Ashley v The Queen

Case [2016] NTCCA 2

Ashley v The Queen [2016] NTCCA 2

PARTIES:  ASHLEY, Darren Anthony

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 9 of 2014 (21218788)

DELIVERED:  24 March 2016

HEARING DATES:  8 and 9 February 2016

JUDGMENT OF:  RILEY CJ, SOUTHWOOD and KELLY JJ

APPEALED FROM:  BLOKLAND J

CATCHWORDS:

CRIMINAL LAW – Appeal against conviction – jury found accused guilty of murder – fair trial – impartiality – presumption of innocence – whether a juror’s note gave rise to an apprehension of bias – whether the jury ought to be discharged during the course of a trial – exclusionary rule not applicable – whether there was a miscarriage of justice due to a failure to discharge the jury – whether apprehended bias could be overcome by direction – a fair minded and informed member of the public might in the circumstances entertain a reasonable apprehension that the jury would not discharge their task impartially – appeal allowed, conviction quashed and a new trial ordered – Criminal Code (NT) s 411.

CRIMINAL LAW – EVIDENCE – Notice of contention – section 66 Evidence (National Uniform Legislation) Act (NT) – admissibility of hearsay evidence at trial – exceptions to the hearsay rule – where accused gave an undertaking to give evidence during the defence case but ultimately did not give evidence at trial – admissibility of the accused’s exculpatory statements – at the time the question of admissibility arises whether on the balance of probabilities it has been established that the accused is to be called to give evidence - notice of contention dismissed – Evidence (National Uniform Legislation) Act (NT) s 66.

Criminal Code (NT) s 359, s 371(1), s 373, s 411, s 411(1)
Evidence (National Uniform Legislation) Act (NT) s 17(2), s 66, s 66(2), s 142

Constantinou v The Queen [2015] VSCA 177; Webb v The Queen (1994) 181 CLR 41; R v Crisologo (1997) 99 A Crim R 178; R v Parkes (2003) 147 A Crim R 450, applied.

Cant v The Queen (2002) 12 NTLR 133; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; R v Czajkowski (2002) 137 A Crim R 111; Re Matthews and Ford [1973] VR 199, approved.

Smith v State of Western Australia (2014) 250 CLR 473, distinguished.

Holt and Merriman v R (1996) 87 A Crim R 82; R v Boland [1974] VR 849; Vaise v Delaval (1785) 1 T.R. 11; (1785) 99 ER 944, considered.

McDonough Power Equip Inc. v Greenwood (1984) 464 US 548; R v Box [1964] 1 QB 430; R v Syme (1914) 30 TLR 691; Smith v Phillips (1982) 455 US 209, cited.

R v Matthews [1991] 1 VR 534, followed.

R v Ashley [2014] NTSC 26, reversed.

Benjamin T. Huebner, “Beyond Tanner: An Alternative Framework for Postverdict Juror Testimony” (2006) 81 New York University…

Continue reading Ashley v The Queen

Sign in free to access the full text

Details
AGLC
Ashley v The Queen [2016] NTCCA 2
Case
[2016] NTCCA 2
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for murder, brought before the Supreme Court of the Northern Territory by the appellant against the respondent, the Queen. The central dispute revolved around whether the jury's impartiality had been compromised during the trial, leading to a potential miscarriage of justice.

The legal issues before the Court were whether a note from a juror, detailing alleged improper conduct by other jurors, gave rise to a reasonable apprehension of bias, and consequently, whether the jury ought to have been discharged during the trial. The Court also considered whether any apprehended bias could have been overcome by judicial direction, and if the failure to discharge the jury constituted a miscarriage of justice. A separate issue, raised by a notice of contention, concerned the admissibility of the appellant's exculpatory statements under section 66 of the *Evidence (National Uniform Legislation) Act* (NT), particularly in light of the appellant's undertaking to give evidence which he ultimately did not fulfil.

The Court reasoned that the juror's note, which detailed how three jurors had been operating under the premise that the appellant was guilty until proven innocent, and that one juror believed guilt was evident from arrest and charge, established a reasonable apprehension of bias. This conduct persisted for 13 days despite judicial directions on the presumption of innocence. The Court found that a fair-minded and informed member of the public, aware of these circumstances, would entertain a reasonable apprehension that the jury could not discharge their task impartially. The Court also dismissed the notice of contention, finding that the admissibility of the exculpatory statements did not hinge on the appellant ultimately giving evidence.

