Banks v The State of Western Australia

[2018] WASCA 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BANKS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 130

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   22 JUNE 2018

DELIVERED          :   4 JULY 2018

PUBLISHED           :   2 AUGUST 2018

FILE NO/S:   CACR 250 of 2017

BETWEEN:   KASSANDRA-LEE BANKS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   McCANN DCJ

File Number             :   IND 2104 of 2016

Catchwords:

Criminal law - Summing up to jury - Evidence that the appellant worked as a prostitute and consumed illicit drugs - Whether judge obliged to direct jury that it must not reason that the fact the appellant was a prostitute and took illicit drugs made it more likely that she committed the offence - Whether failure to give such a direction occasioned a miscarriage of justice

Criminal law and procedure - Juror absent during trial without having been discharged - Whether trial thereby miscarried

Legislation:

Criminal Procedure Act 2004 (WA), s 111, s 115

Result:

Appeal allowed
Conviction set aside
Retrial ordered

Category:    B

Representation:

Counsel:

Appellant	:	Mr P D Yovich SC & Mr F P Merenda
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Paxman & Paxman
Respondent	:	The Director of Public Prosecutions for the State of Western Australia

Case(s) referred to in judgment(s):

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Glascott v The Queen [2011] VSCA 109

Johnston v The State of Western Australia [2012] WASCA 98

Kalbasi v The State of Western Australia [2018] HCA 7

King v The Queen [2012] HCA 24; (2012) 245 CLR 588

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

Longman v The Queen [1989] HCA 60 (1989) 168 CLR 79

Mahmood v The State of Western Australia [2009] WASCA 220

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

Nuhana v The State of Western Australia [2018] WASCA 79

OKS v The State of Western Australia [2018] WASCA 48

Sayed v The Queen [2012] WASCA 17

The Queen v GW [2016] HCA 6; (2016) 258 CLR 108

The State of Western Australia v Atherton [2009] WASCA 148

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

REASONS OF THE COURT:

1. The appellant was tried before a jury on two counts. Count 1 alleged that the appellant, with intent to harm, did an act as a result of which bodily harm was caused to the complainant, contrary to s 304(2) of the Criminal Code (WA) (the Code). Count 2 alleged that the appellant unlawfully assaulted the complainant and thereby did him bodily harm, contrary to s 317(1) of the Code. Count 2 was charged in the alternative to count 1.

2. The appellant was acquitted on count 1, and found guilty of count 2. 

3. On 9 November 2017, she was sentenced to 18 months' immediate imprisonment, with eligibility for parole, backdated to commence on 24 October 2017. 

4. The appellant appeals against her conviction.  Her appeal against sentence was discontinued.

5. On 4 July 2018, the court made orders upholding the appeal, setting aside the conviction and ordering a retrial, with reasons to be published later.  These are our reasons.

Background

1. The following summary of the background is taken largely from the appellant's helpful outline, with which no issue is taken by the respondent.[1] 

   [1] Respondent's submissions [3].

2. The charges arose from events that occurred on the night of 2 January 2016, continuing into the early hours of the following morning.  The State alleged that the appellant, together with a male principal offender, said to be Shane Anderson, lured the complainant to the appellant's car while it was parked in the carpark of an apartment complex on Adelaide Terrace in Perth.  The complainant got into the front passenger seat of the appellant's car.  The male principal offender was concealed in the back of the car.  The appellant then drove the car out of the city and along Great Eastern Highway towards the domestic airport. 

3. In the course of this journey, the male principal offender attacked the complainant from behind with a piece of knotted rope, looping the rope around the complainant's neck and then tightening it.  That caused the complainant to suffer abrasions to his neck, cutting off his breathing and leading to him going in and out of consciousness. 

4. The appellant drove to a location in Redcliffe.  There the complainant was ejected from the car and assaulted with a blunt object, being hit around eight to ten times on the head, causing serious injuries requiring hospitalisation.

5. The appellant and the principal offender departed in the appellant's car, leaving behind the complainant, who had serious injuries.  The complainant attracted the attention of a couple who lived nearby.  Their statements were read into evidence.[2]  They helped the complainant and called an ambulance for him.  Paramedics and police arrived. 

   [2] ts 219 ‑ 222.

6. The State called the complainant, a forensic police officer, a forensic biologist and the investigating police officer.  The State tendered the appellant's police interview.  The State relied on a lie told in that interview as evidence supporting guilt.  The judge gave a conventional Edwards direction[3] about the use to which that lie could be put.  No issue was taken with the direction in that respect.

   [3] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

7. The State also tendered documents evidencing a number of communications between the complainant, the appellant and the male principal offender. 

8. The appellant admitted, pursuant to s 32 of the Evidence Act 1906 (WA), the following:[4]

   (a)that on or about 3 January 2016 at Ascot, she was present at Great Eastern Highway in the company of Shane Ian Anderson;

   (b)at the same time and place, [the complainant] was assaulted; and

   (c)at the same time and place, bodily harm was caused to [the complainant].

   [4] ts 65 ‑ 66; exhibit 1.

9. The central issues in the case were:

   (1)as to count 1, whether the appellant aided the male principal offender in the assault on the complainant, and whether she had done so with the required knowledge and intent;

   (2)as to count 2, whether the appellant had formed a common intention with the male principal offender to prosecute an unlawful purpose, and if so, whether an assault that occasioned bodily harm was a probable consequence of the prosecution of that purpose.

The State case

1. The State did not allege that the appellant inflicted any of the injuries suffered by the complainant.  Rather, the State relied on s 7(c) of the Code in relation to count 1, and s 8 in relation to count 2.

2. On count 1, the State case was that the appellant aided the principal offender in the commission of the offence in a number of ways.  These included setting up, by SMS message, the meeting with the complainant that evening; concealing the male principal offender in the back seat or boot of the car; continuing to drive while the male principal offender was strangling the complainant; encouraging the attack verbally; and intentionally encouraging the continuation of the behaviour by her presence.[5]  The State also suggested there was evidence of the appellant being involved in the cleaning up of the car to remove blood and other things that may have indicated what had occurred.[6]

   [5] ts 52 ‑ 53.

   [6] ts 53 ‑ 54.

3. On count 2, the State contended that the appellant and the male principal offender had formed a common intention to prosecute an unlawful purpose and a probable consequence of the carrying out of that purpose was an assault occasioning bodily harm.  The purpose was identified as threatening, unlawfully detaining or assaulting the complainant.[7]

   [7] ts 55.

