R v Johnstone (Ruling No 2)

[2011] VSC 307

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1556 of 2007

THE QUEEN	Plaintiff
v
AARON JAMES JOHNSTONE	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2011
DATE OF RULING:	9 June 2011
CASE MAY BE CITED AS:	R v Johnstone (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 307

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CRIMINAL LAW – Trial – Application for discharge of jury – Whether prosecution opening materially misstated opinion of expert witness – Whether prosecution opening unfairly prejudicial – Whether high degree of need to discharge jury – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Rochford SC with Ms S Flynn	Craig Hyland, Solicitor for Public Prosecutions
For the Defendant	Mr J Desmond	Marich Legal

HIS HONOUR:

1. Mr Desmond seeks to have the jury discharged on the basis of the cumulative effect of three matters.  First, in the course of the prosecution opening, Mr Rochford compared the chair with which it is contended at one point the accused hit the deceased to a chair at the Bar table.  Mr Rochford submits that the point of the reference was to identify the relevant chair as one with castors and legs coming out from a central column, but Mr Desmond submits that the comparison was prejudicial to the accused because the chair is substantially heavier and in fact of a different form from the computer chair in evidence. 

1. What Mr Rochford said was: ‘Also located in the area was an office chair in the corner of the room that had bloodstains on various parts of the chair.  The back rest was separated from the main body.  It’s a chair not unlike this,  not the same size, but on castors and a central wheel.  You will see photographs and you will see the chair in the fullness of the evidence.’ (T83)

1. It seems to me that when both, as I understand it, the chair itself and photographs of the chair are to be placed before the jury, there is nothing in this point.  The jury have been told that counsels' addresses are not evidence and, in my view, there is no real basis for apprehending that they will somehow be misled as to the nature of the chair.  It is a common type of chair and its nature will be made clear by the evidence which is to be led.

1. Secondly, Mr Desmond submits that in the course of his opening address, Mr Rochford deliberately dropped the statue of the platypus used in the course of the fatal assault, onto the rostrum on the Bar table, causing a thudding noise.  It is said that this was unfairly prejudicial because it created an impression of likely impact and it conveyed a sense of heavy impact. 

1. Mr Rochford submits that he simply placed the platypus on the rostrum and that he did so after demonstrating the manner in which the accused says in his record of interview that the platypus was dropped from chest height onto the supine victim.

1. In my view, Mr Desmond is correct that there was some dropping of the platypus as it was placed on the rostrum which did create a thumping noise which tended to emphasize the nature of the impact which the prosecution will allege.  The dropping of the platypus was preceded and accompanied by the following statement: ‘Also found at the house by Sergeant Dacey was a clay statue in the shape of a platypus.  This is it.  As you can tell from that, it’s fairly solid.’  (T84) 

1. Nevertheless, once again, the jury have been told that the evidence is not what they see and hear in counsels' addresses.  The jury will be given evidence as to the precise weight of the platypus.  They will also have the platypus to take out with them as an exhibit.  They will be able to handle it. It seems to me they will form their own view as to the relative weight of the platypus and they will assess its likely impact against the evidence as a whole, including the accused's description of the manner in which he dropped the platypus and the nature of the injuries to the deceased, including fracture injuries. 

1. I am not persuaded that the accused has been unfairly prejudiced by the manner in which this matter was opened.

1. Thirdly, it is said that Mr Rochford unfairly created the impression that the evidence of Mr Jones will establish that the platypus was dropped twice upon the deceased.  The substance of the relevant part of Mr Rochford's address was contained in a written opening provided to Mr Desmond in advance of today. 

1. It states, ‘Also found at the scene by Sergeant Dacey was a clay statue in the shape of a platypus.  This was positioned on top of the fireplace.  This ornament was covered in blood deposits on both the under and upper surface of the statue.  By analysing the number of bloodstains, their location and the type or appearance of the stains, i.e. contact stains or airborne deposits, the DNA expert, Mr Jones, was of the opinion that “at least two forceful events occurred to create the distinctive blood spatter pattern on the under surface and at least one causing airborne deposits to form on the upper surface.”  The implications of this statement are not entirely clear and might be confusing.  Nevertheless, it seems to me that the impression conveyed to the jury would simply be that at least two forceful events occurred creating blood spatter patterns.

1. I accept that the precise nature of Mr Jones' evidence at the first trial is a matter of sensitivity from the defence point of view. 

1. My attention was drawn to various parts of the transcript of the first trial including the following on page 386.  Question: ‘Mr Jones, in your opinion, the location and appearance of bloodstains on the statue, do they indicate how many forceful events this statue has been involved in?’  Answer: ‘Yes.  Well, I formed the opinion that it was possibly involved in all, or directly one, forceful event and that would be through the formation of the staining underneath, the under surface of the statue, and also the fact that it has deposits of blood on the upper surface, meaning what appears to be some of them at least seem to be spatter type stains, would indicate that the statue was in the vicinity of when some other forceful event occurred, so not necessarily being involved itself, but maybe some other impacting surfaces, impacting situation taking place where the statue was located in proximity to that, so it would indicate possibly at least two forceful events, I would say.’

1. I am not persuaded that the opening materially misstates Mr Jones' opinion although I accept it is somewhat confusingly expressed.  Further, I am not persuaded that the manner in which it was expressed materially misled the jury as to the ultimate effect of Mr Jones' evidence.  It seems to me that that evidence will, again, be explored and clarified in front of the jury and I do not accept that some preliminary statement about it in opening in the form adopted by Mr Rochford is likely to have prejudiced the accused.

1. The ultimate test I must apply is whether the discharge sought is required by a high degree of need.  See The Queen v Boland (1974) VR 849, 866.

1. In Crofts v The Queen (1996) 186 CLR 427 that test was approved by the High Court by Toohey, Gaudron, Gummow and Kirby JJ, who went on to say, ‘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 possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishaps occurs, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.’

1. In the present case insofar as what has been said about the chair and the manner in which the platypus was produced are concerned, I do not accept that such exaggeration of aspects of the evidence as has been involved was deliberate or that it is likely to adversely affect the course of the trial.  Insofar as the reference to Mr Jones is concerned, I have already said that I do not accept that there was anything materially misleading in what was said.  At worst it was somewhat confusing.  In particular, I do not accept that the prosecution told the jury in effect that Mr Jones’ evidence was that the platypus was dropped twice.  Moreover, given that what was said was foreshadowed in terms in the written opening, it can hardly be said that there was any major fault on the part of the prosecutor. I accept any inadequacy was inadvertent. 

1. When all the above matters are put together, I am not persuaded there is a high degree of need to discharge the jury. I do not accept the jury has been materially misled.  Such small slips as have occurred were not deliberate.  The jury have already been directed that counsels’ addresses are not to be treated as evidence.  The evidence itself will clarify each of the matters in issue.  Its effect can be addressed by counsel and, if necessary, emphasis in the judge’s charge.