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R v Amanoni [2006] TongaLawRp 6; [2006] Tonga LR 75 (22 February 2006)

IN THE SUPREME COURT OF TONGA

R

v

Amanoni anor

Supreme Court, Nuku'alofa
Webster C J
CR 239-240/04

22 February 2006

Criminal procedure – jury heard prejudicial evidence – jury discharged – new trial ordered

In the course of a criminal trial before a jury, a witness had stated in answer to a question from the prosecution in re-examination that the second accused had committed offences before and he used cannabis. The court issued a brief Ruling.

Held:

1. There must be a fair trial, which meant that an accused was to be judged on the evidence brought before the court, not on his record or bad character, and not on someone's say-so evidence. If there was a reference to either of those matters it may be prejudicial to the accused. Prejudicial means evidence to which the jury may attach undue weight and regard it as probative of the crime with which the accused was charged.

2. The case was different from one where the evidence had been passed over. The whole case had effectively stopped and the matter obviously came to the attention of the jury. It could not just be passed over. There had been serious prejudice to both accused and the trial had been rendered unfair. The jury was discharged and a new trial ordered.

Cases considered:

R v Blackford [1989] 89 Cr App R 239 (CA)

R v Coughlan & Young 63 Cr App R 33 (CA)

R v Palin [1969] 3 All ER 689, 53 Cr App R 535 (CA)

R v Weaver & Weaver [1967] 1 All ER 277, 51 Cr App R 77,83 (CA)

Scott v R [1989] 2 All ER 305 (PC)

Edited Transcript of Ruling by Hon Chief Justice Discharging the Jury

This brief ruling arises from what the witness said in her last answer. The key points of what the witness said were that:

- the 2nd Accused has committed offences before;

- he uses this substance (and whether or not she pointed to the exhibits, by inference she was meaning cannabis/marijuana/Indian Hemp).

To start at the beginning, there must be a fair trial, which means that an accused is to be judged on the evidence brought before the Court, not on his record or bad character, and not on someone's say-so evidence. That is what the Jury is told at start of the trial.

If there is a reference to either of these aspects, it may be prejudicial to the accused. By prejudicial I mean evidence to which the Jury may attach undue weight and regard it as probative of the crime with which the accused is charged: Scott v R [1989] 2 All ER 305 (PC), at 311. If that occurs, the trial is likely to become unfair.

Unfortunately these matters have come out in this case. Archbold 2005 para 8-203 says what the Judge has to do in such circumstances. He has to use his discretion to consider discharging the Jury. See also Halsbury's Laws (4th Ed Reissue) Vol 11(2) Para 1022. The discretion has to be exercised on the particular facts of the case: R v Weaver & Weaver [1967] 1 All ER 277; 51 Cr App R 77 (CA), at 83, R v Palin [1969] 3 All ER 689; 53 Cr App R 535 (CA).

In Weaver it was made clear that that depends on nature of what has been 50 admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. Nowadays it is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the Jury must be discharged.

Turning to this case, in which I have now heard submissions from Counsel on this matter:

1. The nature of what has been admitted into evidence.

There were not 1, but 2 serious matters, ie previous offences and the use of cannabis. It is clear from cases such as R v Blackford [1989] 89 Cr App R 239 (CA) (also a case involving cannabis) that admission of evidence such as this is regarded seriously. In that case the judge did not discharge the jury, but on appeal was criticised for not doing so.

2. The circumstances in which the evidence was admitted.

This evidence did not slip out in answer to a question from the defence, it arose from a question from the prosecution in re-examination. The question was not about the witness' fear, the question was a direct question "What do you mean Semi Vete Jr does not have a good record in Tonga?"

The case referred to by Crown Counsel from Archbold 8-204, R v Coughlan & Young 63 Cr App R 33 (CA), was one where the evidence was passed over without mention until the matter was raised in the absence of the jury. It was quite different in this case, where the whole case effectively stopped and the matter obviously came to the attention of the Jury. It cannot just be passed over.

3. The whole circumstances of the case.

So far the trial has lasted 3 weeks and it will be a great pity if the Jury has to be discharged. But the genie is out of the bottle, as it were, and cannot be put back. I am not satisfied that even a strong direction to the Jury could restore the position.

Overall I therefore regret that my view is that there has been serious prejudice to both accused and so this trial has been rendered unfair.

It is therefore my duty to discharge the Jury and order a re-trial.