The defence case

1. In essence, the defence case was that there was no plan, and while the complainant was assaulted in the car by Shane Anderson, any assistance the appellant gave was inadvertent and not intentional.[8] 

   [8] ts 63 ‑ 64.

References at the trial to the appellant's drug use and prostitution

1. Ground 2 complains of the manner in which the trial judge directed the jury in relation to the appellant's drug use and in relation to her working as a prostitute.  Consequently, it is necessary to outline, in some detail, the considerable extent to which reference was made to those matters in the course of the trial.  The following outline also identifies the context and purposes of the references to those matters. 

2. As will be seen, in counsel's addresses and in the evidence, considerable reference was made to the appellant's drug use and her work, in the relevant period, as a prostitute. 

3. The prosecutor's opening address included the following:

   (1)In late November 2015, the appellant was working as an escort and the complainant made a booking with her for sexual services.  As a result of the booking, the two met, had sexual relations, and consumed some type of illicit drug.[9]  Over the following 10 days, the two were regularly together in apartments or hotels.  A feature of their association in this period was 'the use of illicit drugs whether it be methylamphetamine, MDMA, also known as ecstasy, and possibly cocaine'.[10]

   (2)Around the middle of December 2015, the complainant noticed a change in the behaviour of the appellant, who stopped communicating with him in a regular way and appeared to withdraw from the relationship.  When the complainant spoke to the appellant, she indicated to him that she was intending to move away from the city and intending to stop drug use.[11]

   (3)On 2 January 2016, the complainant attempted to make a booking in a false name for sexual services with the appellant.  Later that day, the complainant disclosed to the appellant that he was the person making the booking.  The two agreed they needed to meet and resolve issues between them.[12]

   (4)The prosecutor then outlined what the State said had occurred on the night of 2 January 2016, continuing into the early hours of 3 January 2016.[13] 

   (5)The prosecutor then referred to the complainant being a drug user and dealer, and that he had come to meet the appellant through the use of escort services and via a mutual friend.[14]  The relationship began as one of paying customer and escort, but then changed so that no payment was made for sexual services, while the two were regularly engaging in drug use.[15]  The appellant began to withdraw from the relationship and ceased contact, something which the complainant did not like, leading to the events on the night of the offence.[16]

   (6)In concluding, the prosecutor referred to the need to approach the case without regard to sympathy or prejudice.  In that context, he informed the jury that they would hear evidence of drug use, probably drug dealing, and prostitution, likely a completely different world from the ordinary lives of the members of the jury.[17]

   (7)In his closing address to the jury, the prosecutor referred to the appellant's alleged motive.  He submitted to the jury that the appellant was angry at the complainant, as the appellant in effect admitted in her police interview.[18]  The complainant was interfering with her work as an escort and her social life.  She was the one who had the issue with the complainant; Mr Anderson joined with her, even though he did not know the complainant.[19]

   (8)The prosecutor referred to the appellant's admissions that, when she met Mr Anderson at a party, drugs were consumed, the two hit it off and they soon became sexually intimate.  The relationship was not one of paying customer and escort.[20]

   (9)The prosecutor submitted that photographs of the appellant and Mr Anderson demonstrate that, following this event, they continued to be in an intimate relationship.[21]

   (10)The prosecutor submitted that the appellant's drug use may have compounded her anger and reduced her inhibitions.[22]  The prosecutor referred to the appellant's admissions in her police interview that she had been on a drug‑induced bender for a few days leading up to this incident and submitted that this was relevant to her state of mind on the night.[23]

   [9] ts 39.

   [10] ts 40.

   [11] ts 40 ‑ 41.

   [12] ts 41 ‑ 42.

   [13] ts 42 ‑ 46.

   [14] ts 46.

   [15] ts 46.

   [16] ts 47.

   [17] ts 58 ‑ 59.

   [18] Closing address ts 10 ‑ 11.

   [19] Closing address ts 11.

   [20] Closing address ts 11.

   [21] Closing address ts 12.

   [22] Closing address ts 15.

   [23] Closing address ts 16.

4. The defence opening also included a number of references to the appellant's drug taking, and work as a prostitute, including the following:

   (1)Counsel said the appellant made some poor choices in this period of her life.  She was working as an escort or 'working girl', had fallen in with a bad crowd and was using drugs in this period.[24]  She knew that the complainant was also a drug user and a drug dealer.  The defence case was that the complainant wanted the appellant to work for him as a working girl, with him managing her.  He said he already had three girls working for him.[25]  Things became acrimonious between the two and the appellant did not want anything to do with him.  The complainant was essentially stalking her, creating bookings in false names and using different telephone numbers.[26]  The appellant continually told the complainant that she did not want to see him anymore.

   (2)The defence case was that Mr Anderson became aware of the complainant's obsessive behaviour towards the appellant and was also aware that the complainant liked to carry large quantities of drugs and cash.  It was Mr Anderson who arranged the meeting and who assaulted the complainant.[27]

   (3)Counsel for the appellant also referred to the fact that the jury would hear a lot about the consumption of drugs and prostitution, but that the appellant was not to be judged on her moral character as she was not on trial for those things.[28] 

   [24] ts 62.

   [25] ts 62.

   [26] ts 63.

   [27] ts 63.

   [28] ts 65.

5. There were a number of references to drugs and prostitution in the course of the evidence.  These included the following:

   (1)When the complainant first met the appellant, whom he then knew as Sienna Jade, they were introduced by a mutual friend named Mario.  The appellant and the complainant used cocaine supplied by the complainant.[29]  Soon after, he texted the appellant.  They met at a hotel where they had sexual relations for which he paid $400.[30]

   [29] ts 72 ‑ 73.

   [30] ts 73.

