(2000) 201 CLR 414243 CLR 400
The Queen v Glennon [1992] HCA 16
Judgment (2 paragraphs)
[1]
Judgment
On 2 April 2015, that being the fifteenth day of the accused's trial, the accused made an application for the discharge of the jury. Having heard submissions on the application, I refused to discharge the jury and the trial continued.
A further such application was made and refused on 7 April 2015.
These are my reasons for those decisions.
To make sense of the applications it is necessary to set out some relevant history of the trial, and to refer to other earlier applications for the discharge of the jury which were made by the accused, and refused.
The accused stands charged with the murder of Riley Dehn, a crime said to have been committed in the early hours of 5 April 2013, at Cessnock in this State. He was arraigned on 10 March 2015 upon an indictment which charged him in those terms, and he entered a plea of not guilty. A jury was empanelled and the trial commenced. The accused was at that time represented by Mr. Cavanagh of counsel.
On 19 March 2015 Mr. Cavanagh made an application for the discharge of the jury, the application being opposed by the Crown. That application was made after a witness had given evidence the previous day of knowing the accused "from in and out of gaol a few times" (T531:40).
The evidence was given on the seventh day of the trial, at a time when all of the witnesses who had been present when the stabbing occurred had completed their evidence. Some twenty-four witnesses in total had given evidence to that point, and much of the most significant evidence to be called in the case against the accused had already been given.
Considerations of the administration of justice, together with the interests of the Crown, witnesses who might be required to repeat their testimony at another trial, or again be inconvenienced whilst waiting to testify, and those of the community in seeing matters brought to finality as quickly as can be reasonably and justly achieved, are important, and must be balanced with the question of prejudice to an accused.
The impugned evidence was given as an unresponsive answer to a question from the Crown by a witness who was particularly difficult to hear, as he was very softly spoken, and whose speech was also difficult of comprehension, the witness having a most idiosyncratic manner of speaking. It seemed unlikely that any of the jurors had in fact heard the relevant statement or, if they had heard the words, that they had necessarily understood them. Even assuming that at least one juror had heard the reference to the accused having been in gaol, I did not regard that evidence as leading to incurable prejudice such that the jury should be discharged.
The effect of the unwanted evidence had to be assessed against the overall context of the trial. The charge against the accused arose from a fist fight between two individuals in a public street in the very early hours of the morning. All of the witnesses to the affray had been drinking at a nearby hotel for a number of hours and all but one were heavily intoxicated. The evidence of the conduct of many of the witnesses could readily have given rise to opinions adverse to those individuals in terms of their presumed and actual willingness to comply with the criminal law.
Other witnesses closely associated with the accused gave evidence of casual acts of criminality, including larceny and drug use. It must have been clear to the jury that this was the social milieu in which the accused moved and in which the events took place. He was to be judged against that background.
Whilst that feature of the case, and the reference to the accused having been in gaol, does have the capacity to cause prejudice to an accused person, in the circumstances of this case, I considered that a direction could readily be crafted to address that prospect.
Ordinarily, there is something of a dilemma as to whether giving a direction to the jury to disregard the problematic evidence simply places an unwelcome focus upon it. In the circumstances of this case, it is possible to give a direction which will direct the jury to ignore the evidence without having to refer to it directly.
The Crown also led evidence of a number of telephone calls made by the accused to others after he had been charged and whilst he was he was held on remand (Ex. V). The calls were played to the jury and it was clear from their content that each was being placed from a gaol. Each contained the familiar Corrective Services warning that referred to the call as one made by an "inmate" of such a facility. There were also some gaol references in some of the conversations that followed.
In those circumstances it was necessary to say something to the jury at the time the evidence was given about the accused having been held in prison. In the summing up, that direction can be expanded to one directing the jury to disregard any evidence that suggested that the accused had previously been in prison, as entirely irrelevant to the facts to be decided, and to the question of whether the Crown had proved the accused's guilt of the offence charged beyond reasonable doubt.
