R v McDermott (Ruling No 4) - [2015] VSC 655

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0195

THE QUEEN
v
CRAIG McDERMOTT	Accused

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	12 and 13 November 2015
DATE OF RULING:	13 November 2015
DATE OF PUBLISHED RULING	18 November 2015
CASE MAY BE CITED AS:	R v McDermott (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2015] VSC 655

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CRIMINAL LAW – Application to discharge jury – Whether witness’ disclosure of irrelevant bad character evidence of the accused must result in jury being discharged – Whether comment to jury about witnesses competency under s 13 of the Evidence Act 2008 (Vic) must result in discharge of the jury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kissane QC with Ms E Ruddle	Office of Public Prosecutions
For the Accused	Ms C Randazzo SC with Mr J Desmond	Doogue O’Brien George

HIS HONOUR:

Introduction

The prosecution case against Mr McDermott, the accused, in relation to motive and intention, relies in part upon specific threats made by Mr McDermott in the weeks leading up to Ms Warzywoda’s death (which I have set out in my first ruling).

This ruling concerns an application made by Mr McDermott for the discharge of the jury on two grounds.

The first relates to evidence given in the course of cross-examination by the deceased’s brother, Joshua Warzywoda. He referred to unspecified threats made by Mr McDermott against the deceased which are not part of the prosecution case.

The second relates to a statement I made to the jury early in the evidence of P, Ms Warzywoda’s 11 year-old child, as to P’s competency to give evidence under the Evidence Act 2008 (Vic).

Principles

It is well established that there must be a high degree of a need for a jury to be discharged in a criminal trial. It is not necessary to go beyond what was said by the Court of Appeal in R v Halliday[1] on this issue.
[1](2009) 23 VR 419.

In R v Hortis,…[Nettle JA] explained:
The decision of the Court of Criminal Appeal in R v Knape suggests that an irregular disclosure of evidence of an accused’s bad character must result in the jury being discharged unless it can be said that the disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty. But that is not the law. As is shown by subsequent decisions of the Court of Criminal Appeal in R v Boland and R v Vaitos, and was observed by the New South Wales Court of Criminal Appeal in R v George, Harris and Hilton, the informing principle is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring…

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 McDermott (Ruling No 4)

Details

AGLC: R v McDermott (Ruling No 4) [2015] VSC 655
Case: [2015] VSC 655
Decision Date: 13 November 2015

CaseChat Overview and Summary

The case of R v McDermott (Ruling No 4) involved the defendant, McDermott, facing criminal charges. The issue at hand was whether certain actions taken by the trial judge necessitated the discharge of the jury. Specifically, the defendant argued that the trial judge had erred by not discharging the jury after a witness disclosed irrelevant bad character evidence about the accused. Additionally, the defendant claimed that a comment made by the trial judge to the jury regarding the competency of a witness under section 13 of the Evidence Act 2008 (Vic) warranted the jury's discharge. The court was tasked with determining whether these actions constituted fundamental errors that required the jury to be discharged.

The court examined the two main issues presented by the defendant. Firstly, the court considered whether the disclosure of irrelevant bad character evidence by a witness required the jury to be discharged. The court found that the trial judge had properly instructed the jury to disregard the irrelevant evidence and had given a strong direction that the evidence was not to be considered. The court held that the trial judge's handling of the situation did not necessitate the discharge of the jury. Secondly, the court addressed the comment made by the trial judge regarding the competency of a witness. The court held that the comment did not amount to a fundamental error that would require the discharge of the jury, as the comment did not prejudice the defendant's case.

In summary, the court determined that the trial judge's actions did not warrant the discharge of the jury. The court found that the trial judge's instructions to the jury to disregard the irrelevant evidence and the comment regarding the competency of a witness did not prejudice the defendant's case or constitute fundamental errors. As such, the court dismissed the defendant's application to discharge the jury.

Orders