R v White (No 3)
[2021] ACTSC 307
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v White (No 3) |
Citation: | [2021] ACTSC 307 |
Hearing Date: | 2 December 2021 |
DecisionDate: | 2 December 2021 |
Before: | Elkaim ACJ |
Decision: | See [9] and [15] |
Catchwords: | CRIMINAL LAW – APPLICATION – Application to discharge jury member – Application to dismiss Count 1 |
Parties: | The Queen ( Crown) Scott John White ( Accused) |
Representation: | Counsel A Williamson ( Crown) J Purnell SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Accused) | |
File Number: | SCC 188 of 2020 |
ELKAIM ACJ:
At the commencement of today's proceedings, I gave a direction to the jury arising from two notes that had been received late yesterday afternoon which mostly concerned behaviour in the jury room.
Before I gave that direction, Mr Purnell SC, on behalf of Mr White, indicated to me that he had two applications. I delayed the hearing of those applications until I had given the jury the above direction because I was concerned that the issues in the jury room should be addressed immediately.
The two applications were as follows. The first is that Count 1 should be taken away from the jury. The second is that a juror who is an unsworn member of the Australian Federal Police (AFP) should be discharged.
Starting with the first application. This arises from a concession made by the Crown during final addresses which in turn arose from parts of the transcript of the evidence in which the perjury is said to have been committed. This is where there is no delineation between ‘a statement’ and ‘statements’ made in the matter by either the accused or Ms Parkinson.
The matter is significant because the accused, when he gave evidence, made it very clear that when he gave the answers (in the Magistrates Court) he was referring to the first statement of each of himself and Ms Parkinson. If that was the case, then it would possibly affect whether or not he had been reckless and perhaps even whether he had been truthful in his original evidence.
The Crown's concession was that if he believed that the references were to the first statement only, then he should be acquitted. That concession was made plainly to the jury.
The concession arose again in respect of a question from the jury and I gave a direction to the jury which was in these terms:
Members of the jury, thank you for the question. Generally speaking, the transcript was tendered so you can consider the whole of the transcript. You can read it and form whatever conclusions you might. But in terms specifically of the counts, or of Count 1 on page 174, that is the first highlighted bit where there is talk of a statement, as opposed to statements. And you may recall that the Crown conceded that there was that confusion about statement or statements. So you should not use what is highlighted on page 174 as evidence against the accused. So, essentially, you should put it to one side.
Then page 180. So what happened there was a part of it is highlighted, but when you heard the bit read out it actually went all the way down to the end of the page. So the Crown's case is based on the highlighted part alone, but the balance of the page you may feel is relevant to the Crown's case in respect of the highlighted part. I hope that is reasonably clear.
I think that what is said in the portion that I have just quoted is enough to deal with the matter. I think it was made clear to the jury that there was a distinction between ‘statement’ and ‘statements’ and that what is said on page 174 should be ignored. Mr Purnell, however, perhaps foreseeing the way I was thinking, has asked me to give another direction to the jury to reinforce the position on this matter. I am prepared to do that and I will ask the parties to discuss with each other what they think will be an appropriate direction, or further direction.
Accordingly, the first application, subject to that qualification, is refused.
Turning to the second application, on the first day of the trial one of the jurors sent a note in which that juror informed the court that that juror was “a professional member of the AFP with minimal interaction with sworn officers”. The juror goes on to say that they do not consider that there is a conflict of interest, and to describe the type of work that they do, which is, “a data entry style role in an administrative area”. Following receipt of that note it was discussed with the parties. No application was made that the juror be discharged.
The first point to note is that a person who is an administrative unsworn member of the AFP is eligible to be on a jury. Mr Purnell fairly concedes that he should have made the application earlier. But, nevertheless, he is entitled to make it now. He says that the difference is that in this case the accused is a police officer and although he is a member of the New South Wales police force, the police involved in the prosecution of this case are members of the AFP.
Accordingly, he says that there is a perception perhaps that there will be some loyalty to the AFP in that juror's considerations.
I am going to refuse the application, but I do not do so on the basis that it was not made earlier. If an application is sound and affects the fairness of a trial, I do not think that it necessarily must be made at a particular time. Nevertheless, this juror has said there is no conflict of interest and there is no suggestion of any actual conflict of interest. The jury has been sitting together for some time and is, hopefully, working its way towards a verdict. It is vital that in any criminal trial the jury be allowed to reach a verdict efficiently and without unnecessary delay and interruption.
I will add one other matter. There have been in this case some complaints from two jurors about behaviour in the jury room. There is no suggestion that the juror who is the subject of the application is one of those two jurors. Had that been the case, I think the matter would have taken on a different complexion because the perception that Mr Purnell has referred to would have perhaps been reinforced.
So, as I said, I refuse the application.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim. Associate: Date: 2 December 2021 |
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