[1996] HCA 22
Harkins v R [2015] NSWCCA 263
Khazaal v R [2011] NSWCCA 129
(2011) 265 FLR 276
KNP v R (2006) 67 NSWLR 227
[2008] SASC 126
R v McCullough [1982] Tas R 43
(1982) 6 A Crim R 274
R v MM [2004] NSWCCA 81
Source
Original judgment source is linked above.
Catchwords
[1996] HCA 22
Harkins v R [2015] NSWCCA 263
Khazaal v R [2011] NSWCCA 129(2011) 265 FLR 276
KNP v R (2006) 67 NSWLR 227[2008] SASC 126
R v McCullough [1982] Tas R 43(1982) 6 A Crim R 274
R v MM [2004] NSWCCA 81
Judgment (4 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (Crown)
Younes + Espiner Lawyers (B Brooks)
File Number(s): 2015/00101058
[2]
Judgment
At the conclusion of Mr Boe's opening address, the learned Crown Prosecutor made an application that the jury be discharged. The basis of the application was that Mr Boe's opening exceeded the boundaries set by s 159 of the Criminal Procedure Act 1986 (NSW). I declined the application for discharge of the jury and the trial is continuing. These are my reasons for that decision.
The Crown submitted generally that defence counsel's opening was argumentative in that it contained submissions rather than elucidating the issues that would arise in the trial. Specific complaint was made of the following passage which came at the end of the opening address [1] :
"As his Honour said no matter what happens to this case it is terribly sad. I am not here in any respect to impart blame on anybody else. I am here to give Mr Bradley Brooks a chance. Just remember this, you heard he's been in custody. He's been sitting in gaol for two years waiting to be able to give you his account of what happened on this night. For that reason I ask you to be patient because the Crown case as you would expect is all one way. Some of it will be addressed in cross examination but please be patient. Please give Bradley the opportunity to explain what happened and you will get that from the evidence. Listen to the law and his Honour will explain to you the important the issue that Bradley does not have to prove that he had to do that in self defence. Brad does not have to prove he did not act with intent to cause grievous bodily harm or death. The Crown bears the onus on the very capable shoulders of Mr Baker to prove to you those elements. I have to keep this case short and focussed on what it is I am asking from you, the courtesy of allowing me to fairly present his case to you and to listen carefully to the evidence and the critical things I have identified, thank you." [2]
Mr Boe conceded that he should not have said that his client had been in gaol for two years waiting to explain himself and that this was an unnecessary flourish. Apart from the emotive and argumentative impact of that statement, it creates an expectation in the jury that the accused will give evidence in the trial when he is under no obligation to do so and when, as I understand it, a decision on that critical forensic choice is yet to be made. [3]
However, Mr Boe defended the balance of his opening and maintained that he raised Mr Brooks' custodial status as a response to the Crown Prosecutor raising the matter in his opening. As I indicated in argument, I had not picked up that part of the Crown's opening. [4] However, I accepted Mr Boe's recollection, the learned Crown Prosecutor did not contest it and the transcript bears it out. The Crown Prosecutor's opening included:
"Ms Valentine also told police later that she had spoken to Bradley Brooks after he was charged, and when he was in custody. Ms Valentine spoke to Mr Brooks about what had happened and this was at a time when Mr Brooks had been charged with both offences, the alleged offences of murdering Gregory Gibbins and also of wounding Adam Swindell." [5]
This was a reference to some evidence that was admitted over objection. [6] The basis of the objection concerned the ambiguity of the admission and the fact that the accused's formal admissions reduced the probative value of the conversation (or made it irrelevant altogether). I did not understand the objection involved the contention that leading the evidence would necessarily disclose that the accused was in custody. Whether, in leading this evidence, it is necessary to refer to the fact that the accused was in custody at the time is doubtful. However, that matter was not raised in the pre-trial arguments and I am not aware whether counsel discussed the manner in which this evidence would be led prior to the opening addresses. In the course of the pre-trial hearing, objection was also taken to two telephone intercepts recorded when the accused was in gaol. One of the things relied on to establish prejudice was the fact that these would necessarily disclose that the accused was in custody. [7] The recordings were excluded, but not on that basis. [8] As I said in argument, the fact that an accused person is in custody in a murder case is not surprising and any prejudice can usually be cured by direction. [9] Nevertheless, where the evidence can remain silent or neutral on the issue, it is preferable that the matter is not raised because it is irrelevant and at least capable of giving rise to some prejudice.
