R v Murphy & Watson [2001] VSC 320

Supreme Court of Victoria|2001-08-31|Before: Flatman J

CRIMINAL LAW RULING - Application for discharge of jury.

This is an application by Mr Montgomery on behalf of the accused man Watson that the jury be discharged because of certain comments in the Crown Prosecutor's opening address. He has been joined in this application by Mr Brustman on behalf of the accused Murphy. Mr Montgomery submitted that the Crown Prosecutor in the course of his opening directly contrasted the two records of interview by dealing with them in sequence and that the jury have been invited to contrast what each of the accused said in the records of interview and use it against each of them. He further submitted that although the prosecutor indicated that the trials against the two men were to be considered separately, he reduced the strength of that by using the words "generally speaking, the evidence is only evidence against the maker." A perusal of the transcript indicates that Mr Cooper raised the question of separate trials on two occasions. At p.76 he said, "What I wish to indicate to you briefly at this stage is that, as you are aware, both men are charged together with these offences. They stand trial together. What you ought to bear in mind during the course of these proceedings is you ought to be aware of the fact that you need to consider the evidence in relation to them separately, and give consideration to the evidence separately in relation to each accused man, although there are aspects of the evidence in this case, the prosecution says, that you will be able to consider jointly in relation to them, because there are a lot of similar matters that the prosecution says applies to both of them."

Again, at p.70, Mr Cooper said this: "Please bear in mind a couple of things in relation to this. Firstly, I am attempting only to give you a summary of what was said during the course of these interviews, I don't intend to deal with it in detail. You will hear those interviews in their entirety at a later stage during the course of this trial. I would ask you also to bear in mind that so far as each of those interviews are concerned, generally speaking, that they are and can only be used in so far as evidence against the person who makes the interview is concerned and in so far as Murphy's interview is concerned, it is evidence against him, and in so far as Watson concerned the contents of that is evidence against him."

At p.74 the passage complained of reads as follows: "Now, as you will note, even from that summary of what they indicated to the police, there are substantial variations between the two stories that these men told the police, and they will come to the conclusion these men, who had hitherto lied to the police during the course of the statements they had given to the police, up to their records of interview, were not telling the whole truth during the course of the records of interview but, as I indicated to you, you will hear them fully during the course of the trial."

Whilst it may be unfortunate that the Crown Prosecutor chose to speak about the two interviews in the same passage, a fair reading of the transcript does not suggest that he was inviting the jury to draw inferences that the accused were lying by contrasting their answers. I accept that the prosecutor did not intend to encourage that line of reasoning.

The test required to be applied by a trial judge in the exercise of his discretion to discharge a jury is well settled. (See R v Boland [1974] VicRp 100; [1974] VR 849 at 966: "there must be a high degree of need for such discharge".)[1] I note also the comment referred to in Crofts [1996] HCA 22; (1996) 186 CLR 427 at 440-442 in the joint judgment of Toohey, Gaudron, Gummow and Kirby JJ referring to an application for the discharge of a jury:

"Much depends on 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."

I am satisfied that the seriousness of the occurrence in the context of this trial is minimal. In the context of the whole of the prosecutor's opening it is at best a possible ambiguity. Given that it has occurred at a time when the prosecutor is simply trying to give background information and an overview of the "big picture" it could hardly be said to be a deliberate attempt to inflame the jury to reason inappropriately. In any event, I believe that the appropriate judicial direction, made immediately at the end of the prosecutor's opening, will overcome any possible prejudice. Moreover given the ambiguity of the comments made by the prosecutor I think it desirable that the direction be given in general terms rather than highlight an inappropriate line of reasoning.

In all the circumstances, having regard to the full evaluation of the words used by the prosecutor in their context and the opportunity for an early direction on the issue I am satisfied that the circumstances do not disclose a high degree of need for such discharge.

A second issue was raised in relation to the opening of the issue of reckless murder but was not persisted with. In any event, it seems to me to be quite clear that that is a matter that is best addressed at the end of the evidence and I cannot see any prejudice arising if at that stage the issues for consideration by the jury are simply narrowed.

[1] See also R v Alexander Robert Brown [2000] VSCA 102, Crofts [1996] HCA 22; (1996) 186 CLR 427, The Queen v Sultan Saffoury [1998] VSCA 36 and Martin Richard Eastwood [1998] VSCA 42, 114 A Crim R 448.

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