Consequently, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances, the notice of contention should be dismissed.Conclusion The appeal should be allowed, the verdict of guilty quashed and a new trial ordered.KELLY J:Ground 2(b): I agree with the decision of Southwood J and the reasons for that decision. As the appeal has been allowed on ground 1, it is not strictly necessary to deal with this ground. However, the appellant persisted with ground 2(b), having withdrawn two others, and for the sake of completeness I will deal with it. This ground of appeal relates to the prosecutor’s submissions to the jury concerning what the prosecutor said was a lie told to police by the appellant during the interview with police. The appellant was asked, “Do you know if there is a samurai sword at Iain’s place, 48 Lovegrove?” He answered, “Couldn’t tell you.” The prosecutor submitted to the jury that the accused’s claim [in his record of interview with the police] never to have seen a samurai sword at Iain Steadman’s house was inconsistent with Iain Steadman’s evidence. (Iain Steadman gave evidence that the sword that was found beside the body of the victim came from his house and that the appellant had seen it and handled it.) The prosecutor submitted to the jury that it was pretty obvious to all concerned that what the police officer was asking the appellant about was whether he knew there was a big long sword at Iain Steadman’s house. The appellant has a number of complaints about the prosecutor’s conduct in making this submission. First, counsel for the appellant says that the submission to the jury misrepresented what the accused had said in the police interview: he did not say he had never seen a samurai sword at Iain Steadman’s house. In my view, the complaint of unfairness by reason of a misrepresentation cannot be substantiated. The answer was to the effect that the accused did not know whether there was a samurai sword at Iain Steadman’s house. That does not seem to me to be very different from a statement that he had not seen one there, and in my view it was open to the prosecutor to invite the jury to conclude that this was the effect or substance of the accused’s answer. In any case, counsel for the appellant was free to point out to the jury what the accused actually said and did so. The second aspect of this complaint is that the sword found by the body of the deceased was not a samurai sword; it was an “elvish” sword. Counsel for the appellant submitted that it was therefore inaccurate to say that the accused’s statement to the effect that he did not know if there was a samurai sword in the house was a lie. The prosecutor invited the jury to interpret the police question as asking the accused whether he knew there was a big long sword at Iain Steadman’s house. That was a submission that the jury was free to accept or reject. It was open to the defence to remind the jury of the actual question and answer, and to submit that the answer was not a lie: Iain Steadman’s evidence was to the effect that he had shown the accused the elvish sword – not a samurai sword – and there was no evidence that there was ever a samurai sword at the house. The defence took full opportunity to make that submission and the trial judge reminded the jury of the defence submission during the summing up.

Ratio Decidendi

Legal Principle Established

The information contained in the juror’s note in this case does not run foul of the doctrine that a witness shall not be allowed to allege his or her own turpitude. The evidence came to light before the jury delivered its verdict. The juror acted in accordance with paragraph 12(c)(ii) of the written Outline for Jury which instructed the jurors that if they became aware of some improper conduct on the part of a fellow juror to bring it to the trial Judge’s attention by passing a written note to the Judge through the jury guard. Consideration of the juror’s note The juror’s note was carefully written. It refers to the Outline for Jury which contained a written instruction to the members of the jury that if they became aware of improper conduct on the part of a fellow juror they should report it to the trial Judge. Although the note describes the attitude of the three jurors as a “rather immature attitude to those who don’t agree with them”, the note is balanced and rational. Of significance, the note states that since day two of the trial: (1) a most vocal trio of jurors has relentlessly speculated that the accused (the appellant) is guilty until there is convincing proof that he is innocent, and (2) one of them stridently argues that obviously the accused (the appellant) is guilty, otherwise he would not have been arrested and charged. If the contents of the note are accepted as true, the note establishes that for a period over 13 days (commencing on the second day of the trial, and including adjournments and weekends) the three jurors were at all times approaching the case on the premise that the appellant was guilty until there was convincing proof of his innocence. In other words, they had been proceeding on the assumption that the accused was guilty until proven innocent. Further, according to the note, one of the three jurors was stridently arguing that the accused was obviously guilty or he would not have been charged. That is, the juror had a strident view that only guilty people were arrested by the police and charged. The three jurors had adopted this position, and had held it for 13 days, despite being given detailed oral instructions by the trial judge about the burden of proof and the presumption of innocence and a written outline to the same effect which they had with them in the jury room; despite there being no evidence by the end of the second day of the trial which of itself, or in conjunction with the other evidence heard by the end of day two, implicated the accused in the murder of the deceased; and despite some of the members of the jury reminding them of the presumption of innocence and the requirement to act only on the evidence which had been presented to them in court. By the end of day two the Crown had called three witnesses. They were Constable First Class Jasen Machacek, Senior Constable Timothy Paul Healey and Mrs Heather Steadman, the mother of the deceased. None of these witnesses gave evidence which of itself, or in conjunction with the evidence of the other two witnesses, implicated the appellant in the murder of Kirsty Ashley.