The Court can and must proceed on the basis that the jury will follow the directions it is given by the trial judge: The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R.
Accordingly, I refused the accused's application for the jury to be discharged and the trial continued: R v Scott (No 1) [2015] NSWSC 458. The offending evidence was struck from the record.
The second application for a discharge of the jury followed evidence given by Kayla Houston.
The trial was adjourned for the day early on 19 March 2015 because Ms. Houston did not appear in answer to her subpoena. A warrant was issued for her apprehension.
The warrant was executed some time on 19 March 2015 and Ms. Houston appeared before the Court in custody the following day. She was refused bail and remanded in custody until such time as she might be excused from further attendance on her subpoena.
The Crown called Ms. Houston to give evidence on the morning of 24 March 2015. Ms. Houston was a witness who had made an induced statement to police concerning her knowledge of matters relevant to the death of Mr. Dehn; she had been granted an indemnity from prosecution for her part in a number of public justice offences on the basis that she give truthful evidence at the accused's trial and in any related proceedings.
Despite the possibility that she could be criminally charged if she failed to give complete and truthful evidence at the accused's trial, Ms. Houston appeared to be a less than forthright witness when she gave evidence in chief before the luncheon adjournment on 24 March 2015. She appeared, at the very least, to have significant problems with her memory.
Over the luncheon adjournment, information came to the attention of staff of the Department of Corrective Services that could have explained Ms. Houston's memory loss. Discovered in the possession of the witness were two handwritten letters, one evidently from the accused to Ms. Houston, and one that appeared to be her undelivered reply. The letters were seized and made available to the parties.
The Crown was provided with statements from Corrections officers and footage from surveillance cameras in operation in the Court's holding cells which established that the accused had passed a document to Ms. Houston in the holding cells of the Court house at Darlinghurst, where both were held whilst the trial was continuing. Ms. Houston had written a letter to the accused, but that letter had not been delivered by her to him.
Both letters were tendered in evidence in the trial (exhibits W and X). Whilst Ms. Houston's letter was principally an expression of love and support for the accused, the accused's letter urged Ms. Houston to give the "right" evidence, to ensure that the accused "beat the trial" so that the accused and Ms. Houston could enjoy a future together.
After the luncheon adjournment, and plainly being aware that the authorities had the two letters, Ms. Houston's memory improved and her evidence became more complete. She continued in evidence that afternoon, and into the following day. She gave considerable evidence of what might be regarded as attempts by the accused to interfere with the trial process. Ms. Houston said that the accused had asked her to "staunch", or intimidate, three Crown witnesses (Russell Payne, Carol Myles, and Melanie O'Neill) to persuade each to retract statements made to police. She deposed that the accused had urged her to get rid of the implement used to stab Mr. Dehn by disposing of it at sea or in some other large body of water; and, he endeavoured to prevail upon her to herself make a false statement to police, by claiming that she had seen the contents of the accused's pockets on the night of 4 April 2013, and he had not then been in possession of a knife of any description.
The witness finished giving evidence in chief at one o'clock on 25 March 2015. At 2pm that day, in the absence of the jury, counsel for the accused advised the Court that he had what was referred to as an "ethical dilemma" in relation to which he required advice from senior counsel. An adjournment of the trial was sought pending resolution of the ethical dilemma. The trial was stood over until the following day.
On 26 March 2015, in the absence of the jury, Mr. Cavanagh sought the Court's leave to withdraw from further representing the accused. He referred to "insuperable ethical conflicts", emphasising that there was more than one such conflict. Although no detail was provided because Counsel considered himself restricted in what he could say by legal professional privilege, he advised the Court that the accused had changed his instructions in some significant respect, with counsel additionally placed in a position where he might himself be obliged to give evidence in the trial. His position and that of his instructing solicitor was such that he could have, as I understood it, been obliged to either mislead the Court, or to put the accused's case without proper vigour, if he was required to continue in the trial.
