R v Gordon (No 6) - [2017] NSWSC 193

Supreme Court

New South Wales

Medium Neutral Citation: R v Gordon (No 6) [2017] NSWSC 193
Hearing dates: 9 – 28 February; 1 – 3 March 2017
Date of orders: 22 February 2017
Decision date: 22 February 2017
Jurisdiction: Common Law
Before: Campbell J
Decision:
Application by the defence to discharge the jury is refused.

Catchwords: CRIMINAL PROCEDURE – application for discharge of the jury – where a Crown witness made certain statements in a walk through interview that would have been inadmissible in Court – where that Crown witness made gratuitous remarks in Court to the accused – where a direction was given that such remarks are not evidence and are to be ignored – whether a fair-minded observer would believe that the jurors could bring impartial minds to the case – direction given in relation to evidence held to be sufficient – application for discharge refused
Category: Procedural and other rulings
Parties: Regina (Crown);
Donald Patrick Gordon (Accused)
Representation:
Counsel: B G Campbell (Crown);
J P Watts (Accused)
Solicitors: Director of Public Prosecutions (NSW)
Aboriginal Legal Service (NSW/ACT)

File Number(s): 2013/337128

EX TEMPORE JUDGMENT (REVISED)

On the tenth day of this trial at Grafton with a jury of twelve, Mr Watts of learned counsel who appears for the accused, Mr Donald Gordon, has applied for the jury to be discharged. Counsel argues that following events which occurred in the course of the evidence of a particular witness the jury will be unable to bring an impartial mind to bear in deciding whether or not the accused is guilty as charged; or at least, given those events, justice will not be seen to be done if the trial continues before this jury.
The witness concerned is Mr Anthony Gordon who is a first cousin of the accused. As I understand the evidence I have heard, although first cousins, they did not spend much time together as youngsters. The accused was effectively adopted by an aunt and raised by her. They did not become reacquainted until adulthood and rekindled the family bond, becoming good friends.
From his evidence, Mr Anthony Gordon spent time in various parts of New South Wales and had not long returned to the Grafton region when the events with which this trial is concerned occurred on 7 November 2013.
Mr Donald Gordon is accused of the murder of Mr Danial Cotter. This is alleged to have occurred at Collum Collum Station near Baryulgil in the early hours of 7 November 2013. Mr Gordon is accused of having run Mr Cotter over with a motor car and of having bludgeoned him with “Exhibit C”, a rock, weighing about 21 kilograms, not necessarily in that order.
There is no dispute that Mr Cotter died as a result of a combination of injuries then received but in particular as a consequence of a severe traumatic brain injury associated with a transverse fracture of the base of his skull. The evidence I have heard so far from Professor Lyons, a forensic pathologist, is that either the motor car or the rock could have inflicted the relevant trauma, but he prefers the latter.
Mr Gordon and Mr Cotter had both been drinking, separately, on the afternoon of 6 November 2013. They were friends and neighbours. Mr Gordon had been drinking with Mr Anthony Gordon and their uncle Mr Andrew Donnelly. It was agreed that the three would retire to Collum Collum Station where Mr Donnelly was the manager and continue socialising.
Mr Donald Gordon returned to his home apparently to drop off his car but changed his mind and drove up to Mr Cotter's home, picking him up to take him out to Collum Collum Station with the others. The socialising continued throughout the evening and involved Mr Gordon and Mr Cotter drinking beer, bourbon pre-mixed drinks and red wine. There is no reason to suppose for the purpose of this judgment that they were other than well intoxicated at the time they decided to leave Collum Collum Station at around midnight. Indeed the forensic evidence in the case indicates that at the time of his death Mr Cotter had a blood alcohol reading getting on for twice the threshold for a high range PCA.
Given that they were drinking over the same period of time and sharing drinks, it may be logical to assume that Mr Donald Gordon's reading would have been the same or thereabouts had one been taken. In any event as I have said Mr Anthony Gordon was one of the party. He remained at the farmhouse with Mr Donnelley when the others left.
Part of the Crown case is that sometime after Mr Donald Gordon and Mr Cotter left, Mr Donald Gordon returned in something of a panic on his own saying that he had “hurt” Mr Cotter. Mr Anthony Gordon then accompanied him on foot to the place where this was said to have occurred which is a point on a dirt roadway about 50 metres from the gate to Collum Collum Station and within its boundary. When they got there Mr Donald Gordon's car was pointing south, which is the opposite direction to their home, and Mr Cotter was lying on the roadway. He was obviously severely injured so far as Mr Anthony Gordon could tell, with much blood about his head. He was unconscious but seemed to be breathing.
The Crown case is that Mr Anthony Gordon quickly returned to the farmhouse to ring the ambulance. He then left in his vehicle, a twin cab ute, to intercept the ambulance to make sure it found its way to Collum Collum Station which is in a remote location, about 90 kilometres north-west of Grafton, whence the ambulance was coming.
The circumstances giving rise to the application are as follows. When called to give evidence yesterday afternoon it was apparent from his demeanour that, as Mr Watts submits, Mr Anthony Gordon was a reluctant or sullen witness. Notwithstanding the inherently memorable quality of the events in which he was involved he professed a certain lack of recall and spoke quietly, slumped in the seat in the witness box with his head well down. I acknowledge that given that he is an indigenous man, some of that presentation may have cultural origins bearing in mind some learning about these matters which is available to judges.
He occasionally spoke in his own language addressing the accused. I interpolate that Mr Watts informs me, and it is accepted by the Crown, that despite their blood relationship they speak different Aboriginal languages and the accused did not understand what Mr Anthony Gordon said. Doubtless because of his apparent reluctance, or lack of memory, it was decided to provide the jury with his account by playing a DVD of what is commonly referred to as a “walk through interview” conducted by the investigating detectives on Sunday, 10 November 2013. That procedure was adopted without objection.
However, there are a number of things recorded in the course of that interview which would not have been admissible in evidence had the witness been called to give viva voce testimony in the usual manner. I accept that the significance of some of these matters was overlooked by Mr Watts, a very experienced and able barrister, in his review of the material before consenting to the procedure.
One has to take these things in context but I am not able to set things out in full in the course of this ex tempore judgment. In a very careful and not overbearing interrogation Detective Senior Constable King, and to a lesser extent Detective Senior Constable Burke, took Mr Anthony Gordon through the details of his then recollection and took him to some of the various points of interest where he witnessed the matters relevant to the case.
Not directly responsive to the questions he was asked he volunteered certain conclusions:

