Carson (a pseudonym) v The Queen
[2019] VSCA 317
•20 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0202
| DAVIN CARSON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | NIALL, T FORREST and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 November 2019 |
| DATE OF JUDGMENT: | 20 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 317 |
| JUDGMENT APPEALED FROM: | DPP v Carson (a pseudonym) (Unreported, County Court of Victoria, Judge C Ryan, 20 September 2019) |
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CRIMINAL LAW – Appeal – Conviction – Historical sexual offences – Whether trial judge erred by refusing application to discharge jury – Whether irregularity of trial process occurred by reason of trial judge failing to inform parties of communications between tipstaff and juror – Whether trial judge erred by allowing jury access to recorded evidence during deliberations – Substantial miscarriage of justice – Serious departure from the prescribed processes for trial – High degree of need to discharge whole jury – Leave to appeal granted – Appeal allowed – Convictions quashed – Retrial ordered – R v Stretton [1982] VR 251, Baini v The Queen (2012) 246 CLR 469, Farha v The Queen [2018] VSCA 310, Saricayir v The Queen [2018] VSCA 319 referred to – Criminal Procedure Act 2009 ss 223, 276.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr C T Carr with Mr C Grant | Williams Winter Pty Ltd |
| For the Respondent | Mr R L Gibson QC with Ms C J C Parkes | Mr J Cain, Solicitor for Public Prosecutions |
NIALL JA:
I have had the advantage of reading, in draft, the reasons for judgment of T Forrest JA. I agree, for the reasons his Honour gives, that leave should be given on grounds 1 and 1A and that the appeal should be allowed. I would also refuse leave to appeal on ground 2 for the reasons his Honour gives.
I wish to add the following in relation to ground 1A.
Ground 1A
The failure by the judge to bring to the attention of the parties the communication between Juror 21 and the tipstaff that occurred on 5 August 2019 constituted a denial of procedural fairness.
The content of the communication from the juror to the tipstaff was one of substance. Juror 21 conveyed to the tipstaff what he believed had occurred a week earlier, on 29 July 2019, in the confines of the jury pool room. The fact that the juror delayed a week to relay his concerns gave rise to the real likelihood that, as he observed the applicant’s support person during the first week of the trial, he became more certain of the association between the photographer and the applicant and more concerned to the point that he felt he needed to raise it with the Court. The gravamen of the juror’s concerns was that a person associated with the applicant was illegitimately interfering with the trial process.
The respondent did not maintain that the failure on the part of the judge to advise the parties on 5 August 2019 about the communication was not an irregularity. Rather, the respondent submitted that this is not a case of a denial of procedural fairness, but rather a delay in procedural fairness being accorded and that given the ultimate course of the trial, which saw Juror 21 being discharged on 12 August 2019, there has been no substantial miscarriage of justice.
At the heart of the respondent’s submission is a contention that there has been no material denial of procedural fairness.
In order to address that submission, it is necessary to briefly refer to the principles that apply where it is said that the denial of procedural fairness has had no bearing on the result.
It is clearly established that ‘it is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case’.[2]
[2]Cameron v Cole (1944) 68 CLR 571, 589 (Rich J).
Specifically, the judge was obliged to disclose the communication from Juror 21 to the parties and invite submissions from them as to the course, if any, that should be taken. The requirement imposed on the judge to disclose the communication serves two functions, both of which are rooted in procedural fairness. First, it is an element of what is sometimes called the hearing rule that a party should be afforded an opportunity to be heard on a matter that may affect their rights or interests. Secondly, it is a reflection of the requirement that there should be no private communications between the judge and jury. It is an essential aspect of the curial process that the trial occur in open court, in the presence of the prosecution and accused, and that the accused be aware of all of the communications that pass between the judge and jury bearing upon the issues or process of trial.
As Gageler J observed in Assistant Commissioner Michael James Condon v Pompano Pty Ltd:[3]
Justifications for procedural fairness are both instrumental and intrinsic. To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied. The effects go further. Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice.[4]
[3](2013) 252 CLR 38.
[4]Ibid 107 [186] (citations omitted).
In the context of a breach of the hearing rule, various formulations have been adopted for the purpose of assessing the materiality of the breach: whether the breach deprived the affected party of ‘the possibility of a successful outcome’[5] and whether ‘compliance could realistically have resulted in a different decision’.[6] Those formulations require some assessment of what might have occurred, as a realistic possibility, had procedural fairness been accorded. In undertaking that exercise, it is relevant to have regard to what might reasonably be expected to have occurred, having regard to ordinary trial practice and also to the difficulties of proof. Assessing what might have happened can be challenging, but not insuperably so, where the decision maker is a judge who is obliged to give reasons for any substantive decision. It is much harder in the context of a jury whose deliberations are secret and who not give reasons for their decision.
[5]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 128 [122] (McHugh J).
[6]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [45] (Bell, Gageler and Keane JJ).
In addition, it is important to have regard to the damage to confidence in the judicial process if a denial of procedural fairness, which goes to the heart of the judicial role, is found to be of no consequence. That has particular potency where, as here, the secrecy of the jury deliberations and the inability to question other jurors without potentially compounding the problem precludes any firmer factual footing to assess the impact of the breach. Further, it is the process of procedural fairness, as much as its outcome, that promotes confidence in the system of justice.
