R v Tesselaar

[2010] QDC 139

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Tesselaar [2010] QDC 139

PARTIES:

THE QUEEN

V

REBECCA LOUISE TESSELAAR

FILE NO/S:

Cairns Indictment 168/09

DIVISION:

PROCEEDING:

Ruling during trial.

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 March 2010

DELIVERED AT:

Cairns

HEARING DATE:

29 March 2010

JUDGE:

McGill DCJ

ORDER:

Application to discharge the jury refused.

CATCHWORDS:

CRIMINAL LAW – Juries – attempt to influence – photo of deceased displayed in public gallery – whether to discharge jury – direction.

COUNSEL:

J.A. Wooldridge for the Crown

J.D. Henry SC for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

O’Reilly Stevens Bovey for the defendant

Ruling during trial

1. During the evidence of the first witness I noticed that there was a woman sitting in the public gallery who was holding in her lap a photograph; a reasonably small photograph, I suppose about a six by eight inch photograph in a brass or gold frame, which was, because of the layout of the courtroom, positioned directly facing the jury box. 

1. In the courtroom in question, the jury box is to the left of the Bench and faces across the Court towards the witness box which is to the right of the Bench.  The public gallery is located behind the witness box, and the woman was positioned to the side of the witness box in a position where she was facing the members of the jury.  Accordingly it would have been obvious to any member of the jury who happened to look at her that she was holding the photograph.

1. There was nothing about the photograph to identify it as a photograph of the deceased, though in the absence of the jury she did tell me that it was a photograph of the deceased.  The photograph, I should say, is just a photograph of the face; it shows a young woman.  The circumstances are that the charge is one of dangerous operation of a vehicle with the circumstance of aggravation that that caused the death of a person and it has been admitted that a particular person died as a result of injuries received as a result of the relevant collision. 

1. The name of the deceased will reveal that she was female and the circumstance that she was riding a motorcycle will probably suggest that she was fairly young.  So showing the photograph to the jury would not, in itself, I suspect, convey much information to the jury which they would not either get or be able to work out for themselves on the basis of evidence properly put before them in the course of the trial.

1. The concern is that it has the effect of introducing an emotional element into the consideration by the jury of the matter.  There is, when there is a trial of this nature, always a risk of an emotional concern interfering with the assessment of the evidence by the jury and it is undesirable, of course, for anything to happen which would raise the emotional element of the trial, because that would distract the jury from the proper consideration of their function.  It also means that indirectly the jury is being asked to act for the purposes of the trial on something which is not put before them properly by way of evidence, which is false to their oaths, so that it is certainly something which should not have been done.

1. It is fairly early in the trial and I suspect that means that any influence it may have had will have had some chance to fade before it comes time for the jury to deliberate on the charge.  There is also the consideration that the jury will be warned in the general way about not being swayed by emotional considerations, and also by not simply working back from the fact that there was a collision and somebody was killed to conclude that the driving must have been dangerous, which is a matter that will be an issue. 

1. Those warnings usually given in cases like this will be given in this matter.  I think on balance that what has occurred does not give rise to a sufficient risk of prejudice to a fair trial to justify discharging the jury, and so I will proceed with the trial.

1. An issue which arises therefore, Mr Henry, is whether you want me to say something to the jury at this stage.  My inclination would be not to on the basis that it may simply lend emphasis to what has already occurred and it would be better if we let the matter slip away and hopefully into oblivion before they come to retire, but I am prepared to hear submissions on that as well.

(after receiving submissions)

1. I think it might be better if I am going to say something now, there should be something specific there about the photograph.  I will say something to them now.

(after the jury returned)

1. Members of the jury, I just want to say something about why you were taken out rather abruptly into the jury room this morning.  I noticed during the evidence of that last witness, the witness indeed who hasn't yet been cross-examined, that there was someone sitting in the public gallery who was holding a photograph of the face of a woman in a position where you could have seen it.  Some of you may have noticed it, some of you may not. 

1. A couple of things that I should say to you about the trial.  Given the nature of the charge it will be apparent that the trial is concerned with circumstances where somebody died, and you will recall that at the beginning of the trial, one of the things that I asked the first people who'd been empanelled was whether any of you felt that because of the nature of the charge, you would be unable to give an impartial verdict according to the evidence.  Presumably those of you who are there do feel that you can do so.

1. It is important that you dismiss all feelings of sympathy or prejudice because of the circumstances that have given rise to the charge.  It has been admitted in this matter that a particular person died as a result of the collision, so that is not a matter that you really have to be concerned about.  That's a fact which has been admitted.

1. You're concerned with other aspects of the matter and particularly about the element of whether what the defendant did amounted to dangerous operation of the vehicle and that's something which is really not directly concerned with the question of whether somebody died.  That's a separate issue and you're not assisted in determining that issue simply by the fact that somebody died, let alone by the appearance of the deceased. 

1. You know from the name that she's a woman, and from the fact that she was riding a motorcycle you might reasonably infer that she was a young woman, but that is not something which assists you in assessing the question of whether the particular conduct, which the Crown is able to prove by the evidence in this trial, at the end of the day, persuades you beyond reasonable doubt, that what the defendant did amounted to dangerous operation of her vehicle.  You see, that's really the issue which at the end of the day you're going to have to consider, and it's important that you not be swayed by emotional considerations in determining that issue.

1. So it was certainly wrong for someone to attempt to put something before you other than the evidence.  You've all taken an oath to try the case according to the evidence, and the evidence is what you hear from the witness box or the exhibits, and there might be something else that emerges that's evidence, but they're the only things that you can take into account.  So you must disregard what happened in the public gallery, and I hope that you will do so, and I am trusting that you will do so, and we will continue with the trial.

(At the conclusion of the trial the defendant was acquitted.)