R v McDermott (Ruling No 4)
[2015] VSC 655
•13 November 2015
| 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 a fair trial.
That approach was sanctioned by the High Court in Crofts v R, in which it was said that much depends on the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. The point was reiterated by this Court in R v Su. There are no rigid rules. The principle is one of necessity. There must be a high degree of need for discharge before that course should be adopted.
…
For present purposes, it is unnecessary to determine whether, as Nettle JA has concluded, Knape is no longer to be regarded as good law. However, this much can be said. Knape has never been regarded as laying down an inflexible rule which requires a jury to be discharged whenever evidence of bad character, no matter how inconsequential in the context of the trial, is inadvertently placed before a jury. Rather, that case holds, as do numerous others, that the question to be considered in such circumstances is whether there is a “high degree of necessity” for the jury to be discharged.[2]
[2] Ibid 435 [58]-[60].
Ground 1 – Mr Warzywoda’s evidence of unspecified threats
The answer given by Mr Warzywoda during cross examination was as follows:
I’m putting to you if you were telling the truth that you had heard from P when you were in the car an allegation that Craig had threatened to kill your sister, Fiona, you would have driven that car straight to the local police station or turned the car around straight back to Sunshine court, what do you say to that?
‑‑‑That wasn't the first time Craig’s made an allegation like that, so no.[3]
[3]Transcript of Proceedings, R v McDermott (Supreme Court of Victoria, S CR 2014 0195, J Forrest J) 774 (‘Transcript’).
It was not in issue that the evidence given by Mr Warzywoda is irrelevant to the prosecution case, and, after discussing the matter with counsel, it was agreed that I should give the jury a direction about this evidence, which I did in the following terms:
I just want to talk to you a little bit about [the evidence given by Joshua Warzywoda] and give you a direction about the use of that evidence, okay.
Just before Mr Desmond finished cross‑examining Joshua there was the following exchange between himself and Joshua. Mr Desmond put the question, "I'm putting to you if you were telling the truth that you had heard from P when you were in car allegation that Craig had threatened to kill your sister, Fiona, you would have driven that car straight to the legal police ‑ local police station or turned the car around straight back to Sunshine court. What do you say to that?" That was the question that was asked. And Mr Warzywoda gave the following answer, "That wasn't the first time Craig's made an allegation like that, so no."
The direction I want to give you is this: that answer was unresponsive and irrelevant to this case. It is no part of the prosecution case and is no part of your decision in this case to consider that evidence. It has nothing to do with the case which you've heard opened by the prosecution or that you'll come to consider, so my direction to you, and that is something you must legally adhere to, is that you are to ignore that piece of evidence. So is that clear? It won't be in the transcript because I'll have it taken out of the transcript. It has nothing to do with your deliberation.[4]
[4]Transcript 796.
Counsel for Mr McDermott argued that the jury now having heard this evidence (and notwithstanding the direction), will be significantly prejudiced in its consideration of the element of intent. It was submitted that I should discharge the jury on the basis that the application is made at an early stage in the trial – Mr Warzywoda being the first witness called. It was said that the direction I gave could not sufficiently minimise the risk of misuse by the jury of this piece of evidence, and given the decisions of R v Knape[5] and R v Hortis,[6] the jury should be discharged.
[5][1965] VR 469.
[6][2004] VSCA 143.
There is some substance to the application made on behalf of Mr McDermott. The reference to threats other than those alleged by the prosecution may, I accept, cause the jury to speculate that Mr McDermott had, prior to March, made threats. The vice of this evidence is that it may make it easier for the jury to accept that Mr McDermott ‘continued’ to make threats, as alleged by the prosecution.
I also accept that the trial is only five days old and that there is no major inconvenience to the prosecution case if the jury is discharged.
On the other hand, there are a number of considerations which point to not discharging the jury.
First, the response of Mr Warzywoda is, in effect, a throwaway line. It does not identify any specific occasion, nor to whom the threats had been made in the past.
Moreover, it was made in the context of the witness’ rebuttal of a particularly robust piece of cross-examination asserting, in terms, that he was a liar. Whilst that does not diminish the potential effect of the statement, it gives context to the response and appreciation of it.
Second, the direction given within a short time of the offending statement made it clear to the jury that this piece of evidence was irrelevant.
Third, although it is true that the case has only proceeded for five days, there is a real concern, to my mind at least, about the welfare of the children of Mr McDermott and Ms Warzywoda, who are due to give evidence in this case. To postpone the giving of their evidence would cause them, I am confident, considerable emotional distress. Of course, such a consideration could not prevail if I thought that there was a real prospect of Mr McDermott being denied a fair trial.
Fourth, there is a wealth of evidence to be led in this case about specific threats upon which the jury will be asked to focus. I think it unlikely, to the point of implausible, that the jury will recall what was a relative innocuous remark made in the heat of battle. In any event, my appreciation of the jury was that they clearly understood my direction and will focus on the real issues in the trial.
There is not a sufficiently high risk of prejudice that I should order the discharge of the jury on this ground.
Ground 2 – My statement to the jury about P’s competence
P commenced giving evidence before the jury via video-link from a remote location on 13 November. P’s evidence began by playing P’s VARE interview in court, which was watched simultaneously by P. During the playback P requested a break and at that moment I made the following comment to the jury:
…now while we take a break. The first is this‑ and this is for the purpose of the record, in effect‑ I'm satisfied, and I only need to say this in general terms, I'm satisfied that P is competent to give evidence pursuant to s.13(3) of the Evidence Act.[7]
[7]Transcript 813.
Counsel for Mr McDermott submitted that in making that statement in the presence of the jury, there was a real risk that the jury would misconstrue my comment and infer that I had directed the jury that P was a credible witness.
I reject this submission.
It is important to give context to my ruling. Prior to P giving evidence, and indeed throughout the week before the trial commenced, there was lengthy discussion with counsel regarding the competency of the McDermott children to give sworn evidence. I formed a view that I satisfied the criteria under s 13(3) of the Evidence Act.
The statement in the presence of the jury was solely as to P’s competence as a witness and not to any other aspect of P’s evidence. The words ‘reliability’ or ‘credibility’ were not used. No reasonable person could have thought that the statement amounted to a determination about P’s reliability as a witness, or that the jury would have in any way been misled about a judicial imprimatur, prejudicing a fair trial in this case – as is suggested. If anything, my comment simply confirmed the position that the 11-year-old child before the jury was able to give affirmed evidence.
Notwithstanding what I think was abundantly clear, after discussion with counsel, I decided to give the jury a further direction:
There's one matter before I resumes P’s evidence that I want to appraise you of and it's this: you will recall when P was about to give evidence, I said something about her being competent to give evidence. Do you remember that? All that means is that P is able to give evidence on oath. It says nothing about P’s reliability or credibility which you will assess when you see P give evidence and when P’s cross‑examined. That will also apply to a couple of the other child witnesses. All that taking the oath means is simply that. You are the judges of whether you think they are a reliable or unreliable witness or a credible or otherwise witness.[8]
[8]Transcript 842.
There is no basis for discharging the jury on this ground.
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