   (2)During their first sexual encounter, the complainant and the appellant used drugs, namely ecstasy and cocaine.[31]

   (3)In the following two weeks or so, the complainant spent every night with the appellant, having sexual relations with her for which he did not pay.[32]  During this period, the complainant was frequently using drugs, including methylamphetamine and cocaine, and, while he was not supplying to others, at times had reasonably large quantities of those drugs.[33]  During that period, both she and the complainant used methylamphetamine and ecstasy.  Some of those drugs were supplied by the complainant and some by the appellant.[34]

   (4)During December 2015, the complainant stayed for three days at the Adina Apartments.[35]  During that period he engaged in further sexual relations with the appellant, for which he did not pay.  During that period both he and the appellant used methylamphetamine.[36]  Sometimes the drugs they used were his, sometimes hers.[37]

   (5)The complainant said that, on 2 January 2016, he made a booking with the appellant under a false name and subsequently told her that it was he who had made the booking.[38]   They arranged to meet to discuss what was going on.[39]  The arrangement was that she would bring a half‑ball of methylamphetamine for the complainant to purchase.[40]  They met that night.  He had been using cocaine and methylamphetamine.[41]

   (6)After the judge informed the complainant that if the complainant gave evidence in a satisfactory manner, the judge would grant him a certificate under s 11 of the Evidence Act, the complainant said that within the rucksack he had in the car that night there were 500 ecstasy tablets, which were his.[42]  The complainant had $3,200 in cash in his pocket that night.  At the end of the evening he still had the cash.[43] 

   (7)The complainant was taken to a number of text messages which he sent to the appellant, pretending to be someone else.[44]

   (8)In cross‑examination, defence counsel suggested to the complainant that he knew that Mario was a drug dealer and that Mario had introduced him to the appellant as a drug dealer.[45]  The complainant denied that he expressed interest in being the appellant's manager.[46]  He agreed that he had told the appellant that he was in, or was associated with, the Bandidos motorcycle gang and denied that he said that he could obtain cheap ounces of cocaine and methylamphetamine.[47]  The complainant agreed that he suggested to the appellant that she should use the second room of the complainant's apartment for her bookings and that he made it available to her for that purpose.[48]  He denied that he said he would arrange bookings or could obtain clients for her.[49]  The complainant said that the appellant told her she needed a room in order to do 'in‑calls', where the client comes to the escort.[50]

   (9)In cross‑examination, the complainant denied that he and the appellant had a 'fall‑out' over his claim that he managed escorts.[51]  The complainant also denied that there was a falling‑out because the complainant had told her about bookings and clients, and the clients then did not turn up.[52]

   (10)In cross‑examination, the complainant agreed that on the night of the alleged offending he had consumed some alcohol and snorted cocaine.[53]  He also agreed that he had asked the appellant to get him a half‑ball of methylamphetamine.[54]

   (11)In her interview with police, the appellant made a number of references to her drug‑taking and to her work as a prostitute.

   [31] ts 76.

   [32] ts 77 ‑ 78.

   [33] ts 74 ‑ 75.

   [34] ts 78 ‑ 79.

   [35] ts 81.

   [36] ts 81.

   [37] ts 81.

   [38] ts 97.

   [39] ts 98.

   [40] ts 98.

   [41] ts 99.

   [42] ts 132.

   [43] ts 133.

   [44] See, for example, ts 138 ‑ 140, 142 ‑ 143.

   [45] ts 181 ‑ 182.

   [46] ts 182.

   [47] ts 182.

   [48] ts 182.

   [49] ts 182.

   [50] ts 183.

   [51] ts 183.

   [52] ts 183.

   [53] ts 185 ‑ 186.

   [54] ts 186.

6. Defence counsel made very limited reference to the appellant's drug‑taking and work as a prostitute in his closing address to the jury.[55]

   [55] See closing address ts 29.

The judge's summing up

1. The trial judge commenced his summing up with a conventional direction about the roles of judge and jury.  His Honour told the jury that they were the sole judges of the facts and that anything he said about the evidence was comment, and was not binding on the jury.[56]

   [56] ts 414.

2. One of the themes of the judge's address was that, in determining the facts, the jury should take a 'holistic approach' to the evidence.  His Honour made this point at the outset, saying the jury should not cut corners and should not jump to conclusions.[57]

   [57] ts 414.

3. The judge then embarked on a detailed example of what he called a 'holistic approach' to the case.  He did so by suggesting that the case be viewed 'as a real life drama with actors, scenery, props and script'.[58]  The judge told the jury that there were three actors:  the appellant, the complainant and the male principal offender, Mr Anderson.[59]  The judge informed the jury that there was 'very little that the State have to prove beyond reasonable doubt in this case, very little'.[60]  His Honour then said as follows:[61]

   What I'm saying is so, stop and think. What roles everyone was playing. Now, one thing we know is that all three actors ended up in gaol. They're not nice people or they weren't then. We have a drug dealer. He wasn't entirely comfortable about saying it but 500 eccies, members of the jury, and a pile of cash. Yes, he's a drug dealer.

   Mr Anderson, a brute of the worst order, yes. Now, Ms Banks may not have had - known that at the time but I think we probably know enough about Mr Anderson to know now what he's capable of remembering some of the other things he's done.

   So we've got the drug dealer, the underworld thug and the prostitute - the drug-using prostitute. These were not nice people. They were not living in a nice place. This real life drama was sordid. And that - and you're not bound by anything I'm saying here, members of the jury. I'm just explaining to you how when you take a holistic approach you get in the zone and think, you know, this isn't a pantomime here - children's pantomime we're talking about.

   We're talking about a bloke who was interfering with a prostitute's business. We're talking a thug who would smash a man with an iron bar and strangle him. We're talking about a prostitute who would readily tell lies and live all sorts of roles and take lots and lots of drugs.

   [58] ts 415.

   [59] ts 415.

   [60] ts 416.

   [61] ts 416 ‑ 417.

1. In this passage, the judge told the jury that 'all three actors ended up in gaol. They're not nice people or they weren't then'.[62]  The judge characterised the three actors as a 'drug dealer' (the complainant), 'the underworld thug' and 'brute of the worst order' (the male principal offender) and a 'drug‑using prostitute' (the appellant).[63] 

   [62] ts 416.

   [63] ts 416.

2. His Honour referred to the appellant as having seemed to have played a number of roles, so far as the evidence is concerned, as: [64]

   [64] ts 417 ‑ 419.

   (a)'the family woman, family girl';

   (b)'the glamorous bride fit for the cover of Bride monthly';

   (c)'the proprietor of a beauty salon that employs seven people';

   (d)a 'prostitute who did not seem to know why she's doing it';

   (e)a 'prostitute of questionable motives … [who] wasn't even doing it for the money';

   (f)a 'regular, heavy user of methylamphetamine' who facilitated the complainant's use of it by fetching his methylamphetamine for him and expecting to be paid in cash;

   (g)a 'casual girlfriend of two men [namely the complainant and Mr Anderson] in the space of a few weeks', blasé and flippant, a liar and a waffler;

   (h)a 'victim to some extent';

   (i)a 'uni student, brain box, doing a degree in physics or something similar';

   (j)the 'elegant woman that you've seen here in court all week'.

3. His Honour then said as follows:[65]

   Now, by saying 'roles' I'm not saying she's role-playing. I'm just saying when you're assessing her role in the real life drama that everyone knows happened, you have to remember that she is a woman of many parts and put all this in context.

