R v Alipek & Saltmarsh [2004] VSC 58

"In so far as conversations are concerned, could you please look at your notebook - you had that notebook with you on that morning, didn't you? --- Yes. And could you indicate - perhaps before I ask that question, in so far as conversation between you and somebody else, if it is discussing matters of importance you attempt to write it down as quickly as possible, don't you? --- We try to, yes. And one of the reasons for that is if you don't write it down as quickly as possible, then even the next day if you were trying to remember the conversation, you would have trouble remembering it verbatim, wouldn't you? --- Yes, I agree. So in relation to - by "verbatim" I mean word-for-word? --- Yes. You have got your notebook there, could you perhaps indicate if in fact you have written any conversation down in the notebook? --- I have written answers like "party in Brunswick", "County Court 10 a.m.", that was in relation to him having to attend the court within a few days for an appeal and I have written the word "both" - and then I have written "stopped for three to six minutes." (My emphasis) . I am asking you about conversation? --- This are his answers (sic). Did you ask him about any conversation in relation to this matter - sorry, in relation to the conversation about this night, did you ask him anything about that? Did you write anything down about that? --- The conversations I had with Jason were - twice was in the police car and once was at the Kilmore police station whilst I was talking to the Seymour police on the phone. Do you have any notes of the conversation that you referred to in your statement? --- No, I don't, I haven't quoted any direct conversation."

6. As soon as conveniently possible after those answers had been given, Dr Sullivan applied in the absence of the jury that I discharge the jury on the basis that the words: "`County Court 10 a.m.', that was in relation to his client having to attend the court within a few days for an appeal", constituted the irregular disclosure of evidence of bad character that was highly prejudicial to Saltmarsh.

9. Dr Sullivan added by way of submission that he was in no way at fault for what had occurred, for he had asked the witness to recite his notes of the conversation which the witness said that he had had with Saltmarsh, not to expatiate upon the meaning of the notes, and thus the answer given was neither responsive nor predictable.

12. The application was opposed by the Crown on a number of bases. It was submitted, first, and contrary to Dr Sullivan's complaint, that the witness had done no more than answer the question which was asked of him. Secondly, it was said that, even if the answer were not responsive, Dr Sullivan was on notice of what was in the witness's notes - that they were not voluminous but only of about one page length - and that Dr Sullivan had brought the problem upon himself by asking general questions about the contents of the note and the conversations that they purported to record rather than asking the witness to read out any passage in his notes that confirmed that the conversation was in terms as the witness had previously deposed. Further, it was said, that Dr Sullivan had not sought to stop the witness when the witness started answering in a fashion that caused the problem, but instead allowed him to continue unchecked. Finally, and it was said most importantly, it was contended that the fact that the accused man Saltmarsh was due to appear in front of the County Court the next day on an appeal said nothing about his character; it simply said that he was involved in some litigation in the County Court, and that is a matter that one would expect to have passed without notice.

15. At the conclusion of the argument I ruled that I would not discharge the jury and that I would publish my reasons at a later time. These are my reasons.

18. I begin by saying that I do not consider that Dr Sullivan was at fault or otherwise responsible for the witness referring to the County Court appeal and thereby creating the problem which gives rise to the application. In my view the answer was not responsive to the question which was asked, it was not reasonably to be anticipated and there was not an opportunity for Dr Sullivan to check the witness any earlier than if fact he did. I add that I find it surprising that a policeman of the witness's seniority and experience should have answered as he answered, for one's experience is that most police witnesses, even the most junior, are trained and assiduous to avoid any mention in evidence of any matter that could conceivably be taken as reflecting upon the character of an accused.

21. Next I should say that even if there were any fault on Dr Sullivan's part, and I do not consider that there is, I would not regard it as material in the determination of the application for discharge. It would be different if counsel had made a calculated choice to provoke the sort of answer which was given and then for one or other reason thought better of what he had done. But where something like this happens as the result of mistake or omission or simply bad luck the outcome is in my opinion to be determined solely by reference to the degree of prejudice which may thereby be occasioned to the accused.

24. For some years after the decision of the Court of Criminal Appeal in R v Knape[1] it was contended that, unless it can be said upon the evidence that an irregular disclosure of evidence of bad character could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, a trial judge should exercise his or her discretion in favour of the accused. Perhaps that is why R v Knape is one of only two authorities mentioned in a leading text on the practice of criminal law in this state[2].