Applying those principles, the parties should have been given the opportunity on 5 August 2019 to address the Court on the communication from Juror 21. That would have given the parties, and, most relevantly, the applicant, an understanding that Juror 21 had maintained a belief for a week that an associate of the applicant had interfered, or attempted to interfere, with the process by taking a photograph of potential jurors.
The parties could then have made submissions as to what course should be adopted. Had the judge indicated to the parties that he proposed to ask the tipstaff to investigate the possibility that the applicant’s support person had been in the jury pool room and taken photographs and then communicate the result of his enquiries in private with Juror 21, it is entirely possible that the parties would not have acceded to that course. As T Forrest JA observes,[7] that course has been deprecated by authority and ought not have been adopted.
[7]At [85(b)] and [85(c)] below.
With the issue in the open, it is likely that the parties would have invited the judge to ask questions of Juror 21, as subsequently happened, in order to elucidate his concerns. Had that occurred, there is the real likelihood that further information might have been elicited from Juror 21 which casts doubt on his capacity to rationally and impartially discharge his duty as a juror. His state of mind was almost certainly impaired by 12 August 2019 and it is reasonable to proceed on the basis that, had Juror 21 been invited to raise his concerns in open court, that impaired state may well have been apparent.
At the very least, the parties would have had the opportunity to observe the reaction of Juror 21 when he was told that it was not possible for the applicant’s support person to have been present in the jury pool room at the time of the alleged incident. As it was, the concerns of Juror 21 were relayed through the tipstaff with the inevitable risk that details may have been innocently omitted or the manner of the exchange not fully conveyed. Clearly, the judge thought that the issue was resolved, but that was not the case. Juror 21 had conveyed his concerns about the photographer to two jurors. It also appears that his anxiety was not allayed by what he was told by the tipstaff because, on 12 August, he revisited the issue by asking which camera angles were available.
Regardless of the extent to which further information might have been gleaned from Juror 21, the applicant was denied the opportunity of applying to have that juror discharged. The possibility of Juror 21 being discharged on 5 August 2019, had the issue been raised, was very real.
The respondent submitted that the ultimate discharge of Juror 21 removed any taint that could have affected the trial and that any delay was immaterial.
I do not accept that submission. First, if, as I accept to be the case, the applicant was denied the opportunity to apply to have Juror 21 discharged on 5 August 2019, there is a real possibility that for a week the jury contained a juror that should not have been permitted to remain. The respondent accepted that, on 12 August 2019, Juror 21 was correctly dismissed from the jury both because of the doubt as to his ability to rationally consider the evidence and submissions, and also because of the risk his presence posed to the orderly deliberations of his fellow jurors. In my view, that latter risk was also present from 5 August 2019.
Relatedly, whether, and to what extent, his presence on the jury for that week distracted the other jury members or introduced extraneous matters into their deliberations is not, and can never be, known.
The questions asked by the judge of Juror 21 on 12 August 2019 provided some evidence of what, if anything, he had told his fellow jurors. However, there are some significant problems with that evidentiary record.
First, the process of questioning included a number of leading questions from the judge which, in substance and form, were directed to confirming the account that the tipstaff had earlier relayed about his conversation with Juror 21.
Secondly, the questions concerning whether Juror 21 had related his concerns were quite confined.
Thirdly, real questions as to the reliability of Juror 21 were apparent from the exchange. His purported observation of someone taking photographs in the jury room was shown to be wrong. The dramatic nature of his concerns expressed in writing and his fear that it was ‘getting too close to home’ suggested a distorted viewpoint. His account was not, and could not realistically, be tested by general enquiries of the other jury members without risking further contamination of the jury.
Of course, the questions of the judge were largely directed to the juror’s fears apparently arising from events after 5 August 2019. To that extent, they might be thought irrelevant to any submissions that might have been advanced on 5 August 2019. However, they highlight a number of things. First, any open scrutiny of the juror’s observations in the jury room may well have uncovered further issues of concern. Secondly, it is impossible to say that the concerns that were manifest on 12 August 2019 had not played themselves out in the jury room, at least to some degree, before the juror was discharged.
In those circumstances, I am persuaded that the loss of the opportunity to make submissions on 5 August 2019 meant that the applicant was denied the chance to make a submission as to the composition of the jury at a critical time of the trial. The fact that he was able to do so successfully a week later, when further concerns were raised by the juror, did not mean that the delay was without consequence. It resulted in a substantial miscarriage of justice.
Whether there has been a substantial miscarriage of justice is not, in this context, to be determined by an assessment of whether the conviction was soundly based on the evidence.[8] It may be noted that, even where the proviso was potentially engaged, it has been held that it would be proper to allow an appeal and order a new trial without applying the proviso ‘where there has been a significant denial of procedural fairness at trial’.[9]
[8]Weiss v The Queen (2005) 224 CLR 300, 317 [45] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[9]Ibid.
Further, as noted in Baini v The Queen,[10] a consideration of the text of s 276 of the Criminal Procedure Act 2009 (‘CPA’) reveals that a ‘“substantial miscarriage of justice” encompasses not only cases identified by reference to inaccuracy of result
but also cases identified by reference to departure from process’.[11] This is because the separate inclusion of sub-paragraphs (b) and (c) (and in particular the question whether there has been a substantial miscarriage of justice) indicates that those sub-paragraphs ‘cannot be confined to cases in which the Court of Appeal is satisfied that it was not open to the jury to convict the appellant’.[12]
[10](2012) 246 CLR 469 (‘Baini’).
