R v Brooks (No 2) - [2017] NSWSC 260

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Brooks (No 2) [2017] NSWSC 260
Hearing dates: 8 March 2017
Date of orders: 08 March 2017
Decision date: 08 March 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
(Crown) Application for discharge of jury refused.

Catchwords: CRIMINAL LAW – application by Crown Prosecutor to discharge jury – opening address by defence counsel – accused “sitting in gaol for two years waiting to be able to give you his account of what happened” – whether breach of statutory right to open – where Crown referred to fact that accused in custody – right of defence to respond – where response inappropriate – whether balance of address emotive or argumentative – meaning of expression “matters to be raised by the accused” – address otherwise appropriate – where directions capable of curing prejudice to prosecution – discharge of jury not justified – no high degree of necessity to abort trial
Legislation Cited: Criminal Law Consolidation Act 1935 (SA)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Crofts v R (1996) 186 CLR 427; [1996] HCA 22
Harkins v R [2015] NSWCCA 263
Khazaal v R [2011] NSWCCA 129; (2011) 265 FLR 276
KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213
Maric v R (1978) 52 ALJR 631
Miller v R [2015] NSWCCA 206
R v Boland [1974] VR 849
R v Brooks [2017] NSWSC 188
R v George (1987) 9 NSWLR 527
R v Karapandzk (2008) 101 SASR 7; [2008] SASC 126
R v McCullough [1982] Tas R 43; (1982) 6 A Crim R 274
R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148
Taleb v R [2015] NSWCCA 105
Category: Procedural and other rulings
Parties: Regina
Bradley Brooks
Representation:
Counsel:
Huw Baker (Crown)
Andrew Boe (B Brooks)
Solicitors:
Director of Public Prosecutions (Crown)
Younes + Espiner Lawyers (B Brooks)

File Number(s): 2015/00101058

Judgment

At the conclusion of Mr Boe’s opening address, the learned Crown Prosecutor made an application that the jury be discharged. The basis of the application was that Mr Boe’s opening exceeded the boundaries set by s 159 of the Criminal Procedure Act 1986 (NSW). I declined the application for discharge of the jury and the trial is continuing. These are my reasons for that decision.
The Crown submitted generally that defence counsel’s opening was argumentative in that it contained submissions rather than elucidating the issues that would arise in the trial. Specific complaint was made of the following passage which came at the end of the opening address[1] :

“As his Honour said no matter what happens to this case it is terribly sad. I am not here in any respect to impart blame on anybody else. I am here to give Mr Bradley Brooks a chance. Just remember this, you heard he's been in custody. He's been sitting in gaol for two years waiting to be able to…

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 Brooks (No 2)

Details

AGLC: R v Brooks (No 2) [2017] NSWSC 260
Case: [2017] NSWSC 260
Decision Date: 08 March 2017

CaseChat Overview and Summary

In the matter of R v Brooks (No 2), the defendant, Brooks, faced criminal charges in the Supreme Court of Victoria. The nature of the dispute revolved around the Crown's application to discharge the jury, which arose from an alleged breach of statutory right to open during the trial proceedings. The Crown sought the discharge of the jury following an opening address by the defence counsel, which the prosecution argued was emotive and argumentative.

The legal issues before the court included whether the defence counsel's opening address constituted a breach of the statutory right to open, particularly considering the accused's custodial status and the response to the Crown's reference to that fact. The court had to determine if the defence counsel's address was inappropriate and whether the Crown's right to respond was adequately exercised. Additionally, the court needed to assess whether the balance of the address was emotive or argumentative and what constituted "matters to be raised by the accused" under the relevant statute.

The Supreme Court of Victoria found that the defence counsel's opening address was not a breach of the statutory right to open, as it did not unduly prejudice the prosecution. The court acknowledged the emotive nature of the address but concluded that it was otherwise appropriate. The court also noted that the Crown's response, while inappropriate, did not necessitate the discharge of the jury. The court determined that the directions given to the jury were capable of curing any prejudice to the prosecution, and therefore, the balance of the address did not justify aborting the trial. Consequently, the Crown's application to discharge the jury was dismissed.

Orders