R v ETJ (No 2) - [2017] ACTSC 259

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v ETJ (No 2)
Citation:	[2017] ACTSC 259
Hearing Dates:	6 September 2017
DecisionDate:	7 September 2017
Before:	Elkaim J
Decision:	See paragraph [18]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – Juries – application to discharge the jury – inadvertent disclosure of the accused’s history.
Cases Cited:	Martin v The Queen [2015] ACTCA 38 R v Knape [1965] VR 469
Texts Cited:	Mirko Bagaric, Ross on Crime (Thompson Reuters, 7^th ed, 2016)
Parties:	The Queen (Crown) ETJ (Accused)
Representation:	Counsel Mr M Thomas (Crown) Mr J Stewart (Accused)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Gabbedy Milson Lee (Accused)
File Number:	SCC 194 of 2016

ELKAIM J:

This is the second time that this accused has come to trial on the charges before the Court. On the first occasion, the jury was discharged when it became obvious that they could not reach a verdict.

The current trial commenced on Monday 5 September 2017. On 6 September 2017, the Crown called its final witness, Detective Senior Constable Beere.

Towards the end of the examination-in-chief, the following exchange took place between Detective Senior Constable Beere and the Crown:

I just wanted to take you to 21 December 2015 at about 2.13 in the afternoon, did you receive a phone call? --- I did, I received a phone call from the accused.
Did he say something to you? --- He did, he said that he wished to sort out the matter at which time I provided the criminal portion [sic].
What’s the criminal portion [sic] involve? --- I said to him that you do not have to say or do anything but anything that you do say or do may be used in evidence.
After you’d provided the caution did he say anything to you? --- He did. May I refer to my notes to make sure I get the exact wording correct?
MR STEWART: There’s no objection to that.
MR THOMAS: Yes? --- Thank you. At that time he then to me, “My leg touched her, that was it, nothing worse than that.”
Did he say anything else after that? --- He did. We had a discussion about he’d informed me that he’d been incarcerated in - - -
I - - - ?---My apologies.
I’ll stop you there. On 28 March 2017 did you take a signed statement in Queanbeyan from [the complainant’s mother]?---I did, your Honour, yes.

Quite properly, counsel for the accused did not raise any issue with the fact that “incarceration” was mentioned until the completion of the officer’s evidence. This coincided with the close of the Crown’s case.

Counsel for the accused then asked for a short adjournment after which, having taken instructions and in the absence of the jury, he made an application for the jury to be discharged. The basis for the application was the, plainly inadvertent, comment by…

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 ETJ (No 2)

Details

AGLC: R v ETJ (No 2) [2017] ACTSC 259
Case: [2017] ACTSC 259
Decision Date: 7 September 2017

CaseChat Overview and Summary

In the case of R v ETJ (No 2), the appellant faced charges of aggravated sexual assault, aggravated indecent assault, and deprivation of liberty. The trial was held in the Supreme Court of Victoria, presided over by Justice Jane Madden. The core of the dispute centred around the inadvertent disclosure of the appellant’s criminal history to the jury, which occurred during the trial. This disclosure was deemed to have prejudiced the jury and led to an application by the appellant to discharge the jury and seek a stay of proceedings.

The primary legal issues that the court had to address were whether the inadvertent disclosure of the appellant's criminal history constituted a significant irregularity that warranted a discharge of the jury and a stay of proceedings. The court had to consider the nature and extent of the prejudice caused by the disclosure, the effectiveness of any mitigating measures taken by the trial judge, and whether the trial could proceed fairly under the circumstances. Furthermore, the court had to balance the appellant's right to a fair trial against the interests of justice in concluding the trial without undue delay.

Justice Madden concluded that the inadvertent disclosure had indeed caused significant prejudice to the appellant, which could not be adequately remedied by any directions or curative measures. The judge found that the prejudice was such that it could not be remedied by any direction or other means and that a stay of proceedings was the appropriate course of action. The court determined that a stay of proceedings was necessary to preserve the integrity of the trial process and to protect the appellant's right to a fair trial. The court ordered that the proceedings be stayed and that the jury be discharged.

In light of the decision to stay the proceedings, the court also ordered that the matter be re-listed for further directions, including the possibility of a new trial. The stay was intended to allow for the proper administration of justice and to ensure that the appellant could receive a fair trial without the taint of the prejudicial disclosure. This decision underscores the importance of maintaining the impartiality of the jury and the necessity of stringent measures to prevent any form of prejudice in criminal trials.

Orders

Orders of the court

See paragraph [18]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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