R v Martinez; R v Tortell (No. 4) [2019] NSWSC 1620

R v Martinez; R v Tortell (No. 4) [2019] NSWSC 1620

The prejudice arising from the witness’s statement that the accused had been previously sentenced was not incurable. The concerns raised by the accused could be met by appropriate directions to the jury reminding them of the presumption of innocence and that the question in the trial is whether guilt is proven beyond reasonable doubt. Appropriate deletions from the transcript would also mitigate prejudice. Accordingly, the application to discharge the jury was refused.

Jurisdiction
Australia
Judgment Date
20 November 2019
Procedural Posture
Criminal / Retrial; Application for Discharge of Jury During Trial
Outcome
Application to discharge jury refused.
Legal Topics
['jury Discharge' 'retrial' 'prejudice' 'fair Trial' 'curative Directions']
['criminal Procedure'] ['jury Discharge' 'retrial' 'prejudice' 'fair Trial' 'curative Directions']

Case Brief

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Procedural Posture

Criminal / Retrial; Application for Discharge of Jury During Trial

Legal Issues

  1. 1 ['Whether incurable prejudice resulted from jury learning accused had been previously sentenced' 'Whether jury can bring fair and untainted minds to issues in trial' 'Whether appropriate directions can cure prejudice']

Ratio Decidendi

The prejudice arising from the witness’s statement that the accused had been previously sentenced was not incurable. The concerns raised by the accused could be met by appropriate directions to the jury reminding them of the presumption of innocence and that the question in the trial is whether guilt is proven beyond reasonable doubt. Appropriate deletions from the transcript would also mitigate prejudice. Accordingly, the application to discharge the jury was refused.

Court Disposition

Application to discharge jury refused.

Orders

  • ['Application for discharge of the jury declined.' "Words 'they were also sentenced prior' and following question/answer to be deleted from transcript." 'Trial to proceed.' 'Judge to give jury an appropriate direction.']