R v ETJ (No 2)
[2017] ACTSC 259
•7 September 2017
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, 7th 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 the officer concerning the accused’s incarceration.
I was taken to an excerpt from the seventh edition of Ross on Crime, at page 928 and paragraph [10.2200]. This paragraph quotes R v Knape [1965] VR 469 (‘Knape’). The quoted portion is taken from page 473 of that judgment. It states:
... if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstances of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge would exercise his discretion in favour of the accused.
Counsel for the accused submitted that the final sentence of the above passage made it almost inevitable that the jury should be discharged. The Crown’s initial response was that it could not advance any argument to counter the defence submission. I thought it appropriate to consider the matter overnight, thereby allowing the parties more time to consider their respective positions.
When the matter resumed this morning, counsel for the accused stated that he was persisting with the application. The Crown amended its position and indicated that it would be opposing the application. It was submitted that the disclosure was minor and quickly curtailed. The Crown also submitted that the inadvertent disclosure could be cured by general directions. It was submitted that a specific direction was not necessary.
Knape was considered by the ACT Court of Appeal in Martin v The Queen [2015] ACTCA 38 (‘Martin’), from paragraph [21]. That case involved the trial of an accused person charged with murder. During the course of the trial, inadvertent reference was made to the accused having spent time in custody. An application was made to discharge the jury. That application was refused. This refusal was relied upon as one of the grounds of appeal against the conviction of the accused.
The Court of Appeal dismissed the appeal, finding that the exercise of discretion by the trial judge was not in error. There is one point of distinction in Martin which can be gleaned from the following passage at paragraph [31] of the judgment:
It would have come as no surprise to the jury that the appellant had been in prison, and this revelation would have had less effect on the jury than the appellant’s admitted criminal conduct. The evil identified in the cases explaining the prohibition on adducing evidence of bad character is that the jury will give the evidence disproportionate weight and will engage in an impermissible reasoning process based on character. These issues inevitably arose in the appellant’s trial and would have done so even without the revelation by Mr Bell that the appellant had been in prison, which was not a deliberate disclosure.
I think that it is fair to say that there was no evidence in this case that would have otherwise suggested that the accused had been in custody, let alone that he had committed any criminal offence. I do, however, note that other witnesses, with whom the accused associated, were known to the authorities. The complainant had been involved with the Youth Justice system and her father had been in prison.
It is important to consider the revelation that was made by Detective Senior Constable Beere. It is limited to a statement that the accused had been incarcerated. It does not suggest any reason for the accused’s incarceration. There is no basis upon which the jury might conclude anything about the nature or the seriousness of any offence that may have been committed by the accused. In the circumstances of this case, I do not think that there is any reason for a jury to automatically conclude that the incarceration was for any particular offence or for any extended period of time.
I have also taken into consideration the fact that the trial is almost at an end and that, although the complainant’s evidence has been recorded, the other witnesses, particularly the lay witnesses, will have to be recalled for a third time.
I disagree with the Crown’s submission that there should not be any extra direction. I do, however, agree that the relevant portion of the evidence should be redacted from the transcript and the jury informed of this fact.
I have come to the view that, as regrettable as the disclosure was, it can be corrected by a direction to the jury similar to that given in Martin. Paragraph [24] of that judgment is particularly relevant. I would not propose to ask the jury whether they could not “coldly, clinically and dispassionately” deal with the matter. I think to do so would be to direct too much attention to the issue.
However, I propose to refer to the revelation, to note that it was inadvertent and to inform the jury that it would be dangerous to take it into account and that it should be ignored. I will tell the jury that there is nothing before them to indicate the nature of any offence and that a person can be incarcerated for many reasons including, for example, non-payment of parking fines or because they are awaiting bail in respect of charges that have since been dismissed.
I also propose to ask counsel if they wish to make any suggestions about the contents of the direction.
Accordingly, I reject the application to discharge the jury.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim. Associate: Date: 11 September 2017 |
Amendment
2 March 2020 Replace the Case Title “R v ETU” with “R v ETJ (No 2)”
Replace “ETU (Accused)” with “ETJ (Accused)”
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