R v Smith

HIS HONOUR: Katrina Marshall gave evidence on the second day of the trial. Ms Marshall had been in a relationship with Luke Freeman for about two months before he was fatally stabbed in her house on 5 January 2019. During cross-examination concerning her police statement by Mr Watts of counsel for Mr Smith, Ms Marshall gave the following:

Ms Marshall became upset shortly after this and was temporarily unable to continue with her evidence. In the break in proceedings, Mr Watts applied for an order discharging the jury upon the basis that Ms Marshall’s reference to Mr Smith having said that he wanted to kill his “ex-Missus” was prejudicial to Mr Smith in a way that could not otherwise be cured. After hearing submissions from both sides, I indicated that I would not discharge the jury. What follows are my reasons for that conclusion.

The evidence reveals that Mr Smith may have had a romantic interest in Ms Marshall. Her evidence was that they had been friends since they were teenagers but that she had no interest in anything other than a platonic friendship. However, the incident that led to Mr Freeman being stabbed followed a period of increased tension between Mr Smith and Mr Freeman concerning their respective and competing interest in Ms Marshall. On one view, the evidence suggests that Mr Freeman had become jealous of Mr Smith’s interest in Ms Marshall and that there had been minor arguments between them about this.

Ms Marshall’s evidence to which exception is taken was unquestionably unresponsive and gratuitous. She had been advised by the Crown before giving evidence that she should not make reference to this matter. However, as a result of a recent illness or injury suffered or sustained by her, it appears Ms Marshall had become prone to offering sometimes inappropriate responses when questioned. The understandable tension created by the court process undoubtedly increased this tendency. Relevantly for present purposes, the jury had been forewarned that Ms Marshall may struggle in the witness box, as the following extract from the transcript reveals:

It seemed to me that directions to the jury to disregard Ms Marshall’s outburst might confidently be informed by the fact that she laboured under a cognitive problem and that allowance for this might have to be made when considering her evidence more generally.

Be that as it may, it also seemed to me that the evidence in question was so unresponsive and so obviously irrelevant that I was confident that an appropriate direction to the jury to disregard it entirely would be understood and followed. Moreover, the flavour of Ms Marshall’s unsolicited outburst was that she wished to portray Mr Smith in a poor light, a factor tending to isolate her comments as enigmatic and entirely without context. I was satisfied that directions to the jury could in these circumstances be framed in a way that would eliminate or at least adequately reduce the risk that they might form an unfavourable view of Mr Smith as a result.