R v Punnett HC Auckland Cri-2004-044-7303
[2005] NZHC 1090
•30 August 2005
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R v PUNNETT
High Court, Auckland (CRI-2004-044-007303) 15-19, 22-26 August; Laurenson J 30 August 2005
Criminal procedure — Trial — Counsel misconduct — Inadequate cross- examination technique prejudiced conduct of the trial — Jury became frustrated and embarrassed — Pointless and lengthy questioning created perception of general absence of merit in the defence case — Counsel’s conduct created an emergency — Jury discharge appropriate — Crimes Act 1961, s 374(1).
This was a trial of multiple accused on methamphetamine manufacture and supply charges. Mr Neutze was counsel for two of the accused. Throughout the first
2 weeks of the trial, he had employed a cross-examination technique that included; repetitive questioning, questions that were confusing to witnesses or not properly formulated, an apparent lack of relevance, an absence of any structure or plan, and continual breaks to seek instructions from his client. The length of time taken for this was described as “interminable”.
The trial Judge was forced, on a number of occasions, to restate questions so that they could be understood by witnesses. The Judge had also intervened to prevent the counsel in question effectively giving evidence from the Bar on matters that were not before the Court, and ultimately, in relation to one witness who was being repeatedly tested on a matter that she plausibly claimed not to remember. The Judge had then released the jury for the day. The Judge directed counsel to return in the morning with a more coherent plan of attack, it being his view, at this point, that on balance the trial should be permitted to continue.
Counsel for one of the other defendants sought a jury discharge, raising similar concerns to those that had been troubling the trial Judge. In addition, counsel submitted that interventions by the Judge and prosecutor, albeit entirely proper, had the effect of disparaging Mr Neutze and, by implication, the entire defence case.
Held, the cross-examination by one of the defence counsels, Mr Neutze, elicited an adverse reaction from the jury. The jury had listened patiently for nearly 2 weeks, and had received judicial direction courteously and positively. It was clear from their reactions at various points, that they had been frustrated with, and at times amused by, the exchanges involving Mr Neutze. The jury’s reaction, of itself, had not necessarily caused prejudice to the other accused. It was necessary to consider the impact of Mr Neutze’s cross-examination on the defence case more generally. The pointless questioning and “interminable” time taken had created an impression that there was really very little substance to the defence case. If there were any matters of substance, then these had been lost in a mass of irrelevant material. The jury could justifiably have thought that if this was the best defence available then there could not be any real merit in the defence case more generally.
The cross-examination of one witness was halted by the Judge. If any of the defences were to succeed, then this witness had to be thoroughly discredited. The effect of the cross-examination appeared to be one of jury sympathy toward her. An emergency had thus been created in the trial due to Mr Neutze’s incompetent behaviour. It was becoming an embarrassment to have a jury perhaps conclude that Courts were prepared to countenance erratic and unacceptable behaviour by counsel, to the detriment of his clients and other defendants. To have allowed the trial to continue would have brought the system of justice into disrepute. (paras 39-61)
Cases referred to
R v Marshall [2004] 1 NZLR 793; (2003) 20 CRNZ 809 (CA)
Randall v R [2002] UKPC 19; [2002] 1 WLR 2237; [2002] 2 Cr App R 17; [2002] Crim LR 928 (PC)
Application
This judgment gives the reasons for granting a jury discharge application.
D McNaughton and R Butler for Crown
S Grieve QC and K Abbott for accused Punnett
P Neutze for accused Collings and Carmody
J Faleauto for accused Fountain
LAURENSON J (reserved):
Introduction
[1] The four accused are charged with a number of counts relating to the manufacture and sale of methamphetamine. This operation is alleged to have been centred on a property at 5 Sycamore Drive, Sunnynook in Auckland.
[2] Originally there had been five accused, all of whom were represented by Mr Neutze. The trial was first due to be heard on 30 May 2005. One of the accused, a Ms Jody Allen, had pleaded guilty at the outset of the trial and later had agreed to give evidence for the Crown.
[3] When the trial commenced before me on 15 August 2005, Mr Neutze then acted for two of the accused namely, Mr Collings and Ms Carmody. Mr S Grieve QC appeared for Ms Punnett, and Mr J Faleauto for Mr Fountain.