"I could work something bad went down in my mind so concern was with Daniel's wellbeing." (page 24 of the transcript, MFI #12)

He was asked:

"…[Y]ou thought something bad had occurred?"

And he said,

"Well you could see it … See something bad had happened."

On page 25 he reiterated that the accused had said that he had “hurt” Mr Cotter and Mr Anthony Gordon added, not in response to any question:

"When someone says that out here you either think they had a bad fight or they've just had a bad blue".

At the end of the interview (at page 37) he said this:

"This has contaminated our sacred place here, brother. You know, our, our fathers fought for this land … And to have one of their little sons do this, how do you think that makes us feel?".
“…I swore and dedicated my life ‘cause his father’s my dad’s younger brother … that I would take care of them kids, specially them boys … And how do you, you can't fucken protect them when they're losing it, mate".

That last passage was volunteered at the very end of the interview, except for certain procedural matters observed at its conclusion. As soon as the tape stopped playing I gave the jury a short direction (at page 624, lines 4-28 of the transcript) to the effect that those matters are not evidence and that the jury should not trouble themselves about whether he was stating some belief about Mr Donald Gordon's culpability and they should put the comments out of their mind and disregard them entirely:

“Members of the jury, you will have picked up from the video that it may seem that Mr Gordon made some statements which would suggest that he jumped to some conclusions. He referred to “something bad” at page 24 and he thought that they had a bad fight or a bad blue and of course at the end there at paragraph 37 he spoke one of his ancestor's “little sons do this".
This is, if you like - well you know what it is. This is an interview between the police and a witness. It's not the formal eliciting of evidence in a court of law. Those types of comments would not be permitted as part of the evidence in a trial because we have rules of evidence that we apply in criminal trials.
As I have explained to you a number of times in a different context, one of those rules is not to permit lay people to express opinions about matters - except in very limited circumstances - about what might have happened. Those conclusions or tentative conclusions or otherwise that Mr Gordon might have seemed to express in the interview are not evidence.
I would ask you to entirely disregard them when you are considering the case. You will appreciate that you are sitting here hearing all this evidence over this period of time and it is not part of your function to jump to conclusions and it is certainly not part of the function of any person called as a witness who wasn't an eyewitness to the salient events to jump to any conclusions.
Please disregard those comments.”

There was a short cross-examination by Mr Watts during which it became obvious that no one was going to do any better with Mr Anthony Gordon than what was on the DVD. There was no re-examination and he was excused.
He had yesterday afternoon indicated in some manner that he would like to say something about the process. When he was excused he made this statement (at page 627, lines 9-10 of the transcript):

“Like actually, I'd ask my ancestors to forgive for speaking up here today. I hope it's been helpful. I hope it's not detrimental, but I don't recall."

