R v Nancarrow (No 3) - [2022] NSWSC 280

Supreme Court

New South Wales

Medium Neutral Citation: R v Nancarrow (No 3) [2022] NSWSC 280
Hearing dates: 9 March 2022
Date of orders: 9 March 2022
Decision date: 09 March 2022
Jurisdiction: Common Law
Before: Hamill J
Decision:
Application for discharge of jury refused.

Catchwords:
CRIMINAL LAW – procedure – application for discharge of the jury – cross-examination of accused – where photographs shown to accused in witness box undermine accused’s version of events – whether Prosecutor had disclosed photographs – whether reference to photographs being available for inspection sufficient to fulfil disclosure requirements – where relevantly identical images disclosed in ISRAPs – whether any relevant unfairness – heat of the battle – limited capacity to impact on assessment of accused’s credibility – no relevant unfairness – no prejudice justifying discharge of jury

Legislation Cited:
Criminal Procedure Act 1986 (NSW) ss 141, 142

Cases Cited:
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Edwards v The Queen [2021] HCA 28; 95 ALJR 808
Miller v R [2015] NSWCCA 206
R v Azari (No 2) [2017] NSWSC 515
R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 227
R v Quami(No 40) [2016] NSWSC 807
Re K (2002) NSWCCA 374
Regina (C’Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448

Category: Procedural rulings
Parties: Regina
Shane Nancarrow
Representation:
Counsel:
J Stanhope (Regina)
B Neild (Nancarrow)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Regina)
Legal Aid (NSW) (Nancarrow)

File Number(s): 2019/242866
Publication restriction: Nil.

Judgment

On Wednesday 9 March 2022, Mr Neild, counsel for the accused, made an application for a discharge of the jury. The application arose because of the potential prejudice, and/or unfairness, occasioned by the cross-examination of Mr Nancarrow by the Crown Prosecutor that morning. I refused the application and indicated I would provide reasons later. These are those reasons.

Summary of evidence regarding the headtorch

It is necessary to provide a summary of the case of both parties as each relates to the line of cross-examination that provoked the application to discharge the jury.
It appears to be common ground that the deceased (Paul Donald) and the accused (Shane Nancarrow) had a heated argument about drugs, the details of which are of no present importance, a little while before the confrontation that led to Mr Donald’s death. It is also common ground that each retreated to their respective private spaces within the premises after that argument. Mr Donald slept in a caravan outside while Mr Nancarrow slept in a bedroom upstairs. The layout of the bedroom is depicted in crime scene photographs that are before the jury and which were taken shortly after the incident.
The prosecution will contend that Mr Nancarrow was lying in his bed upstairs. When he became aware that the deceased had re-entered the main house from his caravan outside, the accused moved to a small kitchen counter and picked up a knife in preparation for possible confrontation with the deceased. This…

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 Nancarrow (No 3)

Details

AGLC: R v Nancarrow (No 3) [2022] NSWSC 280
Case: [2022] NSWSC 280
Decision Date: 09 March 2022

CaseChat Overview and Summary

The case of R v Nancarrow (No 3) involved the accused facing criminal charges, with the central issue being whether the jury should be discharged due to the Prosecutor's handling of photographic evidence. The case was heard in the Supreme Court of Victoria. The court was required to decide whether the Prosecutor's failure to formally disclose certain photographs to the accused before they were shown to him in the witness box amounted to a breach of the accused's rights. Additionally, the court had to determine whether the reference to the photographs being available for inspection was sufficient to meet the disclosure requirements and whether there was any unfairness in the handling of the evidence, particularly considering the context of the trial's adversarial nature.

The court considered the Prosecutor's argument that the photographs in question were essentially identical to those already disclosed through Inspecting Surveillance and Related Proceedings (ISRAP) processes. It was noted that the accused had been aware of the existence of the photographs and had been given an opportunity to inspect them. The court held that there was no relevant unfairness in the handling of the evidence, and the accused's credibility could still be assessed effectively despite the procedural lapse. The court also emphasised that in the heat of the adversarial battle, the limited capacity of the error to impact the jury's assessment of the accused's credibility did not justify discharging the jury.

Ultimately, the court concluded that the procedural error did not prejudice the accused to the extent that it warranted the discharge of the jury. The court found no grounds for a discharge based on the Prosecutor's failure to formally disclose the photographs before they were shown to the accused in the witness box. The court's reasoning was grounded in the understanding that the adversarial nature of the proceedings and the availability of similar evidence to the accused meant that any prejudice was minimal. The court's decision was definitive, maintaining the integrity of the trial process while addressing the procedural concerns raised by the accused.

Orders