Supreme Court New South Wales Medium Neutral Citation: R v Hunter (No 8) [2014] NSWSC 1151 Hearing dates: 10 July 2014 Decision date: 10 July 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The application is refused. Catchwords: CRIMINAL LAW - inadmissible opinion evidence given by witness in the witness box - evidence prejudicial to accused - application by defence counsel for discharge of whole jury - whether there is a high degree of necessity for the jury to be discharged - need to consider the inadmissible evidence in the context of all of the evidence foreshadowed and led in the trial so far - ability to delete inadmissible evidence from transcript provided to jury Cases Cited: Glennon v R [1994] HCA 7; 179 CLR 1 Libke v R [2007] HCA 30; 230 CLR 559 R v Ahola (No 6) [2013] NSWSC 703 R v Clark [2010] NSWCCA 94 R v Helmhout [2000] NSWSC 218 Trieu v R [2012] NSWCCA 169 Category: Interlocutory applications Parties: Regina Paul Andrew Hunter Representation: Counsel: M Cinque (Crown) D Carroll (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused) File Number(s): 2011/397367 EX TEMPORE Judgment 1Defence counsel has applied for a discharge of the whole jury. The application is based on the following exchange between the Crown Prosecutor and the witness, Mr Tory Gardner, in his evidence-in-chief on the afternoon of Tuesday 9 July 2014. The evidence, placed in a little of the proceeding context, is as follows: Q. Sorry, he being Paul Hunter? A. Yeah, sorry. Paul was walking towards Carlisle Avenue, just yelling stuff out, like what he had previously said, like "You had better get out of there. I will be back with me brothers and guns," and I just wasn't really worried by that stage. I just started walking back to my father's house. Q. Right? A. And as I've gotten into my dad's house he's just straight in my face? Q. Your father? A. Yeah, calling me Mary and telling, he said, "Oh you and your girl Sammi, pack your bags and get out of me house. I don't want youse here any more," and I just said to my father, I said, "I am not going anywhere". I said, "Womba" Paul "Paul's just said that he's coming back to get ya, and he's known for doing stuff like that. I'm not going anywhere". Q. All right, thank you? A. And that's exactly what I said to me dad. I said, "I'm not going anywhere, like he's known for doing that stuff". HIS HONOUR: Yes. Yes, Madam Crown, next question please. 2In a nutshell, defence counsel submits that the jury heard and must have realised that the witness was stating that, as at the date of the offence alleged, the witness believed that the accused had a reputation for violence, and that the witness conveyed that belief to his father. 3The possibility of the application was not notified to my associate by email until 4.47 PM that afternoon, in accordance with my general request before and during the trial that I be provided with notice of any pending applications or legal issues. 4The possibility of any such application was not mentioned by defence counsel in the absence of the jury whilst I was sitting yesterday afternoon. The explanation of defence counsel for that state of affairs is that he undoubtedly heard the evidence given, but wished, first, to check the transcript; secondly, to reflect upon the law; and, thirdly, to reflect on the way forward generally. That is an explanation that I accept. 5The evidence founding the application needs to be seen in the context of the other evidence either already called in the trial or foreshadowed in the openings of counsel or on the voir dire. 6The Crown case in a nutshell is that the accused, his brother Wade Hunter, and his cousin Gary Hunter, fatally assaulted the deceased in retaliation for an assault committed by the deceased on the accused with a metal weapon. 7In her opening, the Crown Prosecutor foreshadowed that there would be evidence that the accused was present at the home of Mr Bernard Douglas, where prohibited drugs were in the habit of being consumed: trial transcript 15.6. It was foreshadowed that, when a confrontation developed outside the home of Mr Douglas, the accused said words to the effect of "If any cunt's gonna be fighting here it will be me": trial transcript 16.17; that the deceased called the accused a "stand over": trial transcript 16.18; that the accused, having been attacked by the deceased, said words to the effect of "You're a dead cunt" to Mr Tory Gardner: trial transcript 16.25; that shortly thereafter the accused struck a third party, a Mr Sciberras, to the elbow with a metallic weapon: trial transcript 16.47; that the accused, at a later stage, said to his brother that he wished to travel to the home of Mr Douglas in order to obtain "three bottles of methadone and a script of Xanax": trial transcript 20.47; and that the accused said, in the presence of his brother, "We're going to kill that cunt if he don't give me my methadone": trial transcript 21.6. 8In defence counsel's opening, it was said to be "also accepted that there was an interaction" between the accused and the deceased after the deceased struck the accused, and "that words were exchanged, but words were exchanged of a similar nature to what was being said to him": trial transcript 32.22- 32.25. It was also said that, "It will be a matter for you to unravel it, but it's there, a violent attack, and response in words in terms of 'I'll get you back', after an exchange between the two men": trial transcript 32.39 - 32.39. 9At trial transcript 32.48-33.1, defence counsel told the jury "it's accepted that the accused armed himself after the attack with a socket wrench, and he kept that in his possession. That is not in dispute. He accepts that. The position of the defence was that was to defend himself, but in any event, he has it". 