   So what I'm saying is don't jump to conclusions. Don't just seize on one little thing like how beautiful her fashions are now or the wretched place she was in with her prostitution and drug use and idiot boyfriends. Look at everything and in particular make findings of fact for yourselves about what was going on from the period around about New Year's Eve through to 3 January 2016, not forgetting other things outside that time period potentially relevant.

   [65] ts 419.

4. After a lengthy commentary on evidentiary matters, the judge said that his 'holistic overview of what we've heard in this case … serves to illustrate what fact‑finders do'.  His Honour continued:[66]

   They don't jump to conclusions.

   For example, it would be wrong of you to say, 'Of course she was in on it. How could she not be?' without being able to explain it to yourself and to other people. It would be wrong to say, 'Well, she's a lovely‑looking lady. She couldn't possibly have done this', without thinking, 'Well, hang on a tick, she was a prostitute and junkie at the time', you know, keeping very undesirable company and on the State's case quite apathetic and callous towards [the complainant] but again, equally on the State case, had every reason to be. He was a pain.

   The State say that this callousness he saw after the event began before the event. He was a drug dealer interfering with a prostitute's line of work, and she had a new boyfriend - an intense new boyfriend on the scene. So it's better than The Bachelor, members of the jury, and that's because it's real.

   [66] ts 422 ‑ 423.

5. There is no complaint as to His Honour's conventional directions as to the onus and standard of proof,[67] or as to the elements of the offences.[68]  The same is true of the judge's direction as to inferences and circumstantial evidence.[69]

   [67] ts 425 ‑ 426.

   [68] ts 426 ‑ 432.

   [69] ts 433 ‑ 436.

6. The judge explained that the State case on count 2 was that the appellant and Mr Anderson formed a common purpose that involved threats, deprivation of liberty or common assault.[70]

   [70] ts 437.

7. In concluding, the judge told the jury that they must approach the task dispassionately, saying, '[i]f you feel sorry for drug‑addled prostitutes then feel sorry for drug‑addled prostitutes.  Whether or not that's a relevant factor in this case you'll have to consider in the context of the case as a whole'.[71]  The judge told the jury to be 'as objective and impartial [as possible] about this'.[72]  A little later, his Honour said, '[l]ifestyles aren't going to help you, but the nature of the lifestyles might be relevant'.[73]

   [71] ts 443 ‑ 444.

   [72] ts 444.

   [73] ts 444.

Grounds of appeal

1. After amendments made with leave at the hearing of the appeal, the appellant advances three grounds, to the following effect:

   1.The trial judge made a wrong decision on a question of law, alternatively, his Honour occasioned a miscarriage of justice, in proceeding with the trial in the absence of a juror without first discharging that juror.

   2.The trial judge made a wrong decision on a question of law by misdirecting the jury as to the use to which evidence that the appellant had been a sex worker and an illicit drug user could, and could not, be put.

   3.The trial judge failed to direct the jury that evidence that the appellant had been a sex worker and a drug user could not be used to reason that she was the sort of person likely to commit offences of the kind charged, or that she was more likely to have done so by reason of being a sex worker or illicit drug user, and that failure, in the context of the summing up as a whole, occasioned a miscarriage of justice.

2. It is convenient to begin with grounds 2 and 3.

Grounds 2 and 3

The parties' submissions

1. Grounds 2 and 3 were originally framed as a single ground with two particulars.  The parties' written submissions were framed accordingly.  Following an exchange with the court, the appellant sought and obtained leave to amend the grounds to the form set out in [35] above.  That was an appropriate amendment.  Grounds 2 and 3 make complaints that are related, but nonetheless conceptually distinct. 

2. Ground 2 asserts a misdirection.  It contends that the trial judge impermissibly invited the jury to take into account evidence that the appellant had been a sex worker and an illicit drug user as proof of the offences with which she was charged, in circumstances where the prosecution did not seek to rely on those matters in proof of its case. 

3. By contrast, ground 3 complains of the failure of the judge to give a direction.   By ground 3, the appellant complains that a miscarriage of justice arose from the failure of the trial judge to direct the jury that evidence that the appellant had been a sex worker and an illicit drug user could not be used to reason that she was the type of person likely to commit offences of the sort alleged, or that she was more likely to have done so by reason of being a sex worker or an illicit drug user.

4. The appellant's submissions on these grounds may be summarised as follows:

   1.The appellant accepts that the evidence that the appellant was a sex worker and a regular user of illicit drugs was relevant and admissible, as it was relevant to the relationship between the appellant and the complainant.[74]

   2.The State did not rely on the fact that the appellant was a sex worker or that she used illicit drugs as suggesting that she was more likely to have committed the offences with which she was charged.[75]

   3.The evidence of the appellant's illicit drug use and the fact that she was a sex worker were both readily capable of leading a jury to conclude that she was the sort of person who was likely to be willingly involved in a bashing of the type the complainant suffered.[76]  Consequently, it was incumbent on the trial judge to give directions of law warning the jury against impermissible propensity reasoning.[77]

   4.The judge's repeated reference to the appellant's work as a prostitute and her drug use, in intemperate language, exacerbated the prejudice inherent in the evidence on that topic.[78]

   5.Further, the judge's comments to the jury invited them to have regard to the sex work evidence and drug evidence in an impermissible manner.[79]  In particular, the appellant submits that the passages set out at [30], [31] and [34] above invited the jury, or were capable of being reasonably understood as inviting them, to consider the appellant's roles, particularly her role as a prostitute and drug user, as being relevant to the identification of what happened on the night of the offence and to the appellant's involvement in it.[80]

   6.In doing so, the judge impermissibly invited propensity reasoning and left the case to the jury on a basis not contended for by the prosecution, so that ground 2 should be upheld.[81]

   7.Alternatively, in the context of the summing up as a whole, especially the matters set out at point 5, it was necessary, in order to avoid a perceptible risk of a miscarriage of justice, for the judge to give a direction as to the permissible and impermissible uses of the evidence of the appellant's drug taking and prostitution.  In particular, it was necessary to tell the jury that propensity reasoning was impermissible.  The failure to give such a direction occasioned a miscarriage of justice, so that ground 3 should be upheld.[82]

   8.While the appellant's trial counsel did not seek a redirection, that is not fatal to the appellant's case.  Further, it is hard to see how any redirection could have cured the prejudice created, given the repeated nature of the judge's comments.[83]

   [74] Appellant's submissions [36] - [38]; appeal ts 2 ‑ 3.

