R v Brooks (No 2) [2017] NSWSC 260

R v Brooks (No 2) [2017] NSWSC 260

Although the statement that the accused had been sitting in gaol for two years waiting to give his account was an inappropriate, emotive and argumentative flourish, the balance of the defence opening did not breach s 159 because it was responsive to matters raised by the Crown and concerned matters to be raised by the accused. Any prejudice was minor and capable of being cured by directions reminding the jury that counsel's addresses were not evidence and that custody was irrelevant. There was no high degree of need to discharge the jury.

Jurisdiction
Australia
Judgment Date
08 March 2017
Procedural Posture
Criminal Trial / Crown Application to Discharge Jury After Defence Opening Address
Outcome
Crown application for discharge of jury refused.
Legal Topics
['discharge of Jury' 'defence Opening Address' 'section 159 Criminal Procedure Act 1986 (nsw)' 'custodial Status of Accused' 'curative Directions']
['criminal Law' 'criminal Procedure' 'evidence'] ['discharge of Jury' 'defence Opening Address' 'section 159 Criminal Procedure Act 1986 (nsw)' 'custodial Status of Accused' 'curative Directions']

Case Brief

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Procedural Posture

Criminal Trial / Crown Application to Discharge Jury After Defence Opening Address

Legal Issues

  1. 1 ["Whether defence counsel's opening address exceeded the limits imposed by s 159 of the Criminal Procedure Act 1986 (NSW)." "Whether defence counsel's reference to the accused sitting in gaol for two years waiting to give his account created prejudice requiring discharge of the jury." 'Whether any prejudice to the prosecution could be cured by judicial directions.' 'Whether there was a high degree of need to abort the trial by discharging the jury.']

Ratio Decidendi

Although the statement that the accused had been sitting in gaol for two years waiting to give his account was an inappropriate, emotive and argumentative flourish, the balance of the defence opening did not breach s 159 because it was responsive to matters raised by the Crown and concerned matters to be raised by the accused. Any prejudice was minor and capable of being cured by directions reminding the jury that counsel's addresses were not evidence and that custody was irrelevant. There was no high degree of need to discharge the jury.

Court Disposition

Crown application for discharge of jury refused.

Orders

  • ['Application to discharge the jury refused.']