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File Number(s): 2022/00385458

Publication restriction: Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: Application has been made by the accused for the jury to be discharged. The accused is presently on trial for the murder of Nathan Strudwick (the deceased), allegedly committed on 17 December 2022 at Woy Woy. The accused has pleaded not guilty to murder but guilty to manslaughter. This plea was not accepted by the Crown. As a result, on 6 May 2026, that is Wednesday of last week, a jury was empanelled and the accused’s trial on the charge of murder commenced. Yesterday, that being the Monday following the jury being empanelled, Mr Jason Bristow gave evidence which was not responsive to the question asked and which the parties had agreed would not be led. This evidence forms the basis of the application to discharge the jury.

2. The background to the matter is set out in my earlier reasons on tendency evidence: R v Bobak (Tendency) [2026] NSWSC 459. For present purposes, it is sufficient to observe that the accused does not dispute that he, by his deliberate act, inflicted the fatal wound leading to the death of Mr Strudwick. Nor is it disputed that he did so by thrusting what has been described as a “mini sword”, that is, a sword with a blade approximately 35 centimetres in length, which penetrated the neck of the deceased. There are two issues in the trial. Firstly, whether the Crown can prove the accused intended to kill or inflict grievous bodily harm, and, secondly, whether the Crown can prove the accused did not believe that his act was necessary in his own defence.

3. Mr Bristow is the uncle of the accused. He gave evidence that on 19 December 2022, that is, two days after the killing of Mr Strudwick, and at a time at which he likely knew he was wanted in relation to the event, the accused knocked on his door. The accused initially told Mr Bristow that he was visiting him for Christmas. Mr Bristow said in his evidence-in-chief that, some time shortly after his arrival, the accused made an admission to having killed the deceased. It seems this part of the conversation between the accused and Mr Bristow is not in dispute.

4. Mr Bristow also said that the accused told him that the event leading to the killing was an argument over money that he (the accused) was owed for a quantity of cannabis that had been sold on his behalf. This aspect of Mr Bristow’s evidence was challenged. In the cross-examination of Mr Bristow the following exchange took place:

“Q. Is it possible that he said he went to the place to get drugs?

A. No. No. I know for sure he turned around and said he took an ounce of pot there, the guy was selling it for him, and when he went back to get the money the guy laughed at him. And that’s where the argument started between them.

Q. And you say that what he said to you is that he flattened some guy?

A. Yeah, he flattened one guy and then the next thing you know the sword pushed through, or the knife went through the other one’s neck. And I also asked him too if it was self-defence and he said no.

WILSON: I will stop you right there ...”

5. Mr Wilson SC then indicated he had no further questions.

6. The evidence of the further conversation in which the accused is said to have eschewed self-defence as a lawful justification for his act is the basis upon which the discharge application is made. The evidence had not been led by the Crown. It was volunteered by the witness and was not responsive to the question asked. While on its face the evidence is relevant and admissible, the Crown did not seek to lead it on the basis that, understood in its proper context, it was not an admission and was, consequently, unfairly prejudicial.

7. That position is best understood by reference to the relevant part of the witness’ statement made to police on 21 December 2022 and tendered on the application. In that statement the witness described the conversation in the following terms:

“Trevor Said – ‘Someone owed me some money for drugs, I took one bloke out, next thing you know someone came at me with a sword, next thing you know it was through his neck’

I said – ‘fuck, wouldn’t that be self-defence’

Trevor Said – ‘No, I am a Bobak I am going to get the book thrown at me’

I said – ‘okay’”

8. Understood in this context, the representation reflects the accused’s assessment that self-defence would not operate to excuse his act, not based on the merits of the defence, but because of what is an irrelevant consideration. That is, his family name.

9. It is most unfortunate that the witness volunteered the additional evidence. To the extent that it is relevant, neither party was at fault. I accept in this regard that the Crown had appropriately conferenced the witness and, indeed, had carefully led the evidence-in-chief. Mr Wilson’s questioning was clearly directed to confining the witness’ response to a particular utterance.

