R v Popovic; R v Koloamatangi

Consideration

As Bellew J observed in R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [38], incidents of the present kind are not uncommon in criminal trials. Regrettably, it is not unusual that irrelevant or otherwise inadmissible material relating to the accused's past criminality, reputation, or prior contact with the criminal justice system comes to be before the jury. This is particularly so in cases where the witnesses and the accused have been involved in the criminal milieu and steps are taken to minimise the extent to which such evidence is before the jury. In such cases, evidence that suggests prior criminality on the part of an accused person may fall from a witness inadvertently or deliberately.
The relevant test for me to apply in determining this application is that set out by the High Court in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"). Before discharging the jury in this trial, I am required to be satisfied that there is a "high degree of necessity" to do so. As the plurality (Toohey, Gaudron, Gummow and Kirby JJ) observed in that decision (at 440): "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."
This issue has been considered in a number of decisions of the Court of Criminal Appeal ("CCA"). In R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329, the trial judge refused an application to discharge the jury in circumstances where a co-accused gave evidence disclosing that the accused had a criminal record and had been in gaol. An application to discharge the jury in those circumstances was refused. The CCA found no error in the exercise of that discretion. In Santo v R [2009] NSWCCA 269, an accused person disclosed in cross-examination that she had been in custody. The trial judge refused to discharge the jury and again the CCA held that that decision was one open in the exercise of the trial judge's discretion. The relevant principles were more recently applied by the CCA in Mikael v Regina [2015] NSWCCA 294 at [43].
I have had regard to a number of first instance decisions of this Court concerning similar applications.
In R v Ahola (No 6) [2013] NSWSC 703, Button J declined to discharge the jury in circumstances where an expert fingerprint witness had suggested that the accused had a prior criminal history. His Honour observed the following at [17]: "My review of some of the leading authorities shows that the High Court of Australia and the Court of Criminal Appeal of New South Wales do not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material. That review also shows that in many circumstances a direction is an appropriate remedy, not the discharge of the whole jury, although of course every case will turn upon its own facts."
In R v Qaumi (No 40) [2016] NSWSC 807, Hamill J refused a discharge application brought by one of the accused after a witness referred to that accused having just been released from gaol at a certain time. His Honour noted at [9] that the evidence was not relevant and had a capacity to cause prejudice to the accused, which prejudice lay not only in the accused's in fact having been in custody but in the potential for speculation as to the reason he was in custody. However, his Honour considered that, having regard at [16] to the amount of evidence in the trial and the uncontested evidence of the accused's membership in an organisation involved in criminal activity, the evidence would not be "left vividly etched in the mind of the jury" (using the words of the High Court in Crofts at 441).
In R v Hunter (No 8) [2014] NSWSC 1151, Button J considered an application to discharge the jury on the basis that a witness had given inadmissible opinion evidence to the effect that the accused had a reputation for violence. For a number of reasons, his Honour was not satisfied that there was a high degree of necessity for the jury to be discharged. His Honour observed, at [31], that the utterance of the witness was not the only material before the jury that would reflect adversely on the character of the accused. He considered that the remark would not have the effect of "…tipping the trial over to the point where it cannot proceed further before this jury." The jury had already been warned against prejudice and his Honour proposed, at [34], to give a further direction to disregard extraneous expressions of opinion by witnesses.
Justice Wilson considered a discharge application in R v Scott (No 1) [2015] NSWSC 458 following evidence given by a witness to the effect that he had known the accused "…from in and out of gaol a few times." Her Honour found that the characteristics of the particular witness rendered it unlikely that the jury in fact heard the evidence. Nevertheless, her Honour observed at [19] - [20]: "Whilst lawyers readily understand the risks of reference to 'gaol' and so forth, ordinary members of the public generally do not have the same comprehension of bad character evidence and what it may mean. If the jury or some members of the jury heard that evidence it is unlikely, for them, to have the significance that it has for lawyers but, even if it does, I do not agree with the submission that it is incapable of cure."
Her Honour considered that a direction to disregard the custodial status of the accused at any particular time would be sufficient to cure any prejudice potentially occasioned by the utterance of the witness.
In R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [38], Bellew J declined to discharge the jury in circumstances where a witness, seemingly deliberately, described one of the accused as being a "drug dealer". His Honour found no difficulty in giving a direction to the jury that such evidence is to be ignored.
I have had regard to the relevant principles as well as to their application in these single judge decisions. There is no doubt that the test of "high degree of necessity" to discharge a jury involves a discretionary decision in relation to which judicial minds may differ. I am required to balance a number of factors in exercising this discretion, including the stage that the proceedings have reached, the extent of the prejudice to Mr Popovic, and whether any perceived prejudice can be cured by either direction or other practical steps.
Turning first to the actual words said by the witness, it is to be noted that the answer was, in part, non-responsive. That is, the witness volunteered more than the Crown Prosecutor was seeking to elicit. Although the relevant paragraph of her statement describes the friendship between the deceased and Mr Popovic as having arisen out of the visits by the former to the latter in custody, that evidence was not given at the previous trial. The evidence was elicited by the Crown Prosecutor, not by the accused Mr Popovic, and no blame rests with him. Nor am I satisfied, however, that any blame rests with the Crown Prosecutor. To quote Bell J (as her Honour then was) in R v Mark William Helmhout & Anor [2000] NSWSC 218 at [5], "No question arises of any impropriety or sharp practice on the part of the Crown Prosecutor…"