[11]Ibid 480 [27] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[12]Ibid 479–80 [27] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
Finally, it is important to note that this understanding of s 276 of the CPA ‘accommodates fundamental tenets of the criminal justice system in Australia’.[13] In particular, the prescribed mode of trial is trial by jury, and the expression ‘substantial miscarriage of justice’ encompasses serious departures from trial processes, whether or not the impact of that departure can be determined.[14]
[13]Ibid 481 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[14]Ibid.
I am persuaded that there was a significant denial of procedural fairness, such that there has been a substantial miscarriage of justice. It follows that I would uphold ground 1A.
Conclusion
I would grant leave to appeal on grounds 1 and 1A and allow the appeal. I would set aside the conviction and order that there be a new trial.
T FORREST JA:
The applicant was charged on indictment with 15 historical sexual offences. It was alleged that those offences were committed against two complainants in 1971. He pleaded not guilty and his trial commenced in the County Court on 29 July 2019. On 22 August 2019, he was found guilty of 13 charges. I shall set out the details of
his convictions and sentences in the table below.
Charge
Offence
Maximum
Sentence
Cumulation
1 Common law assault
2 years’
imprisonment3 months’ imprisonment N/A 2 Indecent assault on a male
(Crimes Act 1958 s 68(3A))5 years’ imprisonment 6 months’ imprisonment N/A 3 Buggery with a person under 14
(Crimes Act 1958 s 68(1))20 years’ imprisonment 6 years’ imprisonment 1 year 4 Buggery with a person under 14
(Crimes Act 1958 s 68(1))20 years’ imprisonment 6 years’ imprisonment 1 year 5 Common law assault 2 years’ imprisonment 6 months’ imprisonment 3 months 6 Common law assault 2 years’ imprisonment 6 months’ imprisonment 3 months 7 Buggery with a person under 14
(Crimes Act 1958 s 68(1))20 years’ imprisonment 6 years’ imprisonment 1 year 8 Buggery with a person under 14
(Crimes Act 1958 s 68(1))20 years’ imprisonment 7 years’ imprisonment Base 9 Common law assault
2 years’
imprisonment1 year’s imprisonment 6 months 10 Common law assault
2 years’
imprisonment3 months’ imprisonment N/A 11 Indecent assault on a male
(Crimes Act 1958 s 68(3A))5 years’ imprisonment 1 year and 6 months’ imprisonment 6 months 12 Buggery with a person under 14
(Crimes Act 1958 s 68(1))20 years’ imprisonment 7 years’ imprisonment 1 year and 6 months 14 Buggery with a person under 14
(Crimes Act 1958 s 68(1))20 years’ imprisonment 7 years’ imprisonment 1 year and 6 months Total effective sentence: 14 years and 6 months’ imprisonment Non-parole period: 10 years’ imprisonment Sentencing Act 1991Pre-sentence detention declaration ( s 18(1)): 16 days Section 6AAA statement: N/A
The applicant sought leave to appeal against conviction on the following grounds:
Ground 1:The trial judge erred by refusing the applicant’s unopposed application (made on 12 August 2019) to discharge the jury, resulting in a substantial miscarriage of justice.
Ground 1A:An irregularity in the trial process occurred, by reason of the failure of the trial Judge to inform the parties, until Monday 11 August 2019, of the communications that took place between the tipstaff and one of the jurors on Monday 5 August and Tuesday 6 August 2019.[15]
Ground 2:The trial judge erred by allowing the jury unsupervised and unrestricted access to the complainants’ recorded evidence during its deliberations, resulting in a substantial miscarriage of justice.
[15]The applicant was granted leave by this Court to file ground 1A as an additional ground of appeal on 19 November 2019.
For the reasons which follow, I would allow leave to appeal on grounds 1 and 1A, and grant the appeal. I would refuse leave to appeal on ground 2.
The alleged offending
Three previous juries had been discharged without verdict. I shall set out a brief summary of the factual allegations. It is unnecessary to descend into great detail as the appeal grounds are concerned with asserted procedural irregularities in the trial process, rather than evidentiary complaints.
In 1971, the applicant was the principal of a regional boarding school in Victoria. The complainants, GC and NM, were aged 10 or 11 and 13 or 14, respectively, during that year.
Alleged offending against the first complainant (GC)
GC commenced boarding at the school in Term 1, 1971. Within a few months of this, he was directed to attend at the principal’s office. The applicant is alleged to have told GC to pull down his pants and underwear, and bend over a desk. GC was caned three times to his bare bottom (charge 1 — common law assault). The applicant is then alleged to have rubbed his hand across GC’s bottom (charge 2 — indecent assault on a male) and inserted his penis into GC’s anus (charge 3 — buggery with a person under 14).
Within a month of these events, GC was again directed to attend at the principal’s office. After being told to pull down his pants and underwear, he was directed to bend over the desk. The applicant then allegedly inserted his penis into GC’s anus (charge 4 — buggery with a person under 14).
Sometime after this event, GC ran away from the school. Upon his return, he was allegedly caned by the applicant on each hand 12 times (charge 5 — common law assault). One week later, the applicant allegedly caned GC on his bare bottom 12 times (charge 6 — common law assault). On another occasion, the applicant allegedly caned GC 12 times to his bare bottom and then inserted his penis into GC’s anus (charge 7 — buggery with a person under 14).
