On 15 March 2016, which was day 32 of the current trial, the Crown called Steven John Farley to give evidence.
Mr Farley is, on his own account, a close acquaintance of the accused Rogerson, having known him for a period of 21 years. He described himself as being "a good friend" of Rogerson.
From the perspective of the Crown case, the importance of Mr Farley's evidence is that on 25 May 2014 he was in the company of Rogerson in Queensland, at which time they had attended a promotional boxing event in Redcliffe. Shortly afterwards, there was a news broadcast in Queensland making reference to the fact that Rogerson was wanted in New South Wales in relation to a kidnapping.
According to Mr Farley, Rogerson said to him at that time:
"I don't know anything about it".
That evidence was the subject of an objection by counsel for Rogerson, but I allowed the evidence for reasons set out in a previous judgment: R v Rogerson; R v McNamara (No. 33) [2016] NSWSC 247.
After the evidence-in-chief of Mr Farley was completed, he was cross-examined by Ms Shead who appears for McNamara, following which he was cross-examined by counsel for Rogerson, Mr Thomas. At T2102, Mr Thomas' cross-examination turned to the circumstances in which Mr Farley had come to know McNamara. Commencing at T2102 L24 Mr Thomas asked:
"Q. You knew Glen McNamara?
A. Yes.
Q. Correct?
A. Yes.
Q. How did you know Glen?
A. He was at the Cross the same time I was there."
Mr Thomas then asked (at T2102 L33):
"Q. Was he working as a detective or police officer at Kings Cross when you were there?"
Mr Farley responded (at T2102 L35):
"He was a detective and drug dealer at Kings Cross."
Mr Thomas then asked:
"Q. He was in the what--"
In light of the previous answer which had been given by Mr Farley I intervened at that point, stopped the question from being asked and directed the members of the jury to leave the court. I intervened because it seemed to me at the time that the introductory words of the question being put by Mr Thomas may have resulted in Mr Farley seeking to expand upon what he had said in the previous answer. In making that observation, and in taking the course that I did, I do not intend any criticism at all of Mr Thomas.
I pause to observe at this stage that on any view, the reference made by Mr Farley to McNamara being a "drug dealer" was a gratuitous and non-responsive comment made by a person who, on his own admission, is a close friend of the co-accused Rogerson. The answer gave the appearance of being somewhat calculated, although that is not an issue which I am required to determine for present purposes.
After the jury left the court, I gave counsel for each of the accused, and the Crown, the opportunity to consider their respective positions.
Ms Shead subsequently informed me that she had instructions to make an application that the jury be discharged. In doing so, and in view of the time of day, she asked that she be given until today to prepare submissions in support of that application.
Mr Thomas submitted that the answer given by Mr Farley at least raised a suspicion that it was in some way calculated to benefit Rogerson, and had therefore been instigated by him. That indicated to me that Mr Thomas was joining in an application that the jury be discharged. That position was confirmed before me this morning.
The Crown's initial position (set out at T2105 L9) was that Ms Shead's application to discharge the jury was "justified, in that the answer given (was) relevant to the direct issue before the court". The Crown's position fell short of amounting to a concession that Ms Shead's application should succeed and I made it clear at the time that even if such a concession was made by the Crown, I would not be bound by it. In any event, when the proceedings resumed this morning the Crown made it clear, for reasons to which I will come, that any application to discharge the jury was opposed.
In opposing such application, the Crown indicated that he wished to call evidence from Detective Phillips and Mr Farley in the absence of the jury. The Crown explained that he would seek to lead evidence from Detective Phillips that during the 1980s inquiries and investigations had been undertaken in relation to an allegation that McNamara was a dealer in drugs, and that no evidence was forthcoming to support such an allegation. The Crown submitted that if I were ultimately minded to refuse the present application, the evidence of Detective Phillips would be available to "reinforce" any direction I might give to the jury to ignore what Mr Farley had said. The Crown then explained that the purpose in seeking to call Mr Farley in the absence of the jury was to ascertain the basis on which he asserted that McNamara was a "drug dealer". The Crown submitted that if it transpired that Mr Farley's assertion was based upon hearsay, that evidence would also be available to reinforce any direction given to the jury.
