R v Sagaukaz[2013] QDC 101

DISTRICT COURT OF QUEENSLAND

RULING

1. [1]
   In this matter on the third day of the trial one of the witnesses was giving evidence about a conversation that occurred in somewhat emotional circumstances between himself and the accused.

2. [2]
   The accused is charged with one count of rape and one count of assault occasioning bodily harm. The Crown case essentially is that, while the accused was attending a party at a house, he went into a bedroom where another guest was asleep after having had too much to drink, asleep on a bed in a darkened room, and that he began to have sexual intercourse with her. He was interrupted by another guest at the party who raised the alarm, and a number of people came into the room.

3. [3]
   It was at this point that it is alleged that he assaulted a friend of the complainant in the first count, by striking her, causing her to fall to the floor and be knocked unconscious, or according to the evidence of one witness, striking her and possibly knocking her unconscious from the blow.

4. [4]
   In any case, the evidence of this particular witness was that he went into the room after this had started and he had a conversation with the accused trying to calm him down. In the course of describing that he said words to the effect that he had previously been told by the accused that he had been to gaol, and “I told him that it was not worth going back to gaol for”. This was said in a context suggesting that he was trying to prevent the accused from engaging in a violent fight at that time.

5. [5]
   Counsel for the accused has applied to have the jury discharged on the basis that this has disclosed to the jury the proposition that the accused has previously been in gaol. It was initially thought that that statement was not correct. The Crown Prosecutor pointed out that there were no sentences of imprisonment on the criminal history of the accused, but it appears from further investigation that there were two or three occasions when the accused was in custody on remand, either in a watch-house or in a juvenile detention centre.

6. [6]
   The information currently available is to the effect that the longest occasion was two nights, and there were two other occasions when he was in custody for one night. At the moment all I have is unverified information said to come from the mother of the accused that these were for minor offences, in the nature of public nuisance offences. I do not know whether ultimately those charges resulted in convictions. I have sought further details in relation to that.

7. [7]
   The proposition that the accused had previously been in gaol is obviously something which is inadmissible. It was not expected, I am told by the Crown Prosecutor. It came out when the witness was describing how he had been trying to calm down the accused in the circumstances mentioned. It was not in direct response to any particular question which he had been asked.

8. [8]
   In circumstances where inadmissible and prejudicial evidence is inadvertently admitted it is established that a discretion arises to discharge the jury. There have been a number of cases where that has been considered. It was noted by Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 at 604 that reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law.

9. [9]
   Nevertheless, it is also established that the inadvertent placing of such evidence before a jury will not necessarily result in a mistrial. In Webb and Hay v R (1994) 181 CLR 41, Toohey J, with whose judgment in this respect the Chief Justice and McHugh J agreed, said at page 90:

“Where evidence prejudicial to an accused is elicited inadvertently it is a matter for the trial Judge to decide whether the jury should be discharged. If the jury are not discharged on appeal the question is one for determination as mentioned earlier in these reasons.”

10. [10]
    In that particular case a discharge of the jury was sought on the ground that there had been an inadvertent disclosure in the courses of examination-in-chief of a prosecution witness to the effect that Hay had done some time in prison. The witness was asked how long she had known her, and said that “it was when she was doing some time in prison I used to go and visit. I only just met her through Cindy whilst she was in gaol.”

11. [11]
    An application to discharge the jury was refused and that conclusion was upheld by both the South Australian Court on appeal and by the High Court.

12. [12]
    The High Court returned to the issue in the matter of Crofts v R (1996) 186 CLR 427. A joint judgment of four members of the Court said at page 440:

“It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be acknowledged to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge would usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.”

13. [13]
    Those authorities were referred to in the Court of Appeal in Queensland in R v Fraser [2001] QCA 187 from [37]. In that case there had been a similar but rather less direct disclosure of the fact that the appellant had previously been in prison. A witness who was employed as a prison officer had mentioned that he had worked with the appellant for about eight years.

14. [14]
    The Court of Appeal concluded at [45] that it would have been possible for the jury by putting different pieces of evidence together to have worked out that this may well have meant that the appellant had been imprisoned for eight years, but they thought it unlikely that the jury would make that connection, and in circumstances where there was no actual evidence about prior imprisonment and they were warned in the usual way to decide the case only on the evidence, the Court concluded that the verdict of guilty was not intrinsically flawed. The trial Judge was said to have been right not to discharge the jury.

15. [15]
    Reference was made there to a Victorian case of R v Knape [1965] VR 469. The approach in that decision was referred to by the Victorian Court of Appeal in R v Hartwick and others (2005) 14 VR 125 at [75]. The court in a joint judgment said:

“The decision of the Court of Criminal Appeal in R v Knape was once thought to mean that an irregular disclosure of evidence of bad character in the course of trial would result in the discharge of the jury unless the disclosure could not possibly have affected the jury's judgment. But the inflexibility of that sort of approach was rejected by the Court of Criminal Appeal in R v Boland and in R v Vaitos and hence, as the New South Wales Court of Criminal Appeal later observed in R v George, Harris and Hilton, the informing principle in Victoria as in New South Wales is one which places responsibility on the trial Judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial. In R v Su and others this court reiterated that the principle is one of necessity. There must be evident a high degree of need for discharge before that course should be adopted. In Crofts v R the High Court gave its imprimatur to that approach. The High Court said that there are no rigid rules to govern the outcome of an application for such a discharge. Each case depends among other things upon the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”

16. [16]
    I should mention that it seems to me that in Crofts it is not obvious that the High Court specifically approved one aspect of that approach, namely that there must be evident a high degree of need for discharge before that course should be adopted.