[4] The trial was estimated to continue until 30 August 2005. There were a total of 51 Crown witnesses to be heard. At an early stage I inquired of counsel as to their estimate of time. There was a general consensus that the trial could continue until 2 September 2005. By Friday 26 August 2005, it was estimated the Crown evidence might be concluded by Monday 29 August 2005. In the light of events which occurred that day, I consider that that estimate was probably optimistic to say the least.
[5] During the course of the trial I had become increasingly concerned at the manner in which Mr Neutze was conducting his cross-examinations. Matters which had concerned me included:
(a) The length of time taken. (b) The repetitive questioning.
(c) The confused nature of many of the questions.
(d) The apparent lack of relevance of much of the cross-examination.
[6] I found that, too often, I was being forced to restate questions posed by
Mr Neutze so that these could be understood by the particular witness.
[7] I was also concerned at the number of times I had to intervene to prevent Mr Neutze giving evidence from the Bar on matters which were not the subject, nor would be the subject, of evidence.
[8] On one occasion I had to admonish him for referring to matters relating to possible penalties.
[9] The position had been reached by 3 pm on Thursday 25 August 2005, where I felt compelled to cut short Mr Neutze’s cross-examination of the Crown witness, Ms Allen. His cross-examination had commenced shortly after midday on Thursday
25 August 2005. The cross-examination was repetitive and I found it extremely difficult to follow. The position had been reached by about 3 pm on Thursday
25 August 2005, where again, I felt compelled to cut short Mr Neutze’s cross- examination of this witness. The Court was due to adjourn at about that time for a swearing-in ceremony. The cross-examination had reached a point, which, in my view, had become embarrassing. The witness was being repeatedly tested on a matter in which she had said she could not remember. It appeared to me that her answer was quite reasonable.
[10] I released the jury. After doing so, I advised Mr Neutze to the effect that I considered the jury was being subjected to having to hear a cross-examination which was becoming embarrassing. I directed him to consider his position overnight and to ensure that, when he returned in the morning, he had prepared a coherent plan of cross-examination.
[11] At this stage I had reached the conclusion that the jury was acting adversely to Mr Neutze’s behaviour. The reaction, so far as I could see, was a mixture of frustration and amusement. I was concerned that if the position was allowed to continue, and if his clients, or either of them, were convicted, the result would almost inevitably be an appeal based on counsel’s incompetence. I considered that any such appeal would have every likelihood of success, thereby necessitating another trial.
[12] I was acutely aware of the time, cost and stress which had already been incurred in getting this trial to the point it had.
[13] I considered the position at length overnight on Thursday 28 August 2005, and finally reached the conclusion that I should allow the trial to continue in the hope that my admonition to Mr Neutze may effect an improvement.
[14] The situation changed quite dramatically on Friday morning, 26 August
2005, when I was advised before the trial resumed that Mr Grieve QC had an application to be heard in the absence of the jury.
The application
[15] Mr Grieve applied pursuant to s 374(1) of the Crimes Act 1961 for an order that the jury be discharged.
[16] Section 374(1) states:
[374. Discharge of jury
(1) Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.
[17] Mr Grieve QC referred me to R v Marshall [2004] 1 NZLR 793; (2003)
20 CRNZ 809 (CA), and in particular paras 15-16, which state:
[15] Section 374(1) empowers the Court, in its discretion, to discharge the jury ‘in the case of any emergency or casualty rendering it . . . highly expedient for the ends of justice to do so’. The phrase ‘emergency or casualty’ was the subject of argument from Mr Lawry for the Crown. It is sufficient for us to say that on the ordinary meaning of ‘casualty,’ in the context of s 374, an accidental disclosure of prejudicial evidence to a jury is plainly covered. In any event it is within the inherent discretion of a trial Judge to discharge a jury in such circumstances: R v Rongonui [2000] 2 NZLR 385 at p 397 per Elias CJ.
[16] Whether it is appropriate for a jury to be discharged under s 374(1), however, turns on whether it is ‘highly expedient for the ends of justice to do so’. That depends on whether there is a reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances: R v Pearson [1996] 3 NZLR 275. Section 374(8) provides that no Court may review the exercise of this discretion under the section. However, this does not prevent appellate scrutiny of a refusal to discharge. As is pointed out in Adams on Criminal Law, para 374.10, s 374(8) is not to be read as qualifying the duty of the Court of Appeal under s 385(1)(c) of the Act to allow an appeal if it is of the opinion that on any ground there was a miscarriage of justice.