On another occasion, a priest, BC, is alleged to have approached GC in the playground and taken him into the applicant’s office. After a few minutes, the applicant and BC are alleged to have taken GC into a bedroom, and told GC to take off his clothes. BC and the applicant are alleged to have removed their own clothing, and they took turns inserting their penises into GC’s anus (charge 8 — buggery with a person under 14).
On another occasion, GC was allegedly directed to the principal’s office. He was told to pull down his pants and bend over. GC refused and said that he was going to call the police. The applicant is alleged to have grabbed GC and struck him on the back of his legs, arms, back and cheek with a cane (charge 9 — common law assault).
Alleged offending against the second complainant (NM)
On one occasion in 1971, NM was directed to go to the principal’s office. He was told he had been caught smoking. The applicant caned NM twice on each hand (charge 10 — common law assault).
On another occasion, the dormitory master woke NM up and directed that he go to the principal’s office. The applicant is alleged to have accused NM of playing with other boys in the shower by putting his penis in their anuses. The applicant directed NM to remove his pyjama pants and then the applicant allegedly exposed his penis, stood over NM and masturbated to ejaculation (charge 11 — indecent assault on a male).
About five weeks later, NM was again woken and directed to go to the principal’s office. The applicant allegedly forced NM to the ground, pulled down NM’s pyjama pants and inserted his penis into NM’s anus (charge 12 — buggery with a person under 14).
Sometime after the last incident, NM was allegedly directed to the applicant’s office at night. The applicant told NM they were going to play a game and bent NM over a couch. He then inserted his penis into NM’s anus (charge 14 — buggery with a person under 14).
The trial
I shall set out the relevant events during the trial in chronological order. Court hours were restricted as a result of the 92 year old applicant’s physical and mental frailty. The court day usually concluded at 3.00 pm.
Monday 29 July 2019
A fresh indictment was filed. The judge directed that a ‘support person’ be permitted to sit with the applicant during the trial. This person could be one of two people nominated by the applicant. A jury was empanelled. During the morning and before the empanelment, an event allegedly occurred in the jury pool room. We shall refer to this event later in these reasons.
Tuesday 30 July 2019
Prosecution and defence openings were made. GC’s evidence commenced. This consisted of playing an audio visual recording (‘AVR’) of his evidence from a previous unresolved trial.
Wednesday 31 July 2019
The AVR of GC’s evidence continued to be played in court.
Thursday 1 August 2019
GC’s AVR evidence concluded just before the lunch break. After lunch, NM’S AVR evidence commenced to be played in court.
Friday 2 August 2019
NM’s AVR evidence continued and court adjourned at 1.00 pm for the day.
Monday 5 August 2019
Juror 21 approached the judge’s tipstaff in the void area between the lift and the jury room, away from all of the other jurors. Juror 21 expressed a belief that the applicant’s support worker had been present in the jury pool room when the panel was struck, and that he took a photograph of Juror 21 and perhaps of other jurors. The tipstaff advised Juror 21 that this would be highly unlikely, and that he would pass Juror 21’s concerns on to the judge. At the judge’s direction, the tipstaff subsequently examined available CCTV footage. There was no CCTV coverage in the jury pool room, but CCTV footage elsewhere in the court demonstrated that the applicant’s support worker sat with the applicant on Monday 29 July 2019 from 8.43 am until at least 10.22 am. Juror 21 was advised of this by the tipstaff. This was also at the judge’s direction. None of these events were brought to counsel’s attention at this time.
Tuesday 6 August 2019
NM’s sister, AM, was called to give evidence. Her recorded evidence commenced. The informant, Detective Senior Constable Lee Ross, was called to give viva voce evidence.
Wednesday 7 August 2019
Court did not sit on this day to allow senior defence counsel to confer with the applicant.
Thursday 8 August 2019
The prosecution closed its case. The defence called the applicant to give evidence. Court was adjourned at 12.30 pm while the applicant was still in evidence-in-chief, but obviously very fatigued.
Friday 9 August 2019
The applicant was recalled and evidence-in-chief continued. Cross-examination commenced shortly at 11.10 am and court adjourned at 12.33 pm for the day.
Monday 12 August 2019
His Honour advised counsel of ‘a matter of some concern’. He then referred to the events of 5 August 2019 in the following terms:
There is a matter of some concern that I need to mention to counsel. It concerns a juror on this jury. On day 6 of the trial, which was Monday 5 August, effectively a week after we had empanelled, at 10.52 am, Juror 21 approached [the tipstaff] in the void area between the lift and the jury room, away from all other jurors to discuss a concern that the juror had in respect to the accused man’s support worker, his belief being that the accused man’s then support worker had been present in the jury pool room at the time at which the panel was struck and took a panel – took a photograph of the juror, and perhaps others.
[The tipstaff] advised the juror that this would be highly unlikely, and that he would pass the juror’s concerns on to me. As a result of that taking place, [the tipstaff] checked all closed circuit television in respect to the process of striking a panel, for want of a better description, and the empanelment process.
The end result of that enquiry was that there is no CCTV in the jury pool area. The CCTV in respect of the court, generally speaking, relates to images of the jury box, myself and Bar table, or a relevant portion of it. However, G4S[16] have security footage of the outside area of this courtroom and also the area of the courtroom generally, as I understand it, and a perusal of the CCTV footage revealed that the accused man was in the company of his support worker from 8.43 am until 10.22 at the very least.
Now [the tipstaff] went down to pick up the jury panel at 10.12 am on the day that we struck the jury. At that time, the panel had not been completely assembled. It was somewhere in the order of halfway through that process when [the tipstaff] went down to pick up the panel.