The Court was not given any further information beyond that somewhat opaque account for the reasons behind Mr. Cavanagh's application for leave to withdraw. Notwithstanding the unsatisfactory information, I granted leave to Mr. Cavanagh and his instructing solicitor to withdraw. Even on the limited information provided to the Court it seemed clear that both counsel and his instructing solicitor had been placed in an untenable position by some significant variation in the accused's instructions to them.
What I could not ultimately determine was the reasonableness or otherwise of the alteration to the accused's instructions. This was not an irrelevant consideration.
On one view of the matter, and having regard to the chronology of the amended instructions, it is possible that the variation was connected with the evidence given by Ms. Houston, evidence which was unhelpful to the accused. Where there is such a background, and even without it, it is always necessary for the Court to be alive to the possibility that its processes may be manipulated, and to prevent any such manipulation from occurring.
On balance, I could not conclude that the accused had acted as he did to secure an adjournment of his trial. I think it is unlikely that he would have had sufficient knowledge of either legal procedure or the ethical obligations applicable to lawyers to alter his instructions in a deliberate attempt to precipitate the withdrawal of his counsel, and the frustration of the trial process.
After Mr. Cavanagh and his instructing solicitor were granted leave to withdraw, the jury was told that the accused's former representatives were not able to continue and the trial was adjourned to allow the accused time to obtain new representatives.
The accused obtained alternative representation during the course of that day, and Mr. Flynn of counsel, instructed by another firm of solicitors, thereafter appeared for and with the accused.
On coming in to the matter on 26 March 2015 Mr. Flynn made an application for the discharge of the jury (the second such application in the trial). The basis of the application was that the accused would be impermissibly prejudiced by having new counsel appear for him. It was submitted that counsel was not familiar with the matter and could not be as familiar with it as would be the case had the same counsel been instructed in the matter from the outset. It was also submitted that Mr. Cavanagh had conducted the accused's case in a particular way, with Mr. Flynn restrained to a degree by the way in which the trial had been hitherto conducted.
The application was opposed by the Crown.
Mr. Flynn's task was a difficult, but by no means an impossible, one. Whilst accepting instructions to appear for an accused person in a part-heard trial places counsel in a difficult situation personally, that is not a disadvantage that necessarily flows to the accused.
Mr. Flynn is a very experienced barrister, and the trial transcript was immediately made available to him, as was the brief of evidence. He could be and was given sufficient time to go through the transcript and witness statements and to obtain full instructions. This should have been sufficient to address any possibility of disadvantage to the accused as a consequence of the change of representation.
Whilst the interests of the accused were a significant consideration, so too were the community's interests in the expeditious determination of trial matters: R v Alexandroaia (1995) 81 A Crim R 286. At this advanced stage of the trial, all of the significant witnesses had given evidence and the jury had attended to that evidence over the eleven days of the trial.
In all of the circumstances I concluded that there was no real prejudice to the accused, and I refused the second application to discharge the jury: R v Scott (No 3) [2015] NSWSC 460.
A short adjournment (from Thursday 26 March 2015 to Monday 30 March 2015) to allow counsel to finalise instructions, followed.
On 30 March 2015, prior to any further evidence being taken, the accused made another application that the jury be discharged, that being the third application of that nature made by the accused.
Mr. Flynn contended that, as he had not had the advantage of seeing the witnesses as each gave evidence, and of seeing the jury as the evidence was given, there was necessarily prejudice to the accused, in that his counsel would not be in a position to make assessments of the credit of particular witnesses, or of any response from jurors to individual witnesses.
The Crown opposed the application.
It is acknowledged that a transcript of evidence cannot recreate the demeanour of a witness, or reflect any apparent reaction to a witness from members of the jury, the latter being at least theoretically discernible by observation. It is also acknowledged that it is a difficult task for counsel who accepts instructions to act for an accused person in a part-heard jury trial.
However, I did not regard that situation as inevitably creating insurmountable prejudice to the accused such that his trial, then at the twelfth day of evidence, and having heard from thirty-three witnesses, should proceed no further.
