R v Baker (No 2) - [2019] ACTSC 181

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Baker (No 2)

Citation:

[2019] ACTSC 181

Hearing Date:

3 June 2019

Decision Date:

3 June 2019

Reasons Date:

16 July 2019

Before:

Burns J

Decision:

See [1] and [11]

Catchwords:

CRIMINAL LAW – Application – Application to discharge jury – application made by accused – on the basis of an allegation in the Crown’s opening – application refused – written reasons for

decision – whether statement was prejudicial – whether any

prejudice could be cured by an appropriate direction to the jury

Cases Cited:

Crofts v The Queen (1996) 186 CLR 427
R v Boland [1974] VR 849

Parties:

The Queen (Crown/Respondent)

Brendan Leigh Baker (Accused/Applicant)

Representation:

Counsel

D Renton (Crown/Respondent)
A Haban-Beer (Accused/Applicant)

Solicitors

Commonwealth

Director

Public

Prosecutions

(Crown/Respondent)

Boxall Legal (Accused/Applicant)

File Numbers:

SCC 285 of 2018; SCC 286 of 2018

BURNS J

1.       On the opening day of the accused’s trial and immediately after the conclusion of the Crown’s opening address, Ms Haban-Beer, on behalf of the accused, applied for the

jury to be discharged. I declined to make an order discharging the jury, and indicated
that I would give my reasons at a later time. These are my reasons.
2.       The Crown case was that Paul McCauley was recruited by the accused to assist the accused in distribution of illicit drugs in the ACT. Mr McCauley was already involved in trafficking illicit drugs in the ACT when he was recruited by the accused, and had his own distribution network. One of the people who assisted Mr McCauley in distributing drugs was Bradley Klemke. It was the Crown case that Mr McCauley commenced working for the accused in about June 2016, and thereafter distributed significant quantities of illicit drugs on behalf of the accused. When Mr McCauley started distributing drugs for the accused, he continued to use Mr Klemke as part of his distribution network. The Crown alleged that towards the end of 2016, Mr McCauley wanted to get out of the business of dealing in drugs, and had discussions with the accused about Mr Klemke taking over his role dealing with the accused. The accused agreed to this arrangement. The Crown alleged that many of the drugs supplied by the accused were supplied on credit, and that over a period of time a substantial debt accrued, particularly with regards to the dealings by Mr Klemke.
3.       The Crown alleged that the accused told Mr McCauley and Mr Klemke that they had to go to a meeting with his bosses. Mr Klemke was too frightened to attend, but Mr McCauley went with the accused to a car park across the road from the Belconnen Soccer Club, where they met a number of people. One of the people was a person
who Mr McCauley knew as “Stefan”. Stefan told Mr McCauley that he had to pay the
money that was owed or he was as good as dead. Stefan punched Mr McCauley to the head…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Baker (No 2)

Details

AGLC: R v Baker (No 2) [2019] ACTSC 181
Case: [2019] ACTSC 181
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered an application to discharge the jury in the case of R v Baker (No 2). The applicant, Brendan Leigh Baker, sought the discharge of the jury following an allegation made in the Crown’s opening address that the debt owed by Paul McCauley to the accused was “worth four hits.” The applicant argued that this allegation was prejudicial and unrelated to the charges on the indictment, and that the potential prejudice could not be remedied by an appropriate direction to the jury. The Crown, represented by the Director of Public Prosecutions, opposed the application, contending that the evidence was relevant to demonstrate the pressure being applied to McCauley to repay the debt and to explain his subsequent actions.

The legal issue before the court was whether the allegation made in the Crown’s opening address was so prejudicial that it warranted the discharge of the jury. The court considered the test for determining when it is necessary to discharge a jury, as established in R v Boland and Crofts v The Queen. According to these authorities, a trial judge may discharge a jury if there is a high degree of need for such a discharge, meaning a necessity in the wider sense of the word. The court had to assess whether the alleged statement was prejudicial and whether any prejudice could be cured by an appropriate direction to the jury.

Justice Burns concluded that the evidence of the threats made to McCauley for the repayment of the alleged drug debt was relevant to the charges against Baker, as it explained McCauley's actions following the threats. The court was satisfied that any prejudice to the accused could be addressed by directing the jury that the material was only relied upon by the Crown as an attempt by the accused to intimidate McCauley and that it was not suggested that there was any plan or intention to carry out any threat. Consequently, the court found no impropriety on the part of the Crown in opening this material to the jury and declined to discharge the jury.

In light of the possibility of a retrial, Justice Burns ordered that the reasons for the decision not be published other than to the parties until further order of the court. This decision underscores the importance of balancing the relevance of evidence to the charges against the accused with the potential for prejudice, and the court's ability to mitigate any prejudice through appropriate directions to the jury.

Orders