Judgment - ex tempore (revised)

At the conclusion of the opening address of Mr Waterstreet of counsel, who appears for the accused McNamara, Mr Thomas of counsel, who appears for the co-accused Rogerson, made an application that the jury be discharged. That application was supported by the Crown Prosecutor. The application, which was opposed by Mr Waterstreet, arises against the following background. At the conclusion of the opening address by the Crown, but prior to the commencement of the opening address on behalf of McNamara, I specifically drew counsel’s attention to the provisions of s. 159(2) of the Criminal Procedure Act 1986 (NSW) (“the Act”) along with the decision of the Court of Criminal Appeal in R v MM [2004] NSWCCA 81, where Levine and Howie JJ made a number of observations as to the ambit of s. 159(2) of the Act or, put more specifically, as to the restrictions placed upon counsel for an accused in an opening address to a jury which follows the opening by the Crown. In particular, at [139] Howie J made reference to the fact that the purpose of a defence opening under s. 159(2) is to "define for the jury's benefit the real issues in the trial". His Honour went on to observe that the provision did not give counsel an opportunity to, amongst other things, embark on a dissertation on the onus and standard of proof, nor did it confer an opportunity to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. Although his Honour restricted that latter observation to evidence of a witness called in the Crown case, for my part I see no reason why that restriction ought not apply to the assessment of evidence generally. In the course of his opening address Mr Waterstreet, as he was entitled to do, informed the jury that in respect of the second count in the indictment, the accused McNamara would raise a defence of duress. That had been foreshadowed in a number of pre-trial applications that I have determined prior to today. However, having raised that issue, Mr Waterstreet said the following (commencing at T54 L29):

“You might think, from Mr McNamara's point of view, when Mr Rogerson pulled the gun out and shot Mr Gao, without any warning, without any ifs or buts, that the fear of Mr Rogerson was very apparent in the mind of Mr McNamara because he knew the reputation of Mr Rogerson. He knew that he had killed two, three people when he was in the Police Force.

So, when a threat was made by Mr Rogerson, who having killed someone threatened to kill Mr McNamara, you might think that Mr McNamara had good cause to be afraid” (my emphasis).

It is that passage which primarily forms the basis of the application to discharge the jury. Mr Thomas submits, amongst other things, that the terms in which that passage was put to the jury amounted to an assertion that his client had previously killed two or three people, and had done so other than in the course of his duty as a police officer. Mr Thomas also submitted provisions of s. 159(2) did not permit counsel for an accused, in the course of an opening address, to descend into discussing evidence which would obviously be the subject of objection and which, subject to my determination may be ruled inadmissible. Mr Thomas submitted that in all of those circumstances, the accused Rogerson could not receive a fair trial and that the jury should be discharged. The Crown Prosecutor supported Mr Thomas' application. In the Crown's submission, the accused Rogerson could not obtain a fair trial as a consequence of the prejudice which would inevitably flow from what had been said by Mr Waterstreet. The Crown highlighted the inherent difficulty in counsel opening on material which may ultimately not be evidence before the jury. Mr Waterstreet opposed the application. He submitted, amongst other things, that he was entitled to open to the jury in respect of an important issue such as duress. He further submitted that it was within the ambit of what was appropriate that he be permitted to open to the jury in relation to what he says the evidence will be in the trial. In support of his position, Mr Waterstreet referred me to two authorities. The first was a decision of the Victorian Court of Criminal Appeal in R v Gibb (1982) 7 A Crim R 385. Mr Waterstreet drew my attention specifically to a passage from the judgment of the Court (at 393) which was in the following terms:

“Joint trials of course raise difficulties, some of which cannot be foreseen at the outset. It is for this reason that a Court of Criminal Appeal must retain the power relied upon in Demirok, but that power will not generally be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other. Speaking generally, although the Crown may be inhibited to some extent by the evidence it can lead, an accused should be allowed to lead in his defence whether by way of calling witnesses or by a statement from the dock or by way of cross-examination of any witnesses called at the trial any evidence which is relevant to his defence. A trial judge, however, retains a discretion to exclude such evidence in a proper case but such an exercise of discretion will necessarily be rare. It is not to be exercised simply because one accused wishes to elicit evidence of the bad character of another accused.”