   [75] Appellant's submissions [38].

   [76] Appellant's submissions [54]; appeal ts 10 ‑ 11, 47 ‑ 48.

   [77] Appellant's submissions [54].

   [78] Appellant's submissions [55]; appeal ts 5, 25.

   [79] Appellant's submissions [43].

   [80] Appellant's submissions [56]; appeal ts 7, 20 ‑ 23.

   [81] Appellant's submissions [56].

   [82] Appeal ts  27 ‑ 28.

   [83] Appellant's submissions [57].

5. The respondent's submissions are to the following effect:

   1.It is for the appellant to establish that the trial judge's failure to give a propensity direction caused a miscarriage of justice.  That requires the appellant to establish that the direction should have been given and that it was reasonably possible that the failure to do so may have affected the verdict.[84]

   2.The appellant's contentions are to be assessed taking into account the summing up as a whole and the conduct of the parties, including the absence of any objection.[85] 

   3.The evidence of drug‑taking and of work as a prostitute was admissible as part of the res gestae, in order to show the relationship between the appellant and the complainant, and because it was relevant to proving the appellant's motive.[86]

   4.Evidence of the appellant's work as a prostitute and her drug use was relevant to the appellant's motive and intention at the time of the incident.  The prosecutor submitted that her drug use may have compounded her anger.  Further, the prosecutor submitted that the appellant's motive was to teach the complainant a lesson so as to warn him off interfering in her work as an escort.[87]

   5.A propensity warning is not always required when evidence reveals other criminal conduct or discreditable behaviour by the accused.  To give a warning when it is not needed may divert the jury from its proper path, including by inspiring the prejudice or train of reasoning that the warning is designed to eliminate.[88]

   6.There was no risk that the jury would apply propensity or tendency reasoning, based upon the appellant's drug use and prostitution, to reason toward guilt of the offences of violence with which the appellant was charged.[89]  Evidence of a disposition to drug use and prostitution is not evidence of a propensity to join in a common intention to prosecute the unlawful purpose of committing the offences of threats to harm, deprivation of liberty or common assault.[90]  Because prostitution and drug use do not involve a propensity to violence, there is no risk of propensity reasoning.  Therefore, no propensity warning was required.[91]

   7.While there was no risk of propensity reasoning, there was a risk of impermissible reasoning due to prejudice arising from the evidence of drug use and prostitution.  This risk was dealt with by the judge's directions not to jump to conclusions.  In effect, the judge correctly directed that it did not follow automatically that because the appellant was involved in drug use and prostitution, she was therefore guilty in relation to the violence the subject of the trial.[92]

   8.The jury acquitted the appellant on count 1.  That suggests the jury did not engage in impermissible propensity reasoning.[93]

   [84] Respondent's submissions [38], referring to Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [49].

   [85] Respondent's submissions [39].

   [86] Respondent's submissions [41] - [44].

   [87] Respondent's submissions [56] - [59]; appeal ts 35.

   [88] Respondent's submissions [45], referring to The State of Western Australia v Atherton [2009] WASCA 148 [77] ‑ [78].

   [89] Respondent's submissions [63]; appeal ts 34 ‑ 35, 36.

   [90] Respondent's submissions [63].

   [91] Respondent's submissions [63] - [64], referring, by analogy, to Glascott v The Queen [2011] VSCA 109 [22] ‑ [24].

   [92] Respondent's submissions [65].

   [93] Appeal ts 37 ‑ 38.

Disposition

1. In directing the jury, the judge must give the jury such warnings as may be called for by the circumstances of the particular case, including warnings against following impermissible paths of reasoning.[94]  Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused.[95]  However, a propensity warning is not always required when evidence reveals other criminal conduct or non‑criminal, but discreditable conduct on the part of the accused.[96]  The judge must give a warning to the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice.[97]

   [94] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].

   [95] Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [22].

   [96] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39]; The State of Western Australia v Atherton [2009] WASCA 148 [79] ‑ [80].

   [97] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330; Longman v The Queen [1989] HCA 60 (1989) 168 CLR 79, 86; The Queen v GW [2016] HCA 6; (2016) 258 CLR 108 [50].

2. Whether the judge's failure to give a propensity warning occasioned a miscarriage of justice is to be assessed taking into account the summing up as a whole and the conduct of the parties.[98]  In this regard, the failure of the appellant to have complained of an inadequacy in the judge's directions is relevant.  While that is not fatal to an appeal, it may indicate that, in the context of the atmosphere of the trial, it did not seem to those present that there was any reasonable ground for concern regarding the adequacy and fairness of the summing up.[99]

   [98] Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449 [63].

   [99] Mahmood v The State of Western Australia [2009] WASCA 220 [65]; Sayed v The Queen [2012] WASCA 17 [76].

3. In accordance with these principles, we have considered the merits of the appellant's contentions in the context of the judge's summing up as a whole.

4. The State case did not rely upon or invite propensity reasoning.  Specifically, it did not suggest that the jury could reason that the appellant was more likely to have committed the offence because of the type of person she was, namely a prostitute and drug taker.  For the jury to have so reasoned would have been a miscarriage of justice.  The critical issue is whether there was a perceptible risk that, if not directed otherwise, the jury might so reason.  If and only if there was such a risk, a propensity warning was required.

5. If the judge's comments are put to one side, we are not persuaded that drug use and prostitution are perceived generally in the wider community to have a sufficient inherent tendency to make the commission of the offences with which the appellant was charged more likely so as to have required a propensity direction.  Neither drug use nor prostitution, of itself, involves violence.  We accept that a jury might think that drug use and prostitution reflect adversely on a person's character.  Any risk that a jury would reason that evidence of drug taking and prostitution increased the likelihood that the appellant committed the offences with which she was charged was, leaving aside the judge's comments, not substantial enough to have required a warning against propensity reasoning of that kind.  However, for the reasons explained below, in our view that risk was significantly increased by the content and condemnatory tone of some aspects of the judge's summing up, such that a warning was required.

6. The judge told the jury that they should take a 'holistic approach' to the task of fact‑finding.[100]  By that, the judge, in effect, instructed the jury that they should consider the whole of the evidence.  That does not reveal error.  To the contrary, it is conducive to the proper discharge by the jury of its function. 

   [100] ts 414 ‑ 415, 420, 422, 423, 436, 443.

7. The judge also told the jury that they should not jump to conclusions.[101]  Again, that is an appropriate direction.  In that context, the judge told the jury, in effect, that they should not jump to a conclusion by 'seizing on one little thing like … the wretched place [the appellant] was in with her prostitution and drug use and idiot boyfriends'.  Rather, the jury should 'look at everything' and make findings of fact.[102]

   [101] ts 414, 419, 422; see [26], [30] and [31] above.