As I said, I am not privy to any conversations between counsel as to how this evidence is to be adduced or whether there was any discussion about leading the evidence of the conversation without reference to where the conversation took place. In any event, for present purposes, all that needs to be observed is that the accused's custodial status was referred to in the Crown Prosecutor's opening and defence counsel was entitled to respond to that matter. However, as Mr Boe accepts, the response included an unnecessary and inappropriate flourish. That part of the defence opening was argumentative and emotive.
Two questions arise. The first is whether there was a breach of the statutory provision that allows an accused to make an "opening address". The second concerns the consequences that flow from such a breach and, more particularly, whether it is necessary or appropriate to discharge the jury.
Section 159 of the Criminal Procedure Act 1989 (NSW) allows the defence to make an opening statement but it places some restrictions on its content. The section is in the following terms:
"159 Opening address to jury by accused person
(1) An accused person or his or her Australian legal practitioner may address the jury immediately after the opening address of the prosecutor.
(2) Any such opening address is to be limited generally to an address on:
(a) the matters disclosed in the prosecutor's opening address, including those that are in dispute and those that are not in dispute, and
(b) the matters to be raised by the accused person.
(3) If the accused person intends to give evidence or to call any witness in support of the defence, the accused person or his or her Australian legal practitioner is entitled to open the case for the defence before calling evidence, whether or not an address has been made to the jury."
In R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 the Court of Criminal Appeal (Levine and Howie JJ, Smart AJ) made observations about the limitations the statute is said to place upon counsel for an accused person. The ground of appeal with which their Honours were concerned was that the trial miscarried as a result of the Crown Prosecutor's closing address. In particular, the ground complained that the address "undermined the effect of the directions his Honour gave concerning the need to scrutinise the complainant's evidence with great care and the problems caused by the very lengthy delay in complaint." In separate judgments, and to varying degrees, the members of the Court indicated that the Crown Prosecutor had exceeded the bounds of appropriateness and propriety in his closing address. However, in spite of what seems to have been an egregious breach of the special position held by the Crown Prosecutor in the system of criminal justice, [10] the majority held that the conduct did not give rise to a miscarriage of justice. Smart AJ came to the contrary view and would have quashed the conviction and ordered a retrial.
The Judges considered that the impugned part of the Crown's closing address appeared to be a response to the opening statement of defence counsel that exceeded the parameters established by s 159. The impermissible passage in the defence opening was identified by Smart AJ at [189] as follows:
"Reference has been made by the learned Crown to the fact that these matters are very old, 19 or 20 years ago. In many respects we are stepping back in time, not only in relation to the events that occurred, but to the law that existed then. You have heard the term buggery used. They referred to them as an abominable crime of buggery you might think that represented the sort of morality that existed then even in relation to this offence. It is not referred to in that term any more. So looking back the time as events that occurred, but looking back in time in relation to the law that was applied then and that has a number of effects and I would ask you to keep that in the forefront of your mind when you are considering the evidence, because you have to assess this evidence to that degree of your being satisfied beyond reasonable doubt."
Levine and Howie JJ, while finding the Crown to have acted inappropriately, declined to uphold this ground of appeal on the basis that it did not lead to a miscarriage of justice. Howie J, in particular, came to that conclusion because the prosecutor was responding to the impermissible part of the defence counsel's opening statement. His Honour then delivered the following, often enough quoted, passage concerning the restrictions created by s 159:
"The purpose of the defence opening address under s 159(2), therefore, is to define, for the jury's benefit, the real issues in the trial and what the accused might say in answer to the Crown's allegation. It is not an opportunity for defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. It behoves trial judges to ensure that the addresses of counsel are not open to abuse, particularly in a case where the contents of the address is circumscribed by a provision of an Act. To permit counsel to ignore such a limitation is not in the interests of justice, either generally or in the particular case. It may be appropriate for a trial judge to ensure, before the defence opens and in the absence of the jury, that defence counsel is aware of the limited basis of an opening under s 159 and that the address will comply with it."