The accused was present in Court when each witness gave evidence and, whilst his observations of witnesses or jurors could not be expected to be of the same nature as those made by a lawyer, the accused could discuss his observations and impressions of witnesses with counsel. Equally, there was no impediment to Mr. Flynn discussing the case with counsel previously instructed, and gaining the benefit of counsel's contemporaneous observations of witnesses and the jury. To do so would not trespass on any issue of conflict, and that course was open to Mr. Flynn, as he acknowledged.
I do not accept that it is impossible to gain a proper and sufficient understanding of the evidence and issues in a part-heard trial from a transcript to competently represent the interests of a party for the balance of the trial. Whilst a transcript is not the perfect medium through which to convey a witness' manner of speech, and nor can it reflect the intonation, emphasis, and delivery of the spoken word, it can and does adequately record the evidence in such a way that persons with legal training particularly, familiar with the procedure of a trial and with reading trial transcript, can gauge both the nature and flavour of a witness' evidence.
If that were not so, no appellate court could ever consider a ground of appeal against conviction that required an assessment to be made of the credibility and reliability of particular evidence. Plainly, that is not so. Appellate courts daily determine such questions and do so on the basis that, whilst the jury had the advantage of having seen and heard the evidence as it was given, the court is, nevertheless, able to determine not just the sufficiency of evidence, but also its quality: M v The Queen [1994] HCA 63; 181 CLR 48 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [13]; Mansaray v R [2015] NSWCCA 40 at [59] - [60].
For those reasons I refused the third application to discharge the jury: R v Scott (No 4) [2015] NSWSC 461.
The accused's fourth application for a discharge of the jury was made on 2 April 2015, after the Crown case had closed, on what was the fifteenth day of the trial.
The application was precipitated by some evidence that was before the jury as part of Exhibit V, a series of recordings of telephone calls from the accused to other persons after he had been charged by the police, together with transcripts of each call as an aide memoire to the exhibit.
Exhibit V was tendered by the Crown on 24 March 2015, without objection from the accused, then represented by Mr. Cavanagh.
There had been some dispute about the admissibility of one of the recorded calls which the Crown sought to tender, and that dispute had been dealt with on the first day of the trial. The evidence then objected to was not the evidence Mr. Flynn referred to in making the fourth application for a discharge of the jury.
Exhibit V contained recordings of twenty one telephone calls made between 2 June 2013 and 1 November 2013 by the accused. Calls 19 and 21 both contained a reference to "ice". In call 19, the accused described the actions of Kayla Houston in inspecting the contents of his pockets on 4 April 2013 in these terms:
[…] she went through me pockets lookin' for money and ice, and I had, I had 'em both in my pocket".
In call 21, referring to the same activity, the accused said,
Hey, her and Deany know, right, because they went through me pocket lookin' for fuckin' ice and money, right, and I said "it's in me pocket there".
Although these particular recordings were not played before the jury until 1 April 2015, all recordings had been tendered together as a single exhibit on 24 March 2015, and the jury had had access to the exhibit, which contained the transcripts of the calls, since that date. There had been no objection to that course from counsel then acting for the accused.
The application for a discharge was made on the basis that this evidence, taken with the evidence of the accused having been in gaol (that grounded the first discharge application), had a cumulative effect that caused unfair and incurable prejudice. It was submitted that that prejudice could only be worsened by some other evidence placed before the jury on 24 March 2015 which dealt with an alleged attempt by the accused to have Crown witnesses intimidated such that each would withdraw their evidence.
At T779:01 - T779:25 Kayla Houston had deposed that the accused had asked her to "staunch" particular witnesses. She defined that term to mean to intimidate or scare a witness, including by giving the witness a "hotshot". She explained "hotshot" to mean a drug such as "ice" mixed with some other substance that was given to a person leading to illness or death.
This evidence was led by the Crown without objection from the accused.