   [102] ts 419.

8. Insofar as that direction conveys that the jury should consider all the evidence in coming to its findings of fact, there is, of course, no error revealed.  However, the reference to the wretched place the appellant was in, with her prostitution and drug use, immediately preceding the exhortation to look at everything, might have led the jury to think they could take into account that the appellant was doing sex work and using drugs in their assessment of whether she had been proved to have committed the offence.  In effect, the judge told the jury not to 'jump' from the fact of prostitution and drug use to a conclusion of guilt.  That did not preclude the use of the appellant's prostitution and drug use in the assessment of guilt; it precluded going automatically from one to the other.  Nothing further was said by his Honour as to the manner in which the jury might use the evidence of the appellant's prostitution and drug use.

9. Standing alone, we do not think this passage would have created a perceptible risk that a juror might engage in propensity reasoning.  However, this passage does not, relevantly, stand alone. 

10. In the passage set out at [31] above,[103] the judge told the jury that 'it would be wrong for the jury to say, "[w]ell, she's a lovely‑looking lady.  She couldn't possibly have done this", without thinking, "[w]ell, hang on a tick, she was a prostitute and junkie at the time"'.  By this direction, the judge, in effect, directed the jury that a matter relevant to the jury's assessment of whether guilt was proved was that the appellant 'was a prostitute and junkie at the time'.  The respondent properly conceded that the judge's remarks were open to this interpretation.[104]  The judge did not explain the manner in which the appellant's drug taking and prostitution was or may be relevant.  In our view, there was a real risk that the jury could take this passage, in the context of his Honour's summing up as a whole, as suggesting that they could take into account that the appellant was a prostitute and drug taker as facts making it more likely that she committed the offences with which she was charged.

    [103] ts 422 ‑ 423.

    [104] Appeal ts 39.

1. We think the same conclusion is to be drawn in respect of the further comments by the judge that are outlined at [34] above, made in the concluding portion of his summing up. In directing the jury that they must perform their task without sympathy, the judge referred to the appellant as a 'drug‑addled prostitute'. The judge said to the jury, '[i]f you feel sorry for drug‑addled prostitutes, then feel sorry for drug‑addled prostitutes. Whether or not that's a relevant factor in this case you'll have to consider in the context of the case as a whole'.[105]  The judge did not explain what he meant by the statement in the italicised words.  As the respondent conceded,[106] the word 'that', in his Honour's statement, may have been a reference to the jury feeling sorry for drug‑addled prostitutes, or it may have been a reference to the fact that the appellant was a drug‑addled prostitute.  The jury might well have adopted the latter interpretation.  The judge did not explain to the jury the implications of their having to consider whether or not any sympathy they may have for 'drug‑addled prostitutes' or for the appellant's status as a 'drug‑addled prostitute' was a relevant factor in the case.  We are satisfied that the jury may have taken what the judge said to mean that the jury should consider and decide for themselves whether they thought the fact that the appellant was a prostitute who was taking illicit drugs was relevant to their determination of the appellant's guilt.  The judge did not explain the manner in which that fact might be relevant to the question of the appellant's guilt. 

   [105] ts 443 (emphasis added).

   [106] Appeal ts 41.

2. The respondent submits that the judge's direction should be understood to mean that the appellant's prostitution and drug‑taking was relevant in the manner and respects that had been referred to and relied on by the parties.[107]  However, while the judge made repeated references to the appellant's drug‑taking and prostitution, his Honour did not, at any stage, identify for the jury the respects in which, and purposes for which, this aspect of the evidence was relevant. 

   [107] Appeal ts 40.

3. Very soon after this, the judge told the jury that 'lifestyles aren't going to help you, but the nature of those lifestyles might be relevant'.[108]  The nature of the lifestyles is plainly a reference, among other things, to the appellant working as a prostitute and being a user of drugs.  The judge told the jury that those matters might be relevant.  The respondent accepted that the judge's remarks could reasonably be understood by the jury to mean that it was for the jury to determine whether, and to what extent, the fact that the appellant used drugs and worked as a prostitute made it more likely that she committed the offences with which she was charged.[109]  The respondent was not able to identify a different interpretation of the remarks that was reasonably open to the jury.[110] 

   [108] ts 444 (emphasis added).

   [109] Appeal ts 41.

   [110] Appeal ts 41.

4. In our view, read in the context of the summing up as a whole, the cumulative effect of these aspects of the judge's remarks created a perceptible risk that the jury might take the remarks as inviting or permitting them, if they so chose, to engage in propensity reasoning.  That propensity reasoning was to the effect that the fact that the appellant worked as a prostitute and was a user of illicit drugs made it more probable that she had committed the offences with which she was charged.

5. In our respectful opinion, the risk that the jury might take these features of the summing up as an invitation or licence to use propensity reasoning founded on the appellant's prostitution and drug‑taking was magnified by the repetition and condemnatory tone of the judge's references to those features of the evidence.  The judge gave the appellant's prostitution and drug taking a prominence it did not have in the parties' cases, most significantly in the State case.  The judge referred to that aspect of the evidence much more extensively than either of the parties.  Moreover, the prosecution explained the specific purpose for which the appellant's drug taking and prostitution was relevant, and did so in temperate language.  Unfortunately, the judge did neither of those things.  The combination of the repetition and condemnatory tone of the judge's references to prostitution and drug taking, the judge's several invitations to the jury to decide whether that was relevant, and the absence of any explanation as to the manner in which that evidence was relevant, meant that, when the summing up is considered as a whole, there was a perceptible risk that the jury might engage in propensity reasoning in relation to the appellant's drug taking and prostitution.  Consequently, it was incumbent on the judge to direct the jury that such reasoning was impermissible, and to explain the limited manner in which the jury could take into account the appellant's drug taking and prostitution.  We are satisfied that the judge's failure to do so occasioned a miscarriage of justice. 

6. In coming to this conclusion we do not overlook that no complaint was made at the trial of any need for a propensity warning.  We are satisfied that defence counsel did not fail to complain for a forensic or tactical reason. For the reasons we have given, in our respectful opinion, the failure to give such a warning gave rise to a miscarriage of justice.

7. Consequently, ground 3 must be upheld.  Counsel for the State accepted, correctly, that if ground 3 was made out then it was not open to this court to apply the proviso.[111]  It is unnecessary, in the circumstances, to determine ground 2. 