The decision in Gibb (supra), a copy of which I obtained in the course of argument, appears to deal with issues concerning separate trials. The passage to which I have referred, and to which Mr Waterstreet drew my attention, expressly makes reference to the power of a trial judge having a discretion to exclude evidence. The decision also makes reference to circumstances in which one accused may lead evidence of the propensity of another accused to be violent. However, it says nothing at all about the limitations placed upon counsel in an opening address on behalf of an accused. The second authority to which I was referred was the decision of the Queensland Court of Appeal in R v Oulds [2014] QCA 223. Mr Waterstreet submitted, as I understood it, that this decision supported the proposition that it was open to him, in the course of his address, to refer in detail to what he asserted would be evidence in the trial. That case involved (inter alia) a complaint made against trial counsel that he had failed to outline the case for the accused in his opening address. It is of some significance, in my view, that Holmes JA (with whom Fraser JA and Thomas J agreed) observed (at [65]) that in Queensland there is no prescription upon what may be said by counsel in an opening address. Her Honour went on to specifically observe (at [66]) the distinction which is to be drawn between the position in Queensland and that which operates in NSW. Her Honour made specific reference to the fact that the Act confers a limited right upon counsel for an accused to make opening address. In making that observation, her Honour made specific reference to the judgment of Howie J in MM (supra) to which I referred a moment ago. Her Honour went on to say (at [69]) that the decision in MM was of limited assistance because in the absence of a statutory provision, the parameters for the content of an opening address on behalf of an accused were determined by what the interests of justice required. In making that observation, her Honour was at pains to distinguish such a position from that which operated in States such as New South Wales where a statutory provision applies. In these circumstances, I do not consider that the decision in Oulds (supra) assists Mr Waterstreet’s position. As I have already observed, there is no issue that in an opening address to the jury counsel for an accused is entitled to draw the attention of the jury to those issues which are likely to arise in the trial. However, there is a clear distinction between the right of counsel to draw the jury's attention to issues (which is permissible), and descending into discussing evidence which may or may not ultimately be before the jury (which is not permissible). That is particularly so in circumstances where the matter to which Mr Waterstreet referred, and which has given rise to the present application, would obviously attract an objection by counsel for Rogerson and which would then be a matter upon which I would have to adjudicate. In my view, it is entirely inappropriate for counsel to descend into the evidence in that way. I do not accept the submission advanced by Mr Waterstreet that the provisions of s. 159(2) of the Act are to be relaxed, to any degree, in a case where the joint accused are to engage in what might be described as “cut throat defences”. Although Mr Thomas' application, and the Crown's support of that application, was limited to the one circumstance to which I have referred, there were other aspects of counsel's address which, in my view, amounted to a clear traversal of the provisions s. 159(2) of the Act. For example, commencing at T53 L16, Mr Waterstreet said the following:

“You will hear Mr Thomas open on matters that he suggests will prove his case and lead to his acquittal.”

It is no part of the role of counsel for one accused in the course of opening address to comment upon what counsel for another accused may or may not say. Moreover, the terms of what was said amounted to a clear reversal of the onus of proof. There is no onus on either accused to prove anything in this case. To suggest, in the course of an opening address, that there was an onus on a co-accused to point to matters which would “prove his case and lead to his acquittal” was, in my view, grossly improper. There was also a reference in the course of Mr Waterstreet's address to an asserted association between Rogerson and "bikies". In particular, the following was said (commencing at T56 L42):

“In other words, the issues would be whether Mr McNamara had any connection with bikies but rather the evidence might suggest, we say, Mr Rogerson had connections to bikies because in the days after this murder, and the days after there was a gathering at a hotel, friends of Mr Rogerson, including a powerful leader of a gang of bikies who was a friend of Mr Rogerson. So that in assessing the evidence, what Jamie was intending to do with the drugs that he hoped to sell, you might think, who, among the two, who had any connection whatsoever with the bikies. Not Mr McNamara” (my emphasis).

The unacceptability of making reference to what the evidence “might” suggest will be self-evident. However, that paragraph is also significant in the light of a submission which was made on behalf of the accused McNamara in an earlier pre-trial application which came before me. On that particular occasion, I was dealing with an application by the Crown Prosecutor (upon which I have since ruled) that he be permitted to rely on representations of the deceased which would otherwise be caught by the hearsay rule. The transcript will reflect that in the course of the argument in relation to those issues I made the observation that some of the representations were contained within paragraphs of witness statements which included material which was highly prejudicial. In responding to the Crown's position Mr Lange of counsel (who for the purposes of that application appeared with Mr Waterstreet) said the following (in written submissions) in respect of one such representation upon which the Crown relied:

“Moreover, given the prejudice which invariably attaches to the term 'bikie', it is submitted that the risk of unfair prejudice outweighs the slight probative value.”

After I had heard argument in relation to those matters, I came to the conclusion that references to the accused McNamara being involved with “bikies” were indeed highly prejudicial and that the Crown should not be permitted to rely upon them. The very same term was used by Mr Waterstreet in the course of his opening address in connection with Rogerson. How it could possibly have been thought that the use of such a term was prejudicial to one accused but not another is frankly beyond me. There is a serious incongruity, in my view, between an accused asserting that the use of the term "bikie" carries with it unfair prejudice when it is used in reference to himself, and relying on the very same term, in the course of an opening address, to describe the co-accused's association with others. This is particularly so when the highest it is put is that the evidence “might” suggest that this is the case. Further, in the course of his opening address, and on more than one occasion, Mr Waterstreet invited the jury to engage in an analysis of the evidence. One does not have to pause for too long to realise the difficulty in extending such an invitation when no evidence has yet been given. For example at T59 L28-29 the following was said:

“I want to suggest to you that the evidence properly analysed and the credit or the versions given to you, as I anticipate Mr Rogerson's version--”

It was at that point that I interjected and asked counsel, not for the first time, to confine himself to the issues. An invitation to the jury, in the course of an opening address by counsel for an accused, to engage in an analysis of the evidence was one of the matters specifically referred to by Howie J in MM as being inappropriate. Such an invitation is rendered even more inappropriate when it is an invitation to analyse the co-accused’s “version” of events which has not yet been given. In MM Howie J expressly said (at [139]) that the opportunity for defence counsel to open to the jury at the commencement of a trial was not an opportunity to urge upon a jury the way that the jury should assess the evidence. His Honour referred in this context to “a witness to be called in the Crown case". It is no different, in my view, when the jury are asked to assess evidence of a co-accused. The matter raised by Mr Thomas and supported by the Crown is, in my view, sufficient to lead to the conclusion that the accused Rogerson could not receive a fair trial. That matter, along with the additional matters to which I have referred, demonstrate the extent to which, in the course of his address, counsel went significantly beyond what was permitted or appropriate. I therefore order that the jury be discharged.

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