Mr. Flynn submitted that the evidence should not have been led, should have been objected to, and was unfairly prejudicial in isolation, and in combination with the other matters referred to.
The Crown opposed the application, pointing out that the evidence was led without objection in circumstances where trial counsel had asked for, and been given, time on the first day of trial to consider the evidence of the gaol calls and take instructions. Having done so, objection was taken to one discrete part of one call, which related to the accused detailing discussions with his lawyers about the plea he might enter and whether the Crown might accept that he acted in self-defence, albeit excessive. The impugned evidence was not previously the subject of any disquiet.
The Crown also pointed to the wider context of the trial - that the evidence referred to events and circumstances that had clearly arisen in an environment other than one peopled by the most law abiding of citizens, and that would have been apparent to the jury. Many of those concerned in the events were clearly living a criminal lifestyle, where drugs were a regular and unremarkable part of life, and time in gaol was nothing out of the ordinary.
It was submitted that it was impossible to hide this from the jury, and it could be dealt with by direction.
Having considered the matter, I concluded that, whilst there was potential prejudice to the accused, it was not inevitable and could be addressed by an appropriate direction.
The Court is not privy to the reasoning behind counsel's decision not to object to the evidence of "ice" in the accused's pocket. The Crown submitted that the relevance of the evidence relating to the drug was as part of the false version that the accused was constructing for Kayla Houston to give as evidence to assist him. That interpretation is certainly open to the jury, and it may well have been why defence counsel did not object to the evidence. It could be concluded that the reference to Ms. Houston searching the accused's pockets for drugs as well as money was intended to make the proposed false testimony more believable.
In any event, it is not always possible to comprehensively sanitise evidence which is placed before a jury, and there is no general requirement that an attempt be made to do so. Questions of prejudice must be determined on the facts and circumstances of the particular case, rather than by reference to any generally applied proposition that evidence of familiarity with prison, or with drugs, must lead to prejudice.
Here, it is quite likely that the jury would have had some idea that the accused was no stranger to a less than wholesome lifestyle. That feature of the case did not necessarily mean that the jury would be prejudiced against him, and incapable of deciding the case solely upon the evidence, applying the law to the facts as it finds those facts to be.
I considered that, if given a clear direction that the jurors should not allow themselves to be prejudiced against the accused by such matters, and that they should set considerations of drug use, prison experience and the like entirely aside, there was no reason to conclude that the jury would not do as directed. Indeed, the notion that juries will do as they are directed underpins our criminal law.
For these reasons the accused's fourth application to discharge the jury was refused.
Counsels' addresses followed, with the defence address incomplete when the Court adjourned on the afternoon of 2 April 2015 for the Easter period.
On 7 April 2015, when the trial resumed, a fifth application was made by the accused for the discharge of the jury.
This application was based upon something that occurred during Mr. Flynn's address on the afternoon of 2 April 2015. During his address, Mr. Flynn made reference to the evidence given by a witness, Brodie Jobson. In referring to the witness, Mr. Flynn, who had not seen Mr. Jobson and knew his evidence only by transcript, referred to him using the feminine pronoun. At one point (T1096:11) Mr. Flynn said,
Brodie Jobson, she was also at the car park.
A juror called from the witness box "He". The Crown Prosecutor, who had been invited by Mr. Flynn to correct any errors he may have made in address of such nature said, almost simultaneously, "He". Mr. Flynn corrected himself and continued.
The accused's submission was that the interjection from the juror highlighted the prejudice to the accused inherent in having new counsel. It was contended for the accused,
[…] I can just point out that it was an interruption by a juror indicating that I didn't even know the sex of the witness about whom I was addressing and that raises the issue as to whether the jury can properly accept that I was over the brief. Under those circumstances it reflects upon me and therefore on my abilities to properly represent the accused when continuing the trial. That's yet another reason when added to all of the other reasons that I have raised earlier, your Honour, but that is an example of the prejudice that flows to the accused when that happens.
