Agelakis v The Queen

[2019] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Agelakis v R [2019] NSWCCA 71
Hearing dates:	29 March 2019
Date of orders:	29 March 2019
Decision date:	29 March 2019
Before:	Hoeben CJ at [1] Garling J at [2] Hidden AJ at [35]
Decision:	(1) In the exercise of its power under s 73A of the Jury Act 1977, and such other jurisdiction as may be available in the administration of criminal justice, the Court requests the Sheriff to investigate whether one or more members of the jury which convicted the applicant of a charge under the Crimes Act 1900 in December 2016, may have engaged in improper conduct or else whether any irregularity or improper conduct occurred.  (2)   Liberty to apply.
Catchwords:	CRIMINAL PROCEDURE — Trial — Jury — Investigation by Sheriff – whether NSW Court of Criminal Appeal has jurisdiction to order an inquiry under s 73A Jury Act 1997 – whether there is reasonable apprehension that jurors did not discharge their task impartially – jury member uploading to Facebook a potentially relevant opinion before verdict - jury member connected by marriage to complainant in earlier prosecution of applicant – jury member drinking partner of key witness
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Jury Act 1977
Cases Cited:	R v Higgins [2018] NSWCCA 258 Lane v R [2017] NSWCCA 46 Lodhi v The Attorney-General of NSW [2013] NSWCA 433; (2013) 241 A Crim R 477 Petroulias v McClellan & Anor [2013] NSWCA 434;(2013) 85 NSWLR 463 R v Kaddour [2004] NSWCCA 361; (2004) 61 NSWLR 378
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	Miki Agelakis (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: J Paingakulan (Applicant) B Hatfield (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/300450
Publication restriction:	Not Applicable
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 October 2018 Before: Charteris ADCJ SC File Number(s): 2014/300450

EX TEMPORE Judgment

1. HOEBEN CJ at CL: I agree with the orders proposed by Garling J, and with his reasons.

2. GARLING J: On 6 December 2016, the applicant, Miki Agelakis, stood trial before a judge and jury in the District Court of NSW sitting at Broken Hill for five days.

3. On 13 December 2016, the applicant was found guilty of sexual intercourse taking advantage of cognitive impairment, an offence contrary to s 66F(3) of the Crimes Act 1900.

4. On 22 February 2017, he was sentenced to a term of imprisonment of 4 years, of which the non-parole period was 2 years and 6 months.

5. On 7 March 2017, the applicant lodged a Notice of Intention to Appeal against conviction in the Court of Criminal Appeal. As yet, no Notice of Appeal has been filed.

District Court Motion

6. On 19 October 2018, a Notice of Motion was brought before the trial judge, Acting Judge Charteris SC, of the District Court of NSW. The Motion sought orders pursuant to s 73A of the Jury Act 1977, that the District Court request the Sheriff of NSW to investigate certain aspects of the jury verdict delivered in the trial. For the reasons which he expressed, Charteris ADCJ refused the application.

7. In so doing, the Judge said:

“So my orders are, I refuse the application. I have indicated to the parties my view that, prima facie, there appears to be substantial grounds on the material that has been put before me to make the order. It is my view that the appropriate court deal with it is the Court of Criminal Appeal … In my view, the Court of Criminal Appeal will be able to control the process far more efficiently than having the intervention of this Court.”

8. It is unnecessary in this judgment to determine the correctness of those views.

Subsequent Chronology

9. On 6 November 2018, the applicant's solicitor wrote directly to the Sheriff of NSW seeking that the Sheriff pursue an investigation into the alleged jury irregularities. On 27 December 2018, the Sheriff responded to that request, declining to act on it, because she concluded:

“… that the elements under s 73A of the Jury Act 1977 have not been satisfied to commence an investigation."

10. The Sheriff's letter noted that there was no request to investigate the matter from either the Supreme Court or the District Court. The Sheriff did not address whether she had sought any consent from either the Supreme Court or the District Court to undertake the investigation.

11. On 6 March 2019, the applicant filed a Notice of Motion in this Court seeking the following order:

“The Sheriff of NSW is to conduct an investigation pursuant to s 73A of the Jury Act 1977 into whether the jury's verdict in the [applicant’s] trial in the District Court of NSW sitting at Broken Hill, delivered on 13 December 2016, may have been affected due to the improper conduct of any member(s) of the jury.”

Factual Material in Support of Present Motion

12. There are two factual bases raised by the applicant as being matters of concern with respect to the constitution of the jury and whether the jury was free from the appearance of bias.

13. It appears from material adduced in evidence by the applicant that on the day before the jury returned its verdict, a member of the jury, whom I will identify as juror “Q”, posted a statement to this effect on Facebook:

“When a dog attacks a child it is put down. Shouldn't we do the same with sex predators?”

14. Those words appeared on a photograph which contained within it photos of rooms or implements by which lawful executions are carried out.

15. It is relevant to note that juror Q was related, by marriage, to a complainant who had separately alleged that the applicant had sexually assaulted her. The applicant was acquitted of that charge by the Broken Hill Local Court six months prior to this trial taking place. There is evidence, and common knowledge suggests, that Broken Hill is “… a small town and almost everybody knows everybody else”.

