Supreme Court New South Wales Medium Neutral Citation: R v Ahola (No 6) [2013] NSWSC 703 Hearing dates: 14 May 2013 Decision date: 14 May 2013 Jurisdiction: Common Law Before: Button J Decision: The application to discharge the jury is rejected. Catchwords: CRIMINAL LAW - application for discharge of jury - fingerprint expert witness gave potentially prejudicial evidence - whether high degree of necessity reached - application rejected Cases Cited: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 Qing An v Regina [2007] NSWCCA 53 R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 Santo v R [2009] NSWCCA 269 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 Category: Interlocutory applications Parties: Regina Jouni Risto Ahola Representation: Counsel: P Cattini (Regina) G Scragg (defendant) Solicitors: Solicitor for Public Prosecutions (Regina) Legal Aid NSW (defendant) File Number(s): 2011/333607 EX TEMPORE Judgment 1Application has been made by defence counsel for the discharge of the jury. It is founded on the fact that the fingerprint expert, Detective Leading Senior Constable Buffett, said something inappropriate in his evidence-in-chief. The transcript of an extract of his evidence was tendered by defence counsel in support of the application, and became defence exhibit D on the voir dire. The salient portions of that transcript are as follows. At page 7 line 4 the following appears: "Q. All right now, what did you have to compare those fingerprints that were developed with? [I interpolate to say that the learned Crown Prosecutor at that stage was referring to the crime scene fingerprints.] "A. At which particular time? Q. From whom they were placed on those items? A. The comparison that I made for the purposes of, according to this certificate, I've always done where possible off ones taken at the time of arrest. Q. Right? A. But other comparisons are performed but it might be prejudicial if I go into that. Q. No, no, no, just ones that were taken from the time of arrest of Mr Ahola we're talking about? A. Yes." 2A little later in evidence-in-chief the following exchange occurred commencing at page 8, line 27 of the transcript: "Q. Okay, continue on? A. 'On Monday 5 December 2011 I retrieved from the digital image management system images bearing forensic case numbers 1534791, 154392 and 1515308. I also retrieved from the National Automated Fingerprint Identifications System a set of fingerprint impressions in the name of Jouni Risto Ahola which are shown to have been taken on Wednesday 19 October 2011 under charge number H46052312'. Q. And that's the date of Mr Ahola's arrest in relation to this particular matter? A. I believe so, yes." 3The submission is that the jury would inevitably infer from the first extract that the accused is a person with a criminal record whose fingerprints were held by the New South Wales Police, prior to them being taken from him with regard to this matter. It is that inference that forms the foundation for the application of the discharge of the whole jury. 4A number of aspects of the giving of the evidence by the witness are noteworthy. 5The first is that the evidence was not heard by defence counsel, and it was only when I invited to his attention it having been given that it became a cause of concern. 6The second thing is that the witness, at least to my hearing, was not speaking particularly loudly or forcefully. If anything, his mode of giving evidence was somewhat to the contrary. 7The third thing is that the Crown Prosecutor intervened to a degree to deflect the witness from saying what he was saying, and I refer in particular to the extract that commences at page 7 line 16 of the exhibit, though it is true that defence counsel submits respectfully that in fact that intervention made matters worse. 8The fourth thing is that it seems to me from the words used that they could be interpreted as speaking, at least in part, in generalities rather than with regard to this particular matter. I refer in particular to the reference at page 7 line 13 as follows, "But other comparisons are performed", and the flavour of the extract as a whole. But, again, Mr Scragg has submitted that reference to "it might be prejudicial" must surely be a reference to this particular matter. Submissions 9The submissions of defence counsel can be summarised as follows. First, as I have indicated, he submits that the logical interpretation and inference of what the witness was saying could only reasonably be that the fingerprints of the accused were held by the New South Wales Police as a result of him having a criminal record prior to 19 October 2011. Secondly, he submitted that I should proceed on the assumption that at least one juror heard what was said. Thirdly, it was submitted, as I indicated a moment ago, that the steps taken by the Crown Prosecutor, far from being ameliorative, in fact could well have made the matter worse. Fourthly, it was submitted that no direction or other step taken by me short of discharging the whole jury could solve the problem. 10The submissions of the Crown Prosecutor were as follows. He opposed the discharge of the whole jury, although with customary fairness he accepted that what occurred was certainly a matter of concern. He recorded that it was his impression that the witness was speaking in generalities, although he conceded that the reference to prejudicial matters is certainly suggestive that the witness was talking of this particular trial. Finally, he submitted that a direction that I formulated before lunch for the purpose of discussion with counsel would have the effect of solving the problem without, in short, making it worse. Review of authorities 11I turn to my determination. It is appropriate first for me to review some of the authorities with regard to the question under consideration. The leading case is the decision of the High Court of Australia in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. It is said, and accepted by defence counsel, that the test for the discharge of a jury in a criminal trial requires a "high degree of necessity". That proposition is founded on the decision in Crofts v The Queen at 432 of the reported judgment. 