R v Brooks (No 2)

At the conclusion of Mr Boe’s opening address, the learned Crown Prosecutor made an application that the jury be discharged. The basis of the application was that Mr Boe’s opening exceeded the boundaries set by s 159 of the Criminal Procedure Act 1986 (NSW). I declined the application for discharge of the jury and the trial is continuing. These are my reasons for that decision.

The Crown submitted generally that defence counsel’s opening was argumentative in that it contained submissions rather than elucidating the issues that would arise in the trial. Specific complaint was made of the following passage which came at the end of the opening address [1] :

Mr Boe conceded that he should not have said that his client had been in gaol for two years waiting to explain himself and that this was an unnecessary flourish. Apart from the emotive and argumentative impact of that statement, it creates an expectation in the jury that the accused will give evidence in the trial when he is under no obligation to do so and when, as I understand it, a decision on that critical forensic choice is yet to be made. [3]

However, Mr Boe defended the balance of his opening and maintained that he raised Mr Brooks’ custodial status as a response to the Crown Prosecutor raising the matter in his opening. As I indicated in argument, I had not picked up that part of the Crown’s opening. [4] However, I accepted Mr Boe’s recollection, the learned Crown Prosecutor did not contest it and the transcript bears it out. The Crown Prosecutor’s opening included:

This was a reference to some evidence that was admitted over objection. [6] The basis of the objection concerned the ambiguity of the admission and the fact that the accused’s formal admissions reduced the probative value of the conversation (or made it irrelevant altogether). I did not understand the objection involved the contention that leading the evidence would necessarily disclose that the accused was in custody. Whether, in leading this evidence, it is necessary to refer to the fact that the accused was in custody at the time is doubtful. However, that matter was not raised in the pre-trial arguments and I am not aware whether counsel discussed the manner in which this evidence would be led prior to the opening addresses. In the course of the pre-trial hearing, objection was also taken to two telephone intercepts recorded when the accused was in gaol. One of the things relied on to establish prejudice was the fact that these would necessarily disclose that the accused was in custody. [7] The recordings were excluded, but not on that basis. [8] As I said in argument, the fact that an accused person is in custody in a murder case is not surprising and any prejudice can usually be cured by direction. [9] Nevertheless, where the evidence can remain silent or neutral on the issue, it is preferable that the matter is not raised because it is irrelevant and at least capable of giving rise to some prejudice.

As I said, I am not privy to any conversations between counsel as to how this evidence is to be adduced or whether there was any discussion about leading the evidence of the conversation without reference to where the conversation took place. In any event, for present purposes, all that needs to be observed is that the accused’s custodial status was referred to in the Crown Prosecutor’s opening and defence counsel was entitled to respond to that matter. However, as Mr Boe accepts, the response included an unnecessary and inappropriate flourish. That part of the defence opening was argumentative and emotive.

Two questions arise. The first is whether there was a breach of the statutory provision that allows an accused to make an “opening address”. The second concerns the consequences that flow from such a breach and, more particularly, whether it is necessary or appropriate to discharge the jury.

Section 159 of the Criminal Procedure Act 1989 (NSW) allows the defence to make an opening statement but it places some restrictions on its content. The section is in the following terms:

In R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 the Court of Criminal Appeal (Levine and Howie JJ, Smart AJ) made observations about the limitations the statute is said to place upon counsel for an accused person. The ground of appeal with which their Honours were concerned was that the trial miscarried as a result of the Crown Prosecutor’s closing address. In particular, the ground complained that the address “undermined the effect of the directions his Honour gave concerning the need to scrutinise the complainant’s evidence with great care and the problems caused by the very lengthy delay in complaint.” In separate judgments, and to varying degrees, the members of the Court indicated that the Crown Prosecutor had exceeded the bounds of appropriateness and propriety in his closing address. However, in spite of what seems to have been an egregious breach of the special position held by the Crown Prosecutor in the system of criminal justice, [10] the majority held that the conduct did not give rise to a miscarriage of justice. Smart AJ came to the contrary view and would have quashed the conviction and ordered a retrial.

The Judges considered that the impugned part of the Crown’s closing address appeared to be a response to the opening statement of defence counsel that exceeded the parameters established by s 159. The impermissible passage in the defence opening was identified by Smart AJ at [189] as follows:

Levine and Howie JJ, while finding the Crown to have acted inappropriately, declined to uphold this ground of appeal on the basis that it did not lead to a miscarriage of justice. Howie J, in particular, came to that conclusion because the prosecutor was responding to the impermissible part of the defence counsel’s opening statement. His Honour then delivered the following, often enough quoted, passage concerning the restrictions created by s 159:

Howie J quoted the second reading speech introducing s 159 into the Criminal Procedure Act. [11] The extent to which it is appropriate to resort to such secondary materials is well established. [12] The terms of s 159 are reasonably clear. Defence counsel is permitted to open both (i) in response to matters raised in the prosecutor’s opening and (ii) in respect of matters that will be raised by the accused. The inclusion of the word “generally” supports the proposition that the legislation ought not to be read in “a narrow and pedantic manner”. [13] The legislature did not restrict defence counsel to a statement that “outline[s] the issues in contention between the prosecution and defence”. [14] In Karapandzk, Doyle CJ observed that the New South Wales provision “appears to give somewhat more latitude to counsel than does” its South Australian equivalent. [15] His Honour approved the comments of Howie J in MM.