The Crown opposed the application, made on the sixteenth day of the trial. The Crown submitted that the juror's interjection was nothing more than an indication of the careful attention given to the addresses by an engaged jury who knew the evidence; it was submitted that it could in no way reflect adversely on Mr. Flynn, or have any prejudicial effect against the accused.
The Crown Prosecutor referred to another, similar, interjection, where he had mistakenly referred to a direction as west, when it was in fact east, and a juror had called out to correct him. Whilst that interjection on 31 March 2015 does not appear in the transcript (at T1003:04), probably because there was no microphone near the juror to record the comment, it was certainly made. As with the correction offered to Mr. Flynn, I regarded it as having been advanced in a helpful way, by a juror who was clearly attending closely to the evidence, that being the very thing jurors are asked to do. I saw no implicit reprimand in it.
My own observation of the interjection during Mr. Flynn's address was that it was made in a very good humoured way, and in the same spirit of helpfulness as that in which the Crown Prosecutor was corrected. The particular juror was smiling, as were a number of the other jurors. I interpreted the juror's act as an attempt to be helpful to counsel who, as all were aware, had not personally seen the witness. The interjection did not appear to embody some adverse opinion of Mr. Flynn, his capacity to represent the accused, or of the accused himself.
In all of the circumstances, I see no reason to interpret the gesture as illustrative of some negative assessment of counsel that must itself have necessarily reflected adversely on the accused.
Even were that a possibility, the slight risk of prejudice to the accused attaching from a negative view of counsel is readily capable of being addressed by direction. The jury will be told - in common with every jury in every criminal trial - that its task is to act judicially, without partiality or prejudice, and without allowing sympathy or emotion to sway its judgment. The jury will be called upon to use its common sense, wisdom, and sense of justice.
Bearing in mind that direction, I do not think that there is any reasonable possibility that the circumstances advanced by the accused are such as to in fact give rise to prejudice against him.
The additional question is whether all of the matters raised individually as grounding the five discrete applications for the discharge of the jury could, cumulatively, have the effect of causing irredeemable prejudice to the accused, such that he could not receive a fair trial, were the trial to continue.
In support of his contention that there was such prejudice the accused did not identify any separate, or additional, prejudice to those earlier asserted to exist.
For the reasons already given, I do not consider that the change of counsel in fact caused any material prejudice to the accused, either because of the disadvantage connected with Mr. Flynn not having personally observed witnesses, or arising from the case being conducted differently to the manner in which new counsel might have conducted it, or, due to any negative impression counsel may have made on the jury. These considerations might, theoretically, lead to prejudice, but did not in fact do so in circumstances where experienced and competent counsel came into the matter when it was part-heard. I do not consider this aspect of the matter to add to any additional danger of prejudice to the accused's right to a fair trial, either taken alone or in conjunction with other matters. There remains the evidence of Mr. Russell having met the accused in prison, and that of drug use.
Could the evidence suggesting that the accused had prior experience of the use or, at least, possession, of illicit drugs, and of time in prison, have a prejudicial effect which, cumulatively, was greater than the sum of its parts?
Whilst there may be circumstances in which that could be so, I do not consider the circumstances applying here in fact give rise to such a heightened risk. The references to gaol and drug possession in the evidence were very much peripheral ones; there was no focus upon those aspects of the evidence by the parties and it is likely that the jury followed that lead. Even if the jury should be tempted to give that evidence some greater weight in combination than it deserved individually, that risk is capable of redress by appropriate direction.
In the context of the trial, where casual acts of criminality by a number of individuals figured in the evidence, the impugned evidence did no more, in my opinion, than to place the accused against the background of the environment in which he moved and in which the offence is alleged to have occurred.
Such prejudice as might arise can be readily dealt with by direction.
In those circumstances, and having regard to the very advanced stage that the trial had reached, and the community's expectation that trials once started will ordinarily be brought to finality, I declined the fifth application for the discharge of the jury.
[2]
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Decision last updated: 23 April 2015