The following day, again in the void area away from the jury, [the tipstaff] informed Juror 21 of his investigations, and that it was not possible for the accused man’s support worker to have been in the jury pool room in order to have taken a photograph, and the matter was left there.
[16]The security service at the Court.
His Honour then advised counsel of further developments relating to Juror 21 over the immediately preceding weekend:
At 3.18 pm on Saturday, [the tipstaff] missed a call from Juror 21. At 3.20 pm that day, [the tipstaff] returned Juror 21’s call and identified himself to that juror. The juror told [the tipstaff] that he was concerned, as he had seen the accused man’s support worker walking down his street. [The tipstaff] advised Juror 21 that it was his opinion that that would be highly unlikely, as no one has the jurors’ names, addresses or numbers.
Juror 21 was extremely concerned and asked what was the protocol for the protection for jurors while serving on a panel. [The tipstaff] advised Juror 21 that in all likelihood, he must be mistaken about his observation, however, if he was concerned, and if he thought there was a threat, that he was to contact the local police.
[The tipstaff] advised Juror 21 to write down his concerns, and that that document would be given to me today. At 3.33 pm, [the tipstaff] rang me at home and advised me of what I have already described that had passed between the Juror 21 and [the tipstaff], and I asked [the tipstaff] to write down a record of the conversation that he had with Juror 21, and I have recounted the contents of that document to counsel.
At 6.07 pm, I contacted [the tipstaff] and set in train the following arrangements: that Juror 21 would be isolated from the balance of the jury and would meet [the tipstaff] at 9.45 this morning and be held in the jury pool area in the company of an officer of the Juries Commissioner.
At 6.22 pm, [the tipstaff] spoke to Juror 21 and advised him that he should report to the jury pool room at 9.45, and that he would be – my word, not [the tipstaff’s] words – that he would be kept, or in [the tipstaff’s] words, he would be ‘placed’ in a room with a Juries Commissioner’s Office representative, and advised him that I would raise these matters with counsel this morning.
He again reminded Juror 21 to write down his concerns so that he could hand those concerns to me this morning. At that time, Juror 21 brought up his initial concerns in relation to security cameras and the like, and his belief that he had seen the accused man’s support worker in the jury pool room when the panel was being struck or determined. [The tipstaff] again assured Juror 21 that I had directed him to check the security footage and that at all relevant times, the support worker was, in fact, in court.
At 7.09 pm, [the tipstaff] received a text message which read as follows: ‘Hi … Good evening. Don’t mind what I said today. I’ll finish this case. Thanks.’ [The tipstaff] then responded by way of sending a message to Juror 21, which read as follows: ‘Hi. All good. As we discussed, I will see you at 9.45 Monday. I will put you in a room with someone, and the judge will speak to counsel. He will then speak to you, so can you please write down your concerns, as we discussed. Thanks.’
The judge then set out further developments that occurred on Monday 12 August 2019:
The juror arrived this morning, pursuant to the arrangement that had been made by [the tipstaff] with him. He had not written down his concerns, but in the interim, he has written down his concerns and I will read them to counsel.
‘To our wise Judge Ryan. What support can jury have access to in terms of family security? Highly likely that my train line is marked, car rego compromised, and it will be very easy to ultimately find my house. Is it worth going forward? At stake: me, my wife and two lovely kids. This will be a classic example, “They know where I live”. I might need to withdraw as part of the jury? As much as I’d like to finish this case ... and sad to waste time and all ... I guess four lives are too much of a risk. PS. I do not wish to become a witness in this case, please. Thank you, wise Judge Ryan.’
The juror is presently in the company of an officer from the Juries Commissioners office, sitting outside court. I propose, subject to counsel’s submissions, to bring the juror into court, put him in the jury box, and ask whether any of the matters that I have raised with counsel have been communicated with any other juror. Again, subject to his answers, if the answer to that question is no, then subject to further submissions from counsel, it is my predisposition to discharge him and to proceed with 11 jurors.
If he has communicated his concern to other jurors, then I will hear submissions from counsel. Does counsel want to make any submissions at this stage?
Counsel elected to defer submissions until after Juror 21 had been questioned by the judge. The following exchange then occurred:
HIS HONOUR: … Please come in, sir. Would you be so kind as to sit into the jury box in the foreman’s seat, and I have some questions for you. I do not propose to place you on oath, as I think it is unnecessary. But I do wish to confirm with you certain details, and the details are these. That on Monday of last week, you had a conversation with [the tipstaff] in the void area between the lift and the jury room, away from the jurors; is that correct?
JUROR 21:Yes, Your Honour. That’s correct.
HIS HONOUR: That’s okay. And you mentioned to him that you were concerned that at the time that the panel was being collected that a photograph had been taken of you and perhaps others by the support person for the accused. Is that correct?
JUROR 21:Actually, I would probably take it back. What I see, what I told [the tipstaff], is that I saw a man with a phone in his chest.
HIS HONOUR: Yes.
JUROR 21:And I saw a flash.
HIS HONOUR: Yes, okay. But you believe that man to be the support worker for the accused?
JUROR 21:That is a vague area. That’s why I asked [the tipstaff] to look at the cameras.
HIS HONOUR: I need to have you repeat that answer, please. You saw a man with what you believed to be a telephone, and you have demonstrated in his breast pocket.
JUROR 21:Yes.
HIS HONOUR: You saw a flash.
