R v Foster - [2014] NTSC 47

R v Foster [2014] NTSC 47
PARTIES:The Queen
v

FOSTER, Troy

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21337136
DELIVERED:  10 October 2014
HEARING DATES:  10 and 11 September 2014
JUDGMENT OF:  KELLY J
REPRESENTATION:
Counsel:
Plaintiff:T McNamee
Defendant:I Read SC
Solicitors:
Plaintiff:Director of Public Prosecutions
Defendant:Northern Territory Legal Aid Commission
Judgment category classification:   C
Judgment ID Number:  KEL14007
Number of pages:  4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Foster [2014] NTSC 47
No. 21337136
BETWEEN:

THE QUEEN

Plaintiff

AND:

TROY FOSTER

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 10 October 2014)

An application was made to discharge the jury on the basis of inadvertent disclosures made by the defendant in giving evidence. I refused the application. These are my reasons for doing so.
During cross-examination, the defendant was asked:
And you’d been staying there, what for long time before this incident?
He responded:
I come from Berrimah in April.
Later, in cross-examination the following exchange occurred:
Q: “So you’ve got a good memory for someone who was very drunk then? – Yeah, it took me one year to think of in Berrimah, to clear my mind.
……
Q: “So your memory is much better now than it was say, last week because you looked at that footage in here? – Yeah, I went that back there in Berrimah and thinking, that’s what I was doing I follow Jane”
Counsel for the defendant submitted that the jury should be discharged because the jury might make the connection between “Berrimah” and prison, assume that the defendant had been in prison on an earlier occasion and accordingly would speculate as to the defendant’s bad character.
The defence relied on R v Knape[1] in which the Victorian Court of Appeal held:
“However, 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 judgement of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused.”[2]
It was submitted further that the resulting prejudice could not be cured by an appropriate direction, and indeed, that any direction had the potential to highlight a problem that may not exist: there was some difficulty in following the evidence of the defendant who spoke a heavily intonated form of Aboriginal English and the jury might not have picked up the word “Berrimah” or, if they did, have made the connection with the prison.
Mr Read SC for the defence pointed out that the trial had only proceeded for a net…

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 Foster

Details

AGLC: R v Foster [2014] NTSC 47
Case: [2014] NTSC 47
Decision Date: 10 October 2014

CaseChat Overview and Summary

The Supreme Court of the Northern Territory was presented with a case where Troy Foster was charged with various offences, including aggravated assault and breaching a Domestic Violence Order (DVO). During his cross-examination, Foster inadvertently disclosed that he had been in Berrimah, a location that could be associated with a prison, which led to an application to discharge the jury. The defence argued that this inadvertent disclosure could prejudice the jury against Foster, potentially leading them to speculate about his character based on his prior incarceration. The court had to determine whether discharging the jury was necessary to ensure a fair trial, considering the inadvertent disclosure and the extent of the prejudice it might cause.

The legal issue before the court was whether the inadvertent disclosure of Foster's prior incarceration warranted the discharge of the jury to safeguard the fairness of the trial. The court had to weigh the inadvertent disclosure against the existing evidence of Foster's bad character, which included his guilty plea to aggravated assault and his admission of breaching a DVO and assaulting the complainant. The court considered whether the inadvertent disclosure could significantly prejudice the jury's decision beyond the evidence already presented and whether a strong warning could mitigate any potential prejudice.

Kelly J held that discharging the jury was not necessary to ensure a fair trial. The inadvertent disclosure that Foster had been in Berrimah was unlikely to cause additional prejudice beyond what the jury had already been made aware of through Foster's guilty plea and his admissions during his evidence. The court considered that the jury might naturally assume that Foster was in Berrimah awaiting trial for the serious charges he was facing, which would not suggest anything more about his character than what was already evident from the trial's proceedings. The court believed that a strong warning could adequately address any minimal additional prejudice that might result from the inadvertent disclosure.

The court's decision did not result in the jury being discharged, and the trial continued with the jury instructed to disregard any inappropriate reasoning that might arise from the inadvertent disclosure.

Orders