When the Crown raised these issues, I expressed some reservation as to the relevance of the evidence he sought to lead. Ms Shead objected to the evidence but accepted that there would be no prejudice to McNamara's position if it were initially given in the absence of the jury so as to allow me to evaluate it. Mr Thomas did not object to the course foreshadowed by the Crown. Accordingly, Detective Phillips and Mr Farley were called.
The evidence given by Detective Phillips was to the effect of that outlined in [16] above. The evidence of Mr Farley was that he had no personal knowledge, and had made no relevant observation, which supported his assertion before the jury that McNamara was a drug dealer. It is evident from what Mr Farley said that his assertion was based on second, third or perhaps even fourth-hand hearsay statements made to him by other people, some of whom he asserted were members (or then members) of the NSW Police Force.
However in my view, the evidence of Detective Phillips and Mr Farley given before me this morning is irrelevant to the determination I am required to make. As I pointed out to the Crown at the time, what is before me is an application by counsel for each accused that the jury be discharged. Each application is made based upon a single event, namely the utterance of Mr Farley when giving evidence yesterday in the terms to which I have referred. Apart from a lack of relevance, the course proposed by the Crown of using such evidence to reinforce any direction I might determine is appropriate would have the potential to unnecessarily overcomplicate what is, in my view, a relatively straightforward issue. For those reasons, I have not taken into account the evidence given on the voir dire by Detective Phillips or Mr Farley in determining the matter.
[2]
SUBMISSIONS OF THE PARTIES
I turn to the submissions of the parties.
The Crown, as I have already indicated, initially took the position that Ms Shead's application to the discharge the jury was "justified". However when the proceedings resumed this morning the Crown opposed both Ms Shead's application as well as that of Mr Thomas.
In terms of the application made by Mr Thomas, the Crown submitted that there was no basis whatsoever upon which such application should succeed. It was submitted, in particular, that there was no prejudice to Rogerson arising from anything that Mr Farley had said. I pointed out that I anticipated that Mr Thomas would submit that there was a possibility that the jury could infer that Mr Farley's statement was made at the behest of Rogerson. The Crown submitted that for that to be so, there would necessarily need to be some evidence supporting such an inference. The Crown submitted that there was simply no such evidence.
As to the position of Ms Shead (advance notice of which the Crown had by virtue of written submissions helpfully provided by Ms Shead before today's proceedings commenced) the Crown submitted that it was possible to formulate a careful direction to the jury to ignore what had been said. The Crown submitted that the essential components of any such direction would include a direction that what Mr Farley had said was to play no part in the jury's consideration of the issues in this case, and was to be disregarded. It was submitted that a direction in such terms would be sufficient to address any prejudice which might have arisen.
The Crown highlighted the fact that it has been evident from day one of this trial that each accused is engaging in what is commonly referred to as a "cut throat" defence. The Crown submitted that in these circumstances, the utterance of Mr Farley did not (to use the Crown's words) "amount to a thunderclap out of the heavens". That, as I understood it, was another way of submitting that in trials such as this, utterances of the kind made by Mr Farley, although obviously not welcome, are not unheard of.
The Crown also took issue with Ms Shead's submission that because of the circumstances in which the matter had arisen, Mr Farley's evidence would be "vividly etched" on the minds of each of the members of the jury. The Crown submitted that as the trial judge, I was in a good position to assess the likely impact of what Mr Farley had said. The Crown pointed out that what had been said occurred at the end of the day, had been non-responsive to the question which had been put, and was properly categorised as a "throwaway line made by a friend of Roger Rogerson". The Crown submitted that in the atmosphere of the trial, and although the jury would obviously have heard what was said, I should not accept the proposition that it was "vividly etched" on their minds. The Crown submitted that the matter had not escalated to such a level that the jury would not be able to properly consider the evidence in the trial. It was submitted that the jury could and would accept a direction that the utterance of Mr Farley was to be disregarded.
Finally, the Crown pointed out that the trial is now in its seventh week. He submitted that if the jury were to be discharged on the basis of what had occurred in the course of Mr Farley's evidence, the administration of justice would "amount to a complete waste of time". He submitted that the jury system was intended to be robust, and that this was an example of a situation where, with an appropriate direction, such system should be allowed to operate as was intended. It was submitted that, in all of the circumstances, the jury necessarily retained the capability of accepting and acting upon a direction from me, as the trial judge, that the statement of Mr Farley was to be ignored.