[18] Mr Grieve QC submitted that the nature of the cross-examination conducted by Mr Neutze had caused the jury to react in such a manner that he, Mr Grieve QC, considered, the position of all accused had been adversely affected. He referred in particular to an interminable cross-examination of an ESR scientist, Dr Coxon, which had commenced at 4.41 pm on Tuesday 23 August 2005, and had continued until 4.59 pm on Wednesday 24 August 2005. Most of the cross-examination seemed, so far as I could see, to have little point. The Crown had objected, but I had adopted the view that it would be inappropriate for the Court to tax Mr Neutze as to the reason for the cross-examination at that stage.
[19] Mr Grieve QC submitted that there were two aspects of cross-examination which would react on a jury. The first was the form namely, the execution or manner in which it was conducted including the propriety of questions under the heads of “admissibility” and “relevance”. In this regard, Mr Grieve QC submitted that the cross-examinations including that of Dr Coxon in particular, had been unduly repetitive, disorganised and lacked any focus.
[20] The second matter was that of substance namely, the nature of the questions which produce the answers. Mr Grieve QC submitted that one result of the form and substance of the cross-examination carried out by Mr Neutze had been to produce reactions by both counsel for the Crown, and myself as the trial Judge. He submitted that there had been obvious adverse reactions by the jury to the manner in which the case had been conducted by Mr Neutze. To an extent this had been engendered by the reactions of Crown counsel and myself.
[21] In answer to a question by me, Mr Grieve QC indicated that he had no criticism in respect of these interventions, and he submitted that all were quite appropriate.
[22] Mr Grieve QC referred to Randall v R [2002] 1 WLR 2237; [2002]
2 Cr App R 17. He referred to the issue of fairness in a contested criminal trial referring in particular to paras 9-11 of the decision by Lord Bingham, as follows:
Fairness
[9] A contested criminal trial on indictment is adversarial in character. The prosecution seeks to satisfy the jury of the guilt of the accused beyond reasonable doubt. The defence seeks to resist and rebut such proof. The objects of the parties are fundamentally opposed. There may well be disputes concerning the relevance and admissibility of evidence. There will almost always be a conflict of evidence. Some witnesses may be impugned as unreliable, others perhaps as dishonest. Witnesses on both sides may be accused of exaggerating or even fabricating their evidence. Defendants may choose to act in an obstructive and evasive manner. Opposing counsel may find each other easy to work with or they may not. It is not unusual for tempers to become frayed and relations strained. In a fraud trial the pressure on all involved may be even more acute than in other trials. Fraud trials tend to involve a great deal of documentation, which is particularly cumbersome to handle in a jury trial. They tend to involve much unfamiliar detail, often of a technical nature, which it is difficult for many people to understand, assimilate, retain and recall. And fraud trials tend to be very long, which in itself tends to increase the strain on all involved, whether the defendant, witnesses, jurors, counsel or the judge. The appellant’s trial was said to be the longest criminal trial ever held in the Cayman Islands.
[10] There is, however, throughout any trial and not least a long fraud trial, one overriding requirement: to ensure that the defendant accused of crime is fairly tried. The adversarial format of the criminal trial is indeed directed to ensuring a fair opportunity for the prosecution to establish guilt and a fair opportunity for the defendant to advance his defence. To safeguard the fairness of the trial a number of rules have been developed to ensure that the proceedings, however closely contested and however highly charged, are conducted in a manner which is orderly and fair. These rules are well understood and are not in any way controversial. But it is pertinent to state some of them.
