R v Hunter (No 8) - [2014] NSWSC 1151

Supreme Court

New South Wales

Medium Neutral Citation: R v Hunter (No 8) [2014] NSWSC 1151
Hearing dates: 10 July 2014
Decision date: 10 July 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
The application is refused.

Catchwords: CRIMINAL LAW - inadmissible opinion evidence given by witness in the witness box - evidence prejudicial to accused - application by defence counsel for discharge of whole jury - whether there is a high degree of necessity for the jury to be discharged - need to consider the inadmissible evidence in the context of all of the evidence foreshadowed and led in the trial so far - ability to delete inadmissible evidence from transcript provided to jury
Cases Cited: Glennon v R [1994] HCA 7; 179 CLR 1
Libke v R [2007] HCA 30; 230 CLR 559
R v Ahola (No 6) [2013] NSWSC 703
R v Clark [2010] NSWCCA 94
R v Helmhout [2000] NSWSC 218
Trieu v R [2012] NSWCCA 169
Category: Interlocutory applications
Parties: Regina
Paul Andrew Hunter
Representation: Counsel:
M Cinque (Crown)
D Carroll (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Shiranica Danieli Lawyers (Accused)

File Number(s): 2011/397367

EX TEMPORE Judgment

Defence counsel has applied for a discharge of the whole jury. The application is based on the following exchange between the Crown Prosecutor and the witness, Mr Tory Gardner, in his evidence-in-chief on the afternoon of Tuesday 9 July 2014. The evidence, placed in a little of the proceeding context, is as follows:

Q. Sorry, he being Paul Hunter?

A. Yeah, sorry. Paul was walking towards Carlisle Avenue, just yelling stuff out, like what he had previously said, like "You had better get out of there. I will be back with me brothers and guns," and I just wasn't really worried by that stage. I just started walking back to my father's house.

Q. Right?

A. And as I've gotten into my dad's house he's just straight in my face?

Q. Your father?

A. Yeah, calling me Mary and telling, he said, "Oh you and your girl Sammi, pack your bags and get out of me house. I don't want youse here any more," and I just said to my father, I said, "I am not going anywhere". I said, "Womba" Paul "Paul's just said that he's coming back to get ya, and he's known for doing stuff like that. I'm not going anywhere".

Q. All right, thank you?

A. And that's exactly what I said to me dad. I said, "I'm not going anywhere, like he's known for doing that stuff".

HIS HONOUR: Yes. Yes, Madam Crown, next question please.

In a nutshell, defence counsel submits that the jury heard and must have realised that the witness was stating that, as at the date of the offence alleged, the witness believed that the accused had a reputation for violence, and that the witness conveyed that belief to his father.

The possibility of the application was not notified to my…

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 Hunter (No 8)

Details

AGLC: R v Hunter (No 8) [2014] NSWSC 1151
Case: [2014] NSWSC 1151
Decision Date: 10 July 2014

CaseChat Overview and Summary

The defendant, Hunter, was charged with a criminal offence and the case was heard in the Supreme Court. The nature of the dispute centred around the admissibility of opinion evidence given by a witness during the trial, which the defence argued was prejudicial to the accused. The defence counsel made an application for the discharge of the entire jury, arguing that the inadmissible evidence was so prejudicial that it necessitated a new trial with a different jury. The central legal issues the court needed to address were whether there was a high degree of necessity for the jury to be discharged and whether the prejudicial effect of the inadmissible evidence could be mitigated by removing it from the transcript provided to the jury.

The court considered the extent of the prejudicial effect of the inadmissible evidence in the context of all the evidence presented so far in the trial. The court acknowledged that the evidence was indeed prejudicial but weighed this against the totality of the evidence led in the trial. It was determined that the prejudicial effect could potentially be mitigated by redacting the inadmissible evidence from the transcript provided to the jury, thereby ensuring that the jury could focus solely on the admissible evidence. The court concluded that the high degree of necessity for discharging the jury did not exist as the prejudice could be managed by redacting the inadmissible evidence.

Given the reasoning above, the court denied the defence counsel's application to discharge the entire jury. Instead, it directed that the inadmissible evidence be redacted from the transcript provided to the jury, thus allowing the trial to proceed with the same jury. This decision balanced the need to protect the integrity of the trial with the practicalities of managing prejudicial evidence in a legal proceeding.

Orders