27. But plainly the law is not so circumscribed. The seeming inflexibility once attributed to Knape was rejected by the Court of Criminal Appeal in R v Boland [3] and in R v Vaitos[4] and hence, as the New South Wales Court of Criminal Appeal was later to observe in R v George, Harris and Hilton[5], the informing principle, in Victoria as in New South Wales, is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial.

30. In Crofts v The Queen[6], the High Court said that much depends on the seriousness of the occasion 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. But obviously there are no rigid rules to govern the outcome of an application such as this. In the end, as the Court of Appeal recently reiterated in R v Su [7], the principle is really one of necessity. There must be evident a high degree of need for discharge before that course should be adopted[8].

33. I do not consider that there is a high degree of need for the discharge of the jury. To begin with, the answer upon the basis of which the application for discharge is made, did not say or suggest in clear terms that the accused man Saltmarsh had prior criminal convictions or was otherwise of bad character. In my view the most that an informed listener would have been able to draw from the reference to the County Court appeal was to guess that Saltmarsh might be appealing to the County Court and, because there are no longer any civil appeals to the County Court[9], that the order the subject of appeal was made in a criminal matter. If, however, any members of the jury were sufficiently knowledgable to reason that far, and I take leave to doubt it, they would also know that a large proportion if not the bulk of appeals to the County Court concern traffic cases and offences of similarly lowly order. In the context of a trial for kidnapping and attempted murder, I think it so improbable as to be unrealistic that any member of the jury would treat a traffic or other such conviction as reason to look more unfavourably upon Saltmarsh than otherwise would be the case.

36. In the second place, although the answer on which the application is based was given in the third day of this trial and therefore after a considerable number of witnesses had given their evidence, there is still more than a week left in the trial and many more witnesses yet to testify. The content of Sergeant Maxwell's testimony, and in particular his passing reference to the County Court will be so far in the background by the conclusion of the trial that I doubt that any member of the jury will recall it unless reminded of it.

39. In the third place, I am confident that if any member of the jury does retain a recollection of what was said about the County Court, the directions which the jury were given at the outset of the trial, about the impermissibility of engaging in speculation, and the directions which will be given to them at the end of the trial, as to the evidence which they may take into account, will be sufficient to ensure that any negative effect of the reference to the County Court is excluded from consideration. I have considered the possibility of giving the jury a specific direction about the matter now. But I conclude that it would be counter productive. Its likely effect would be to give the matter a prominence and apparent significance which otherwise the jury would never attribute to it.

42. Finally, and albeit very much by way of a subsidiary consideration, it is relevant to note that although this trial has a considerable way to go, it has already taken up three days, there has been a view, and the victim and a large number of lay and police witnesses have already completed their testimony. If there were a risk of prejudice to Saltmarsh arising out of the reference to the County Court, and I stress that I do not think that there is, I consider that the risk would be so remote as not to necessitate the inconvenience, stress to the victim and other witnesses and waste of resources that discharge would entail.

45. According to the authorities, a good deal of leeway is allowed to a trial judge in evaluating the considerations which are relevant to the fairness of the trial. That is so because it is said that the judge will usually have a better appreciation of the significance of the event complained of, when seen in context, than can be discerned from reading transcript.[10] Therefore and despite the increasing propensity of appellate courts to review and reject interlocutory discretionary determinations, I count it to be of some significance that as I sensed the moment at which the answer was given it did not have any perceptible effect upon the jury.

48. I bear in mind that Saltmarsh is charged with kidnap and attempted murder and that if convicted he would be liable to a substantial period of imprisonment. Accordingly, if I thought that there were any real risk of prejudice at all I would accede to the application for discharge. But having regard to the matters to which I have referred, and the effect of the evidence upon the jury as I perceive it, I am clear that the need for discharge has not been made out.

[3] [1974] VicRp 100; [1974] VR 849 at p. 866

[5] (1987) 9 NSWLR 527 at p. 533

[6] [1996] HCA 22; (1996) 186 CLR 427 at 440

[7] [1997] 1 VR 1 at p. 39

[8] see also R v Fraser [2001] QCA 187 at [36] to [46], per White J

[9] of the kind that once existed from several statutory tribunals

[10] See also R v Alexander Robert Brown [2000] VSCA 102 and R v Murphy and Watson, Ruling No 2 [2001] VSC 320 at para [5].