R v Gordon (No 6)

On the tenth day of this trial at Grafton with a jury of twelve, Mr Watts of learned counsel who appears for the accused, Mr Donald Gordon, has applied for the jury to be discharged. Counsel argues that following events which occurred in the course of the evidence of a particular witness the jury will be unable to bring an impartial mind to bear in deciding whether or not the accused is guilty as charged; or at least, given those events, justice will not be seen to be done if the trial continues before this jury.

The witness concerned is Mr Anthony Gordon who is a first cousin of the accused. As I understand the evidence I have heard, although first cousins, they did not spend much time together as youngsters. The accused was effectively adopted by an aunt and raised by her. They did not become reacquainted until adulthood and rekindled the family bond, becoming good friends.

From his evidence, Mr Anthony Gordon spent time in various parts of New South Wales and had not long returned to the Grafton region when the events with which this trial is concerned occurred on 7 November 2013.

Mr Donald Gordon is accused of the murder of Mr Danial Cotter. This is alleged to have occurred at Collum Collum Station near Baryulgil in the early hours of 7 November 2013. Mr Gordon is accused of having run Mr Cotter over with a motor car and of having bludgeoned him with “Exhibit C”, a rock, weighing about 21 kilograms, not necessarily in that order.

There is no dispute that Mr Cotter died as a result of a combination of injuries then received but in particular as a consequence of a severe traumatic brain injury associated with a transverse fracture of the base of his skull. The evidence I have heard so far from Professor Lyons, a forensic pathologist, is that either the motor car or the rock could have inflicted the relevant trauma, but he prefers the latter.

Mr Gordon and Mr Cotter had both been drinking, separately, on the afternoon of 6 November 2013. They were friends and neighbours. Mr Gordon had been drinking with Mr Anthony Gordon and their uncle Mr Andrew Donnelly. It was agreed that the three would retire to Collum Collum Station where Mr Donnelly was the manager and continue socialising.

Mr Donald Gordon returned to his home apparently to drop off his car but changed his mind and drove up to Mr Cotter's home, picking him up to take him out to Collum Collum Station with the others. The socialising continued throughout the evening and involved Mr Gordon and Mr Cotter drinking beer, bourbon pre-mixed drinks and red wine. There is no reason to suppose for the purpose of this judgment that they were other than well intoxicated at the time they decided to leave Collum Collum Station at around midnight. Indeed the forensic evidence in the case indicates that at the time of his death Mr Cotter had a blood alcohol reading getting on for twice the threshold for a high range PCA.

Given that they were drinking over the same period of time and sharing drinks, it may be logical to assume that Mr Donald Gordon's reading would have been the same or thereabouts had one been taken. In any event as I have said Mr Anthony Gordon was one of the party. He remained at the farmhouse with Mr Donnelley when the others left.

Part of the Crown case is that sometime after Mr Donald Gordon and Mr Cotter left, Mr Donald Gordon returned in something of a panic on his own saying that he had “hurt” Mr Cotter. Mr Anthony Gordon then accompanied him on foot to the place where this was said to have occurred which is a point on a dirt roadway about 50 metres from the gate to Collum Collum Station and within its boundary. When they got there Mr Donald Gordon's car was pointing south, which is the opposite direction to their home, and Mr Cotter was lying on the roadway. He was obviously severely injured so far as Mr Anthony Gordon could tell, with much blood about his head. He was unconscious but seemed to be breathing.

The Crown case is that Mr Anthony Gordon quickly returned to the farmhouse to ring the ambulance. He then left in his vehicle, a twin cab ute, to intercept the ambulance to make sure it found its way to Collum Collum Station which is in a remote location, about 90 kilometres north-west of Grafton, whence the ambulance was coming.

The circumstances giving rise to the application are as follows. When called to give evidence yesterday afternoon it was apparent from his demeanour that, as Mr Watts submits, Mr Anthony Gordon was a reluctant or sullen witness. Notwithstanding the inherently memorable quality of the events in which he was involved he professed a certain lack of recall and spoke quietly, slumped in the seat in the witness box with his head well down. I acknowledge that given that he is an indigenous man, some of that presentation may have cultural origins bearing in mind some learning about these matters which is available to judges.

He occasionally spoke in his own language addressing the accused. I interpolate that Mr Watts informs me, and it is accepted by the Crown, that despite their blood relationship they speak different Aboriginal languages and the accused did not understand what Mr Anthony Gordon said. Doubtless because of his apparent reluctance, or lack of memory, it was decided to provide the jury with his account by playing a DVD of what is commonly referred to as a “walk through interview” conducted by the investigating detectives on Sunday, 10 November 2013. That procedure was adopted without objection.

However, there are a number of things recorded in the course of that interview which would not have been admissible in evidence had the witness been called to give viva voce testimony in the usual manner. I accept that the significance of some of these matters was overlooked by Mr Watts, a very experienced and able barrister, in his review of the material before consenting to the procedure.

One has to take these things in context but I am not able to set things out in full in the course of this ex tempore judgment. In a very careful and not overbearing interrogation Detective Senior Constable King, and to a lesser extent Detective Senior Constable Burke, took Mr Anthony Gordon through the details of his then recollection and took him to some of the various points of interest where he witnessed the matters relevant to the case.