(1) The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice: R v Puddick (1865) 4 F & F 497, 499; R v Banks [1916] 2 KB 621,
623. The prosecutor’s role was very clearly described by Rand J in the Supreme Court of
Canada in Boucher v The Queen (1954) 110 Can CC 263, 270:
‘It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’
(2) The jury’s attention must not be distracted from its central task of deciding whether, on all the evidence adduced before it, and on all the submissions made, and on the judge’s legal direction and summing up of the evidence, the guilt of the defendant is or is not established to the required standard. From this imperative several subsidiary but important rules derive. (i) Evidence should ordinarily be given without interruption by counsel. If either counsel has cause to object to any evidence adduced or about to be adduced such objection should be made promptly and shortly and the judge should rule. If such an objection prompts any extended argument or seems likely to do so, and particularly if the argument bears on the substantial merits of the case, it should take place in the absence of
the jury. (ii) The procedure of the criminal courts provides opportunities for prosecuting and defence counsel to address the jury, usually before and after the calling of evidence. Counsel are not (save where the rules allow defence counsel to open the defence) permitted to address the jury at any other time, nor is it permissible under the guise of an interjection for counsel to make observations intended to influence the mind of the jury. (iii) While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel. Any disparaging comment on a witness or a defendant should be reserved for a closing speech. (iv) Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury. (v) Unless the judge seeks the assistance of counsel on a point of factual detail, or makes a factual misstatement which can be quickly and uncontroversially corrected, his summing up should proceed without any interruption by counsel. If, as not infrequently happens, prosecuting or defence counsel wish to bring some suggested misdirection or omission or inaccuracy to the attention of the judge, this should be done, preferably at the close of the summing up or at some convenient interlude in the proceedings, and in the absence of the jury unless the point is one which can safely be discussed in their presence without risk of prejudice. It can never be proper for counsel to make any interjection prejudicial to the defendant when the judge is in the course of summing up to the jury.
(3) It is the responsibility of the judge to ensure that the proceedings are conducted in an orderly and proper manner which is fair to both prosecution and defence. He must neither be nor appear to be partisan. If counsel begin to misbehave he must at once exert his authority to require the observance of accepted standards of conduct. He should not disparage the defendant in the course of the evidence. Nor should he disparage defence counsel, since jurors inevitably tend to identify clients with their counsel. Sometimes a trial judge may have briefly to check or rebuke counsel. If however he has occasion, in any serious or sustained manner, to criticise the conduct of the defence case or to criticise or rebuke defending counsel, it will usually be prudent for the judge to do so in the absence of the jury and he should ensure that his disapproval of or irritation with counsel does not affect the jury’s judgment. If he chooses to express personal opinions in the course of the summing up, he should do so in a restrained, moderate and balanced way.
[11] It cannot be too strongly emphasised that these are not the rules of a game. They are rules designed to safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a crimes or crimes conviction of which may expose him to serious penal consequences. In a criminal trial as in other activities the observance of certain basic rules has been shown to be the most effective safeguard against unfairness, error and abuse.
[23] Mr Grieve QC submitted that the net result of Mr Neutze’s conduct, leading as it did to the interventions by Crown counsel and myself, albeit in his view, justified, had nevertheless resulted in a disparagement of Mr Neutze’s position by counsel and with it effectively a disparagement of the entire defence cases. In short, the conduct of counsel had given rise to a substantial distraction for the jury. So far as his client, Ms Punnett, was concerned, Mr Grieve QC considered that the point had been reached that there could be no assurance that Ms Punnett’s defence could be left to the jury with any assurance that it could be dealt with by them untainted by their reaction to Mr Neutze’s cross-examination.
[24] Mr Grieve QC conceded that the Crown case was a strong one, quite apart from the evidence of the eyewitness, Ms Allen. He submitted, however, that her evidence was critical to the defence because, she gives direct evidence of matters, which might otherwise be left to inference. Therefore, it was imperative that her
evidence be challenged effectively. Mr Grieve QC submitted that the point had been reached where, as a result of Mr Neutze’s cross-examination, this witness had been cross-examined in a manner that was far from effective and inappropriate in terms of both form and substance. The net result was that the “waters had been so muddied” that Ms Punnett’s cross-examination would have little chance of clarifying the position to enable the jury to have a clear understanding of Ms Punnett’s defence.
[25] Mr Grieve QC then referred to a long list of particular matters arising from Mr Neutze’s cross-examination which, he said, supported his view of the position. It was submitted that the matters referred to all supported the submission that the deficiencies in the cross-examination would have an inevitable flow-on effect to Ms Punnett’s defence. Mr Grieve QC again submitted that the objections and interventions by the Crown and myself were appropriate, and there was no criticism of either. Nevertheless, the consequence was that the jury had gained an impression which had caused a reaction adverse to the defence generally, including Mr Grieve QC’s client. He was now left in a situation where it was almost impossible to mount an effective cross-examination of the particular witness.
