R v Pratten (No 2) - [2012] NSWSC 1665

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pratten (No 2) [2012] NSWSC 1665
Hearing dates: 28 February 2012, 09 March 2012, 12 March 2012, 14 March 2012, 21 March 2014
Decision date: 21 March 2012
Jurisdiction: Common Law
Before: Rothman J
Decision:

Jury is discharged

Legislation Cited: Criminal Law Consolidation Act 1935 (SA)
Criminal Procedure Act 1986
Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
R v Hansen [2002] SASC 208; (2002) 84 SASR 54
R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Category: Procedural and other rulings
Parties: Regina (Crown)
Timothy Charles Pratten (Defendant)
Representation: Counsel:
K. Chapple SC (Crown)
B. Hatfield (Crown)
M. Leighton-Daly (Defendant)

File Number(s): 2010/315475

EX TEMPORE JUDGMENT

The Court is faced with an usual application by the Crown, being to discharge the jury on the basis of the unfairness of the opening statement by counsel for the accused. To say it is unusual is probably an understatement. The openings of the Crown and the accused have only just concluded. No evidence has been adduced.
There are some trials in which the Crown has in the past applied for a discharge of the jury. Normally they related to what I will call general administration of justice issues. There is, for example, the situation described by the High Court in Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, in which the Court dealt with an appeal from the Court of Appeal in the Supreme Court of Victoria, in turn dealing with an appeal from a judge of that court.
Dupas, supra, the circumstances of which were significantly different from the current circumstances, was being heard by a very experienced criminal judge, his Honour Justice Cummins of the Victorian Supreme Court, and the Crown had applied, it seems, for a discharge of the jury on the basis of pre-trial publicity. The counter application by the accused was for a permanent stay of proceedings. An application of this kind by the Crown is extremely rare.
The Crown in the present proceedings quite properly informed the Court, for which I am grateful, that in his 30 years of criminal law practice he has never heard of the Crown applying for a discharge of the jury, at this point in the trial or on this basis, and I have to say it is a most unusual course. Nevertheless, it seems to me that the principles are similar; I doubt frankly that they are quite the same, but they are similar to the situation where…

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 Pratten (No 2)

Details

AGLC: R v Pratten (No 2) [2012] NSWSC 1665
Case: [2012] NSWSC 1665
Decision Date: 21 March 2012

CaseChat Overview and Summary

The case of R v Pratten (No 2) [2012] NSWSC 1665 involved a rare application by the Crown to discharge the jury due to the unfairness of the defence's opening statement. The Crown argued that the defence's address contained irrelevant matters and suggested unfairness by the Crown, which could not be remedied by a direction to the jury. The case was heard by Rothman J in the Supreme Court of New South Wales over several days in early 2012.

The primary legal issue was whether the trial judge should discharge the jury due to the alleged unfairness in the defence's opening statement. The judge considered the principles set out in previous High Court and Supreme Court decisions regarding the fairness of trials and the inherent power of the court to prevent abuse of its processes. The defence's address had allegedly strayed beyond the matters prescribed in s 159 of the Criminal Procedure Act 1986, which governs the content of the defence's opening address.

Rothman J found that the defence's address did indeed contain matters that were not permitted under s 159 and that there was a significant degree of unfairness associated with some of the remarks. However, the judge concluded that it was not possible to direct the jury in a way that would overcome the unfairness without potentially creating a countervailing unfairness to the accused. The judge therefore decided to discharge the jury, as there was no remedy that could ensure a fair trial for both parties.

The final orders of the court were to discharge the jury and to provide the parties with an opportunity to address any preliminary issues raised by the judge, such as the relevance of the AAT proceedings to the criminal trial and the appropriate way to deal with allegations of unfairness in the trial process.

Orders