R v Lewis

[1998] VSC 18

SUPREME COURT OF VICTORIA

CRIMINAL JURISDICTION g

Not Restricted

No. 1433 of 1996

THE QUEEN

v

EDWIN ANDREW LEWIS

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JUDGE:	TEAGUE, J.
WHERE HELD:	Melbourne
DATE OF RULING:	3 July 1998
DATE OF REASONS:	6 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 18

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CATCHWORDS:	Application to discharge jury - Comments as to repetition of submissions and time taken in closing address.
R v Higgins (1994) 71 A Crim R 429; R v Wilson and Grimwade (1994) 73 A Crim R 190.

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr. S. Langslow with	Victoria Legal Aid
Ms. J. Dixon
For the Crown	Mr. B. Morgan-Payler Q.C.	Office of Public Prosecutions
with Ms. M. Sexton

RULING 6

HIS HONOUR:

1. On Friday 3 July, Mr Langslow was continuing his final address to the jury. That address had commenced at about 11 a.m. on Wednesday 1 July. It continued through the Thursday and into Friday. Immediately prior to the luncheon adjournment, I asked Mr Langslow how much longer that he expected to be. His address had then been going for about 9 hours. In response to my request, he said that he would not finish on the Friday. Later he indicated that he expected to be close to finishing on Monday afternoon. That would have meant about another five hours. I expressed my concern both as to the time taken, and as to the repetition of some submissions. I indicated that, despite my concern, I was not proposing to impose a limit on the time of Mr Langslow’s address. I adverted to the possibility of my reacting if the jury indicated to me a concern that I proposed to impose no limit. I noted that Mr Morgan-Payler had, in his final address, spoken for about three hours. I noted that Mr Langslow had already been speaking for more that three times that long.

2. Immediately after the luncheon adjournment, Mr Langslow applied that I discharge the jury. He argued: that I had prejudiced a fair trial by speaking as I had spoken; that he was entitled to repeat submissions; that it would be improper to put a time limit on his final address; that it was absurd to suggest that any time limit could be measured in any way the length of the prosecutor’s final address; that I had continually yawned during his address, which was an improper and prejudicial comment on the address; and that it was improper for a judge to put matters of judicial dispatch of business ahead of considerations of justice. Mr Morgan-Payler chose not to say anything other than that the application should be dismissed. I said I would dismiss the application and that I would give my reasons later. These are the reasons.

3. I do not accept that anything in what I said or did went close to prejudicing the fair trial of the accused. There is no question that my prime concern has at all times been to secure a fair trial. Consistent with that approach, I did at times during the trial indicate my concern that a fair trial could be prejudiced by a lack of dispatch. Knowing that the trial was likely to take many weeks, I had reviewed carefully what had been said by the Court of Criminal appeal in R v Higgins (1994) 71 A Crim R 429 and R v Wilson and Grimwade (1994) 73 A Crim R 190. Before the jury was empanelled, I drew the attention of counsel to those cases. I imposed time limits on the opening addresses of counsel for both the prosecution and the defence. I urged the taking of measures, like putting submissions in writing, which would minimise the time when the jury was left out of court.

4. I believe that I sufficiently made clear that my position was that I was not intending to impose a limit on the final address, despite my concerns. I did refer to the length of the prosecutor’s address and to the possibility of my reacting to a jury request. However, the context was such as to sufficiently indicate that both matters were said not to be what would, but rather what might possibly, be taken into account, if my position was other than what it was.

5. The matter which prompted me to raise my query and to comment on repetition was of some immediacy. Mr Langslow had earlier made more than once submissions as to two matters. One was as to what he claimed were defects in the Crown case of pre-meditation. The other was as to what he put was the value of independent records including as to telephone calls. Only a few minutes before I raised my query, Mr Langslow said twice that he was putting again what he had put before. Of course, some repetition on the part of counsel can be appropriate. It must be a matter of degree, not the subject of bright lines. Surely jurors too know what Lewis Carroll was driving at with the line: “What I tell you three times is true.”

6. Mr Langslow put to me that during the morning I had been “continually yawning as if bored”. I may well have yawned one or more times. If I yawned, it was certainly not contrived to show or suggest that I was bored.

7. My question to Mr Langslow and my expression of concern were in no way directed to the merit of his arguments.

8. I was satisfied that there was no substance in the claims put to support the application. I was satisfied that there was no necessity for the discharge of the jury.

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