I can confess that it was difficult to hear him because he continued to be a bit slumped, head down and speaking softly when he said that, but I have checked the details with the transcript and I am satisfied that I have accurately recorded what he said. He is much closer to the jury than me and at that point in time, as he was excused, it seemed apparent that one or two of the jurors wanted a break and may have become a little emotional about the evidence he gave. I took the morning adjournment early, having asked the jury to disregard the statement because it was not evidence (at page 627, lines 20-25 of the transcript):

“Members of the jury, just disregard those last comments that Mr Gordon made, if you would please. The way we conduct evidence in Court, as you well appreciate now, is that the evidence of witnesses are given in answers to questions that counsel ask them. Matters volunteered or gratuitous statements should not be taken into account and I direct you not to take them into account on this occasion.”

Mr Watts reminded me that he also spoke again in his own language and what he said is not translated.
When I considered the matter in chambers over the usual adjournment, I decided that it was appropriate to give a much more fulsome direction about these matters to the jury which I discussed with counsel upon resumption, hearing their submissions on the content of such a direction, which I considered and I feel I adopted.
I should say that during the course of those submissions, Mr Watts indicated his concerns about Mr Anthony Gordon's evidence and that he felt the need to discuss the matter with his client and take instructions about whether this application should be made. I indicated that I would give him that opportunity during the lunch break and that in the meantime I would continue with the trial.
I gave the jury a longer direction, which is fully recorded in the transcript and extracted below (from page 636, lines 18-44 of the transcript), emphasising that what was said is not evidence, explaining why and reinforcing the direction that I have given at the outset of the trial and every day upon the adjournment of the trial of the need for the jury to act only in accordance with their oath or affirmation on the evidence they hear in Court and not to heed the opinions of any others about the case. Only their opinion, they are told every day, matters and even then they must keep an open mind until all the evidence, all the argument and all of the directions of law are in.

“All right ladies and gentlemen of the jury, I just want to give you a direction about that. Just so there's no confusion about any of it, I'd like to read out what our accomplished court reporter recorded as the statement that Mr Gordon made at the end of his evidence. He said,
"Like actually, I'd ask my ancestors to forgive me for speaking up here today. I hope it's been helpful. I hope it's not detrimental, but I don't recall."

And then he uttered some words in his own language which I'm informed, and there's no reason to think otherwise, is not the same language as Mr Donald Gordon’s; so he didn't understand whatever the words were anyway and we have no translation of them.
As I said to you before we took the adjournment, what he said is not evidence and it's not evidence for the simple reason that it's not a representation of a matter that he saw, heard or otherwise perceived about a fact in issue, to put it in the technical language of the law of evidence. It was a statement.
Now we need to be culturally sensitive to all people who come before the Courts. We live in a multicultural society and we treat all members of our community from all the disparate backgrounds that make up our community with the same level of respect; and we all are equal before the law. So we must be culturally sensitive to Mr Anthony Gordon and his perception of this process.
It's very important, however, that you don't read anything into what he said. It's very important as I tried to say to you during his evidence that you don't take any conclusions he might have seemed to express as part of the evidence in the case because his conclusions are not evidence. You shouldn't think by making the statement he did at the end of his evidence that he was implying some sort of conclusion. You shouldn't look behind what he seemed to say.
As I've said to you every day during this trial many people might have an “opinion” about this case. Many people might have an opinion about “what must have happened”. None of their opinions count for anything; and none of their opinions count for anything because nobody has heard all the evidence; no witness, no member of the community, no person who's come to observe in court has heard all the evidence that you have heard, even so far.
Now frankly Mr Anthony Gordon as a witness in the case doesn't know the whole story. He has not heard all of the evidence that you have heard. Let me put it this way: there's no suggestion that he's an actual eyewitness to the events about which you're going to have to make your decision. So don't read anything at all please into what he said. Don't even mull over it or give it any further consideration. Put it out of your mind. You shouldn't think that witnesses are for or against any party in the trial. This is not a football match. This is a criminal trial. It's a criminal trial for the most serious crime known to our criminal law, at least after the crime of treason.
Crown prosecutors have a particular obligation and their obligation includes complete fairness. That involves calling all of the relevant evidence that will provide the jury, in this case you, with a full narrative of all of the relevant facts that you need to know to enable you to discharge your onerous duty as jurors in the case. Whether a particular witness's evidence in the end is adverse to the accused or whether it's exculpatory of the accused is a matter that only you can decide and it's a matter that only you can decide, not now, but after you've heard all of the evidence and after you've heard all of the arguments and after you've received my directions of law.
So it's not unusual in trials for serious crimes, and this is certainly such a trial, that emotions can run, and indeed it's not unusual that emotions can run high from time to time. That’s not really happened in this trial although there certainly have been emotions expressed and we've all seen that. As jurors you come along to court to judge another member of our community. As I have said already the primary qualification for a juror, as for any judge, is impartiality - the ability to be independent of the parties or independent in fact from the parties and the ability to keep an entirely open mind, to decide the case without fear or favour, prejudice or ill will. It's to decide the case calmly, dispassionately, without emotion. Not to let sympathy for one party or another sway your better judgment. Not to let prejudice against anybody sway your better judgment. To put those negative feelings which we all have from time to time behind you and to, as I have said, dispassionately, calmly and rationally make a decision at the appropriate time.
So ladies and gentlemen, I'm sure that you will all do that so please think nothing of, and think no more about, whatever it was that Mr Anthony Gordon wished to communicate to us in his statement at the end of his evidence. Thank you for your attention.”