[26] In summary, Mr Grieve QC submitted that the primary focus of his application was the form of the cross-examination, which had created an adverse impression on the jury. That impression was such that it would inevitably affect his client and the situation had gone past the point where it could be retrieved by any directions from myself.
[27] Mr Faleauto questioned whether there had been such an adverse reaction by the jury and indicated that his client would be prepared to go ahead with the trial alone.
[28] Mr McNaughton for the Crown submitted that the Crown case was nearly finished. The trial represented a major exercise which had already been mounted once before. He mentioned a concern that, if there was a further delay, there could be grounds for defence applications for stay on the ground of delay. He also specifically referred to the stress that would be imposed on the witness, Ms Allen, if she was required to go through the trial again. He submitted that, when the matter was considered, the only objection really was to the form of the questioning, and that any adverse reaction by the jury was really only directed at Mr Neutze. It was stretching matters too far to say that that reaction would necessarily impact on the defence certainly of Ms Punnett. Mr McNaughton agreed that the cross- examination was incompetent. He instanced a number of matters:
(a) An inability to formulate questions.
(b) Too often a combination of comment and question.
(c) Endless repetition, noting particularly the cross-examination of Dr Coxon. (d) The continual need for Mr Neutze to get instructions from his client.
(e) The failure to address issues.
(f) Persisting with inadmissible evidence. (g) No structure or plan.
[29] In summary, Mr McNaughton submitted that, if the jury had been adversely affected by Mr Neutze’s performance, this affected only Mr Neutze’s clients and to say that there was any prejudicial overflow in relation to Mr Grieve QC’s client was purely speculation. This being the case, it would be inappropriate to discharge the jury as sought by Mr Grieve QC on behalf of his client.
Court’s response at this point
[30] At this stage of the hearing I advised Mr Neutze that I did not wish to hear from him until he had obtained instructions from his clients as to their views as to where they stood in the light of the submissions that had been made. I also told him that he should consider obtaining advice. I adjourned the Court for an hour to enable him to attend to these matters.
[31] When the Court resumed, Mr Neutze advised me that his client, Ms Carmody, having considered the matters which had been traversed previously, now wished to obtain separate counsel. His other client, Mr Collings, agreed.
[32] In the light of these decisions I concluded, that quite apart from Mr Grieve QC’s submissions made on behalf of his client, the position had been reached where it would be quite unrealistic to continue with the trial. Mr Faleauto also indicated that he had taken further instructions from his client, Mr Fountain, and as a result he too now considered that his position had been prejudiced to such an extent that he also agreed that the jury should be discharged.
[33] Mr Neutze denied that his cross-examination deserved the criticism it had received. He said there was a point to it and he disputed that it was aimless. He accepted that it may have lacked form perhaps, but in relation to matters which Mr Grieve QC had submitted, had become confused by reason of his, Mr Neutze’s performance he submitted the criticism was unwarranted and that these were in areas of genuine confusion.
[34] Having considered the position I concluded:
(i) The nature of the cross-examination by Mr Neutze was such that there was a sensible prospect the jury had been so disenchanted with what it had seen and heard that this disenchantment would adversely affect any efforts made on Ms Punnett’s part to distinguish her position favourably. In short, I concluded that there was a risk that her case had indeed been prejudiced.
(ii) I did not consider that the position could be remedied by directions from myself. The damage had been done.
(iii) Any doubts which I might have had as to whether the jury should or should not be discharged as a consequence were dispelled by the reaction of Mr Neutze’s own clients: I do not see how those clients could have been expected to continue with the trial, they having had spelled out to them in the clearest possible terms the inadequacies of their counsel.
(iv) The change in Mr Fountain’s view of the position also served to confirm the overall generally unsatisfactory situation.
[35] Having determined that the application by Mr Grieve QC’s client should be granted, I then made an order discharging the jury and made the necessary arrangements to stand the accused down; Mr Collings and Ms Punnett to be remanded in custody; and Ms Carmody and Mr Fountain to be remanded on bail on the existing terms.
[36] Before asking the jury to return I gave Mr Neutze leave to leave the Court but requested other counsel to remain when I advised the jury as to what had happened. I also told Mr Neutze that he could not expect the matter to end at this point so far as he was concerned, and that he should consider obtaining advice.
[37] I also indicated to counsel that I would supply my detailed reasons for my decision in writing as soon as possible.