   [111] Appeal ts 38.

Ground 1

Events concerning Juror 129

1. At the end of the first day of the trial, after the jury had retired, the sheriff's officer informed the judge that a juror had informed her that the juror had a funeral the following day.[112]  When the judge asked for the juror to be brought back to court, the sheriff's officer said that the juror, like all other members of the jury, had left.[113]  The judge asked the sheriff's officer to send the juror a text message enquiring what time the funeral was and what the juror's relationship was to the deceased.  The sheriff's officer noted that the juror had informed her that the juror was not sure what time the funeral was.  The judge then said, '[w]ell, it needs to be in writing so there's no scope for misunderstandings later'.[114] 

   [112] ts 93.

   [113] ts 94.

   [114] ts 94.

2. At the commencement of proceedings the next morning, before the panel had come into court, the judge informed counsel that a note had been received from the sheriff's officer, setting out the terms of a message received from Juror 129.  The message stated that the juror would be attending the mass and funeral of a family member, apologising for any inconvenience.

3. The judge then said as follows:[115]

   This is entirely unacceptable and there's to be a full inquiry into how this could happen. How someone could come into this courtroom yesterday on a panel, having presumably being well advised that they would be required for a four-day trial is beyond me. I can only assume there has been a massive breakdown in communication in the sheriff's office.

   How that person could sit in the back of the court and be told this was a four-day trial and they needed to be available for all four days and then not tell me is beyond belief. And then to simply discharge himself. And lastly, I'm not happy that he was allowed to go home last night.

   The sheriff's officer - the jury officer should have made that man stop and come and address me and not let him just leave. And we've got the jury appointing - giving themselves directions about who and when we'll have a spokesperson and calling themselves - calling the person a foreman.

   Who's running this trial? This person is not discharged. We're going to press on without them. This person must report here today at some stage and answer for his content [sic: conduct]. We just can't have jurors discharging themselves from juries nor can we have the sheriff's officer bringing people into this room who have no intention of complying with their oath or affirmation. I mean this is not a lending library for goodness sake.

   …

   And you thought you had it tough in Hakea [complainant].  Try being a judge.

   [115] ts 96 ‑ 97 (emphasis added).

4. When the jury returned to the court, the judge informed them that Juror 129 had 'chosen to absent himself', and that proceedings would continue without him, 'but he's not discharged at this stage'.[116]  Further, the judge stated that the absent juror was going to have to come back and answer for his conduct.[117] 

   [116] ts 97.

   [117] ts 97.

5. The trial then proceeded, with the complainant giving evidence.  At 3.11 pm, the judge ordered an adjournment for a short time, at the request of defence counsel.

6. When the court reconvened, a few minutes later, Juror 129 was present in court.  The judge spoke to the juror about the fact that he had absented himself without permission from the judge.[118]  The judge stated that he had to discharge the juror from the jury, saying that, '[w]e couldn't wait for you to turn up this morning'.[119]  The judge then discharged the juror and released him from jury duty.  The judge said that the jury could return to the courtroom.  The judge then asked the sheriff's officer to 'go and interrupt them', saying that, 'I don't want them [referring to the continuing jury, on the one hand, and Juror 129, on the other hand] talking to each other'.[120]

   [118] ts 202 ‑ 204.

   [119] ts 204.

   [120] ts 204.

7. When the jury returned to the courtroom, the judge informed the members of the jury that Juror 129 had shown up, been given a 'sound talking to' and had been discharged.[121]  The judge said that 'obviously' Juror 129 could not continue to sit on the jury if he had not heard all the evidence.[122]  The judge told the jury that the trial would continue with the 12 remaining jurors, so that there would be no ballot at the end of the trial.[123]

Statutory provisions

[121] ts 205.

[122] ts 205.

[123] ts 205.

1. Sections 111 and 115 of the Criminal Procedure Act 2004 (WA) provide as follows:

   111.Jury not to separate or communicate with others

   (1)For the purposes of this section, a trial by jury begins when the first juror is sworn and ends when the jury gives or is discharged from giving its verdict and includes any period when the jury is considering its verdict and any period when the trial is adjourned.

   (2)During a trial by jury -

   (a)the jury must not separate unless permitted to do so under subsection (4)(a); and

   (b)the jury must not leave the charge of a court officer during any adjournment of the trial, unless it has been permitted to separate under subsection (4)(a); and

   (c)there must not be any communication between a juror and a person who is not a juror, except as permitted under subsection (4)(b).

   (3)Subsection (2)(c) does not apply to any communication between a juror and the judge or the court officer in charge of the jury, or by a party to the trial to the jury as part of the ordinary course of the trial.

   (4)Despite subsection (2), the judge -

   (a)may permit the jury to separate during any adjournment of a trial by jury subject to any condition that the judge thinks necessary to impose in the interests of justice; and

   (b)may permit a juror and a person who is not a juror to communicate subject to any condition that the judge thinks necessary to impose in the interests of justice.

   (5)If subsection (2) or a condition imposed under subsection (4) is contravened, the judge may discharge the jury from giving its verdict, if it is in the interests of justice to do so.

   (6)A juror who contravenes subsection (2) or a condition imposed under subsection (4) is guilty of an offence and is liable to a fine of $12 000 or imprisonment for 12 months.

   (7)A person who contravenes subsection (2)(c) or a condition imposed under subsection (4)(b) is guilty of an offence and is liable to a fine of $12 000 or imprisonment for 12 months.

   …

   115.Discharging juror

   (1)The powers in this section may be exercised at any time before a jury gives its verdict.

   (2)The judge may discharge a juror from a jury if satisfied that the juror should not be required or allowed to continue in the jury and if the discharge will leave at least 10 jurors remaining.

   (3)If a juror is discharged under subsection (2) the verdict of the remaining 10 or more jurors has the same effect as if the whole jury had continued to be present.

   (4)The discharge of a juror from a jury does not affect any duty of the juror to attend under the Juries Act 1957.

The parties' submissions

1. The appellant's submissions are to the following effect:

   (1)The judge did not have the power to continue the trial while not all jurors were present. The trial judge allowed the jury to separate in contravention of s 111. The judge's decision to do so was a wrong decision on a question of law.[124]

   (2)Consequently, the conviction appeal must be allowed unless the proviso can be applied.[125]

   (3)The nature of the error in this case precludes the application of the proviso.[126] 

   (4)In that regard, the trial proceeded with an incomplete jury, during which the complainant's evidence‑in‑chief and some of his cross‑examination occurred.  The periods during which the incomplete jury was in the jury room may have resulted in discussions of the evidence by the incomplete jury.[127]  That renders the trial not a trial by jury according to law.[128]

   [124] Appellant's submissions [28].