Howie J quoted the second reading speech introducing s 159 into the Criminal Procedure Act. [11] The extent to which it is appropriate to resort to such secondary materials is well established. [12] The terms of s 159 are reasonably clear. Defence counsel is permitted to open both (i) in response to matters raised in the prosecutor's opening and (ii) in respect of matters that will be raised by the accused. The inclusion of the word "generally" supports the proposition that the legislation ought not to be read in "a narrow and pedantic manner". [13] The legislature did not restrict defence counsel to a statement that "outline[s] the issues in contention between the prosecution and defence". [14] In Karapandzk, Doyle CJ observed that the New South Wales provision "appears to give somewhat more latitude to counsel than does" its South Australian equivalent. [15] His Honour approved the comments of Howie J in MM.
As I indicated in argument, it may be that I take a more relaxed view than other judges but it is well accepted that defence counsel is not permitted (any more than the Crown Prosecutor is permitted) to engage in emotive and argumentative advocacy in opening the case for the jury. However, the section allows defence counsel to do more than simply identify the issues to be litigated in the proceedings. It should be remembered that trials like the present generate a great deal of emotion. In the present case, there are to be agreed facts concerning the injuries and cause of death of the victims and the accused has made extensive formal admissions. [16] Nevertheless, the learned Crown Prosecutor, quite properly, detailed the injuries in his opening address. [17] This caused people, who I assume are members of the victim's family, and who are sitting with a large contingent of supporters in the public gallery, to become noticeably emotional. Some people in the public gallery were crying. Some of defence counsel's opening was calculated to neutralise such emotion and to invite the jury put aside such emotion and focus on the true issues in the trial. Mr Boe invited the jury to "get rid of all the noise that is going to go on in this case and get down to the true issue". [18]
The defence opening sailed somewhat close to the wind when Mr Boe referred to the evidence to be given by some of the witnesses to be called by the Crown. The address came perilously close to argument. In particular, the defence opening referred to the fact that the victim of the second count, Mr Swindell, only conceded that he pushed Joel Brooks to the ground after being asked many questions by the police in the recorded interview. [19] However, that part of the opening was a response to the learned Crown Prosecutor's opening statement in which he said that the evidence would show that Mr Swindell pushed Joel Brooks "causing him to move backwards". [20] . In view of the fact that one of the issues is whether Bradley Brooks' action immediately thereafter was an act done in self-defence, it is clearly relevant for the jury to know that there is a dispute in relation to exactly what had happened between Mr Swindell and Joel Brooks before the accused intervened. It was open to the defence to point out that the summary provided by the Crown, while entirely proper and based on part of the evidence expected to be called, did not represent all of the evidence that would be called, that the narrative was in dispute and that there was an issue surrounding the credibility of the witnesses. These are "matters to be raised by the accused person." [21]
While I accept Mr Boe's concession that he exceeded the appropriate boundaries by telling the jury that his client had waited for two years in gaol to tell his story, I am otherwise not persuaded that the address breached the terms of s 159. Any reference to the onus of proof or matters of law was fleeting and merely echoed things that both the learned Crown Prosecutor and I had said to the jury. Those parts of the opening address that bordered on argument were truly responsive to matters raised by the Crown, were "matters to be raised by the accused", or both.
A matter of great importance in determining the application to discharge the jury was the tone of the opening statement. There was nothing unduly emotive in the tone of the address. The delivery was quiet and restrained. At one stage, the delivery was so quiet that the court reporters and others in the courtroom had difficulties hearing counsel.
It is also important to remember that the opening occurred in the afternoon of the first day of a trial that is expected to last two to three weeks. It came in the face of both counsel and myself telling the jury that the barristers' opening addresses were not evidence. After the address was given and the admissions were tendered as Exhibit 1, I reminded the jury that Exhibit 1 was the first piece of evidence tendered in the trial and that the addresses of counsel were not evidence. [22]
In that context, I can see little merit in the argument that defence counsel's opening address has affected the fairness of the trial adversely or that the jury's ability to consider the issues fairly and objectively has been compromised in any way. I expect that the opening addresses, while of great assistance to the jury in understanding the issues that it will have to decide, will have no impact when the jury comes to consider its verdicts in two or three weeks time.
It has been held that there must be "a high degree of need" before a trial Judge accedes to an application to discharge a jury. [23] In Miller v R [24] the Court of Criminal Appeal summarised some of the relevant principles:
"The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v R [2010] NSWCC 129 per Hall J at [265] ff. The following principles emerge from his Honour's review and from the two leading cases he cites Crofts v R [1996] HCA 22; 186 CLR 427 and Maric v R (1978) 52 ALJR 631:
1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440.
