R v Gill & Mitchell
[2003] VSC 320
•7 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1408 of 2003
| THE QUEEN |
| v |
| JASON RUSSELL GILL and MICHAEL PATRICK MITCHELL |
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JUDGE: | REDLICH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2003 to 21 May 2003 | |
DATE OF RULING: | 7 May 2003 | |
CASE MAY BE CITED AS: | R v Gill and Mitchell | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 320 | |
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CRIMINAL LAW – Ruling No. 3 - Application for discharge of jury – No circumstance of a high degree of need to discharge jury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. McArdle Q.C. with Ms R. Carlin | Ms Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused Jason Russell Gill | Mr L. Hartnett | Chester Metcalfe & Co |
| For the Accused Michael Patrick Mitchell | Mr D. Drake | Grubissa White |
HIS HONOUR:
Application has been made on behalf of the accused Jason Russell Gill that I discharge the jury as a result of certain evidence given by the witness Lucas Stanbury on the afternoon of 5 May 2003. In answer to the learned prosecutor, Mr Stanbury said during the course of his evidence-in-chief that he and Christopher Elmes went to collect the accused, Jason Gill from cricket training at about 6.00 pm. He was then asked:
Question: ”After you collected Jason Gill, what did you do?
Answer:Went to another of Jason's or Chris's associates, we went and bought, I think, about a gram of speed.
Question: That was up in - - -?
Answer: Preston.
Question: Preston, was it?
Answer: Went to Preston after that.
Question: Now, did you then return back to the house at - - -?
Answer: Beatty Street.
Right.
His Honour: Speed, that is an amphetamine, is it?
Answer: `That's correct, yes.
Mr McArdle: Did you then - what happened next?
Answer:Everyone just kept drinking, talking, mingling together, and we all sort of started to arrange to go out for the night.”[1]
[1]See Trial Transcript at 467.
Mr Stanbury’s evidence-in-chief continued for about half an hour at which time Mr Hartnett indicated that he wished to mention something in the absence of the jury. I was then informed that, as a result of Mr Stanbury giving similar evidence during the Basha Inquiry, he had conferred with the prosecutor, Mr McArdle, and indicated that he did not require such evidence to be led from Mr Stanbury and did not intend to cross-examine Mr Stanbury in relation to that matter. Mr McArdle agreed not to lead such evidence from Mr Stanbury. Mr Hartnett accepted that the evidence that had been given did not suggest that the accused had either bought the speed or taken it. Mr Hartnett submitted that as the evidence stood, the jury might speculate about whether the accused Gill had been involved in some criminal activity in relation to the purchase of speed. In the course of his submission, Mr Hartnett raised the possibility that the jury might also speculate as to whether the accused Gill or Mr Stanbury or both of them might have taken some of the speed and whether it had had any effect on either of them. It was submitted that such evidence had the potential to reflect adversely on Mr Gill’s credit which was significant "to the overall conduct of the trial". Mr Hartnett sought a discharge of the jury.
I was referred to the evidence which Mr Stanbury had given during the course of the Basha Inquiry. On 29 April 2003 on the voir dire, Mr Stanbury gave the following evidence in relation to questions asked of him:
Question: Had you taken any drugs that night?
Answer: I think a bit, hours earlier, I think we had a little bit of speed, yes.
Question: Speed have any effect on you?
Answer: Not a great deal, no.
Question: Who had the speed?
Answer: Myself, Jason and I think Tipper.
Question: And where was that supposed to have been had?
Answer: Out in Preston.
Question: Out in Preston?
Answer: Yes.
Question: What time?
Answer: I suppose about just after 5 o'clock, bit after five.
Question: You hadn't told us about going to Preston?
Answer: I said - yes, I mentioned that before, yes.
Question: What?
Answer: I mentioned that before in my statement.
Question: Whereabouts were you when you had that?
Answer: Round the, the back of the hospital, I think.Question: In a car?
Answer: Yes.
Question Who gave it to you?
Answer:I don't recall who actually give it to me, it was - one of the lads went and seen someone in Preston, picked it up, jumped back in the car and we mixed it up and had it.
Question: And it was around about 5 o'clock?
Answer: Just after five, yes, bit after.
Question: Before you went to cricket training to pick Jason up or
after?
Answer: I think it was after, if I recall.
Question: Had you taken any drugs that night?
Answer: I think a bit, hours earlier, I think we had a little bit of speed, yes.Question: Speed have any effect on you?
Answer: Not a great deal, no.
Question: Who had the speed?
Answer: Myself, Jason and I think Tipper.
Question: And where was that supposed to have been had?
Answer: Out in Preston.
Question: Out in Preston?
Answer: Yes.
Question: What time?
Answer: I suppose about just after 5 o'clock, bit after five.
Question: You hadn't told us about going to Preston?
Answer: I said - yes, I mentioned that before, yes.
Question: What?