12It was said in the joint judgment of Toohey, Gaudron, Gummow and Kirby JJ at 440: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact." 13In Williams v The Queen [2000] FCA 1868; 119 A Crim R 490, a decision of the Full Court of the Federal Court of Australia sitting as a the Court of Criminal Appeal of the Australian Capitol Territory, the accused was on trial for armed robbery. A juror came to know that the accused had previously been convicted of the very same offence. The juror was examined and gave evidence that that information had not been conveyed to any other member of the jury. The trial judge discharged the individual juror but rejected an application to discharge the whole jury. It was quite possible that in the circumstances other jurors had heard similar remarks (see 496 of the reported decision). In the circumstances of that case, the Full Court of the Federal Court held that it had been an error for the trial judge not to discharge the whole jury. 14In R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1, the accused was on trial for importing a commercial quantity of cocaine. A co-accused in evidence engaged in an outburst that revealed that the accused had a criminal record and had been in gaol. An application to discharge the jury in those circumstances was refused. The Court of Criminal Appeal (Mason P and Barr J; Smart AJ dissenting) did not interfere with the trial judge's exercise of discretion not to discharge the jury. 15In Qing An v Regina [2007] NSWCCA 53, the accused stood trial on eight counts of armed robbery. A jacket seized from the home of the accused was tendered in evidence and as an exhibit went to the jury room. There was evidence that both the accused and his brother wore that jacket. Regrettably it seems that the jacket was not checked before it went to the jury room, and it turned out that the jacket had a syringe in it. A discharge application in those circumstances was refused, although an ameliorative direction was given. Beazley JA (as her Honour then was), with whom Hislop J agreed, R S Hulme J dissenting, held that the ameliorative direction given was sufficient, and that it was not an error for the trial judge to refuse to discharge the jury. 16Finally, in Santo v R [2009] NSWCCA 269, the accused was on trial for robbery in company. In cross-examination she said that for 11 or 12 months before the date of the alleged offence she had been in custody. The trial judge refused to discharge the jury. The Court of Criminal Appeal (constituted by Young JA, Hidden and Latham JJ) held that that decision was open to the discretion of the trial judge. 17My review of some of the leading authorities shows that the High Court of Australia and the Court of Criminal Appeal of New South Wales do not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material. That review also shows that in many circumstances a direction is an appropriate remedy, not the discharge of the whole jury, although of course every case will turn upon its own facts. 18In short the authorities demonstrate that it is well established that the decision to discharge a jury is a discretionary one. A trial judge should take into account a number of factors including but not limited to the extent of the prejudice to the accused; the ability to ameliorate that prejudice to any degree by direction, comment or other step; and the stage that the proceedings have reached. As I have said, the ultimate question is whether a high degree of necessity for the discharge of the jury has been established in all of the circumstances. Determination 19As for the last factor to which I referred, namely the stage that the proceedings have reached, that militates, in my opinion, rather strongly against discharge. The trial has proceeded now for over two weeks. It has involved evidence from very many civilians, police, and a number of experts, including more than one witness who has travelled from interstate. The trial included a view of the scene that took a whole day. Of course questions of convenience are not determinative, and obviously no matter what the time, trouble or expense involved, a trial that had been prejudiced to the point of becoming unfair could not continue, whatever the inconvenience. 20However, I do not consider that the test of a high degree of necessity has been made out in this case. That opinion is founded upon a number of factors. 21First, in the circumstances described by me it is not completely clear that the jury indeed heard the offending passage. 22Secondly, if some or all of them did hear it, is not completely clear that they would have necessarily interpreted what was said as demonstrating that the accused had had fingerprints taken on an earlier occasion. 23Thirdly, I consider that the extract from page 7 of the transcript to which I have referred has at least some flavour of the witness speaking in generalities and not with regard to this particular case. 24Fourthly, the remedial steps immediately taken by the Crown Prosector were, with respect, appropriate, though I accept that there is perhaps a danger that they had the opposite effect from that which was intended. 25Fifthly, the subsequent evidence-in-chief that I have extracted in my judgment made it perfectly clear that the witness was talking of comparing the fingerprints from the scene with fingerprints taken from the accused on 19 October 2011. Those were the last words that the jury heard about the matter. 26Sixthly, there has been no evidence placed before me, and I did not discern myself contemporaneously, any consternation or hubbub on the part of the jury or anyone else in court when the evidence was given. 27I accept that it constituted a regrettable slip in the trial for the witness to have said what he said, rather than simply focussing on the comparison between the crime scene fingerprints and the fingerprints of the accused taken on arrest for this matter. But I am not satisfied in the circumstances of this case that that regrettable slip should lead me to discharge the jury. 28Finally, as I indicated in discussion and subject to hearing submissions from the learned Crown Prosecutor, I am prepared to say anything reasonably appropriate to the jury that defence counsel may seek to have me say. That would include, if he so wishes, a direction highlighting the evidence and asking the jury to completely ignore it. Or I have already in discussion suggested, as a possibility a comment to the jury that may or may not commend itself to defence counsel. Whether it would be better to leave the evidence entirely is of course a matter for the consideration of defence counsel. 29In short, I am not satisfied, in all of the circumstances of this particular case, that there is a high degree of necessity for the jury to be discharged, and the application for that to occur is respectfully rejected. ********** 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: 03 June 2013