2) In deciding an application to discharge the jury, key considerations include:
a) the fairness of the trial: Crofts at 440;
b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441;
c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440;
d) the stage at which the mishap occurs: Crofts at 440; Maric at 635;
e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;
f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635.
3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635.
4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that '[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict', and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can 'say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable'.
5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, 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': Crofts at 440-441.
6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge 'is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind': Crofts at 441, but rather must apply the broader test stated at (4) above'"
Any prejudice caused by defence counsel's opening was easily remedied by direction. Immediately on the conclusion of the opening I reminded the jury that the addresses were not evidence. [25] As to the reference that the accused had been held in custody, the jury was directed at the end of the second day:
"Finally, I want to give you a direction of law that is a specific example of a general direction I gave you when I spoke to you just after you were empanelled as a jury yesterday. What I told you yesterday was that as judges you are to disregard and put out of your minds matters of prejudice and sympathy.
Something that was said by both of the barristers in their openings leads me to give you this more specific direction about it. Both barristers mentioned, when they opened the case to you, that Mr Brooks was in custody after he was charged. Mr Crown referred to a conversation he had with Madison Valentine and said he was in custody when he spoke to Ms Valentine. Mr Boe then went on to say that he had been sitting in gaol waiting to give you his account of what happened.
The fact that Mr Brooks has been in custody, and assuming there is evidence of that as opposed to what the barristers told you in their openings which, as I have said, is not evidence; even if there is evidence of it, that is not a relevant consideration of the things you are going to have to decide in two or three weeks time.
The fact is that in New South Wales these days it is very rare for a person charged with murder to get bail and be released before their trial is held. That is the case, even when the person is young, even when the person has no criminal record or even if there might be a delay for two years before the trial is held. The usual situation is that the person does not get bail awaiting trial.
The fact that Mr Brooks has been held in custody must not be used against him in any way. You should not draw any inferences against him. It is just the way the system works.
But, equally, the fact should not be used in any way in his favour, because you are sympathetic to him because he has been in custody awaiting his trial and is a young man presumed by the law to be innocent. You cannot take the matter into account in either way: there is no prejudice because he has been locked up, or sympathy because he has been locked up. You should simply regard it as having nothing to do with the things you are going to have to decide." [26]
Taking into account the relevant principles and bearing in mind the relatively minor nature of the breach, the period of time that will elapse before the jury retires to consider its verdicts and the capacity of directions to cure any prejudice that might flow to the prosecution; I discerned no merit in the application to abort the trial. There was certainly no "high degree of need" to discharge the jury in the circumstances that prevailed.
For those reasons, the application to discharge the jury was refused.
[3]
Endnotes
As it turned out, Mr Boe continued his opening address after the application for discharge was declined. He read to the jury a series of detailed admissions that his client made pursuant to s 184 Evidence Act 1995 (NSW).
Transcript (T) 37-38.
Pre-trial transcript (2 March 2017) p 66.
T 42. The acoustics in Court 5 at Darlinghurst are far from perfect: T 61.
T 30.
See R v Brooks [2017] NSWSC188 at [50]-[51].
T 52.
Ibid, at [52]-[58].
T 52.
See R v McCullough [1982] TAS R 43; (1982) 6 A Crim R 274 at 285 cited with approval in KNP v R [2006] NSWCCA 213.
See paragraphs 136-138.
Section 34 Interpretation Act 1987 (NSW) and see, for example, Harkins v R [2015] NSWCCA 263 at [30]; Taleb v R [2015] NSWCCA 105 at 96.
Cf R v Karapandzk (2008) 101 SASR 7; [2008] SASC 126 at [41].
Contra s 288A Criminal Law Consolidation Act 1935 (SA).
R v Karapandzk at [44].
Exhibit 1 in the trial.
T 26.
T 33.
T 37.
T 24.
Section 159(2)(b) Criminal Procedure Act 1986.
This is not recorded in the transcript at T 48-49: see discussion at T 229-230, 305 and 306.
R v Boland [1974] VR 849 at 866-7; R v George (1987) 9 NSWLR 527 at 533.
[2015] NSWCCA 206.
As noted, this direction is not recorded in the transcript at T 48 but subsequent discussion confirmed that a brief direction was given: T 229-230, 305 and 306.
T 144-145.
[4]
Amendments
20 April 2017 - Typographical error on coversheet
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Decision last updated: 17 November 2017