R v Martinez; R v Tortell (No. 4) [2019] NSWSC 1620

Supreme Court New South Wales

Medium Neutral Citation: R v Martinez; R v Tortell (No. 4) [2019] NSWSC 1620 Hearing dates: 20 November 2019 Date of orders: 20 November 2019 Decision date: 20 November 2019 Before: Johnson J Decision: Application for discharge of the jury is declined. Catchwords: CRIMINAL PROCEDURE – joint application by accused to discharge jury – present trial is retrial following successful appeal – where witness volunteered that the accused had been previously sentenced – whether prejudice incurable – whether jury can bring fair and untainted minds to issues in the trial – whether direction capable of curing prejudice – prejudice not incurable – concerns raised by accused met by appropriate directions to jury – application refused Legislation Cited: --- Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Martinez v R; Tortell v R [2019] NSWCCA 153 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Wade Martinez and Jake Tortell (Accused) Representation: Counsel: Mr M Barr (Crown) Mr C Watson (Accused Martinez) Mr J Trevallion (Accused Tortell)

Solicitors: Director of Public Prosecutions (Crown) McGowan Lawyers (Accused Martinez) Alexanders Lawyers (Accused Tortell) File Number(s): 2015/251812 (Martinez)2015/251805 (Tortell) Publication restriction: ---

Judgment 1. JOHNSON J: Today, on the seventh day of the trial of the Accused, Wade Martinez and Jake Tortell, application is made by counsel for each Accused for discharge of the jury. 2. This trial commenced on 12 November 2019. In 2017, each Accused stood trial before Mathews AJ and a jury, with the jury returning verdicts of guilty. Each Accused was thereafter sentenced. 3. In July 2019, the Court of Criminal Appeal allowed appeals against convictions, set aside the convictions and sentences and ordered a new trial: Martinez v R; Tortell v R [2019] NSWCCA 153. The present trial is that retrial. 4. The jury in this trial are well aware that there was an earlier trial. Repeated reference has been made in the evidence of witnesses who have been called so far to evidence given at trial in March 2017. The jury has been told there was an earlier trial and that they should not concern themselves as to that trial, and that all they should keep in mind is that there is a transcript of evidence from that trial which is being used from time to time, in particular in cross-examination of witnesses in this trial. 5. The jury have not been told that the earlier trial led to the conviction of each Accused, followed by a successful appeal against conviction and an order for retrial. 6. The seventh witness is giving evidence in the Crown case. Cristian Younan was being cross-examined this afternoon by Mr Watson, counsel for Mr Martinez. In the course of that cross-examination, Mr Watson asked Mr Younan: "Q. All right, so it's not that important, but it is relevant you think to bring it up and give it as evidence in this trial? A. Yeah, I guess so, yeah, they were already sentenced prior. Q. I beg your pardon? A. They were already sentenced prior." And then the cross-examination moved to other issues. 1. Counsel for each Accused has applied for the discharge of the jury based upon the prejudice which is said to flow from the fact that the jury have now learned that each Accused had been sentenced previously, a consequence of their conviction at the earlier trial. 2. It was submitted by counsel for each Accused that there was incurable prejudice as a result of those answers and that the jury, having that additional information, will not be able to bring fair and untainted minds to bear upon the issues in this trial. 3. It was submitted that no direction could be given to the jury which was capable of curing the prejudice which was said to flow. 4. The Crown submitted that it was unfortunate that Mr Younan had given those answers, but that the jury was already aware that there had been an earlier trial. The Crown submitted that the situation was able to be remedied by way of directions from me as the trial Judge and the deletion of the two lines of evidence where reference was made by Mr Younan to the earlier sentences. 5. The Court has a discretion as to whether the jury should be discharged when an application such as this is made. I have regard to the potential prejudice of the material which has been introduced before the jury, the nature of any direction that may be given to the jury on that issue, the atmosphere of the trial and the place of this material in the context of this trial, as well as the point which has been reached in the trial itself: Crofts v The Queen (1996) 186 CLR 427 at 440-441; [1996] HCA 22. 6. The starting point is that the jury are well aware that there was an earlier trial which took place with evidence being given by witnesses some two years and eight months ago. The jury has not been given any further explanation as to how it is there is a trial taking place in November 2019 against the background of that trial, now long distant in time. The possibilities, of course, include that there was a hung jury at that time or the jury was discharged for some reason or there was an outcome in the trial with a successful appeal, thereafter leading to a retrial. 7. In my view, given the evidence which has given rise to this application, the concerns raised on behalf of each Accused may be met by appropriate directions to the jury. 8. Any direction to be given would remind the jury once again that there was an earlier trial, indicating that there was an outcome, but a subsequent successful appeal as a result of errors being found which meant that the Accused persons did not have a fair trial according to law. I would once again remind the jury that each Accused has the presumption of innocence and that the question in this trial is whether the Crown has proved beyond reasonable doubt the guilt of each Accused by reference to any evidence given in this trial. 9. I am satisfied that a direction along those lines is appropriate in this case. 10. I am satisfied, as well, that there ought be appropriate deletions in the transcript. I direct that the words "they were also sentenced prior" and the next question and answer: "Q. I beg your pardon? A. They were already sentenced prior." be removed from the transcript. 1. I have taken that approach because the jury is receiving copies of the daily transcript and it is not appropriate that those parts remain in the transcript in the present circumstances. They are not probative of any issue in the trial in any event. 2. Accordingly, I decline the application to discharge the jury. The trial will proceed and I will give the jury an appropriate direction.