The relevant principles

10. The criterion for the exercise of the discretion to discharge the jury is the maintenance of the fairness of the trial. The test is one of necessity: Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22 (“Crofts v The Queen”). The test of necessity should not be misunderstood as creating too high a bar. Necessity is to be understood in the context of the accused’s entitlement to a fair trial. That said, a relevantly fair trial does not mean a perfect trial.

11. In Crofts v The Queen, Toohey, Gaudron, Gummow and Kirby JJ emphasised the discretionary nature of a decision whether or not to discharge a jury and said 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 transcript.”

12. In conducting this evaluation, trial judges are neither required nor encouraged to “take an overly sensitive approach to the accidental receipt of prejudicial material”: Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [115] (Bell P), quoting from R v Ahola (No 6) [2013] NSWSC 703 at [17] (Button J). See also Cox v R [2022] NSWCCA 66 at [49] (Beech-Jones CJ at CL) and see generally Miller v R [2015] NSWCCA 206; 252 A Crim R 486 at [126].

Assessment of the competing considerations

13. There are, as is almost inevitable in an application of this nature, significant considerations which weigh on both sides of the equation. In determining where the balance ultimately lies, it is necessary to understand as precisely as possible the competing choices. That is, if the trial is to continue, what steps are available to rectify the damage? Alternatively, if the trial is to be aborted, how soon can it recommence?

Potential remedies

14. In the course of argument on the discharge application there was significant discussion about how, should the trial continue, the evidence could be neutralised. Ultimately it was accepted that the most viable solution would be to recall the witness and lead him along the following lines, with the expected answers set out below in square brackets:

“Q. When you gave evidence yesterday you said the accused told you that he had killed someone in Woy Woy?

A. [Yes]

Q. In describing the event he said that he flattened one guy and then next thing you know is the sword pushed through or the knife was through his neck?

A. [Yes]

Q. Did that explanation prompt you to say ‘fuck, wouldn’t that be self-defence?’

A. [Yes]

Q. And was the accused’s response effectively ‘No, no-one is going to accept what I say because of my family’?

A. [Yes]”

15. The Crown has agreed that on that evidence being given she would tell the jury that the Crown accepts that the accused’s statement to Mr Bristow was not in any way an admission that the accused was not acting in self-defence. I would then give the jury a direction pointing out what the Crown had just said and telling the jury to put out of their mind any suggestion that the evidence amounted to an admission that the accused was not acting in self-defence. It would also be necessary for me to direct the jury to ignore and not speculate in relation to why anything about the accused’s family would lead to him not being believed.

16. The alternative is, of course, to start with a new jury that has not heard the inadmissible evidence. If the current jury is discharged, I have been advised that a new panel is available tomorrow, that being Wednesday. Given that the trial only started on Wednesday of last week, relatively little time will have been lost. Further, through the responsible approach and the combined efforts of both parties, the case has been reduced such that it is significantly shorter than the original three to four week estimate. The result is that if the trial were to recommence tomorrow, it is likely to finish within, or very soon after, the original outer estimate of four weeks.

17. The ability to continue almost immediately with a new trial is significant in that there will be no substantial delay to the resolution of the charges. The undesirability of vacating the trial is, however, not answered simply by reference to the date by which the proceeding will be completed.

18. Discharging the jury and starting again will require various witnesses to be recalled, including civilian eyewitnesses and others close to the deceased. An earlier trial held in September of last year has already been aborted part way through: see R v Bobak (Supreme Court (NSW), Dhanji J, 22 September 2025, unrep). Were the present trial to be vacated, two eyewitnesses to the events, Ms Kiley and Ms Chalmers, will, if recalled, be giving evidence for a third time. Other persons, including a number of witnesses who had a deep connection with the deceased, will also have to endure giving evidence for a second or, in some cases, third time. I am aware that giving evidence has already caused distress to these witnesses. Returning to the witness box will no doubt cause them further distress.

