R v Graham [2017] NZDC 23519 (17 October 2017)

Last Updated: 11 May 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-004-000719 [2017] NZDC 23519

THE QUEEN

v

_{[ROBERT GRAHAM]}

Date of Ruling:	17 October 2017
Appearances:	R Willox for the Crown J Clearwater and J Nouri for the Defendant
Judgment:	17 October 2017

_{RULING 2 OF JUDGE E P PAUL}

[1] This morning, 17 October, Mr Clearwater for the defendant has sought a mistrial. He says that is based on the complainant giving evidence at page 40 notes of evidence concerning her head being smacked on the corner of a coffee table and there was blood all over the curtains, wall and on a single bed. Also the evidence she gave of the defendant getting out of jail.

[2] Also the defendant’s attire at the commencement of the trial when he was dressed in prison clothing with the letters MECF stencilled on the back of his top. And on that basis Mr Clearwater is submitting he will not receive a fair trial. That application is premature and declined.

[3] In terms of the evidence of the coffee table, as indicated in my minute of yesterday, that can be dealt with squarely by a formal warning to the jury to put it to

_{one side now and also when I sum up.}

R v [ROBERT GRAHAM] [2017] NZDC 23519 [17 October 2017]

[4] As far as the reference to jail, that can be treated in the same manner. The concerns about the defendant’s attire were addressed by me earlier on in the trial yesterday and I am simply not satisfied that that alone even in combination with the other matters, would be grounds to take the dramatic step of discharging the jury at this point and recommencing the trial.

[5] I am, however concerned that there is no further repetition by the complainant or any further witnesses in this trial of evidence being given that is clearly prejudicial to the defendant and has not been agreed to be led. On that basis I will allow the Crown an opportunity to meet with the complainant to ensure there is no repetition when she resumes giving her evidence today.

E P Paul

District Court Judge