As I have indicated, Ms Shead provided written submissions in advance of the proceedings this morning, which I have had the opportunity of reading. In those submissions, Ms Shead articulated the relevant principles and sought to apply them to the circumstances of this case. As I have already indicated, her submissions highlighted the proposition that in all of the circumstances, the evidence of Mr Farley would be vividly etched on the minds of the members of the jury.
In supplementing her written submissions, Ms Shead argued that the statement made by Mr Farley "had to be met". That proposition formed the basis of a fundamental submission by Ms Shead that there was no direction which I was able to give which would be capable of ameliorating the prejudice which had flowed to McNamara as a consequence of what had been said. Ms Shead submitted that any direction which might be given would do nothing more than highlight the evidence, and serve to reinforce the prejudice which she submitted had already arisen.
As I observed at the time, the proposition that the utterance of Mr Farley had to be "met" necessarily overlooks the terms of any direction which it might be thought appropriate to give to the jury. If I were to come to the view that a direction was appropriate, the essence of that direction would necessarily be that the jury would be told to ignore the evidence. If that direction were given, and accepting that the direction would be acted upon, there would be nothing to "meet" in the sense that Ms Shead argued.
Ms Shead also placed significance upon the context in which the evidence had been given. She pointed out that only the day before, evidence was given by one of the investigating police in relation to bags of drugs found in a car connected to McNamara and which, at one point at least, was parked in his residence.
Ms Shead also made reference to the fact that one of the charges against McNamara is a charge of supplying a prohibited drug. It was submitted that this was of some significance in light of what Mr Farley had said.
Ms Shead further submitted that in all of the circumstances the assertion made by Mr Farley deprived McNamara's case of good character of its probative force. She submitted that it would be impossible for any member of the jury to disregard what had been said, given a number of factors. These factors included what she described as the "concrete terms" in which the assertion had been made, the nature of the allegations against McNamara, the coincidence of the supply charge against him, the relationship between that supply charge and the charge of murder, and the nature of his defence. In this context, Ms Shead reminded me of the terms in which the Crown will put its case to the jury and, in particular, the terms in which the Crown will seek to draw a connection between the two charges.
Finally, Ms Shead submitted that there were necessarily cases where the prejudice to an accused arising from something said by a witness was so great as to be incapable of being ameliorated by a direction. The essence of her submission was that the present was one such case, and that the jury should be discharged.
Mr Thomas explained that the basis on which he sought that the jury be discharged necessarily differed from that put by Ms Shead. Mr Thomas emphasised that there was evidence that Mr Farley and Rogerson had been close friends for a number of years and that there was, in these circumstances, a strong inference available to the jury that Rogerson had exerted some degree of pressure or force upon Mr Farley to say what had been said. In this regard Mr Thomas drew my attention, in particular, to McNamara's reliance upon a defence of duress in this trial. He pointed out that there would necessarily be evidence given by McNamara of threats and "influence" allegedly exerted upon him by Rogerson.
Mr Thomas submitted that in all of these circumstances, the jury may well be left with the impression that Rogerson had the capacity to influence Mr Farley, and more particularly influence any evidence that he might give.
Mr Thomas submitted that such circumstances combined to create the important context in which his application was to be considered. He submitted that the jury may think that Mr Farley's statement amounted to another example of the "power" of Rogerson, about which McNamara will give evidence in his case.
Like Ms Shead, Mr Thomas submitted that what had been said by Mr Farley had been said with "great determination". He too submitted that no direction could ameliorate the prejudice which had arisen.
[3]
CONSIDERATION
Incidents of the present kind are not uncommon in criminal trials. They are, to say the least, regrettable. It would obviously have been be preferable if Mr Farley had not said what he said. However, it does not automatically follow from the fact of an utterance such as this that the jury must be discharged. Whether the jury should be discharged is a discretionary decision for me as the trial judge. That discretion falls to be exercised according to the application a number of well-established principles.
In Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, Dawson J expressed the relevant principle is this way (at 427):
"Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that a 'high degree of need for such discharge' must appear before a discharge will be ordered."