I have had regard to the submission made on behalf of Mr Popovic that it is the reference to the deceased's visiting Mr Popovic "a few times" that poses the difficulty because it suggests a long-standing friendship (which is contrary to Mr Brasch's instructions) and that Mr Popovic must have been sentenced for a serious offence if the deceased was able to visit him more than once. I am not satisfied that that is necessarily the case. Although I was informed during this application that Mr Popovic was in fact in custody serving a sentence between 1999 and 2007, I am not satisfied that the reference to the deceased's having visited him "a few times" suggests anything like the true situation. That is not to say that the suggestion that Mr Popovic was in custody is not of concern, but simply that I am not satisfied the jury would necessarily infer that he had served a lengthy sentence for a serious offence.
I have had particular regard to the competing submissions of the Crown Prosecutor and counsel for Mr Popovic as to the significance to this application of the fact that there is already other material before the jury suggesting that Mr Popovic was part of a criminal milieu. Mr Brasch relied upon the fact that prosecution witnesses have already given evidence that gives rise to a certain level of prejudice, and that more such evidence is anticipated, in support of his application that this "slip" by Mrs Sekuljica is particularly prejudicial. The Crown Prosecutor, on the other hand, submits that the slip is relatively inconsequential in the context of the nature of the offence charged and the other evidence that has already been given and that is expected to be adduced, including that Mr Koloamatangi has been in custody, that both informers were involved in criminal activity, that Mr Radz had been in custody, and that Mr Popovic was friends with these people (and with Mr Hristovski, who on the Crown case supplied the gun).
I have had regard to the circumstances in which the impugned answer was given by Mrs Sekuljica. There was no audible reaction from anyone at the Bar table or the jury at the time. Mr Brasch, in his usual professional manner, suggested that the reason that he wished to raise a matter in the absence of the jury related to a different witness. Two further witnesses have given evidence since then and the next witness is anticipated to be in the witness box for the rest of the week. The lack of any particular attention being drawn to the answer after it was given is a further matter to take into account when assessing the degree of any prejudice to Mr Popovic.
Another matter I have taken into account is that, in R v Qaumi (No 40) at [20], R v Hunter (No 8) at [38] and R v Scott (No 1) at [25], Hamill, Button and Wilson JJ respectively considered that it was appropriate to provide a copy of the transcript to the jury with the inadmissible evidence removed. Hamill J relied upon s 55C of the Jury Act 1977 (NSW), which provides that, "A copy of all or any part of the transcript" may be provided to the jury if the judge considers it "…appropriate and practicable to do so." Button J relied upon a discretion to delete discreetly inadmissible material from the copy of the transcript provided to the jury. If the jury requested a copy of the transcript of the evidence of Mrs Sekuljica in the present trial, I would not provide them with the transcript of the words appearing after the answer "A while" in the portion of the relevant transcript extracted above at [12].
Finally, I have had regard to the timing of this application. 28 witnesses have been called thus far, including a witness suspected to have been criminally concerned in the offence charged who gave evidence over four days. I have made certain protective orders in relation to that witness. Clearly, the timing of the application would not be relevant if I were satisfied that an incurable prejudice had been occasioned. Despite this, and consistent with what the High Court observed in Crofts, the timing of the application is nonetheless one of many relevant factors that may be taken into account in the exercise of my discretion. It seems to me that it is relevant that the impugned evidence was volunteered just before the start of the evidence of a significant "informer" witness, whom it is expected will give evidence over some days. In this context, the isolated words of Mrs Sekuljica would not be given any particular prominence.
Having considered the relevant authorities and the submissions of counsel, I am not persuaded that there is a high degree of necessity to discharge the jury in this matter. It is regrettable that the witness volunteered the basis upon which the friendship between Mr Popovic and the deceased commenced. The witness gave evidence consistent with her statement, which she made to police ten years ago. In hindsight, consideration should have been given to leading this evidence from the witness. I had earlier ruled that some of her statement on a separate issue was inadmissible and the Crown Prosecutor was invited to confer with her to make that clear.
Although the slip was regrettable, I am not satisfied that any potential prejudice arising from it could not be cured by a direction. As Brennan J (as His Honour then was) observed in R v Glennon (1992) 173 CLR 592 (at 614-615): "Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced."
Similarly, in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15, McHugh J observed at [31]: "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."
I have had regard to the fact that if a direction is to be given to the jury, they could be reminded that they have sworn on oath or made an affirmation to reach their verdicts based solely on the evidence. The direction could include reference to the evidence suggesting that Mr Popovic may have been in gaol at some point and a statement to the effect that there are many reasons why a person may be in gaol. I could impress upon the jury that Mr Popovic's custodial status at any particular time has absolutely nothing to do with this case and should be disregarded in the task of establishing whether the Crown has established whether either or both of the accused are guilty of the offence charged. The jury could be told that to do otherwise would not be fair to the accused and that if they were on trial they would want the same fairness shown to them.
Mr Brasch indicated that, in the event that the application was unsuccessful, his position was that he did not seek that the jury be given any direction. It is entirely a matter for him what course he wishes the Court to take in this regard. It is to be accepted that sometimes giving a direction only draws attention to the issue. I will, however, hear him on the terms of an appropriate direction should he change his mind at any time during the trial.
The application to discharge the jury is refused.

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Judgment (7 paragraphs)

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Cases Cited (15)

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