As I indicated in argument, it may be that I take a more relaxed view than other judges but it is well accepted that defence counsel is not permitted (any more than the Crown Prosecutor is permitted) to engage in emotive and argumentative advocacy in opening the case for the jury. However, the section allows defence counsel to do more than simply identify the issues to be litigated in the proceedings. It should be remembered that trials like the present generate a great deal of emotion. In the present case, there are to be agreed facts concerning the injuries and cause of death of the victims and the accused has made extensive formal admissions. [16] Nevertheless, the learned Crown Prosecutor, quite properly, detailed the injuries in his opening address. [17] This caused people, who I assume are members of the victim’s family, and who are sitting with a large contingent of supporters in the public gallery, to become noticeably emotional. Some people in the public gallery were crying. Some of defence counsel’s opening was calculated to neutralise such emotion and to invite the jury put aside such emotion and focus on the true issues in the trial. Mr Boe invited the jury to “get rid of all the noise that is going to go on in this case and get down to the true issue”. [18]

The defence opening sailed somewhat close to the wind when Mr Boe referred to the evidence to be given by some of the witnesses to be called by the Crown. The address came perilously close to argument. In particular, the defence opening referred to the fact that the victim of the second count, Mr Swindell, only conceded that he pushed Joel Brooks to the ground after being asked many questions by the police in the recorded interview. [19] However, that part of the opening was a response to the learned Crown Prosecutor’s opening statement in which he said that the evidence would show that Mr Swindell pushed Joel Brooks “causing him to move backwards”. [20] . In view of the fact that one of the issues is whether Bradley Brooks’ action immediately thereafter was an act done in self-defence, it is clearly relevant for the jury to know that there is a dispute in relation to exactly what had happened between Mr Swindell and Joel Brooks before the accused intervened. It was open to the defence to point out that the summary provided by the Crown, while entirely proper and based on part of the evidence expected to be called, did not represent all of the evidence that would be called, that the narrative was in dispute and that there was an issue surrounding the credibility of the witnesses. These are “matters to be raised by the accused person.” [21]

While I accept Mr Boe’s concession that he exceeded the appropriate boundaries by telling the jury that his client had waited for two years in gaol to tell his story, I am otherwise not persuaded that the address breached the terms of s 159. Any reference to the onus of proof or matters of law was fleeting and merely echoed things that both the learned Crown Prosecutor and I had said to the jury. Those parts of the opening address that bordered on argument were truly responsive to matters raised by the Crown, were “matters to be raised by the accused”, or both.

A matter of great importance in determining the application to discharge the jury was the tone of the opening statement. There was nothing unduly emotive in the tone of the address. The delivery was quiet and restrained. At one stage, the delivery was so quiet that the court reporters and others in the courtroom had difficulties hearing counsel.

It is also important to remember that the opening occurred in the afternoon of the first day of a trial that is expected to last two to three weeks. It came in the face of both counsel and myself telling the jury that the barristers’ opening addresses were not evidence. After the address was given and the admissions were tendered as Exhibit 1, I reminded the jury that Exhibit 1 was the first piece of evidence tendered in the trial and that the addresses of counsel were not evidence. [22]

In that context, I can see little merit in the argument that defence counsel’s opening address has affected the fairness of the trial adversely or that the jury’s ability to consider the issues fairly and objectively has been compromised in any way. I expect that the opening addresses, while of great assistance to the jury in understanding the issues that it will have to decide, will have no impact when the jury comes to consider its verdicts in two or three weeks time.

It has been held that there must be “a high degree of need” before a trial Judge accedes to an application to discharge a jury. [23] In Miller v R [24] the Court of Criminal Appeal summarised some of the relevant principles:

Any prejudice caused by defence counsel’s opening was easily remedied by direction. Immediately on the conclusion of the opening I reminded the jury that the addresses were not evidence. [25] As to the reference that the accused had been held in custody, the jury was directed at the end of the second day:

Taking into account the relevant principles and bearing in mind the relatively minor nature of the breach, the period of time that will elapse before the jury retires to consider its verdicts and the capacity of directions to cure any prejudice that might flow to the prosecution; I discerned no merit in the application to abort the trial. There was certainly no “high degree of need” to discharge the jury in the circumstances that prevailed.

For those reasons, the application to discharge the jury was refused.