in the alternative with being an accessory after the fact to her murder by Cameron Scott. Application was made on behalf of the accused Michael Widmer to discharge the jury. The application was opposed and after hearing submissions I refused the application. These were my reasons for doing so. 2In order to properly assess the application, it will be necessary to sketch some background details. The primary focus of the Crown case is upon the events which occurred in the early hours of 12 March 2004 both within and in the vicinity of Unit 2/86 Darley Road, Manly. That unit was occupied at the time by Frank Widmer, who is the father of the accused Michael Widmer. From what can be gleaned from the evidence which was given by Frank Widmer, and from the evidence which I am told it is anticipated the Crown will be able to elicit, each of the accused together with the deceased and another woman, named Angela Muldoon, were at those premises during the early hours of 12 March. Whilst there, they each injected a quantity of 'ice'. It would appear that at times the various participants also engaged in arguments, during the course of which voices were raised. 3The Crown alleges that at about 5.40 am the deceased left the unit and did not return. Its case is that it was in the period shortly after she had left the unit that she met her fate at the hands of the accused. It contends that following her death her body was transported to a remote location at North Head where her skeletal remains were located on 26 September 2009 by a pair of bushwalkers. Nothing had been heard of her since her disappearance on 12 March 2004. The Crown readily concedes that it is unable to establish the manner or cause of her death. In addition to the evidence of what occurred in the unit, which will depend in large measure upon the evidence to be given by Angela Muldoon, the Crown relies upon the evidence of what people, who lived in close proximity to the unit, heard and saw that morning. The Crown anticipates that that body of evidence will establish that during the relevant time-frame a young woman was heard to be in a state of high distress and was screaming for help. The evidence from some of the witnesses suggests that she was engaged in an argument with a male. 4There will also be evidence, I am informed, from which it may be inferred that the accused used and/or destroyed personal items belonging to the deceased, such as her credit cards, in the aftermath of her disappearance on 12 March 2004. There is also evidence to be led, as I understand it, concerning what each of the accused said to police and to other persons about their contact with the deceased on the morning of her disappearance and/or their knowledge of her disappearance. It is unnecessary for present purposes to refer to that evidence in any greater detail. 5At the time the application to discharge the jury was made, a witness named Yantse Bailey-Green was giving evidence. At the relevant time he resided with his girlfriend in unit 1/86 Darley Road. In his evidence in chief he gave evidence that he had been awoken on the morning in question by a young woman screaming for help. He said that although he went to investigate, he was unable to locate her. He also gave evidence of a conversation that he had had a week later in which he had asked the accused Widmer if he had "been murdering someone or something" on the night in question. According to the witness the accused Widmer had replied "not me. I didn't do anything. She had some money hidden under the couch. It was...he strangled and robbed her". The witness said that the accused Widmer had told him the name of that person but that he (the witness) had now forgotten it. Although Mr Bailey-Green gave a description of the person to police, (whom he said he had seen at the unit on other occasions) I am told that he was unable to identify that person from a photographic array. 6During cross-examination by Mr Spencer the witness agreed that the accused Widmer, had for a couple of months, frequented the premises and that he had brought a girl with him when he had done so. Reading from the witness' statement Mr Spencer then asked him if he had told the police that "I thought that Michael and his girlfriend might be dealing drugs or something". 7It was that question which occasioned the application that the jury be discharged. In the absence of the jury, Mr McNamara contended in support of the application, that the question had been asked deliberately. So much may be accepted. Moreover, when pressed, Mr Spencer was unable to provide a particularly satisfactory explanation as to how the question could be relevant to the proceedings. Mr McNamara also submitted that the question was, in any event, objectionable because the witness' thoughts or opinions upon the subject matter in question were irrelevant and thus of no probative value. That submission is also undoubtedly correct. 8However, the crux of Mr McNamara's submission in support of the application depended upon acceptance of the further proposition that the question had caused such irreparable prejudice that nothing could be done to repair it. I do not accept that submission. In approaching the question at hand, it is important to understand the context in which the issues in this trial fall to be considered. The atmosphere which prevails at any particular trial is always a relevant factor when an application such as the present is being considered. The Crown case, as I have said, is that each of the accused, as well as the deceased and Ms Muldoon, were injecting drugs in the unit on the night in question. Even at this comparatively early stage of proceedings, the evidence is replete with references to the consumption and purchase of drugs by various of the main participants in the case, including most notably the deceased. It is very apparent from the evidence given by her parents that she had been addicted to drugs for a considerable period of time prior to her death. In other words, the events surrounding her disappearance occurred against the background of her involvement in the drug milieu. It is entirely conceivable from what has been alluded to at various stages of proceedings to date that there will be material suggesting that she supported her drug dependency by selling cannabis. In those circumstances I accept that it is entirely conceivable, given that the deceased's manner and cause of death cannot be established, that a submission will be advanced that her death resulted from misadventure, including the possibility that it occurred as a result of a drug overdose. Indeed, the Crown has already called evidence seeking to rebut that suggestion. Mr McNamara submitted however that there was a material difference between an addict, a description which he contended the evidence will reveal fits his client, and a drug dealer. I am far from persuaded that such a distinction can so readily be drawn in the circumstances of the present case. Nevertheless, the observation made by the witness of "dealing drugs" was applied equally to the accused Widmer's female companion which was clearly a reference to Angela Muldoon whom, as I have implied, is the principal Crown witness. She too is deeply entrenched in the drug milieu. I might also observe that although I have not been informed by counsel for the accused precisely what the issues in the case will be, it seems tolerably clear from the evidence which has already unfolded, including other parts of the evidence given by the current witness, that it is entirely possible that the accused Widmer will attribute whatever occurred to the deceased to the actions of his co-accused. In other words, the trial is likely to be conducted upon a rather more robust basis than might ordinarily be the case. 9When the jury returned to court, the following exchange took place: SPENCER: Yes, your Honour. I withdraw my question. I must concede, on reflection, that it is only an opinion expressed by a witness, and it doesn't appear to have any evidentiary basis for it to be put, so I withdraw the question. HIS HONOUR: You might remember, ladies and gentlemen, it was couched in terms of "I thought something or other". You've heard a number of times witnesses have been pulled up on the basis of what they thought about something is simply no evidence at all, and you've heard Mr Spencer go one step further, in fact, and that's entirely a proper concession for him to make, and to withdraw the question that he's asked. It follows, ladies and gentlemen, from what I've just said that you completely put that observation, that question to one side. I'm going to give you another direction, which I will give you now, and it's this, and I will give you further directions about it in due course: The evidence is the answer that's given to a question. The question itself, sitting on its own, could never be evidence, unless, of course, there's an adoption of it or, in fact, there's a rejection of it, but you don't need to worry about that, and I'm sure that just stands to reason, but I will give you further directions about that in due course. 10I have concluded that the withdrawal of the question by counsel and the directions which I gave concerning the matter, served to remove any possible prejudice which may have arisen. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2011