   [125] Appellant's submissions [29].

   [126] Appellant's submissions [31] ‑ [32].

   [127] Appellant's submissions [34].

   [128] Appellant's submissions [35].

2. The respondent's submissions are to the following effect:

   (1)There will only be a wrong decision on a question of law concerning the procedure applicable to a criminal trial if the alleged error resulted in a miscarriage of justice,[129] referring to Johnston v The State of Western Australia.[130] 

   (2)The judge appears to have acted on the mistaken belief that Juror 129 was permitted by law to be separated from the rest of the jury while the trial continued without having being discharged pursuant to s 115 of the Criminal Procedure Act.[131] 

   (3)However, that error of law will not constitute a miscarriage of justice unless it can be reasonably concluded that it resulted in a trial which took place otherwise than in accordance with the law, because the integrity of the deliberations of the jury was compromised in some manner.[132]  That would be so if, for example, there were improper communications between any member, or members, of the jury and any others who were not members of the jury during the period of separation, or extraneous influences were brought to bear upon the deliberations or verdict of the jury.[133] 

   (4)The 12 jurors who delivered the verdict had been in the company of each other at all material times throughout the trial.[134]  There was no evidence that any member of the jury who delivered the verdict had communicated with any person not a member of their 12, including Juror 129, in relation to matters associated with the trial or had otherwise been subject to improper outside influence.[135] 

   (5)Consequently, any error of law by the judge should be characterised as technical, not a wrong decision on a material point of law and not constituting a miscarriage of justice.[136]

   (6)The respondent's written submissions asserted that the proviso does not arise.[137]  However, in oral submissions the respondent invoked the proviso, pointing to the matters in (4) above.[138]

Disposition

[129] Respondent's submissions [32], [35].

[130] Johnston v The State of Western Australia [2012] WASCA 98 [65].

[131] Respondent's submissions [37], [49].

[132] Respondent's submissions [37], [51].

[133] Respondent's submissions [37], [51], referring to Johnston [66] and [70].

[134] Respondent's submissions [49].

[135] Respondent's submissions [50], [51].

[136] Respondent's submissions [52].

[137] Respondent's submissions [53].

[138] Appeal ts 44.

1. As is clear from what is set out at [61] and [62] above, upon discovering, at the commencement of the second day of the trial, that the juror was absent, the judge expressly stated that the juror was not discharged.[139]  Obviously, therefore, Juror 129 remained a member of the jury until he was discharged at about 3.19 pm that day.

   [139] ts 96, 97.

2. In our respectful opinion, the judge erred in law in, and occasioned a miscarriage of justice by, permitting the trial to continue in the absence of Juror 129, without having first discharged Juror 129 from the jury.  For the reasons explained below, in our opinion, a judge has no power to permit a trial to continue while a member of the jury is absent. 

3. The effect of s 111 of the Criminal Procedure Act, so far as is material, may be summarised as follows:

   (1)From the time that the first juror is sworn until the jury gives, or is discharged from giving, its verdict, the jury must not separate unless permitted to do so under subs (4)(a).[140]

   (2)Under s 111(4)(a), the judge may permit the jury to separate during any adjournment of [a trial].

   (3)Thus, the judge's power to permit the jury to separate is limited to the period of any adjournment of the trial. Consequently, the power under s 111(4)(a) does not empower the judge to permit the jury to separate while the trial is proceeding.

   (4)Consequently, the effect of s 111(2)(a) is that, while the trial is proceeding, the jury must not separate.

   [140] Section 111(2)(a), read with s 111(1).

4. No other provision of the Criminal Procedure Act empowers the judge to permit the jury to separate while the trial is proceeding.

5. In the circumstances, the judge had two options: to adjourn the trial, or to immediately discharge the juror. The course taken by the judge meant that the requirement of s 111(2)(a) - that the jury must not separate - was breached.

6. In our opinion, that meant that there was a departure from a trial according to law, and thus a miscarriage of justice. For the purposes of s 30(3)(c) of the Criminal Appeals Act, a miscarriage of justice encompasses 'any departure from a trial according to law, regardless of the nature and importance of that departure'.[141] 

   [141] (Emphasis in original) Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18]; King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53]; Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305 [12], [13]; OKS v The State of Western Australia [2018] WASCA 48 [79], [84], [212]; Nuhana v The State of Western Australia [2018] WASCA 79 [80(1)].

7. As we have said, the respondent relies heavily on the decision of this court in Johnston v The State of Western Australia.  That decision does not assist the respondent.  In Johnston, the judge had exercised the power under s 111(4)(a)of the Criminal Procedure Act.  The appellant sought to impugn that exercise of power.  In Johnston, Martin CJ (Buss & Mazza JJA agreeing) held that an error in the exercise of a discretion of the kind conferred by s 111 of the Act would not sustain a conclusion of a miscarriage of justice unless it could reasonably be concluded that the integrity of the deliberations of the jury was compromised in some manner.[142]

   [142] Johnston v The State of Western Australia [66], see also [68], [70].

8. By contrast, in this case, the judge was not exercising a discretion that he had under s 111(4). As we have explained, that section only applies to separation during an adjournment. Rather, the course taken by the judge was contrary to the command of s 111(2)(a).

9. The judge's remarks, set out at [61] and [62], reveal a degree of frustration on the part of the court, with the conduct of the juror.  In the circumstances, such frustration is entirely understandable.  However, frustration of this kind must not be allowed to deflect the court from the proper discharge of its function.  It also appears from these remarks of his Honour that his Honour intended to discharge the juror once the juror returned to the court.  We accept the respondent's submission[143] that the judge's evident purpose in not discharging the juror immediately was to ensure that the juror would have to return and explain his absence, and to give the judge an opportunity to express his displeasure or give 'a sound talking to' to the juror.  In that manner, his Honour was, with respect, deflected from the task of ensuring a fair trial according to law.

   [143] Appeal ts 43 ‑ 44.

1. For these reasons, in our view, in allowing the trial to continue in the absence of Juror 129, while the juror remained a member of the jury, there was a departure from a trial according to law and a miscarriage of justice.  Thus, we would have upheld ground 1, subject to the application of the proviso.  Given that we upheld the appeal on ground 3 and ordered a retrial, there is no utility in determining whether this error attracts the application of the proviso.

Conclusion

1. For these reasons, we made the orders set out in [5] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH

2 AUGUST 2018