R v WR [No 2]
[2015] ACTSC 199
•16 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v WR [No 2] |
Citation: | [2015] ACTSC 199 |
Hearing Date: | 16 March 2015 |
DecisionDate: | 16 March 2015 |
Before: | Penfold J |
Decision: | This jury is discharged, and a new trial is to be held. |
Category: | Procedural and other rulings |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – discharge of jury – proceeding involving sexual offences against two children – evidence of police witness that other complaints had been made about accused – directions to jury would only draw attention to the evidence – evidence of other complaints might tip the balance against accused – fair trial not possible – jury discharged – evidence of complainants recorded and available for use in new trial. |
Legislation Cited: | Evidence (Miscellaneous Proceedings) Act 1991 (ACT), s 43A |
Parties: | The Crown (Crown) WR (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Mr K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 179 of 2013 |
Introduction
WR is on trial for sexual offences allegedly committed against two young girls on the same night and in the same circumstances in early 2001.
The evidence concerned
On the fourth day of the trial, last Friday, the police officer responsible for this prosecution gave brief evidence. She gave evidence of her first discussion with one of the complainants, E, and was asked if E had explained her motivation for making her formal complaint. The question was asked in the context that the formal complaint was made some 11 years after the alleged incident.
The police officer said, in summary, and these are not intended to be a report of E’s actual words, although they reflect my notes made at the time, that E had felt guilty about not coming forward earlier and was worried about the chance that it might have happened to others. The police officer then went on to say, “and others did come forward”.
Those last words reflect my clear recollection of what was said, although my note of those last words was added some minutes later, after a discussion with counsel to which I shall shortly refer.
Unfortunately, because of a technical problem that occurred at the end of the previous witness’s evidence, the police officer’s evidence was not recorded, but the issue was ventilated between me and counsel as soon as the police officer’s evidence finished and, accordingly, I have more confidence in my memory of those last words than might have been the case if the matter had only been raised this morning, after the intervening weekend.
After the comment made by the police officer, the prosecutor asked another question, and then he put to the police officer that the reference to the others who had come forward was a reference to the other complainant in this matter, A, to which proposition the police officer assented.
The application
Defence counsel, on instructions, has now sought a discharge of the jury as a result of the comment made by the police officer. Defence counsel says, in effect, that if even one juror believes that there have been complaints against the accused beyond those being canvassed in this trial, then the accused has been deprived of a fair trial.
The prosecutor says that the immediate reaction of himself and defence counsel, and indeed my immediate reaction, to the police officer’s words springs from excessive sensitivity, given that all of us are aware of other matters relating to the accused.
It may be correct that there is significant sensitivity about this kind of prejudicial evidence. However it is probably also fair to say that these are offences of a kind that quite often reflect a pattern of behaviour rather than a single isolated incident, and that members of the public who sit on juries may these days have more understanding of that fact than jurors might once have had.
Other options for addressing the problem
Counsel and I have discussed the scope for addressing the problem in this trial by particular trial directions. It is easy enough to warn a jury to ignore anything that might have come out in a trial about an accused’s bad or even criminal behaviour if it relates to different kinds of offending or indeed simply to unpleasantness.
On the other hand it would not be possible, as far as I can see, to give an equivalent direction in this case without drawing attention to the effect of the police officer’s slip, if only because there has been no other evidence in this trial, apart from the allegations he is currently facing, that has indicated any negative aspects of the accused’s character.
Nor would any more emphatic directions to focus only on the evidence relevant to this trial be likely to help, since the existence of other complaints is now part of the evidence, and could not be excluded without drawing attention to it.
The risk to a fair trial
Finally, having heard the whole prosecution case, I find it easy to imagine jury members struggling in their deliberations with two possibilities, one being that the charges have been cooked up by the two complainants for reasons unknown and the other being that the accused has done exactly as the two complainants have described in their evidence.
I cannot be satisfied that the suspicion engendered by the police officer’s evidence of other complaints would not be the factor that finally tipped the balance against the accused.
Conclusion
Accordingly, I have reluctantly concluded that the trial has become unfair, that there is no way to salvage it, and that the jury must be discharged.
I expect that a new trial will be conducted, and I note at this stage that:
(a)the evidence of the two complainants was to the best of my knowledge recorded; and
(b)that evidence will be available to be used in any new trial (Evidence (Miscellaneous Proceedings) Act 1991 (ACT), s 43A).
| I certify that the preceding thirty-five [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 31 July 2015 |
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