[38] Having set out the background to this matter in some detail, I now set out my reasons for the decision as follows:
Discussion
[39] The single issue to be determined in relation to this application is whether the conduct of counsel had been such that it could be said to have created an emergency rendering it, in my opinion, highly expedient to the ends of justice that the jury should be discharged without giving a verdict.
[40] Prior to the application I had become concerned at the form and substance of the cross-examinations conducted by Mr Neutze. Mr Grieve QC itemised these failings in detail. Mr McNaughton for the Crown agreed that the cross- examinations were incompetent.
[41] The question remained, however, whether that incompetence had created a situation such that it would be unfair to all or any of the accused to continue with the trial.
[42] In my view, the answer to this question lay in determining the affect of the cross-examination on the jury and then, to decide whether that affect had, or could have, produced a situation which could raise a real question as to whether one or more of the accused might be prejudiced.
[43] Counsel had differing views as to the affect on the jury. Mr Grieve QC submitted that, as a result of the interventions, by myself and Mr McNaughton, the defence conducted by Mr Neutze had been disparaged in the eyes of the jury. The result was that, the jury, having indicated frustration and amusement at the manner in which the cross-examination had been conducted, had probably reached the stage where they were scornful of the efforts produced by Mr Neutze.
[44] Mr Grieve QC considered that these reactions inevitably reacted adversely against the accused in the sense that the cross-examination was serving no purpose other than to reinforce the Crown case at the expense not only of Mr Neutze’s clients, but also his own.
[45] Mr McNaughton submitted that, whilst the cross-examinations had clearly been carried out incompetently, the jury’s reaction was limited only to their perception of Mr Neutze. Therefore, it was a case where with suitable directions from myself there was no reason why the jury could not consider their verdicts dispassionately. Therefore, the trial should continue. He emphasised that the consequences in terms of cost, time and stress to those involved in having to appear yet again for trial would be very significant.
[46] Mr Grieve QC had addressed the jury briefly after the Crown had opened its case. After explaining the Crown was required to prove the element of each charge, he noted the following issues as being relevant to his client, Ms Punnett.
(a) Who amongst the inhabitants then living in the house was involved in the illicit activities?
(b) Where within the house were the incriminating items found?
(c) The need to keep an open mind until all the evidence was heard.
[47] The overall purpose of Ms Punnett’s defence was to distance her from the manufacture and selling activities. This involved, inter alia, demonstrating that the witness, Ms Allen, and the accused, Mr Collings, were the prime offenders. This defence had two limbs:
(a) Identifying which items were significant and where they were found within the house.
(b) A careful cross-examination of Ms Allen to undermine her credibility as a witness.
[48] Mr Neutze seemed to have a similar plan but directed of course to protecting the position of his two clients.
[49] I have no doubt that the form and substance of the cross-examination by Mr Neutze had elicited an adverse reaction from the jury. That had become apparent to me before Mr Grieve QC made his application. In making this comment I want to make it clear that the jury had behaved very well. They had listened patiently for nearly two weeks. On the occasions when I addressed them their reactions were invariably courteous and positive. They were, however, fully aware of what was going on before them. There were sufficient instances for me to see from their reactions at various points that they were frustrated and at times amused at the exchanges involving Mr Neutze. At times I sensed that they too were embarrassed.
[50] The more difficult question to determine in relation to Mr Grieve QC’s application is whether the jury’s reaction was such that this alone was indicative of a situation which created a prejudice to Mr Grieve QC’s client. I am satisfied that the jury’s reaction by itself would not have necessarily caused a prejudice to the other accused. That issue can only be resolved by considering the impact of Mr Neutze’s cross-examination on the general body of evidence which was being presented to the jury.
[51] Viewing the matter on this basis I have concluded:
(a) The apparently pointless cross-examinations as to what tests had been carried out on the numerous apparently incriminating items found in the house had eventually only served to reinforce the credibility of the Crown’s evidence.
(b) Perhaps more importantly, the same pointless and the interminable time taken seemed in my view to create an impression that there was really very little substance to the defence case.
(c) If there were matters of substance which could have been addressed in order to differentiate between the roles played by the three principal accused and Ms Allen, then these were well and truly lost in a mass of quite irrelevant material.
(d) I could well imagine the jury could have reached the point of thinking that if this is the best Mr Neutze clients can have produced on their behalf, then there cannot be any real merit in the defence.