Criminal trials are not works of perfection. The law operates in the real world at a practical level. It is not uncommon for things better avoided to arise during the course of evidence. This seems to be almost inevitable given the oral tradition to which we properly adhere in jury trials. Fundamental to trial by jury is the assumption, which underpins the whole system, that juries can and do follow the directions that judges give them. If we were to depart from that assumption the whole system, which has served the community well for 200 years, would be called into question and probably collapse.
Mr Watts acknowledges that the direction was appropriate but submits, as sometimes can occur, that a mere direction is insufficient to guard against, what he submitted, was a real risk of a miscarriage of justice occurring.
In ordinary language, his point boils down to the consideration, I think, that given what a lawyer would say was the unsatisfactory demeanour of Mr Anthony Gordon, and given that statements were allowed to be heard by the jury, both on the DVD and at the conclusion of his evidence, the jury would not be able to put out of their minds a strong suspicion that Mr Anthony Gordon knew more than he told us about or that what he knew was incriminating from the point of view of the accused
Were that impression left, regardless of whether this jury could put those matters out of their mind as directed, there could be a question about whether fair-minded observers might think that they could not and that justice would not appear to be done by their verdict.

Mr Campbell of learned counsel, the Crown Prosecutor, accepts that the matter is a difficult one and agrees that it seemed fairly open to infer that Mr Anthony Gordon did not want to be here in court giving evidence, that he was perhaps tailoring his evidence and that particularly he may have been feigning a lack of recall. However, he submitted that the direction was sufficient, but would need to be reinforced during the final summing-up.
I have given this matter very close and serious consideration. Naturally I am impressed that two such experienced counsel have misgivings about what occurred.
As I have said, the test is not whether the trial is perfect but whether it is fundamentally fair. Had counsel foreseen the course that Mr Anthony Gordon's evidence took, a different approach to presenting his evidence may have commended itself to them, as Mr Campbell submitted. For instance, merely playing the DVD without his attendance may have been agreed. I am not so sure that that would overcome the presently perceived difficulty. He is clearly a very significant witness. The jury have heard about his presence at Collum Collum Station and were he not called to give evidence they might naturally ask questions about his absence. I do not know that the difficulties potentially attending that course are any less than the difficulties attending the course that was actually followed.
I accept Mr Watts' submission that Mr Anthony Gordon's evidence is likely to be very significant and that both the prosecution and the defence will seek to draw much from it in their final arguments to the jury.
I am of the view that the fundamental assumption I have referred to is one well made. Having kept a weather eye on the jury throughout the course of the trial, doing the best I can, I am satisfied that they are very conscientious. It has not been suggested that I should make any enquiry of them to ascertain whether they have concerns about Mr Anthony Gordon’s attitude and in my own view to make enquiries of the jury is likely to be counter-productive. Although there are some matters for concern in Mr Anthony Gordon's presentation and in some of his statements as I have outlined, I am of the view that the jury will accept and act upon the directions I have given them about the evidence which I will reinforce during the summing-up.
I am not persuaded, on balance, that the trial from here on in will be unfair and I am not persuaded, therefore, that I should discharge the jury.

**********

Decision last updated: 06 March 2017

Medium Neutral Citation:	R v Gordon (No 6) [2017] NSWSC 193
Hearing dates:	9 – 28 February; 1 – 3 March 2017
Date of orders:	22 February 2017
Decision date:	22 February 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Application by the defence to discharge the jury is refused.
Catchwords:	CRIMINAL PROCEDURE – application for discharge of the jury – where a Crown witness made certain statements in a walk through interview that would have been inadmissible in Court – where that Crown witness made gratuitous remarks in Court to the accused – where a direction was given that such remarks are not evidence and are to be ignored – whether a fair-minded observer would believe that the jurors could bring impartial minds to the case – direction given in relation to evidence held to be sufficient – application for discharge refused
Category:	Procedural and other rulings
Parties:	Regina (Crown); Donald Patrick Gordon (Accused)
Representation:	Counsel: B G Campbell (Crown); J P Watts (Accused) Solicitors: Director of Public Prosecutions (NSW) Aboriginal Legal Service (NSW/ACT)
File Number(s):	2013/337128