Campanile v State of Victoria (Ruling No 1)
[2020] VSC 55
•19 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMON LAW DIVISION
AT GEELONG
CIVIL CIRCUIT LIST
S ECI 2018 02293
| DONATO CAMPANILE | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
---
JUDGE: | Forbes J |
WHERE HELD: | Geelong |
DATE OF HEARING: | 18 February 2020 |
DATE OF RULING: | 19 February 2020 |
CASE MAY BE CITED AS: | Campanile v State of Victoria (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 55 |
---
JURY – Discharge of jury – Interaction of juror with Counsel – Apprehension of bias - Risk to a fair trial - Hudspeth v Scholastic Cleaning & Consultancy (2014) 42 VR 236 – Messade v Baires Contracting Pty Ltd (Rulings No 2,3 & 4) [2011] VSC 75 – Impartiality fundamental to fairness of trial - Ebner v Official Trusteein Bankruptcy (2000) CLR 337.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Walsh Mr G. Taylor | Shine Lawyers |
| For the Defendant | Mr S. Smith QC Ms K. Manning | Wisewould Mahony |
HER HONOUR:
On the second day of trial shortly after cross-examination of the plaintiff commenced, an application was made by the plaintiff to discharge the jury. The application was opposed.
The application arose from this outlined sequence of events. A jury was empanelled on the afternoon of the first day. At the lunch adjournment on day two while the plaintiff was in evidence-in-chief, one juror approached Senior Counsel for the defendant outside the Geelong Courthouse and stood under his umbrella with him. She spoke to him about two matters; first that the jury were cold in the court room (a matter which had been raised with my associate) and second that Senior Counsel looked familiar and inquired if he had been on television. Senior Counsel disclosed this to the court after the lunch break in the absence of the jury and in the presence of the plaintiff who was in the witness box ready to resume his evidence.
The juror’s conduct gave rise to an application by the plaintiff to discharge the juror. On that information I determined not to discharge the juror but to give a further direction to the jury repeating and reinforcing the direction given in my opening remarks the afternoon before, that jurors not approach or engage with any parties involved in the case outside the court room, even on innocuous or unrelated matters so as to maintain impartiality and the appearance of impartiality. That further direction was given and the plaintiff resumed his evidence.
During a brief recess shortly after cross-examination had commenced, the plaintiff provided a note to his counsel concerning his observation of a juror when the jury entered the court after lunch. Senior Counsel for the defendant could not say whether the juror who was identified in the plaintiff’s note was the same juror as had spoken to him outside court. The note identified the plaintiff’s observation of a non-verbal exchange between the juror that he identified and Senior Counsel for the defendant.
This additional information led to a further application by the plaintiff on this occasion to discharge the jury.
The plaintiff’s submission was that the totality of these events gave rise to a risk that the jury may not be impartial and that the plaintiff perceives himself by his in-court observations to be subject of partiality[1] such that I should discharge the jury.
[1]Transcript of Proceedings, Donato Campanile v State of Victoria, (Supreme Court of Victoria, S ECI 2018 02293, Forbes J, 18 February 2020) 84.
The defendant opposes the application. Senior Counsel for the defendant informed the court that he did not react to any juror in court and submitted that the plaintiff’s perception was therefore a misperception or a misunderstanding. The defendant submitted that any perception by a litigant of juror reactions in court was not a basis to discharge a jury.
In the course of my discussion with Counsel I indicated my observation of a particular juror’s reaction during the direction as a reaction of apparent ‘sheepishness’. This does not seem to be the same juror reaction observed by the plaintiff.
I granted the application to discharge the jury and indicated I would provide reasons.
The principles that guide a decision whether to discharge a jury are set out in Hudspeth v Scholastic Cleaning & Consultancy,[2] which summarised the principles to be drawn from consideration in a number of recent cases. Whelan JA said:
[2](2014) 42 VR 236 (‘Hudspeth’).
The fundamental principle is that every litigant is entitled to have his or her case fairly tried free from the intrusion of any extraneous matter calculated to influence the jury. (citation omitted)
The application of that fundamental principle in relation to the situation under consideration here was addressed by Kyrou AJA in Reza, in terms which I would respectfully adopt. Relevantly, he said: (citation omitted)
If…for any reason the jury is exposed to irrelevant and potentially prejudicial material, and one of the parties applies for an order discharging the jury, the question for the trial judge is whether the conduct complained of has seriously affected the proper conduct of a fair trial. The trial judge ought to direct his or her mind to the degree of prejudice which has been created against the aggrieved party by the conduct complained of, and then consider whether any direction to the jury about those matters would be capable of overcoming the mischief. If the trial judge concludes that an appropriate direction could overcome the mischief, he or she ought to immediately give a clear, full and authoritative direction to the jury. If the trial judge concludes that the conduct complained of has seriously affected the proper conduct of a fair trial and that the unfairness cannot be overcome, he or she should discharge the jury.