16. There is also evidence which suggests that the complainant in the unsuccessful proceedings maintained an antipathetic attitude towards the applicant.

17. The second matter of concern, is that it appears that another juror, to whom I will refer as juror “Z”, was well acquainted with, and was often seen socialising with, one of the key witnesses who was called to give evidence in the applicant's trial. Their socialising and drinking has been observed by an apparently reliable witness to take place at a licensed club in Broken Hill. That witness states with respect to the juror and the witness in the trial, the following:

“I'm well aware they know each other well as I have seen them drinking together at the club many times.”

18. That statement is corroborated by a photograph attached to the witness’ affidavit.

19. The witness was called by the Crown in the applicant's trial. The evidence given by the witness was central to the Crown case, and was controversial because that witness was the only witness who identified the applicant as being present at the home of the complainant at the time of the offence (other than the cognitively impaired complainant). It was the applicant's case that he was elsewhere at the relevant time.

20. The material filed supports these challenges. There is no need for this Court to express any view as to the possible consequences of these challenges.

Applicant's Submissions

21. The applicant submits that he ought be entitled to agitate a complaint on appeal about the bias, or the apparent bias, of the jury. In order so to do, the applicant must satisfy the test that there has been a miscarriage of justice because his trial has not been fair or else been seen to be fair. In Lane v R [2017] NSWCCA 46 at [74] Meagher JA and Davies J said:

“[The] question was whether there was a miscarriage of justice because there may have been a serious breach of one of the presumptions of a fair trial; namely that there be no reasonable basis for apprehending that the jury or a juror has not discharged or will not discharge their task impartially … That would be so if [the extraneous material before the jury] in the context of the Crown's final address, considered from the perspective of a fair minded and informed member of the public, gives rise to a reasonable apprehension or suspicion to that effect.”

22. In my view, it can fairly be said that the factual matters raised are capable of giving rise to a reasonable apprehension, or else suspicion, that either or both of the jurors concerned did not discharge their task impartially.

23. In those circumstances it follows that the applicant, by means of the proposed investigation, has an opportunity to explore more fully the factual matters raised. The appropriate way in which that should be done, at least in the first instance, is by enquiries being made by the Sheriff of NSW.

24. Section 73A of the Jury Act provides a ready mechanism for that to occur.

Power

25. It is necessary before the Court makes the order concerned for it to be satisfied that it has the relevant power to make that order.

26. In Petroulias v McClellan & Anor [2013] NSWCCA 434;(2013) 85 NSWLR 463, Basten JA, with the agreement of Bathurst CJ, at [26]-[27] held that although there is no express power in the Criminal Appeal Act 1912, it was arguable that the power to request the Sheriff to conduct an enquiry falls within the powers conferred by s 12(1)(d) of the Criminal Appeal Act.

27. In Lodhi v The Attorney-General of NSW [2013] NSWCA 433; (2013) 241 A Crim R 477, a judgment published by the same Court as sat in Petroulias and at the same time, the Court made the following orders:

“In the exercise of its power under s 73A of the Jury Act 1977, and such other jurisdiction as may be available in the administration of criminal justice, the court requested the Sheriff to investigate…”

28. At [40] in that decision, Basten JA (with whom Bathurst CJ and Beazley P agreed) said that whilst it was arguable that s 73A of the Jury Act did not apply in the particular circumstances with which the Court was dealing:

“… that would not prevent the court in which the trial was conducted, in the exercise of its inherent jurisdiction with respect to the conduct of a trial, and in the case of the Supreme Court with respect to the administration of criminal justice generally, from requesting the Sheriff to make enquiries.”

29. Whatever be the doubts expressed by Hoeben CJ at CL in R v Higgins [2018] NSWCCA 258 at [3], about the applicability of s 12(1)(d) of the Criminal Appeal Act, which do not need to be resolved in this judgment, I am satisfied that, at the least, this Court in its inherent jurisdiction can order an investigation of the kind sought, as it did in Higgins.

Conclusion

30. In my view, the Court has the power, either by reason of s 73A of the Jury Act or else in its inherent jurisdiction with respect to the administration of criminal justice generally, to request the Sheriff to undertake investigations.

31. The factual basis demonstrated by the applicant is sufficient to raise a reasonable inference, or a properly grounded suspicion, of an irregularity in respect of a number of the jurors empanelled at the applicant's trial.

32. The proposed investigations do not need to trespass upon the deliberations of the jury.

33. I am satisfied this is an appropriate case in which to make a request to the Sheriff.

34. I propose the following orders:

1. In the exercise of its power under s 73A of the Jury Act 1977, and such other jurisdiction as may be available in the administration of criminal justice, the Court requests the Sheriff to investigate whether one or more members of the jury which convicted the applicant of a charge under the CrimesAct 1900 in December 2016, may have engaged in improper conduct or else whether any irregularity or improper conduct occurred.

2. Liberty to apply.

35. HIDDEN AJ: I also agree with Garling J.

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Decision last updated: 02 April 2019