In making these observations his Honour made reference to an earlier decision of the Full Court of the Supreme Court of Victoria in R v Boland (1974) VR 849. In that case Adam J, with whom Little and McInerney JJ agreed, observed (at 166) that in order to discharge a jury there must be evident a high degree of need. In doing so his Honour made reference to similar observations of Erle CJ in Winsor v R (1866) LR 1 QB 390 at 394.
In Crofts the plurality (Toohey, Gaudron, Gummow and Kirby JJ) also made the following relevant observations (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. 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 the transcript."
These general principles have been applied by the Court of Criminal Appeal in this State on numerous occasions. In R v Ahola (No 6) [2013] NSWSC 703, Button J undertook a review of some of those authorities. They included R v Bartle [2003] NSWCCA 329 and An v R [2007] NSWCCA 43. More recently, the Court of Criminal Appeal applied such principles in Mikael v R [2015] NSWCCA 294.
In Ahola, Button J observed 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."
His Honour went on to note (as I have already observed) that the decision to discharge the jury is necessarily a discretionary one.
There is a further important principle which bears upon my determination of the current applications. Such principle, shortly stated, is that criminal trials necessarily proceed on the basis that a jury will follow, and apply, an instruction or direction given by the trial judge. In R v Glennon (1992) 173 CLR 592, Brennan J (as his Honour then was) expressed the principle in this way (at 614-15):
"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."
In doing so his Honour made reference to the judgment of Street CJ in Munday v R (1984) 14 A Crim R 456 (at 457-8) where the Chief Justice observed:
"It is relevant to note the system of jury trials is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have the monopoly on the ability to adjudicate fairly and impartially."
Although the observations of Street CJ were in a different context, they necessarily apply with equal force to the circumstances of this case, and to the determination of the present applications.
In Glennon, Mason CJ and Toohey J also made the following pertinent observation (at 603):
"The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence."
In a later case of Gilbert v R [2000] HCA 15; (2000) 201 CLR 414, McHugh J explained the rationale behind the principle in this way (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 harken 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 a 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."
By reference to all of these principles, and for the reasons set out, I have come to the view that each application to discharge the jury should be refused.
Firstly, the offending statement made by Mr Farley was effectively constituted by two words. It was isolated. The question put was not improper. More importantly, the question obviously made no reference to, and did not seek to elicit, the fact that McNamara was a "drug dealer". As I have already pointed out, the words said by Mr Farley were gratuitous and non-responsive.
Secondly, and stemming at least in part from the first consideration, it is relevant that this trial is now in its thirty-third day. I am informed that the Crown case is approaching closure. Over those thirty three days, almost fifty witnesses have been called to give evidence. The trial transcript extends to more than two thousand pages. The evidence which the jury will be asked to consider includes observations made during an extensive view of a number of areas relevant to the trial.
I accept, of course, that these matters are not conclusive. As Button J pointed out in Ahola at [19]:
"Questions of convenience are not determinative and obviously, no matter what the time, trouble or expenses involved, a trial that has been prejudiced to the point of becoming unfair cannot continue whatever the inconvenience might be."
However that said, the factors to which I have referred in [51] and [52] tend generally against the applications being granted. Those matters serve to highlight the fact that Mr Farley's isolated words were said in the context of a vast amount of evidence having been given, and in circumstances where I specifically intervened to prevent anything further from being said.
Thirdly, although I am mindful of the fact that McNamara will raise good character in his case, I am not satisfied that Mr Farley's utterance places McNamara in a position where his case of good character will have no probative force at all. In that regard, I am particularly mindful of the principles to which I have referred which make it clear that a trial judge, and indeed all parties in a trial, should proceed in the confidence that a jury will accept, and act upon, such directions as are given to them. This is particularly the case in circumstances where the offending statement really amounted to the two words "drug dealer". That is not to say that those words do not assume any significance at all. But there is, in my view, no difficulty or complexity in giving a jury a direction that such evidence is to be ignored. There is some substance in the Crown's submission to the effect that if a decision was made to discharge a jury in circumstances such as this, the jury system could never operate effectively, and in the manner in which it was intended to operate.
In all of those circumstances, the applications will be refused. It is my intention, subject to hearing from counsel, to direct the jury in the broad terms to which I have referred in the course of giving these reasons. However, I will hear counsel on the terms of the direction which ought be given when we resume at 2:00pm.
[4]
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Decision last updated: 15 June 2016