Not directly responsive to the questions he was asked he volunteered certain conclusions:

At the end of the interview (at page 37) he said this:

That last passage was volunteered at the very end of the interview, except for certain procedural matters observed at its conclusion. As soon as the tape stopped playing I gave the jury a short direction (at page 624, lines 4-28 of the transcript) to the effect that those matters are not evidence and that the jury should not trouble themselves about whether he was stating some belief about Mr Donald Gordon's culpability and they should put the comments out of their mind and disregard them entirely:

There was a short cross-examination by Mr Watts during which it became obvious that no one was going to do any better with Mr Anthony Gordon than what was on the DVD. There was no re-examination and he was excused.

He had yesterday afternoon indicated in some manner that he would like to say something about the process. When he was excused he made this statement (at page 627, lines 9-10 of the transcript):

I can confess that it was difficult to hear him because he continued to be a bit slumped, head down and speaking softly when he said that, but I have checked the details with the transcript and I am satisfied that I have accurately recorded what he said. He is much closer to the jury than me and at that point in time, as he was excused, it seemed apparent that one or two of the jurors wanted a break and may have become a little emotional about the evidence he gave. I took the morning adjournment early, having asked the jury to disregard the statement because it was not evidence (at page 627, lines 20-25 of the transcript):

Mr Watts reminded me that he also spoke again in his own language and what he said is not translated.

When I considered the matter in chambers over the usual adjournment, I decided that it was appropriate to give a much more fulsome direction about these matters to the jury which I discussed with counsel upon resumption, hearing their submissions on the content of such a direction, which I considered and I feel I adopted.

I should say that during the course of those submissions, Mr Watts indicated his concerns about Mr Anthony Gordon's evidence and that he felt the need to discuss the matter with his client and take instructions about whether this application should be made. I indicated that I would give him that opportunity during the lunch break and that in the meantime I would continue with the trial.

I gave the jury a longer direction, which is fully recorded in the transcript and extracted below (from page 636, lines 18-44 of the transcript), emphasising that what was said is not evidence, explaining why and reinforcing the direction that I have given at the outset of the trial and every day upon the adjournment of the trial of the need for the jury to act only in accordance with their oath or affirmation on the evidence they hear in Court and not to heed the opinions of any others about the case. Only their opinion, they are told every day, matters and even then they must keep an open mind until all the evidence, all the argument and all of the directions of law are in.

Criminal trials are not works of perfection. The law operates in the real world at a practical level. It is not uncommon for things better avoided to arise during the course of evidence. This seems to be almost inevitable given the oral tradition to which we properly adhere in jury trials. Fundamental to trial by jury is the assumption, which underpins the whole system, that juries can and do follow the directions that judges give them. If we were to depart from that assumption the whole system, which has served the community well for 200 years, would be called into question and probably collapse.

Mr Watts acknowledges that the direction was appropriate but submits, as sometimes can occur, that a mere direction is insufficient to guard against, what he submitted, was a real risk of a miscarriage of justice occurring.

In ordinary language, his point boils down to the consideration, I think, that given what a lawyer would say was the unsatisfactory demeanour of Mr Anthony Gordon, and given that statements were allowed to be heard by the jury, both on the DVD and at the conclusion of his evidence, the jury would not be able to put out of their minds a strong suspicion that Mr Anthony Gordon knew more than he told us about or that what he knew was incriminating from the point of view of the accused

Were that impression left, regardless of whether this jury could put those matters out of their mind as directed, there could be a question about whether fair-minded observers might think that they could not and that justice would not appear to be done by their verdict.

Mr Campbell of learned counsel, the Crown Prosecutor, accepts that the matter is a difficult one and agrees that it seemed fairly open to infer that Mr Anthony Gordon did not want to be here in court giving evidence, that he was perhaps tailoring his evidence and that particularly he may have been feigning a lack of recall. However, he submitted that the direction was sufficient, but would need to be reinforced during the final summing-up.

I have given this matter very close and serious consideration. Naturally I am impressed that two such experienced counsel have misgivings about what occurred.

As I have said, the test is not whether the trial is perfect but whether it is fundamentally fair. Had counsel foreseen the course that Mr Anthony Gordon's evidence took, a different approach to presenting his evidence may have commended itself to them, as Mr Campbell submitted. For instance, merely playing the DVD without his attendance may have been agreed. I am not so sure that that would overcome the presently perceived difficulty. He is clearly a very significant witness. The jury have heard about his presence at Collum Collum Station and were he not called to give evidence they might naturally ask questions about his absence. I do not know that the difficulties potentially attending that course are any less than the difficulties attending the course that was actually followed.

I accept Mr Watts' submission that Mr Anthony Gordon's evidence is likely to be very significant and that both the prosecution and the defence will seek to draw much from it in their final arguments to the jury.

I am of the view that the fundamental assumption I have referred to is one well made. Having kept a weather eye on the jury throughout the course of the trial, doing the best I can, I am satisfied that they are very conscientious. It has not been suggested that I should make any enquiry of them to ascertain whether they have concerns about Mr Anthony Gordon’s attitude and in my own view to make enquiries of the jury is likely to be counter-productive. Although there are some matters for concern in Mr Anthony Gordon's presentation and in some of his statements as I have outlined, I am of the view that the jury will accept and act upon the directions I have given them about the evidence which I will reinforce during the summing-up.

I am not persuaded, on balance, that the trial from here on in will be unfair and I am not persuaded, therefore, that I should discharge the jury.