R v A (No 1) [2015] NSWSC 65

Supreme Court New South Wales

Medium Neutral Citation: R v A (No 1) [2015] NSWSC 65 Hearing dates: 10 February 2015 Date of orders: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Common Law Before: Bellew J Decision: Application to discharge the jury refused. Catchwords: CRIMINAL LAW – Evidence – Inadvertent reference by witness to the fact that the accused is presently in custody – Potential prejudicial effect – Whether matter capable of being cured by a direction from the trial Judge – Whether jury should be discharged Cases Cited: Crofts v The Queen [1996] HCA 22; 186 CLR 427 Elomar & Ors v The Queen [2014] NSWCCA 303 Category: Procedural and other rulings Parties: Regina - Crown Representation: Counsel: Mr C Maxwell QC - Crown Mr W Terracini SC and Mr P Stitz - Accused

Solicitors: File Number(s): 2013/194634 Publication restriction: Nil

Judgment (EX TEMPORE – REVISED) 1. The trial of the accused on a charge of manslaughter is currently in its seventh day, the estimate of the trial being four weeks or perhaps a little more. Today the Crown called the de facto husband of the accused, to whom I shall refer as K. In the course of his evidence in chief (and I refer to this part of his evidence without the benefit of a transcript) the Crown asked K, in effect, whether he was still in a relationship with the accused, who has been refused bail since her arrest. K responded in the affirmative. 2. After that evidence had been given, and in the absence of the jury, Mr Terracini of senior counsel who appears for the accused referred to the fact that this evidence had been given, bearing in mind that the accused is currently in custody. Although not expressly stated, I apprehend that Mr Terracini raised that matter because he did not wish the jury to be inadvertently misled about any relationship which might currently exist between the witness and the accused. He explained that on his instructions, and as one might expect, any association or relationship between the accused and K is virtually non-existent on account of the accused's custody. 3. When the matter was raised it was left, as I understood it, on the basis that senior counsel would have a discussion with the Crown Prosecutor and the matter would be dealt with in some appropriate fashion by agreement. 4. I was subsequently informed by the Crown, and I accept, that in the course of the adjournment which followed the matter being raised by Mr Terracini, he spoke with K. I am also told by the Crown, and I similarly accept, that in the course of that conversation the Crown impressed upon K the necessity to ensure that he make no reference, when giving evidence, to the fact that the accused is in custody. I simply set out these matters lest it might otherwise be thought that any blame could attach either to the Crown or to Mr Terracini for what has transpired. That is certainly not the case. 5. At the commencement of Mr Terracini's cross-examination of K, the following evidence was given. In this regard I am assisted by an extract of the evidence which has been made available by the court reporting branch. The questions and answers appear at lines 6 to 17 of that extract which in due course I will have marked MFI 10: "Q. You don't live with (the accused) anymore? A. No sir. Q. How long has that been? A. Since she's been in custody. Q. And so far as your income is concerned, do you share any income? A. (The accused) and I, no. Q. You don't share any income? A. No, (the accused) is incarcerated. We don't share an income at the moment, no. I've been supporting her while she has been in gaol, yes." 1. The cross-examination then continued, but at the next adjournment Mr Terracini made an application for the jury to be discharged. In essence the basis of Mr Terracini's application was that a significant degree of prejudice, which in his submission could not be remedied in any way, arose as a consequence of the answers given by the witness to which I have referred. He submitted, in particular, that the answers in which reference was made to the accused's present custody were capable of being used by the jury as some evidence equating to guilt. He further submitted that such prejudice could not be cured by any direction from me. 2. Mr Terracini accepted, as I understood it, the force of a strong body of authority which establishes that trials of this nature must necessarily proceed upon the fundamental premise that jurors will take into account, and act in accordance with, directions given by a trial judge. He submitted, however, that evidence given by K was of a kind which is traditionally kept from the knowledge of members of a jury, and that the prejudice arising from its disclosure simply could not be cured. 3. The Crown opposed the application that the jury be discharged. Whilst acknowledging that the situation which had arisen was obviously unfortunate, the Crown submitted that no real prejudice had resulted, and that to the extent that it had, it was something which could be properly cured by direction. The Crown further submitted that it was not unusual for circumstances such as this to arise in criminal trials, and that it was equally not unusual for them to be dealt with in the manner that he had submitted was appropriate. 4. The principles which govern a decision to discharge or not to discharge a jury following some type of irregularity were stated by the High Court in Webb v The Queen; Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 in the following terms: "… whether the incident is such that notwithstanding the proposed or actual warning of the trial judge it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged, and will not discharge its task impartially" (per Mason CJ at 53; Brennan J at 57; Deane J at 67; 71 and Toby J at 87). 1. The facts in Webb were obviously different to those which have arisen in the present case, but the general statement of principle is nevertheless applicable. 2. In Crofts v The Queen (1996) HCA 22; 186 CLR 427, in a different context again, the majority of the High Court (Toohey, Gaudron, Gummow and Kirby JJ) made the following observation (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 probabilities of slips occurring are inescapable. Much depends on the seriousness of the occurrence, and the context of the contested issue, 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 and the like." 1. Those principles were recently applied by the Court of Criminal Appeal in Elomar & Ors v The Queen [2014] NSWCCA 303. In that case the Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) observed (at [311]) that whilst there was no ambiguity in the principles set out above, difficulties can arise in applying them to a given set of circumstances. 2. As I observed in the course of an exchange with counsel when the application was made, the reference made by the witness to the accused being in custody was not a single reference. Depending upon the way in which one views the transcript, there are at least two, and perhaps three, references to the fact that she is in custody. I accept that in the light of some cross-examination which has proceeded before today the accused's prior good character has been squarely raised by counsel. I also accept that the custodial status of an accused is information which, in the normal course, is not shared with a jury, and indeed is information which is deliberately kept from them. However, it does not follow that in each and every case where such information is inadvertently disclosed, the jury must be discharged. 3. As I have already observed, and as has been accepted by senior counsel for the accused, it is a fundamental proposition that a jury will act in accordance with the directions given by a trial judge. There is absolutely no reason to conclude that this will not be the case in the present instance. Whilst the references to the accused's custody are, as the Crown accepted, unfortunate, they are not, in my view, sufficient to lead to the conclusion that there has been such prejudice occasioned to the accused that the jury ought be discharged. 4. In my view, the matter can be adequately dealt with by a direction being given to the jury to ignore the references made by the witness, and to have regard to the fact that the accused is presumed innocent. The jury should also be told that such matters have no bearing whatsoever upon their deliberations, and are not to be taken into account. 5. I propose to direct the jury, broadly speaking, in those terms. I will hear counsel for the accused, as well as the Crown, on any additional matters which they submit ought be drawn to the jury's attention in giving that direction. Equally of course, if counsel for the accused wishes that I say nothing about the matter, then I will give consideration to that position as well. 6. For all of those reasons, I have come to the view that the application for the discharge of the jury should be refused.