JUROR21 :Yes. Something caught my attention. I look at it, and then I saw a flash.
HIS HONOUR: Okay. And what was your state of belief when you spoke to [the tipstaff] about who that person was? Who did you believe it was?
JUROR 21:Well, I’ll tell you the thing that I first felt during the day, is that me, being just elected in one of those 45 people, doesn’t really mean a thing to me. I saw a man with a – I know that you cannot take a photo downstairs.
HIS HONOUR: Yes.
JUROR 21:I saw a man with a phone in his chest, something caught my attention, and I saw a flash.
HIS HONOUR: Yes. Now what I’m asking you about, however, is this. You had a conversation with [the tipstaff] a week later, that is, the following Monday, and as I understand it, at that stage, you were concerned that the person that you observed was the support worker for the accused. Is that so?
JUROR 21:He does look like the support worker.
HIS HONOUR: That’s okay. Whether he is or he isn’t, that was your concern at that time?
JUROR 21:At that time, when I was speaking with [the tipstaff] already? The second – yes.
HIS HONOUR: Yes. I’m merely going through the process, and I want to make sure that I’m getting it right. Okay. Now, subsequently, the following day, after the jury had been excused and you were the only juror in the jury room, did you have a conversation with [the tipstaff] where he indicated to you that he had checked all of the relevant closed-circuit television footage and that the person that you saw could not possibly have been the support worker?
JUROR 21:Yes, [the tipstaff] told me – [the tipstaff] told me that.
HIS HONOUR: All right. And at the time that you were informed of that, you were the only juror left in the jury room?
JUROR 21:Yes.
HIS HONOUR: Okay.
JUROR 21:Can I clarify one thing?
HIS HONOUR: Yes, certainly.
JUROR 21:I actually asked [the tipstaff] to check if there’s a camera focusing on the area, like when everybody is being panelled for the (indistinct).
HIS HONOUR: Yes.
JUROR 21:I asked [the tipstaff] if there’s a camera focused on the people seated on the chairs.
HIS HONOUR: Yes.
JUROR 21:Because that is the main thing.
HIS HONOUR: Okay. Well, did he inform you that there were no CCTV cameras down in the jury pool room?
JUROR 21:Just today he told me that there’s no camera, because just today I asked [the tipstaff]. I told [the tipstaff] where the man is seated.
HIS HONOUR: Okay, all right. But again, when you had the conversation on Tuesday 6 August with [the tipstaff]: (1), you were alone in the jury room, is that correct?
JUROR 21:Correct.
HIS HONOUR: (2), there were no other jurors present?
JUROR 21:No one.
HIS HONOUR: Thank you. Now my understanding is that [the tipstaff] informed you because of his investigations it was not possible for the accused man’s support worker to have been present in the jury pool room in order to take a photograph. Is that correct?
JUROR 21:Correct.
HIS HONOUR: Okay. Now on Saturday last, you had some text and telephone communication with [the tipstaff], is that so?
JUROR 21:Correct.
HIS HONOUR: And if I can summarise it, your concern, as you expressed to [the tipstaff], was that you believed you had seen the accused man’s support worker walking down your street?
JUROR 21:Well, the man looks like him.
HIS HONOUR: Okay. And you were concerned for your own security, is that so?
JUROR 21:Yes, and family.
HIS HONOUR: Okay. And as a result of that communication, steps were put in place so that you would meet [the tipstaff] today at 9.45?
JUROR 21:Correct.
HIS HONOUR: And kept separately and apart from the balance of the jury?
JUROR 21:Correct.
HIS HONOUR: Now between your first conversation with [the tipstaff] on 5 August and when we adjourned on Friday, have you mentioned your concerns to any other member of the jury?
JUROR 21:I told a couple of [jurors] that I saw a man with a mobile phone in his chest, and the flash.
HIS HONOUR: Okay. Did you communicate anything else apart from that to any member of the jury? In particular, did you communicate to any member of the jury that you held the opinion that the person – what a person who looked like or was the accused man’s support worker?
JUROR 21:No.
HIS HONOUR: Now in respect of the communications that you had with [the tipstaff] on the weekend, have you communicated any of the concerns that you have mentioned to him to any member of the jury?
JUROR 21:I told one that this thing is getting too close to home.
HIS HONOUR: I need to understand that. When did you do that?
JUROR 21:Just this morning.
HIS HONOUR: This morning? And what was the circumstance of that, please?
JUROR 21:Well, I was just coming in, and I saw one of the jury, and she’s one of the – she’s one of the people who I told that I saw – I saw a man with a mobile phone.
HIS HONOUR: Now, I need - - -
JUROR 21:But I just told her that it looks like this is getting too close to home.
HIS HONOUR: Well, this is no criticism of you, it’s just something that I need to understand. I take it you understood from the arrangements that you made with [the tipstaff] that you were being kept separately and apart from the other jurors?
JUROR 21:He didn’t mention that I can’t talk to anybody.
HIS HONOUR: That’s okay.
JUROR 21:He mentioned that I’ll be spoken with separately.
HIS HONOUR: Okay. Now I want to backtrack a little. Between the time that you first spoke to [the tipstaff] about your concerns and when we adjourned for the weekend last Friday, how many jurors did you speak to about this matter? As best as you can recall.
JUROR 21: Well, the man with a mobile phone, two.
HIS HONOUR: Okay.
JUROR 21: And - - -
HIS HONOUR: I’ll just stop you there. And in respect to that communication, did you communicate to those persons your belief or apprehension that that person was the support worker to the accused?