19. I am also aware that a number of members of the deceased’s family have been in attendance for every moment, or close to every moment, of the trial. Re-hearing the events leading to the deceased’s death will inevitably be upsetting. Further, the community generally, and in particular those with a connection to the deceased, have an interest in the trial proceeding in an orderly way to its resolution. The additional delay, while in relative terms not particularly lengthy, will, I do not doubt, be an additional frustration for them.

20. Resolution of the competing interests is not a matter I found easy. The option of recalling the witness and providing directions is attractive. That attraction, however, is limited by the extent to which I can be confident that the process will ameliorate the prejudice that has arisen as a result of the evidence which has been given.

21. There are two aspects of the proposed solution that raise at least potential questions as to its effectiveness as a solution for the problem that has arisen. Firstly, the proposed solution raises a question as to what it is about the accused’s family that would make him pessimistic about his prospects. The evidence clearly suggests that the accused’s family are known in a negative context to the police. That negative context is sufficiently substantial to have resulted in what can be inferred to be a broadly known reputation amongst the authorities.

22. Further, the accused himself, as a member of that family, is not logically excluded as a possible contributor to that reputation. The jury would, of course, be given a direction not to speculate about this. Nonetheless, there remains the potential for unfair prejudice. Any such unfair prejudice must be considered in the context of the second aspect that gives rise to a question as to the potential effectiveness of the proposed solution. This aspect requires some analysis of the context in which the inadmissible evidence was given.

23. As is accepted by both parties, the accused’s answer that it was not self-defence was not intended by him to be an admission of this fact. It was, therefore, in context, reflective of his resignation that he would not be believed. But his explanation for why he would not be believed was given in a context where, on any view, he did not give an honest account to Mr Bristow.

24. The accused does not dispute that he brought the weapon to the event. Nor, as I have already said, does he dispute that he used it in the course of a deliberate act which resulted in the death of Mr Strudwick. Both aspects, the bringing of the sword and its use, are inconsistent with the exculpatory version given to Mr Bristow. The Crown has indicated that it intends to rely on these inconsistencies as establishing what are described as “fundamental” lies, by which I understand the Crown intends to rely on the falsehoods as implied admissions.

25. There is, in this context, a danger of unfair prejudice that may result from the jury reasoning that the accused’s stated basis for his resignation that self-defence would not succeed was, like his immediately prior utterance, also false. Understood another way, having given a false account of the event, the accused was not then able to provide the real reason that he believed self-defence would not be accepted – because he did not act in self-defence.

26. Understood in this way, the additional words to the effect that he would not be believed were merely a necessary qualification to reconcile the admission that it was not self-defence with the earlier exculpatory but false version given to Mr Bristow. That is perhaps a complicated way of saying that whatever might be said about the evidence being neutral, there remains a real risk that the jury will consider that there was perhaps a proper and logical basis for the accused’s resignation as to his prospects.

27. The stakes for the accused are extremely high. If convicted of murder, he faces the prospect of a lengthy sentence. While the best case scenario for him will still realistically result in a conviction for manslaughter, any sentence for murder will necessarily be substantially longer.

28. I am ultimately of the view that, even if the issue is stage managed as proposed so as to reduce the prejudice to the extent possible, the risk of prejudice remains. Further, that prejudice relates directly to one of only two issues in the trial. Not only that, as the accused’s counsel intimated, the first issue, proof of the accused’s intention to inflict grievous bodily harm, is perhaps, by some margin, the more difficult issue for him, an assessment with which I frankly agree. That means the more substantial, or perhaps even real, battleground on which the trial is being fought is self-defence. The admission of evidence that carries a real danger of being misused as an admission that the accused did not act in self-defence in this context clearly raises a question as to the fairness of the accused’s trial.

29. The accused’s is, as I have been at pains to point out, not the only interest at play. However, and while I hesitated before making a decision that would put the witnesses and concerned members of the community, including family members of the deceased, through a further trial, I am, not without regret, of the view that the accused’s right to a fair trial demands the discharge of the jury. The jury will accordingly be discharged.

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