R v Smith

[2020] NSWSC 1583

Supreme Court

New South Wales

Medium Neutral Citation:	R v Smith [2020] NSWSC 1583
Hearing dates:	10 November 2020
Date of orders:	10 November 2020
Decision date:	10 November 2020
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Refuse application to discharge the jury
Catchwords:	CRIMINAL PROCEDURE – application by accused to discharge jury – where comment made about accused by witness while giving evidence – whether prejudice to accused – whether direction to jury sufficient to cure potential prejudice
Category:	Procedural and other rulings
Parties:	Regina (Crown) Justin Shawn John Smith (Accused)
Representation:	Counsel: B Campbell (Crown) J Watts (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Accused)
File Number(s):	2019/4224
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Katrina Marshall gave evidence on the second day of the trial. Ms Marshall had been in a relationship with Luke Freeman for about two months before he was fatally stabbed in her house on 5 January 2019. During cross-examination concerning her police statement by Mr Watts of counsel for Mr Smith, Ms Marshall gave the following:

“Q. ‘Adam and I were sitting down. The arguing between Justin and Luke started again and became more heated?’

A. Yeah.

Q. Can you remember the argument that you’re describing there now?

A. They were just arguing…

Q. You say then in your statement to police, ‘I’m not sure what they were arguing about, exactly?’

A. But I know one - one part, he - it was - it was - it pretty much started with he tried to, like Justin said he wanted to kill his ex-Missus.

Q. I’ll just ask you to focus on the statement you’ve made there. Are you saying, after you say, ‘I don’t know what they were arguing about exactly. They were near the front door and were standing opposite each other. I thought it had stopped’; is that what you said?

A. Yeah.”

2. Ms Marshall became upset shortly after this and was temporarily unable to continue with her evidence. In the break in proceedings, Mr Watts applied for an order discharging the jury upon the basis that Ms Marshall’s reference to Mr Smith having said that he wanted to kill his “ex-Missus” was prejudicial to Mr Smith in a way that could not otherwise be cured. After hearing submissions from both sides, I indicated that I would not discharge the jury. What follows are my reasons for that conclusion.

3. The evidence reveals that Mr Smith may have had a romantic interest in Ms Marshall. Her evidence was that they had been friends since they were teenagers but that she had no interest in anything other than a platonic friendship. However, the incident that led to Mr Freeman being stabbed followed a period of increased tension between Mr Smith and Mr Freeman concerning their respective and competing interest in Ms Marshall. On one view, the evidence suggests that Mr Freeman had become jealous of Mr Smith’s interest in Ms Marshall and that there had been minor arguments between them about this.

4. Ms Marshall’s evidence to which exception is taken was unquestionably unresponsive and gratuitous. She had been advised by the Crown before giving evidence that she should not make reference to this matter. However, as a result of a recent illness or injury suffered or sustained by her, it appears Ms Marshall had become prone to offering sometimes inappropriate responses when questioned. The understandable tension created by the court process undoubtedly increased this tendency. Relevantly for present purposes, the jury had been forewarned that Ms Marshall may struggle in the witness box, as the following extract from the transcript reveals:

“HIS HONOUR: Welcome back, members of the jury. I apologise, on only the second day for having delayed you slightly, there were some matters to be attended to, which will happen from time to time. I am informed by the Crown that the next witness to be called is Ms Marshall to whom reference was made yesterday. She was present at the scene of the incidents that give rise to these proceedings. I am also informed by the Crown and Mr Watts that Ms Marshall had an accident and has some cognitive issues. Her appearance on the screen giving evidence may have some idiosyncrasies that you find unusual.

In due course Ms Marshall’s evidence will be taken and it may be that some allowance may have to be made … for these presentations. You should not do anything more than for the moment just attend to her evidence and listen to it and you will hear submissions about what if any significance the presentation of her evidence in the way you see it should have to your deliberations. I think I’ll say no more.”

5. It seemed to me that directions to the jury to disregard Ms Marshall’s outburst might confidently be informed by the fact that she laboured under a cognitive problem and that allowance for this might have to be made when considering her evidence more generally.

6. Be that as it may, it also seemed to me that the evidence in question was so unresponsive and so obviously irrelevant that I was confident that an appropriate direction to the jury to disregard it entirely would be understood and followed. Moreover, the flavour of Ms Marshall’s unsolicited outburst was that she wished to portray Mr Smith in a poor light, a factor tending to isolate her comments as enigmatic and entirely without context. I was satisfied that directions to the jury could in these circumstances be framed in a way that would eliminate or at least adequately reduce the risk that they might form an unfavourable view of Mr Smith as a result.

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Decision last updated: 24 November 2020