Answer: I mentioned that before in my statement.
Question: Whereabouts were you when you had that?
Answer: Round the, the back of the hospital, I think.
Question: In a car?
Answer: Yes.
Question: Who gave it to you?
Answer:I don't recall who actually give it to me, it was - one of the lads went and seen someone in Preston, picked it up, jumped back in the car and we mixed it up and had it.
Question: And it was around about 5 o'clock?
Answer: Just after five, yes, bit after.
Question: Before you went to cricket training to pick Jason up or after?
Answer: I think it was after, if I recall.”[2]
During the application Mr Hartnett informed me that he had no intention of asking Mr Stanbury those questions on the trial if his application was refused.
[2]See Trial Transcript at 110.
The application for the discharge of the jury was adjourned until the morning of 6 May 2003. Mr Hartnett then reiterated the arguments advanced the previous afternoon but also referred to the reputation that speed has for inducing irrational or violent behaviour in some who take it.
The Crown opposed this application submitting that the introduction of this evidence had not created a high degree of necessity for the jury to be discharged. Mr McArdle also informed me that it was not his intention to revisit this topic during the course of Mr Stanbury’s evidence.
It was unfortunate neither Mr Stanbury nor I had been informed as to the agreement reached between the Crown and the defence concerning this subject. Mr Stanbury it appears arrived at Court only a short time before he commenced to give his evidence-in-chief and he was not informed as to what had been agreed upon. It appears that during the short period that Mr McArdle was in the precincts of the Court conferring with Mr Stanbury before he commenced his evidence-in-chief, Mr McArdle was assaulted by a woman who was involved in a trial being held in another Court. His glasses were smashed and he was no doubt distracted by this unsettling incident. Mr Hartnett accepts that the manner in which this matter emerged was entirely inadvertent.
Both parties have submitted that a discharge of the jury should only occur in circumstances where there is a high degree of need. In Crofts v R[3] the High Court confirmed that the test for the discharge of the jury was in accordance with the long standing practice in Victoria that a high degree of need was required. See R v Harrison;[4] R v Boland;[5] Holt & Merriman[6] and R v Mathews.[7]
[3](1996) 186 CLR 427.
[4][1957] VR 117.
[5][1974] VR 849.
[6](1996) 87 A Crim R 82.
[7][1999] 1 VR 534.
In the joint judgment of Toohey, Gaudron, Gummow and Kirby JJ. in Crofts v R it was observed:
“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibility of slips occurring are inescapable. Much depends upon the seriousness of the case in the context of the contested issues; the stage at which a mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”[8]
[8]See Crofts v R supra at 440.
This incident occurred on the afternoon of the fourth day of the trial. Despite the agreement reached between the prosecution and the defence, it is clear that the incident arose out of inadvertence. It was not an incident that was likely, given the parties disinterest in the issue, to be viewed by the jury as a matter of any significance. Furthermore, the directions I would give would remove any prospect of its apprehended impact.
During submissions I indicated to the parties that in the event that I rejected the application, it was my intention, unless I was persuaded otherwise, to give the jurors a direction that the evidence was irrelevant to any issue in the trial, that no party attached any significance to such evidence and that the jury should disregard it. Both the defence and the Crown informed me during submissions that no party would seek to further explore this issue with the witness and neither party returned to this issue during the balance of the witness's testimony. At the conclusion of the witness's testimony I gave the jury a direction in accordance with that which I had adumbrated with counsel.
The acquisition of the speed occurred some nine hours prior to the time that the deceased was killed. According to Mr Stanbury’s evidence on the voir dire, the speed was immediately shared and taken by Mr Stanbury and Mr Gill and perhaps also by Mr Elmes. According to Mr Stanbury it had little effect. The acquisition and ingestion of speed some nine hours earlier was understandably viewed by both parties as having no probative value upon any fact in issue in the trial. It must also be remembered that the Crown case, which does not thus far appear in dispute, is that each of the accused had consumed a very substantial amount of alcohol over many hours subsequent to this incident and before the deceased was killed.
The purchase and consumption of amphetamines is an all too common incident of social life in this day and age. There is no suggestion that the death of the deceased was related in any way to any illegal activity involving drugs. Consequently, even in the absence of my direction, I consider it highly unlikely that the jury would have focussed on whether Mr Gill was involved in an illegal activity or utilise such a conclusion in an adverse manner in relation to any issues in the trial.
In addition to the direction which I have already given to the jury, the jury will be given the ineluctable direction requiring them to act only upon the evidence and to avoid any speculation. There is no evidence before the jury that the accused acquired or took speed. They will also be required to put aside feelings of bias, prejudice or sympathy that may have been evoked by evidence placed before them. In those circumstances and bearing in mind that the parties do not intend to make any reference to this evidence or argue that this issue can assist the jury I can see no risk of prejudice to the accused let alone one giving rise to a necessity to discharge the jury.
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