Supreme Court New South Wales Medium Neutral Citation: R v Do (No. 3) [2015] NSWSC 144 Hearing dates: 3 March 2015 Date of orders: 03 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Defence's application to discharge jury refused. Catchwords: CRIMINAL LAW – interlocutory rulings – application to discharge the jury – witness volunteers information agreed not to be led – whether irreparable prejudice – whether prejudice could be cured by directions – application refused Category: Procedural and other rulings Parties: Crown Tony Thao Do (Defendant) Representation: Counsel: N Noman SC (Crown) C Smith SC and B O'Reilly (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Defendant) File Number(s): 2012/294022 Judgment 1. On 3 March 2015 Anna Huynh gave evidence. During cross-examination she was asked the following two questions and gave the answers set out: Q. And you would say that during that time, when you spent time at home with your mum and Tony, you did not notice anything out of the ordinary, correct? A. Yeah. Q. Tony's demeanour seemed normal? A. Yes, but there was one occasion, though, where my mother seemed worried, and I asked her what was going on and she said, "Oh, everything's fine," and she told me that, mum had told me that he had pushed her downstairs. 1. At that point Mr Smith of Senior Counsel objected to the answer being given. I indicated that I thought the answer went beyond an answer to the question with which both counsel agreed. The Crown Prosecutor asked if the matter could be discussed in the absence of the jury. 2. After some debate Mr Smith sought and was granted some time to obtain instructions. He thereafter sought that the jury be discharged. That application was made in the light of a prior agreement made between the Crown and the defence that material in both the statements of Aminda Huynh and Anna Huynh that suggested the accused was responsible for the deceased's falling down the stairs on two occasions would not be led. 3. The Defence submitted that the prejudice to the accused from this evidence having been put before the jury by this witness was irreparable in circumstances where the accused was relying on good character, where Mr Smith opened on good character and on the fact that there was no evidence of any violence in the relationship between the deceased and the accused. Mr Smith submitted that no other evidence to explain the fall on the stairs and/or no careful direction to the jury could cure the prejudice. 4. The Crown accepted that there was an agreement that the evidence would not be led from either Aminda or Anna. However, the Crown said that in the light of the questions asked by Mr Smith it was impossible for her to provide a truthful answer that nothing had happened within the time period being asked about. 5. Two things can be said about the questioning. First, Mr Smith carefully asked the witness about a specified and limited time period as the transcript shows (T 209): Q. Now I then just want to ask you some questions about the last five weeks before your mum passed, do you understand? A. Yeah. Q. And in particular I am asking you questions about the period when you're on your placement, firstly to Wyong for four weeks, yes? A. Yeah. Q. And that period also where you're on placement at Bega, at least for part of the week? A. Yeah. Q. Do you understand what I'm going to ask you about? A. Yeah. Q. Just those five weeks? A. Yeah. Q. You've described that during that time you would be away during the week and then come back at home on the weekends, correct? A. Yeah. In that regard, it should be noted that Anna's evidence in her statement, about which Mr Smith was cross-examining, made it clear that the incident about the deceased falling down or being pushed down the stairs took place at a much earlier time in 2012, that is, the first few months of that year. 1. Secondly, the two questions before the witness volunteered the information asked if she noticed anything out of the ordinary and, in particular, if Tony's demeanour seemed normal. 2. The information volunteered was not an answer to either of those questions and that conclusion is strengthened by the fact, as I have said, that the incident involving the stairs did not happen during the period being asked about. 3. There can be no criticism of the way counsel cross-examined to suggest that he was responsible for what occurred. 4. However, I do not accept that the matter is not able to be dealt with by a clear direction to the jury particularly when the Crown confirmed that it was not asserting any violence in the relationship and would be making a statement to that effect in the final address. Moreover, Aminda had already given evidence, and she did not make any reference to this incident in circumstances where the basis of Anna's knowledge, as her statement attests, was Aminda repeating something she had ascertained from her mother. 5. The fact that the jury will be told by the Crown that the Crown does not rely upon that answer given by Anna, that the Crown does not say that the accused was violent towards the deceased and that the Crown accepts that the accused was a person of good character, are all powerful matters in overcoming any prejudice that was occasioned by the volunteering of information regarding the incident on the stairs by Anna. 6. For all of these reasons, I consider that the jury should not be discharged. I will give a direction to the jury when they return. ********** 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: 19 March 2015