R v Bloodsworth; R v Errington (No 3)

[2017] NSWSC 1484

Supreme Court

New South Wales

Medium Neutral Citation:	R v Bloodsworth; R v Errington (No 3) [2017] NSWSC 1484
Hearing dates:	24 October 2017
Decision date:	24 October 2017
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	Application for a discharge of the jury refused
Catchwords:	CRIMINAL TRIAL – juries – application for discharge made by one accused on the basis of content of Crown address – Crown address prejudicial and misleading since it highlighted matters in the recorded interview of one accused which were inadmissible in trial of co-accused – impression created by Crown address could be remedied by prompt withdrawal of suggestion by Crown and explicit direction from trial judge – application for discharge refused
Legislation Cited:	Evidence Act 1995 (NSW), s 83
Category:	Procedural and other rulings
Parties:	Regina Rhiannon Lisa Bloodsworth (Accused) Trent Errington (Accused)
Representation:	Counsel: M Hobart SC (Crown) D Price (Accused Bloodsworth) D Carroll (Accused Errington)   Solicitors: Solicitor for Public Prosecutions (Crown) PJM Lawyers (Accused Bloodsworth) Sydney Criminal & Traffic Lawyers (Accused Errington)
File Number(s):	2015/255218; 2015/254857

Judgment – EX TEMPORE

1. An application has been made by Mr Price, who appears on behalf of the accused Bloodsworth, for a discharge of the jury on the basis of a portion of the Crown's address to the jury which has only recently been concluded.

2. The Crown, towards the end of his address, reminded the jury of my direction that they were only to take into account evidence in the accused Errington's record of interview against the accused Errington and it could not be taken into account against the accused Bloodsworth.

3. Notwithstanding those prefatory remarks, Mr Crown - for reasons which are not apparent - then highlighted certain passages of the recorded interview in which Mr Errington had attributed certain acts to the accused Bloodsworth. Those acts included her suggestion, according to Mr Errington, that they burn down the house after they discovered that the deceased was dead; that they lied about the allegation that the attack had occurred because the deceased had attempted to rape the accused Bloodsworth; that she held a knife to the deceased throat; and that the bleach had been used in order to protect the accused Bloodsworth and to remove any trace of her DNA as a result of having allegedly been bitten by the deceased who was trying to defend himself.

4. I accept that these are matters which ought not to have been put to the jury since they were plainly inadmissible in the case against the accused Bloodsworth: s 83 of the Evidence Act 1995 (NSW). However, I am of the view that any unfairness occasioned to the accused Bloodsworth, from the Crown's apparently ill-advised statements, can be remedied by the course which was originally proposed by Mr Price before he obtained instructions to apply for a discharge. The proposal was that the Crown be required to withdraw any suggestion from his submission that anything Mr Errington said in his recorded interview about what Ms Bloodsworth did or didn't do; say or didn't say; can be used against Ms Bloodsworth. It was also proposed that, after that explanation was given by the Crown to the jury, which should include a specific withdrawal of any such suggestion, I would reinforce the direction that the jury is not to take into account anything in that recorded interview against Ms Bloodsworth.

5. While I accept that it is highly unfortunate, to say the least, that the Crown included these matters in his address, I am satisfied that they can be sufficiently remedied by the course I have just identified in order to preserve the right to a fair trial which, of course, each accused enjoys.

6. In these circumstances, the application for a discharge of the jury is refused.

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Decision last updated: 17 April 2018