17. [17]
    The Victorian Court of Appeal cited for that proposition three cases including R v Fraser to which I have already referred. It is, however, a proposition which appears to be derived from the decision of the Victorian Court of Criminal Appeal in R v Boland [1974] VR 849. The judgment of the Court in that case stated at p 866:

“The power of a trial Judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Windsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’.”

18. [18]
    In R v George (1987) 9 NSWLR 527 Chief Justice Street, with whom the other members of the Court agreed, said, among other things, that the law in that state did not differ from that stated there. He also expressed the test as “whether it is necessary to discharge the jury in the interests of ensuring a fair trial.” (p 533)

19. [19]
    That passage was also cited in the principal judgment in the Court of Appeal of Western Australia in Narrier v Western Australia [2008] WASCA 191 at [36] where it was added that these observations were cited with approval by the Chief Justice and Toohey J in R v Glennon (1992) 173 CLR 592.

20. [20]
    More recently in Queensland in R v Crowther [2010] QCA 334 there was evidence from a witness which was said to have emerged unexpectedly that the accused had said at one point in the incident in that case that there was one bullet left, he should use it on himself, he's not going back to gaol. “It was [the witness’s] fault that he was going back to gaol.”  This inevitably disclosed to the jury that the accused had previously been in gaol.

21. [21]
    In that case there was a specific direction, which was quoted by the Court of Appeal, by which the jury was warned that they must not draw any adverse inference against the defendant from what he was alleged to have said about going back to gaol. They were told to disregard it completely because it would be pure speculation as to what he was talking about and to speculate would be unfairly prejudicial to him, so disregard that piece of evidence. I suppose, bearing in mind that at that time the defendant in question was facing a charge of murder, it may not have mattered very much just what the actual explanation for his having been in prison was.

22. [22]
    The Court of Appeal said at [132]:

“In the absence of competing evidence we have no reason to conclude that the jury did not follow these judicial directions. The Judge emphasised to the jury throughout the trial that they must reach their verdicts only on the evidence in the case. She directed them to put aside any questions of prejudice. About three weeks later when directing the jury the Judge summarised the evidence of that witness without making any reference to the inadmissible portion of it. The Judge did not err in refusing an application for a mistrial. We are not persuaded that this inadmissible evidence in the light of the Judge's directions could have affected the determination of the jury verdict. It has not caused a miscarriage of justice.” 

In that case there was no discussion of principle.

23. [23]
    I have not in the time available been able to find a decision of the Queensland Court of Appeal which either expressly adopts or expressly dissents from the approach adopted in R v Hartwick, and other cases, by the Victorian Court of Criminal Appeal, and in R v George by the Court of Criminal Appeal of New South Wales. However, bearing in mind that that approach was said by the Court of Appeal of Western Australia to have been approved by the High Court, or at least two Judges of the High Court, in Glennon, it seems to me that they are deserving of the degree of respect appropriate for decisions of intermediate appellate courts, particularly concurrent decisions of two intermediate appellate courts. Indeed it appears that in Narrier that approach was adopted in Western Australia as well.

24. [24]
    So I think, notwithstanding that I haven't been able to find a case specifically adopting that approach in Queensland, it does seem to me that that approach should be adopted. In those circumstances it seems to me that unless disclosure of the true situation would have the effect of revealing to the jury that the accused had previously been convicted of some significant or serious criminal offence, or some offence which might have been in some way relevant to these particular charges such as a sexual offence or an offence of violence, if the jury are told the true situation they will see it for what it is, which is an insignificant matter, and they are unlikely to fail to follow a direction that it is irrelevant and they should disregard it.

25. [25]
    On the assumption that that is the true situation, then I am not prepared to discharge the jury, but I think that they ought to be told what the true situation is, and I think that that could be probably most conveniently dealt with by the Crown making an agreed admission as to what that was. However, I think for the moment until I know more about what the true situation is, I don't know that I can go any further.

26. [26]
    In the event, the jury were given this direction the following day:

“Members of the jury, yesterday towards the end of the evidence Mr Ryan mentioned that the defendant had told him that he had been in gaol. I would not want you to speculate about that, so I will tell you that although he has technically been in custody it was only for very short periods on remand. In December 2008 he was in the watch-house overnight for one night. In August 2009 he was again in the watch-house overnight for one night. In November 2009 he spent two nights in custody on remand before bail was arranged. These were only for minor street offences. On the first occasion the defendant was just cautioned and discharged. He was never sentenced to a term of imprisonment.

I have told you that not because it is relevant, it is not, but because otherwise there is a risk you would speculate about the situation and you might assume that he had previously been sentenced to a term of imprisonment. Those matters are, of course, completely irrelevant to these charges. You must not treat this as something tending to show that the defendant is the kind of person who is likely to commit such an offence. It would be unfair to speculate about them and you must not use this information in any way. You must disregard it completely. I believe that knowing that it is a matter of no significance will assist you to do that.”

27. [27]
    Verdict: Not guilty of both counts.