JUROR 21:No.
HIS HONOUR: Okay. Now in your communication with the juror this morning, would you take me through to the best of your recollection, your entire conversation with that juror?
JUROR 21:I told her that, ‘Do you remember the thing I mentioned to you about the man with the mobile phone?’
HIS HONOUR: Yes.
JUROR 21:I told her that I think I saw – I saw him walk in my street on the weekend.
HIS HONOUR: All right, and in that conversation, did you communicate to that other juror your belief or apprehension that the person with the mobile phone was the support worker to the accused?
JUROR 21:No.
HIS HONOUR: And you expressed your concern to that juror by saying, ‘It’s getting too close to home’?
JUROR 21:Yes.
HIS HONOUR: Yes. Thank you very much. I’d like you to go with the officer from the Juries Commissioner’s Office and wait in the ante room, please.
Senior counsel for the applicant at the trial then sought instructions, and advised his Honour that he was instructed to seek a discharge of the jury. His application was expressed pithily:
COUNSEL:An unacceptable risk that material prejudicial to my client has come to the attention of the jury. The first relates to the fear that this – sorry, that the juror who was being sequestered obviously had from the outset that he was in some way – or he or the jury were being targeted by somebody associated with the defence.
HIS HONOUR: That relates to him.
COUNSEL:Yes. Then he discussed that with two other members of the jury.
HIS HONOUR: Without communicating his concerns.
COUNSEL:Well, the context had to be that he felt that it was inappropriate and it was connected with this. Otherwise, why would he be doing it?
HIS HONOUR: Well, the fact that he believed, put at its highest, that he was photographed in the jury pool room would be a matter that could cause a juror to be concerned per se.
COUNSEL:Yes.
HIS HONOUR: It need not have any connection at all with any of the parties. It merely deals with the issue of actually being photographed in circumstances where such a thing should not take place.
COUNSEL:But this is the context where he believes it was a member of my client’s supporting team.
HIS HONOUR: I’ve got that, but the – is not the crucial link which needs to be discussed is his account that he did not communicate to any juror his concerns in that respect, but his concerns, put at its highest, that there had been a photograph taken during the process of assembling the panel.
COUNSEL:Yes. Well, that’s the only information we have. But we have no way of cross-examining him or checking this against other members of the jury, other than asking them, if it comes to that. But that’s something that would be considered if Your Honour decided to try to bat on. But it may - - -
HIS HONOUR: Even if I ultimately come to that decision, I would not entertain a royal commission in respect of the balance of the 11 jurors.
COUNSEL:Yes. Well, you see, then you have the situation of him, in circumstances where he must have known that he was being sequestered so that other jurors wouldn’t know about his suspicion that a member of the – or one of my client’s support staff was walking down the street, that he – he nevertheless went ahead and communicated precisely those suspicions.
HIS HONOUR: Well, no.
COUNSEL:Or sorry, his suspicion that he was in some way being threatened, or felt - - -
HIS HONOUR: The words that he used was that, as best as I could glean what he said, was that he communicated to one of the two jurors that he had earlier spoken to about the issue of clearly being photographed, that it was too close to home.
COUNSEL:Yes.
HIS HONOUR: And we know no more than that.
COUNSEL:But that’s in the context where something’s just occurred, and in the context where surely that couldn’t have been the only conversation. You don’t just walk up to somebody and say, look, this is getting too close to home without somebody saying, well, why was that? That doesn’t make any sense.
HIS HONOUR: Well, bearing in mind the contents of the note that was provided by the juror to me this morning, and read to you, this man is paranoid.
COUNSEL:Yes.
HIS HONOUR: And therefore, the fact that it doesn’t make any sense makes entire sense to me, if I could be so – if I could be – I don’t know what the appropriate adjective is … If I could be so left-handed, I suppose, is an old-fashioned term.
COUNSEL:Yes. If he is paranoid - - -
HIS HONOUR: It’s perfectly plain he is.
COUNSEL:- - - he’s unlikely to have been as restrained as he says he was in his communications, and the problem is that, you know, he obviously believes that his train travel is being monitored, that his number plate’s been monitored, that there is a threat, or a potential threat, to both him and his family, and it’s - - -
HIS HONOUR: I’ve got no doubt, at this stage, absent further submissions, that Juror 21 must be discharged.
COUNSEL:Yes, well, that’s - - -
HIS HONOUR: The issue is whether or not we get to the high degree of need necessary to discharge the entire jury, and that’s where we’re plumbing the depths.
COUNSEL:Yes. Well, the next problem that arises is that he has been sequestered.
HIS HONOUR: Yes.
COUNSEL:The jury who he spoke to – juror who he spoke to is likely to have volunteered that, well, there was this problem with him that I discussed with him this morning. Now, the precise nature of that, who knows? But one can’t really resolve any of these issues without making enquiries generally of the jury.
Shortly after this exchange, senior counsel for the applicant concluded his submission:
My note of what he said was, ‘This is getting too close to home.’ And if those were the exact words, it’s inconceivable that somebody would not have asked him, well, what are you talking about? Those are the matters I’d seek to put, Your Honour.
The prosecutor did not oppose the application for the entire panel being discharged. His Honour asked him if he had ‘taken instructions’ and the prosecutor replied, ‘[n]ot from someone higher than me, no, your Honour.’
