Supreme Court New South Wales Medium Neutral Citation: R v Scott (No 1) [2015] NSWSC 458 Hearing dates: 19 March 2015 Date of orders: 19 March 2015 Decision date: 19 March 2015 Jurisdiction: Common Law Before: Wilson J Decision: Application to discharge jury refused Catchwords: CRIMINAL LAW – application to discharge jury – witness evidence – witness met accused in gaol – whether jury heard that evidence Cases Cited: Wu v The Queen [1999] HCA 52; 199 CLR 99 Category: Procedural and other rulings Parties: Regina Michael Scott Representation: Counsel: Mr J Bowers (Crown) Mr R Cavanagh (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) O'Brien Winter Partners (Accused) File Number(s): 2013/104881 Publication restriction: None EX TEMPORE Judgment 1. HER HONOUR: The accused makes application for discharge of the jury today, which is 19 March 2015. 2. Today is the seventh day of the trial, the accused having been arraigned before the jury on 10 March 2015 on indictment charging him with murder, his trial having then commenced. 3. The Crown case could not be said to be at an early stage. Indeed we have heard from all of the witnesses, it appears to me, who were present at the scene of the incident which lead to the death of Riley Dehn. 4. In that sense, the substance of the Crown case has already been given and that evidence has been tested. Accordingly the considerations which were referred to in Wu v The Queen (1999) 199 CLR 99 do not arise here in the sense that this matter is not an application to be determined at a very early stage of the trial. The Crown case is at least halfway, and probably more than that, complete. 5. The application for the discharge of the jury centres on evidence given yesterday by Russell Payne, a civilian witness. 6. It is of relevance to note the nature of Mr Payne's evidence, not so much in the substance of what he said but rather in how he said it. 7. Mr Payne is someone who is said to have been sharing premises with the accused, and the accused's then girlfriend, at the time of the relevant incident. 8. Mr Payne presents as a man with significant intellectual limitations and that is manifested both in his manner of giving evidence and also in his manner of speech. 9. His delivery in evidence is that of a man who struggles to articulate words. He is extraordinarily difficult to follow and comprehend. He is softly and very quietly spoken and he appears to have some sort of impediment which affects the formation of words to the extent that they are very difficult to understand. 10. During the course of his evidence he has had to be asked repeatedly to give answers a second and even a third time. I know from my perspective, as probably the person other than our court reporter who sits closest to him, I have not heard all that he has said, and I struggled greatly to comprehend those parts that I did hear. 11. That is relevant in two ways. Firstly, the evidence was given in an early part of the witness's testimony. Indeed it came only some five or ten minutes after his evidence commenced, at what is recorded as a couple of pages of the transcript into his evidence. 12. That being the case I think it is reasonable to infer that the jury members, and certainly this is consistent with my experience at that time, had not managed to familiarise themselves with the way that Mr Payne spoke such as to have a better understanding of what it was that he was saying. 13. When the witness gave the relevant evidence, (and it is recorded at transcript 531 from about 35 through to the following page at about line 3,) Mr Payne was speaking as he typically did; very softly and rather quickly, and it was difficult to hear and understand what he said. 14. I certainly heard his comment sitting, as I say, very close to him. That being, "I have known Cycle from in and out of gaol a few times". 15. When that unresponsive answer was given, the most significant thing that I noted about the atmosphere of the courtroom at the time was that Mr Cavanagh's sharp intake of breath was audible and his movement to rise from his seat, obviously to make a quite proper objection, could be noted. 16. I observed a couple of the jurors to look at Mr Cavanagh as that occurred but in any other respect none of the jury appeared particularly concerned or troubled or gave any sign that they had heard anything which was in any way out of the ordinary or of particular interest. 17. Although this is just, I suppose, a matter of my experience of the witness, from speaking with both my associate and my tipstaff I know that neither of them heard what Mr Payne said, indeed to the point where my associate was inquiring of my tipstaff by email whether she knew what the evidence had been to explain Mr Cavanagh's sudden movement. 18. I think there is every chance that the jury did not hear this evidence. It may be that one or two of them did. If that is the case it was a piece of evidence which was rapidly moved on from and, in the context of the whole of the evidence of the trial, it would have very little significance in my view. 19. Whilst lawyers readily understand the risks of reference to "gaol" and so forth, ordinary members of the public generally do not have that same comprehension of bad character evidence and what it may mean. 20. If the jury or some members of the jury heard that evidence it is unlikely, for them, to have the significance that it has for lawyers but, even if it does, I do not agree with the submission that it is incapable of cure. 21. Here there is evidence which is already before the jury which clearly establishes that, certainly as at June 2013, the accused was in custody having been bail refused with respect to this charge. The jury knows that and they have already been warned that they may not draw any conclusions adverse to the accused as a result of that evidence. 22. It seems to me that it would be a very simple matter, without expanding the ostensible scope of that direction, in the summing-up to simply refer the jury to evidence which is before them which makes it plain that the accused has been in custody, and direct them that, regardless of any evidence as to his custodial status at any time, that it is something which they must put out of their mind, and which they cannot allow to prejudice or adversely affect their assessment of the evidence. 23. These Courts have long acted on the principal that jurors will follow directions that are clearly given. It seems to me that if they are given a direction in those terms, whilst it will not draw attention to the unresponsive evidence given by Mr Payne, it will address the principal that evidence as to the accused's custodial status is essentially neutral and may not be used in any sense which is adverse to him or unfairly adverse to him. 24. If one proceeds on the time honoured understanding that jurors will in fact follow those directions then it seems to me that, whilst there may be prejudice, it is not a prejudice which is incapable of cure, and certainly it is not a prejudice which is such that the accused cannot now receive a fair trial. 25. In my view it is readily able to be remedied. The transcript, should the jury request it in their deliberations, or indeed at any stage before, will be edited so that that reference will be entirely removed from it. That will prevent them being reminded of it or indeed advised of it for those who did not hear the evidence. 26. I think with those two remedies, that is an expansive direction about the accused's custodial status at any time, and the editing of the transcript to excise the prejudicial portion, I think the accused can well and truly receive a fair trial. 27. Accordingly I do not propose to discharge the jury. ********** 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: 23 April 2015