R v Scott (No 4)

[2015] NSWSC 461

Supreme Court

New South Wales

Medium Neutral Citation:	R v Scott (No 4) [2015] NSWSC 461
Hearing dates:	30 March 2015
Date of orders:	30 March 2015
Decision date:	30 March 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Application to discharge jury refused
Catchwords:	CRIMINAL LAW – application to discharge jury – counsel for defence withdrawn – new counsel – new counsel not present for witness testimony – forensic disadvantage – interests of the community – ready disposition of the matter – whether counsel’s disadvantage can be addressed
Category:	Procedural and other rulings
Parties:	Regina Michael Scott
Representation:	Counsel: Mr J Bowers (Crown)  Mr W Flynn (Accused)  Solicitors: Solicitor for Public Prosecutions (Crown)  Archbold Legal (Accused)
File Number(s):	2013/104881
Publication restriction:	None

EX TEMPORE JUDGMENT

1. HER HONOUR: The accused makes application for a discharge of the jury this morning, it being the 12th day of trial. The events of the trial have been a little unusual. That is not to say things of this nature do not occur, but they do not occur frequently. The history of the matter is that counsel who was formerly acting, Mr Cavanagh, on Wednesday afternoon, sought some indulgence so that he could obtain the advice of senior counsel as to his own ethical position. As is customary in such cases counsel was fairly guarded in what he told the Court, and the basis upon which he needed such advice, and it is difficult to understand fully what has happened.

2. It would appear from what Mr Cavanagh has said, that at some point during the course of Wednesday at a time at which Ms Houston, a witness who it seems is personally favourably disposed to the accused, was giving her evidence, something changed in the accused’s instructions to counsel which meant that counsel felt he could not ethically continue to act in the case. In that opaque way that is usual Mr. Cavanagh referred to a change of instructions and being placed in a position where he might be obliged to either fail to fully and properly put the accused’s case, or to fulfil his obligations to this Court of never misleading the Court. The Court could not require Mr. Cavanagh to be placed in that position and so I granted him leave to withdraw.

3. Mr Flynn of counsel now appears in the matter. He came into the matter on 26 March 2015. He has had, I think, the balance of Thursday 26 March 2015 and Friday 27 March 2015 and the weekend to prepare the trial. Whilst that is not an overly generous period in which to pick up and prepare a trial, it is in my judgment, adequate.

4. It is not a conceptually difficult trial. There are not conceptually difficult issues in it. It is really an affray which has led to the death of one of the participants in the affray. Whilst the period of time in which to come into the matter late and be in a position to proceed is short, it is, it seems to me, adequate.

5. Mr Flynn has this morning raised an additional concern which he says means that the proper course of action is the discharge of the jury. Mr Flynn submits that this is a case where the credit of individual witnesses who give an account of the incident leading to the stabbing of Mr Dehn will be critical to the jury’s assessment of the evidence and what to make of it. He submits that he is not in a position to make any submissions to the jury as to witnesses who have so far testified in terms of the credit, the presentation, the demeanour of those witnesses because he has not had the opportunity to observe it.

6. Mr Flynn submits that it is particularly critical here because there are so many different accounts of the affray and it will be a matter of, as I understand it, pointing to a particular account which is consistent with the accused’s instructions and highlighting that as the more credible version to the jury. Mr Flynn says he is disadvantaged because he does not have personal observations of the witness with which to underline his submissions to the jury in that regard. He also points to the forensic disadvantage in that he is not able to seek to have particular witnesses recalled so that necessary additional propositions can be put to them having regard to the instructions he has, because he has not had an opportunity to observe the jury’s response to particular witnesses, and is therefore not able to assess whether the jury viewed particular witnesses favourably or otherwise. That incapacity, he submits, leads to an inevitable forensic disadvantage to him and thus the accused in the ongoing conduct of the case.

7. The Crown opposes the discharge and points to the interests of the community not just in seeing an accused receive a fair trial but also in the timely disposition of serious criminal trials.

8. That is an underlying consideration of all such applications. It has some particular weight here because we are at day 12. There have been a large number of witnesses already called to give evidence. A jury has sat now into the fourth week at considerable expense to them and to the community. There is a very strong community interest in seeing such matters as this dealt with expeditiously by the courts and brought to finalisation quickly. That is an interest of not just the community but also plainly of all of those personally involved. The accused has an interest in the speedy disposition of the matter so that he knows what his future is. The family of the deceased, plainly, wish to see the matter resolved. All of those involved as witnesses who have had some concern in the case would have the same wish. There is also, though, the fundamental issue of whether the accused person can receive a fair trial.

9. I accept here that there must be some disadvantage in that Mr Flynn did not make the observations that he would have made had he been here throughout the course of the trial and observed the various witnesses and observed the response of the jury to various witnesses. However, it seems to me that disadvantage is capable of being addressed. Firstly, the accused was here. He has a perfect view of witnesses and the jury from where he sits in this courtroom and he is in a position to discuss those matters and his observations of those matters with counsel and give counsel the benefit of his observations of the proceedings.

10. Secondly, from the material that Mr Cavanagh raised with the Court last week, it does not seem to me to be a situation where Mr Cavanagh would be prevented from speaking with counsel and discussing at least his impressions of witnesses and of the jury. That would not infringe upon any issue of instructions or any information that might have come in a privileged sense from the accused, and it could place neither Mr Flynn nor Mr Cavanagh in any ethical difficulty, it seems to me. So that is an option.

11. In all of those circumstances, the very considerable community interest and the interests of the accused in seeing so speedily heard, must outweigh the potential forensic disadvantages that exist. Accordingly, I refuse the application to discharge the jury.

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Decision last updated: 23 April 2015