(e) Mr Grieve QC’s client was one of those who resided in the house, which meant that it was always going to be very difficult for her to establish a position of lesser culpability than the others also resident there.
(f) So far as I could tell her complicity in the alleged offending was very much on a par with that of the principal accused, Mr Collings. If I am correct in my assessment of the cross-examination on Mr Collings’ defence that I have little doubt that this would have carried over to Mr Punnett’s defence.
(g) So far as the cross-examination of Ms Allen is concerned there can be no doubt that if any of the defences were to succeed (apart possibly from that
relating to Mr Fountain), then this witness had to be thoroughly discredited. I make only one comment in relation to her cross-examination. That is, that as the cross-examination proceeded I detected, if anything, a sympathy developing within the jury towards her.
[52] My conclusion is that Mr Grieve QC had provided ample support for his submission that the conduct of the cross-examination had indeed reached the point of prejudicing any efforts which could be made on Ms Punnett’s behalf.
[53] Having reached this conclusion I am satisfied that the grounds for granting
Mr Grieve QC’s application were established.
[54] That is, however, not the end of the matter. I also had to take into account the position of Mr Neutze’s own clients. For the reasons which I have mentioned it was they who were in the first instance most likely to be affected by their counsel’s performance. Having had the inadequacies of their counsel spelled out, their reaction, namely to seek other counsel, was scarcely surprising. Furthermore, in my view it was amply justified.
[55] For the reasons which I have set out, I consider that an emergency had been created in this trial. That emergency was the incompetent behaviour of one of the defence counsel. That incompetence was such that in my view first, it could not be said that Mr Neutze’s own clients were being competently represented; and secondly, that incompetence had created a situation where I accept, the efforts of another counsel to provide a proper defence for his client had been prejudiced beyond any repair which could be effected by directions from myself.
[56] Having reached these conclusions, I consider it goes without saying that to have allowed the trial to continue would have been quite contrary to the ends of justice. It follows that there was in my judgment no other course open to the Court but to discharge the jury because, to do so, was highly expedient in the ends of justice.
[57] There is in addition a further matter which I consider is relevant to the issue of what is highly expedient to the ends of justice in this case.
[58] The situation had developed in this case where the 12 citizens comprising the jury were subjected to the sight of one counsel acting quite incompetently in the context of a serious trial of some length. It must have been abundantly clear to them that the State had been put to a very considerable expense and many people had been involved in a lengthy and complex investigation and prosecution. It must have been equally clear to them that the accused in the trial would face serious consequences if the jury concluded they were guilty. I had quite independently reached the conclusion that the performance by Mr Neutze had reached an almost farcical level.
[59] I consider the stage had been reached where it was becoming an embarrassment to have 12 citizens viewing what was going on before them with the possibility that they might conclude that the justice system of this country was prepared to countenance behaviour by a counsel which was manifestly erratic and quite unacceptable. In these circumstances, to have allowed the trial to continue would have brought the system of justice into disrepute.
[60] I am comforted in one respect in this regard. After the accused had been remanded to a further trial date it was necessary for me to explain to the jury why they were being discharged. I endeavoured to do so without unduly humiliating
Mr Neutze. It was unavoidable, however, that it be made clear to the jury that it was his conduct which had caused the abandonment of the trial because, to have allowed it to continue, could have created an injustice to the accused. I went to some length to explain that, whatever may be the exigencies of a particular trial, there always remained one imperative namely, that within any decent society, persons accused of crimes must receive and, must be seen to receive, a fair trial.
[61] The comfort which I received was the reaction of the jury. The indications which I perceived indicated to me that they were fully aware of the implications of what had occurred and that they understood why the most unfortunate result was justified. I thank them and compliment them.
[62] I consider it is necessary for me to restrict the publication of this decision until such time as the four accused have been finally dealt with by the Courts. I do so for the reason that it has been necessary for me to comment on aspects of the Crown evidence and to my assessment of the worth of the defence cases. It would be quite wrong for these views to be known publicly prior to any further trial of the accused.
[63] The ban on publication is, however, not to extend to preventing the distribution of this decision to other judicial officers, or any members of the legal profession, or other persons who may be required to consider same for specific judicial or professional reasons.
Appeal allowed; bail granted
Reported by Claire Browning
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