On appeal from the refusal of a trial judge to discharge the jury in circumstances where…the jury was exposed to irrelevant material, the question for the appellate court is whether to allow the judgment below to stand would effect a substantial wrong or miscarriage of justice. That question depends on whether, in the events which occurred, the fairness of the trial was seriously affected to the prejudice of the party that applied for a discharge of the jury, such that a new trial should be ordered.
It must also be born in mind that, in both criminal and civil jury trials, juries are assumed to understand and comply with directions from the trial judge. The capacity of a jury to decide a case in accordance with the law and the directions of the trial judge should not be underestimated. The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. It is assumed that, when they are properly directed by trial judges to decide cases in accordance with the law – that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations – juries comply. The capacity of juries to do so is critical to ensuring that proceedings are fair.
However, in some cases, … the irrelevant material to which the jury is exposed is so prejudicial that no direction by the trial judge can ensure a fair trial. In such a case, the only means by which the prejudice can be overcome is to order a new trial.[3]
[3]Hudspeth (n 2) [198] - [199] quoting Kyrou AJA in Reza v Summerhill Orchards Ltd (2013) 37 VR 240 (Whelan JA).
I accept that in the course of a jury trial jurors will react in court to participants including the judge, counsel and witnesses. That is to be expected. Ordinarily such in court reactions would not introduce anything extraneous or irrelevant that might necessitate a discharge. In this case, a juror’s approach to counsel outside court has introduced an extraneous and irrelevant matter and has given rise to a risk and the perception of a risk that the juror may not approach the task in an impartial manner. Knowledge of an interaction outside court which may introduce irrelevant and extraneous considerations can inform any perceptions by a party of exchanges within the court room.
In Messade v Baires Contracting Pty Ltd,[4] J Forrest J, in granting an application to discharge a jury following out of court observations by three jurors of the plaintiff at Flagstaff Station, noted that the jurors’ own belief as to their ability to decide the case impartially on the evidence in court itself does not resolve the issue. The question for me as the trial judge is whether I can be satisfied in all the circumstances that there can be a fair trial. J Forrest J said:
[4](Rulings No 2, 3 & 4) [2011] VSC 75 (‘Messade’).
Originally I canvassed with Counsel whether the appropriate test in such a case is akin to that in an ostensible bias application concerning the conduct or behaviour of a judge. In other words, would a fair minded lay observer knowing the basic facts thinks the jury could not act impartially in determining the case.
Upon reflection, I believe that I posed the wrong test and led counsel astray. I think the proper test here is whether the trial judge is satisfied that in all the circumstances and taking into account;
(1) his or her power to give appropriate directions to the jury; and
(2)the jurors own belief in their ability to return a fair verdict on the evidence alone –
the jury will act fairly and impartially in determining the assessment of the plaintiff’s damages.[5] (citations omitted)
[5]Messade (n 4) [24] – [25].
The basis of my decision to discharge the jury does not rest on the accuracy or inaccuracy of the plaintiff’s perception of in court behaviour. That alone would not persuade me that a fair trial could not be had. However, an apprehension of bias is raised by the juror’s approach. The attempt to engage in conversation with a particular counsel in the case so early after a direction has been given to refrain from such conduct is concerning. It is not a situation of accidental and perhaps awkward crossing of paths by a juror with a participant in the case. Whilst it may be overcome by a direction, the subsequent complaint by the plaintiff whose perception was affected (whether accurately or not) by knowledge of the extraneous juror contact, undercut the step taken to cure the potential mischief.
In considering whether a fair trial can be had, with the direction given, it is appropriate in my view to consider the stage at which the trial has reached. It is relevant and of some weight in my mind that the plaintiff was still giving evidence when these events occurred and was yet to be substantively cross examined by the defendant. A party should not be required to give evidence while concerned about the prospect of an impartial decision maker because of extraneous matters.
At this early stage of the trial before any evidence has been tested there is some doubt in my mind as to the prospect of a trial that is decided by impartial decision makers. The investment of time and concentration by this jury to date is limited. An apprehension of bias by a juror is a relevant matter for my determination as to whether a fair trial can be held even though the test is not whether a fair minded observer would think the jury could not act impartially in determining the case.
In Ebner v Official Trusteein Bankruptcy,[6] dealing with a reasonable apprehension of bias in the context of a judicial decision maker, the High Court said ‘[f]undamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal’.[7] They went on to say:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance or departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability.” (citations omitted)[8]
[6](2000) 205 CLR 337.
[7]Ibid [3].
[8]Ibid [6] – [7].
The inclusion of jurors as decision makers, consistent with the oath they took and the instruction that they were given in this case, means that their continued impartiality is fundamental to the fairness of the trial. The possibility that this has been undermined by the extraneous contact instigated by a juror does impact on the fairness of the trial that is to come and in my view it is appropriate to discharge the jury.
0
2
0