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 of 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 and knocked him to the ground. Another man present threatened Mr McCauley. It was the Crown case that a few days later the accused spoke to Mr

McCauley about the debt and said words to the effect that the debt was “worth four

hits”.

4.       The application to discharge the jury was based upon the Crown opening the

allegation that the accused had told Mr McCauley that the debt was “worth four hits”.

It was submitted that this statement potentially implicated the accused in a proposed murder or murders. Ms Haban-Beer submitted that such an allegation was entirely different to the allegations in relation to the charges on the indictment, and was extremely prejudicial. She further submitted that any potential prejudice could not be addressed by appropriate directions to the jury.

5.       The Crown opposed the application on the basis that the evidence was to be led as an indication of the pressure which was being applied to Mr McCauley to pay the debt, and the urgency of the need to make the repayment. This evidence, the Crown submitted, explained later actions on the part of Mr McCauley. It was not suggested

that there was going to be a “hit” or murder.

6.       The test to be applied in an application for discharge of the jury is not in doubt. In R v Boland [1974] VR 849, the Full Court of the Supreme Court of Victoria said, at 866:

The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v. R. (1866), L.R. 1 Q.B. 390. The principle is really one of necessity. There must

be evident “a high degree of need for such a discharge”, that high degree being “such as in

the wider sense of the word might be denoted by necessity”: per Erle, C.J., at p. 394.

7.       These principles were endorsed by the plurality of the High Court in Crofts v The Queen (1996) 186 CLR 427 at 440.

8.       In my opinion, the evidence of Mr McCauley regarding the threats made to him for repayment of the alleged drug debt was relevant to determining the charges against the accused. Evidence of those threats was relevant to explain the actions of Mr McCauley following the making of the threats.

9.       I was satisfied that any prejudice to the accused arising from the evidence could be cured by an appropriate direction to the jury. On this basis, I was satisfied that there was no impropriety on the part of the Crown in opening this material to the jury, and no basis existed for the discharge of the jury.

10.    I subsequently directed the jury that this material was simply relied upon by the Crown as an attempt by the accused to intimidate Mr McCauley, and that it was not suggested that there was any plan or intention to carry out any threat.

11.     As there is a possibility that the accused may yet face a retrial on the charge on which the jury could not reach a verdict, I order that these reasons not be published other than to the parties until further order of the Court.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 16 July 2019