Supreme Court New South Wales Medium Neutral Citation: R v Jacobs (No 3) [2013] NSWSC 944 Hearing dates: 14, 17 June 2013 Decision date: 17 June 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: The application to discharge the jury is refused. Catchwords: CRIMINAL LAW - application for discharge of jury - whether opening argumentative - use of rhetorical questions in Crown opening - whether in appropriate reference made to witness interview with Police - Crown opening not inappropriate - application refused Category: Procedural and other rulings Parties: Regina Michael Allan Jacobs Representation: Counsel: P Barrett (Crown) T Hoyle SC (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant) File Number(s): 2012/89001 EX TEMPORE Judgment 1Defence counsel has submitted that the jury should be discharged on the basis that the Crown Prosecutor's opening was inappropriate. The application was made immediately after the end of the address, but deferred until now to permit the smooth running of the trial and also in order to permit the parties and me to consider the transcript. 2Three points were made founding the application. The first was that the address generally crossed the line from setting out the expected Crown evidence to an exercise in forensic persuasion. The second was that the Crown Prosecutor asked a rhetorical question that had the potential impermissibly to reverse the onus of proof. The third was that the Crown Prosecutor should not have revealed that when Mr Terry Price, who is said on the defence case to be the real shooter, was interviewed and denied the offence, he was under no compulsion to speak to police unless he wished to do so. 3Defence counsel has this morning made it clear that he does not seek a lengthy judgment, and I respectfully agree that the application can be disposed of rather shortly. To my mind the speech of the Crown Prosecutor was a lucid exposition of the Crown case, both as to what the evidence will be and the meaning that the jury will be asked to ascribe to that evidence. It was not, in my opinion, an exercise in persuasion or urging. It was somewhat lengthy, but that was a reflection of the fact that the Crown case has a number of discrete bases. As for tone, a matter that the transcript will not of course reflect, in my opinion it was firm but never inflamed or inflammatory. I respectfully reject the first basis of criticism. 4As for the second basis, the rhetorical question, namely, why would the accused do such a thing as shoot a police officer over an RBT stop, was not asked of the accused or of the defence case. Rather, it was a question to be asked of the prosecution case, and the Crown Prosecutor went on to detail the expected evidence that may provide some answer to that question. To my mind the rhetorical question, therefore, had no potential to reverse the onus of proof. To the extent that the transcript of my earlier discussions with counsel last Friday suggests that I was of a different view, it is incorrect, and I will seek the concurrence of counsel to correct it. 5As for the third aspect relied upon, a number of aspects are noteworthy. 6First, it would be surprising if any juror believed that an Australian citizen is compelled to answer questions of police when suspected of an offence. 7Secondly, I am told that there will be evidence that the accused exercised his right to silence and I will, therefore, need to give at least one direction about that. Any such direction, to have any real force, will almost certainly need to speak in generalities. 8Thirdly, even if such a warning, at the request of defence counsel, does not speak in generalities, it would be remarkable for the jury to be told that the accused had a right to silence, but not come to the view that Mr Price had one as well. 9Fourthly, even if - a proposition that I do not necessarily accept - the Crown Prosecutor was wrong to bolster the credibility of Mr Price in the way that he did, in the scheme of things that was of no great moment and certainly would not, to my mind, lead to a discharge. 10It follows that each of the three bases for the discharge of the jury are rejected. 11Speaking more generally, far from founding a discharge of the jury, I should record that I regard the Crown Prosecutor's opening as a soundly appropriate example of an oration by an officer of the court who combines the role of an advocate with that of a minister of justice. 12It follows that the application to discharge the jury is respectfully refused. ********** 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: 16 July 2013