R v Ronald Edward Medich (No. 31) [2018] NSWSC 248

Supreme Court New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 31) [2018] NSWSC 248 Hearing dates: 1 March 2018 Date of orders: 01 March 2018 Decision date: 01 March 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [24] Catchwords: CRIMINAL LAW – Procedure – Juries – Application for discharge of jury following outburst from witness – Jury immediately directed to ignore outburst – Matter appropriately dealt with by direction – Application refused Cases Cited: Qing An v R [2007] NSWCCA 53 Crofts v R (1996) 186 CLR 427; [1996] HCA 22 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Mikael v R [2015] NSWCCA 294 R v Ahola (No 6) [2013] NSWSC 703 R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 R v Bolan [1974] VR 849 R v Glennon (1992) 173 CLR 592; [1992] HCA 16 Texts Cited: Winsor v R (1866) LR 1 QB 390 Category: Procedural and other rulings Parties: Regina (Crown) Ronald Edward Medich (Accused) Representation: Counsel: Ms S Harris and Ms G Wright (Crown) Mr W Terracini SC and Ms M Curry (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Colin Daley Quinn (Accused) File Number(s): 2010/356916 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. An application has been made by senior counsel for the accused for a discharge of the jury following the evidence given via Audio Visual Link by Paul Mathieson ("Mathieson") yesterday. The application is opposed by the Crown. 2. In the course of cross-examination by senior counsel for the accused (at T1432) Mathieson gave a non-responsive answer to a question in which he asserted, inter alia, that the accused had stolen shares and money from him. The transcript makes it clear that I attempted to curtail Mathieson's answer, in response to which he addressed me with a raised voice. I directed the jury that they were to take no notice whatsoever of what had been said by Mathieson because it was non-responsive to the question which had been asked. There were further instances of Mathieson failing to respond to questions asked in cross-examination, which necessitated my intervention (see for example at T1433). 3. At the conclusion of his cross-examination (at T1434) it was put to Mathieson that he was prepared to say anything about the accused because he (Mathieson) held the accused responsible for losing a large sum of money. Having responded to that question by saying that it was "total lies", Mathieson took it upon himself to suggest to me that the question asked of him should be struck from the record. When the Crown then attempted to ask one question in re-examination, Mathieson interrupted before saying the following: "You struck my comments, but you let this guy lie about me, and what happened. He's ruined my life for ten years, Mr Medich. He's had people try to kill me. I've had the FBI. I'm under armed guard and this guy just lies. He should be--" 1. The Crown Prosecutor successfully interrupted Mr Mathieson at that point and asked one question in re-examination, following which I ordered that the audio visual link be terminated. 2. The Crown then called the next witness, Kim Shipley. Following Mr Shipley being called (which I estimate would have been less than a minute after Mathieson's statements at [3] above), and whilst Mr Shipley was still coming into court, I directed the jury in the following terms (at T1435): "Members of the jury, while Mr Shipley is coming in, you should ignore completely that last outburst by Mr Mathieson immediately before he was re-examined by the Crown. It was not responsive to any question that he had been asked and it must form absolutely no part of your deliberations." 1. It is against that background that the application for a discharge of the jury is now made. The effect of senior counsel's submissions was that notwithstanding the direction which I had given, the prejudice to the accused arising from what Mathieson had said could not be cured. Senior counsel submitted, in particular, that, in circumstances where the accused is charged with murder, Mathieson's reference to the accused having "had people try to kill (him)" was particularly prejudicial. 2. Senior counsel specifically acknowledged the content of the direction which I had given the jury. He also acknowledged the time at which it had been given which as I have noted, was immediately following Mathieson's statement. The effect of senior counsel's submission was that although such steps as had been available were taken at the time, that was not sufficient to overcome the prejudice to the accused which would inevitably ensue. 3. In the event that I were to refuse the present application, senior counsel for the accused submitted that it would be necessary, in the course of my summing-up to the jury, to remind them of their responsibility to ignore what Mathieson had said. Senior counsel also submitted that, in the event that a request was received from the jury for a copy of the transcript of Mathieson's evidence, the entirety of his non-responsive statements ought to be excised from it. 4. The Crown submitted that the direction which had been given was sufficient to overcome any issue which might arise. The Crown placed significant emphasis on the immediacy with which the jury had been directed in the terms that I have outlined. The Crown raised no issue with either aspect of the accused's alternative position. 