Brotherhood of St Laurence v McCabe

[2013] VSCA 257

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Trial by jury
3. › Civil jury trial
4. › Discharge of jury
5. › Prejudicial statements by counsel in closing address
6. › Whether statements so irresistibly prejudicial or irremediably confusing as to be incapable of rectification by direction
7. › Whether trial judge erred in refusing to discharge jury
1. Practice and Procedure
2. › Trial by jury
3. › Civil jury trial
4. › Directions to jury
5. › Adequacy of direction to disregard prejudicial statements
6. › Whether cumulative directions adequate to cure prejudice
7. › Whether direction to disregard must specifically identify impugned statements
1. Practice and Procedure
2. › Trial by jury
3. › Civil jury trial
4. › Failure to take exception to directions
5. › Whether failure to object to adequacy of charge precludes complaint on appeal
6. › Obligation on counsel to raise matters capable of cure by redirection
1. Practice and Procedure
2. › Issue estoppel
3. › Effect of prior determination in WorkCover proceeding on subsequent common law negligence trial
4. › Scope of estoppel as to injury and causation
5. › Whether estoppel prevented defendant from arguing pre-existing condition caused total incapacity

Quick Take

Exaggerated statements by counsel in closing address about the effect of an issue estoppel are amenable to correction by judicial direction and do not necessarily require discharge of the jury. The cumulative effect of a direction to disregard, a recommenced address, and a clear charge on the estoppel may be sufficient. Failure to take exception to the adequacy of directions after the charge is a significant factor weighing against an appeal, and the appellant must demonstrate a substantial miscarriage of justice.