R v Peters; R v Oberg

District Court

New South Wales

Medium Neutral Citation:	R v Peters; R v Oberg [2019] NSWDC 319
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	Application to discharge jury refused.
Catchwords:	CRIMINAL PROCEDURE – Jury – Application to discharge jury CRIMINAL PROCEDURE – Trial – Closing address to jury by accused person CRIMINAL PROCEDURE – Trial – Directions to Jury EVIDENCE – Witness Evidence - Accused
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Azzopardi v The Queen (2001) 205 CLR 50 Regina v Skaf [2004] NSWCCA 74
Category:	Procedural and other rulings
Parties:	Regina Colin James Oberg (applicant/accused) Mark Peters (accused)
Representation:	Counsel: Mr P. Leask (Crown) Mr L. Apostle (Peters) Mr J. Pickering (Oberg)
File Number(s):	2014/100189 (Oberg)2017/249689 (Peters)
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Yesterday, Mr Pickering for the accused Mr Oberg, made an application to discharge the jury. The basis for that application was that Mr Apostle for the accused Mr Peters made the submission to the jury that Mr Peters gave evidence and Mr Oberg did not. Consequently, so it was submitted, Mr Peters had exposed himself to cross-examination, a matter that should be taken in support of his innocence, in contrast to the course adopted by Mr Oberg of choosing not to give evidence, which was submitted to be indicative of guilt.

2. The relevant passage from the transcript appears to be at p 877 where, at line 23, it was said:

Now, members of the jury, Mr Oberg has not sat in the witness box; put himself in the firing line in these proceedings. We say that is because in relation to the counts on the indictment for which Mr Peters has been charged, we say that he is guilty. We say that he bears responsibility as conveyed to you by Mr Peters in his evidence. He is guilty of forging cheques of Mr Peters and depositing the money into his accounts.

3. Mr Pickering's submission went as far as to suggest the submission by Mr Apostle of the guilt of Mr Oberg extended to matters beyond those with which Mr Oberg is charged, in particular counts 1, 3, 4 and 15. Those four counts are all counts solely alleged against Mr Peters. Mr Pickering submits that these submissions should not have been made and will unduly influence the jury's considerations.

4. Before dealing with s 20(2) of the Evidence Act 1995 (NSW), my view based on the passage just read from p 877 of the transcript is that the submission could be read to have been intended to be as broad as Mr Pickering suggested, though it is a little ambiguous. It is something that I can deal with in directions; I will hear from Mr Apostle precisely what might be appropriate to say to the jury. But in general terms, whether the submission was intended to be directed only to the four joint counts, or beyond that to the four counts solely of Mr…