10The evidence tendered on the voir dire shows that one can expect that there will be evidence in the trial that the accused is in the habit of using very harsh language, including with regard to the deceased, on occasions when the accused was aware that the deceased had died a violent death at the hands of some person. 11As a result of the matters foreshadowed in the openings and on the voir dire, and with the agreement of both parties, I provided the jury on Tuesday 9 July 2014 with a firm warning against being emotional or prejudiced against any party or person "and especially the accused". There is no need for me to extract that warning in this judgment; it appears in its entirety at page 58 of the trial transcript. 12Earlier today, before defence counsel made the application under consideration, I indicated to the parties that I would be very open to giving a direction to the jury in conformity with the document headed "Direction to Disregard Inadmissible Opinions", a copy of which is retained on the Court file and bears today's date. 13During discussion of the application, I queried of counsel whether there had been notice in the brief that Mr Tory Gardner could well say something along the lines of the material that founds the application. I was informed that, in the brief, there was no material to suggest that Mr Tory Gardner would "blurt out" the material about the reputation of the accused that founds the application. 14The other aspect of context is that it is certainly the case that I interrupted Mr Tory Gardner, and did so with a degree of sharpness, as a result of my desire to do my best to ensure that inadmissible material was not repeated before the jury. However, it is not as if that was the only occasion upon which I have interrupted a witness for that purpose. Other occasions upon which I have interrupted other civilian witnesses, with a degree of sharpness in the presence of the jury, can be found in the trial transcript at 94.42, 97.32, and 97.47. Indeed, after the exchange that is the basis of the discharge application, I interrupted Mr Gardner himself with regard to another matter at 119.9. In other words, the circumstances of me interrupting a witness who was giving offending material or potentially offending material were by no means exceptional. 15Turning to review the submissions that have been helpfully made this morning, defence counsel submitted that the evidence is highly prejudicial and cannot be cured by any direction, general or specific. 16He submitted that the topic of what the accused allegedly said to Mr Tory Gardner must be returned to with some specificity in cross-examination, as must what Mr Tory Gardner allegedly said to the deceased about it. 17He also submitted that the jury will need to know, in order to understand the context of the listening devices and telephone intercepts, that the accused was in custody for some months, not having been charged and bail refused with regard to murder. 18He submitted that the jury might infer, from charging decisions made by police, that the accused had been "targeted" by them, and speculate on the character of the accused as a result. 19He submitted that it could well be that, if the jury seeks a transcript for their assistance in the jury room, I am not empowered to provide the jury with a transcript discreetly edited in their absence to remove the offending ten words or so. 20He submitted that the other prejudicial material in the trial creates a question of greater prejudice, not less prejudice. 21He submitted that the trial proper has only proceeded for two days or so. 22Finally, he submitted that the evidence of reputation of the accused given by Mr Tory Gardner directly and highly prejudicially links with the Crown case, namely the attendance of the accused at the home of the deceased with his brothers armed with weapons. 23The Crown Prosecutor submitted simply that the evidence could be cured by a simple direction that the evidence of reputation on the part of Mr Gardner with regard to the accused demonstrates nothing, is irrelevant, and is to be disregarded. She referred to the decision of the R v Helmhout [2000] NSWSC 218, at first instance, as an example of the more modern robust approach. She noted that that decision, in turn, refers to the decision of the High Court of Australia in Glennon v R [1994] HCA 7; 179 CLR 1, and the fact that the criminal justice system proceeds upon the assumption that jurors generally obey the directions of trial judges. 24Turning to the applicable legal principles, in R v Ahola (No 6) [2013] NSWSC 703 at [11] to [18], I reviewed the leading decisions of the High Court of Australia and the New South Wales Court of Criminal Appeal with regard to the test to be applied by a trial judge on an application for the discharge of the jury as a result of prejudicial material having been inadvertently been placed before it. Due to the exigencies of the situation, I shall not repeat that analysis. I have reviewed that judgment again today and have provided a copy of it to counsel for their consideration. Neither of them has submitted that any aspect of my review of legal principle in that judgment is incorrect. Suffice it to say that the test is whether it has been established by the applicant that there is a high degree of necessity for the jury to be discharged. 