5. Incidents such as these are obviously regrettable, but they are sometimes encountered in a criminal trial. It certainly does not automatically flow from an utterance such as that of Mathieson that a jury must be discharged. Whether a jury should be discharged in such circumstances is a discretionary decision. That discretion is to be exercised in accordance with a number of well-established principles. 6. In Crofts v R (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"), Dawson J expressed the principle in this way (at 432): "Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that a "high degree of need for such discharge" must appear before a discharge will be ordered." 1. In making those observations, his Honour made reference to a number of other decisions to the same effect including R v Bolan [1974] VR 849 and Winsor v R (1866) LR 1 QB 390. 2. The plurality in Crofts (Toohey, Gaudron, Gummow and Kirby JJ) also made the relevant observations (at 440-441): "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 possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; 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. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading the transcript." 1. In R v Ahola (No 6) [2013] NSWSC 703 ("Ahola") Button J undertook a review of some of the authorities including R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 and Qing An v R [2007] NSWCCA 53. The Court of Criminal Appeal later applied those decisions in Mikael v R [2015] NSWCCA 294. Button J observed in Ahola (at [17]) that his review of the leading authorities demonstrated that the High Court, and the Court of Criminal Appeal in this State, do not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material. His Honour also observed that his review of the authorities demonstrated that in many circumstances, a direction is the appropriate remedy rather that the discharge of the whole jury, although his Honour was quick to point out that every case necessarily depends upon its own facts. 2. Further, criminal trials necessarily proceed on the basis that the jury will follow, and apply, an instruction or a direction given by a trial judge. In R v Glennon, (1992) 173 CLR 592; [1992] HCA 16, Brennan J (as his Honour then was) said (at 614): "Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced." 1. In the same case, Mason CJ and Toohey J said (at 603): "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence." 1. In a subsequent case of Gilbert v R (2000) 201 CLR 414 [2000] HCA 15, McHugh J expressed the rationale behind the principle in the following terms (at [31]): "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they harken to the evidence and that they obey the trial judge's directions... Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials." 1. By reference to these principles, it is my view that the present application ought to be refused. 2. Mathieson's last outburst was non-responsive to any question which was asked and was, at least in the terms in which it was expressed, isolated from those which had preceded it. Necessarily, there has been a considerable degree of evidence led in the Crown case thus far. That is not conclusive and indeed, questions of convenience are not determinative. As Button J pointed out in Ahola (at [19]): "…no matter what the time, trouble or expense involved, a trial that has been prejudiced to the point of becoming unfair continue whatever the inconvenience." 1. That said, the stage at which a trial has reached remains relevant to the question of whether the jury should be discharged. 2. The circumstances in which the outburst occurred, and the action taken by me immediately following it, tend wholly against a conclusion that the jury should be discharged. As I have pointed out, within less than a minute of the event occurring the members of the jury were directed, in specific terms, that Mathieson's statement was to be ignored. The terms of that direction, and the immediacy with which it was given, overcome any prejudicial effect of what might have been said. As I have outlined, the authorities are clear: criminal trials must proceed on the assumption that jurors will act in accordance with any direction given to them by the trial judge. There is no reason to think that the present jury will not do so. 3. The alternative position advanced by senior counsel for the accused raises matters which are properly reviewed at the time of summing-up. It is certainly my present view, with which the Crown concurs, that if any transcript were provided to the jury of Mathieson's evidence, it should not include the excerpts to which I have referred. 4. Further, in the event that I am asked to do so, I am presently minded to remind the jury the summing-up of the necessity to ignore Mathieson's statement. The Crown has indicated that there would be no objection to that course. Needless to say, whether I am asked to give that direction will be a forensic decision to be made by senior counsel for the accused, bearing in mind that in some instances at least, referring to the matter again simply reminds the jury of the fact that it occurred in circumstances where they may otherwise have forgotten about it. As I have said, that will be a matter for senior counsel's application. As presently minded, if I am asked to give that direction, I propose to do so. 5. For those reasons, the present application to discharge the jury is refused.