25Since the time when I delivered that earlier judgment, two further judgments of the New South Wales Court of Criminal Appeal have come to my attention with regard to circumstances in which a jury should be discharged. They are R v Clark [2010] NSWCCA 94 and Trieu v R [2012] NSWCCA 169. The first of those judgments is to do with an application at trial to discharge a juror who had come to know something of previous proceedings with regard to the appellant. The latter is to do with an application to discharge the jury when a person was seemingly loitering around the jury's entrance to the courthouse. In that sense, neither of those decisions is directly on point. Nevertheless, each of them confirms the test that I have enunciated above. 26Turning to my determination, it cannot be denied that it is regrettable that the witness said what he said. 27I also accept that my desire to avoid repetition of the inadmissible material may perhaps have led me inadvertently to draw attention to it. 28It is also true that the trial is at a very early stage, namely at its third day. 29In the circumstances, and in light of the gravity of the count that the accused is facing, and in accordance with the submissions of both parties, I give no weight in the exercise of my discretion to the countervailing fact that the trial has been delayed for over a week due to the failure of an important Crown witness to attend in answer to his subpoena. Nor do I give any weight in the exercise of my discretion to any other logistical considerations that attach to the trial. 30Nevertheless, I am not satisfied that there is a high degree of necessity for the jury to be discharged. That is so for a number of reasons. 31First, as I have sought to show in this judgment, it is not as if the offending remark of the witness is the only material that will be before the jury that reflects adversely on the character of the accused; indeed, quite the contrary. In that sense, I consider that the offending material needs to be seen in the context of the whole of the evidence in the trial, both given and foreshadowed. Some of the material that reflects adversely on the character of the accused has been indicated to be undisputed. In that context, I do not regard the evidence as being of the greatest moment, even despite its connection to the Crown allegation. To my mind, there will be a plethora of evidence before the jury, quite separate from the allegation of murder, that suggests that the accused is a person associated with violence, threats thereof, and prohibited drugs, including methadone, itself associated with heroin addiction, itself associated with crimes of violence. 32Whilst it is true that this fact cuts both ways, I do not analyse the further evidence that founds the application as having the effect of tipping the trial over to the point where it cannot proceed further before this jury. 33Secondly, I have already given the jury a firm warning against prejudice and specifically directed them not to be prejudiced in any way against the accused. I fully intend to repeat and strengthen that warning in my summing-up. 34Thirdly, I have I expressed this morning my readiness to give a further direction calling upon the jury to disregard completely extraneous expressions of opinions by any witness without highlighting, in a potentially counterproductive way, the material upon which this application is based. Furthermore, if it is sought, I would be quite open to giving the jury a highly specific direction to disregard completely the ten words that found this application. 35Fourthly, I am not aware of the jury reacting in an obviously emotional or adverse way when the evidence was given. 36Fifthly, the evidence is not directly of other disreputable acts of the accused, but only of what the witness believed the reputation of the accused to be at that stage. It is noteworthy that the evidence was preceded (at trial transcript 113.25 - 113.26) by the proposition that the witness, when threatened by the accused with "guns" a short time before, was not "really worried by that stage". 37Sixthly, I consider that Mr Tory Gardner can be cross-examined about the topics identified by defence counsel without needing to stray into and repeat the offending portions. If defence counsel wishes me to, I will strictly enforce the rule that a witness subject to cross-examination must answer a direct question directly: see Libke v R [2007] HCA 30; 230 CLR 559 at [119]. 38Seventhly, unassisted by authority at this stage, I am nevertheless confident that I have a discretion to delete from any transcript provided to the jury (though not from the trial transcript itself of course) inadmissible material, and to do so discreetly. 39Eighthly, if defence counsel wishes me to do so, I am quite open to giving the jury a firm direction that decisions by the police about who was to be charged with what offence when are completely irrelevant to their task. 40Ninthly, I accept that there will be a degree of prejudice accruing to the accused if it be the case that the jury must know that he was bail refused for a time although not charged with murder. Again, if defence counsel wishes, I will give the jury a firm direction above and beyond what I have said in my earlier direction about prejudice, which already explicitly mentioned the topic of people being in custody. 41In short, I accept that the giving of the evidence twice constitutes a blemish on the trial. It certainly would have been preferable if it had not occurred. However, I do not consider, in the particular circumstances and context of this trial, that the test promulgated by the High Court of Australia of a high degree of necessity has been made out. The result is that the application is 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: 21 August 2014