A short time later, the judge delivered a short ruling on the defence application that the jury be discharged. I shall reproduce it in full:
I have before me an application made by [defence counsel], to discharge the jury without verdict. The application is unopposed by the Crown.
The application made by [defence counsel] is based on the propositions that there is an unacceptable risk that the concerns of juror 21 have come to the attention of other jurors, and by that, I mean his concerns that the person who he believed took a photograph of him and perhaps others at the time that the panel was being assembled has been communicated to other jurors, that the person is somehow connected to the accused.
Secondly, because of what has taken place, the fact of the sequestration of Juror 21 from the rest of the jury will cause them to speculate about the reason for that, but more particularly, [defence counsel] places reliance upon the fact that despite Juror 21 being told that he was to be isolated this morning from the jury, he communicated to a juror, one of the two to whom he mentioned his concerns about being photographed, that: ‘Remember the man with the mobile? He walked down my street’, or rather, ‘I saw him in my street and that matter is too close to home’, or words to that effect.
And as a consequence of that, the juror to whom Juror 21 spoke must have communicated that conversation to the balance of the jury and that raises the issue of what truly was communicated by Juror 21 to the two members of the jury who he initially spoke to, and the one juror who he spoke to this morning.
So far what I have said may seem to be somewhat disjointed because I have not, and will not, repeat the factual basis for the application as it has already been recorded and eventually will be transcribed. The test for the discharge of a jury is that there must be a high degree of need or necessity, and if one needs authority for that, one only needs to go to the seminal case of R v Boland.[17]
On enquiry with Juror 21, whilst he said he communicated to two jurors that he believed he saw a man with a mobile telephone in his breast pocket, and saw a flash, and I interpolate that a photograph was taken of him, and perhaps other members of the panel, he did not communicate his fear that the person was linked to the accused. Likewise, despite being informed that he would be separated from the balance of the jury this morning, he communicated to one of the two jurors who he had earlier communicated the information that I have outlined, that he observed the person from the original incident walk down his street, and that it was a matter that was too close to home.
When asked by me, he specifically said he did not communicate his belief or apprehension that that person was connected to the accused. This is the fourth jury empanelled to determine the issues between the Crown and the accused at trial. No trial has proceeded to verdict. This trial is at a stage where the accused is in the witness box and is being cross-examined. This trial is at a very late stage of proceedings.
I accept what I was told from Juror 21 that he has not communicated to any juror his fear or apprehension that the man to which I have referred is any way connected with the accused. In my view, that link is essential for the high degree of need or necessity to be made out. Accordingly, I refuse the application.
Bearing in mind the note provided by Juror 21 to me, which will remain on the court file, I am satisfied that he should be discharged pursuant to s 43 of the Juries Act,[18] as it appears to me that he should not continue to act as a juror, and further, I direct that the trial shall continue with the remaining 11 jurors.
[17](2007) 17 VR 300.
[18]Juries Act 2000 (Vic) (‘Juries Act’).
Juror 21 was discharged in the absence of the jury. His Honour gave the jury a short direction:
Mr Foreman and members of the jury, thank you for your patience this morning. A matter arose this morning which has prompted me to discharge one of your number, and that this trial will continue with 11 jurors. I have the power to make such a decision, indeed each decision, pursuant to ss 43 and 44 of the Juries Act, and I have made those decisions.
It’s important, ladies and gentlemen, that you do not speculate about why I have come to this decision, and that you concentrate on the only issue which is relevant in this trial, and that is whether the Crown has proved the charged that it has brought against the accused beyond reasonable doubt. That is the only matter which concerns you.
The trial then continued. The applicant was recalled and was further cross-examined.
Tuesday 13 August 2019
The applicant was further cross-examined for a short time. PS, a former teacher, was called as a witness, as was VH, also a former teacher at the school. Both were cross-examined.
Wednesday 14 August 2019 and Thursday 15 August 2018
The prosecutor and the applicant’s senior counsel addressed the jury.
Friday 16 August 2019
This defence address concluded. The judge charged the jury and they retired just before lunch time. His Honour answered various jury questions that are not relevant to any ground of appeal.
Monday 19 August 2019
During the afternoon, the jury asked the following question, ‘May we please watch the video testimony of [GC] and [NM] again? Only their testimony of the actual events relating to the charges and the cross-examination.’ This is relevant to ground 2 of the appeal. Another jury note in similar terms was provided to his Honour at the same time. His Honour adjourned the court at this stage.
Tuesday 20 August 2019
His Honour considered argument on how the jury request could be satisfied and determined that he would provide the discs of the relevant evidence to the jury. The jury then asked, ‘Can we have a copy of [PS]’s testimony on DVD?’
Wednesday 21 August 2019
The jury was supplied with the DVD of PS’s testimony. There was a further jury question about counsel’s final address and evidence in the case.
Thursday 22 August 2019
His Honour answered the jury’s question from the previous day. At 11.11 am, the jury returned its verdicts of guilty on all charges except 13 and 15.
Ground 1A — Did an irregularity in the trial process occur by reason of the delay by the judge in informing the parties of the communications that took place between the tipstaff and Juror 21?
As I have set out above, Juror 21 and the tipstaff exchanged communications about the juror’s concerns on Monday 5 August 2019, Tuesday 6 August 2019 and Saturday 10 August 2019. His Honour did not bring these communications to the attention of the parties until Monday 12 August 2019.
Submissions by the parties
The applicant submitted that the fact that it took an entire week for the judge to alert him to the juror’s concerns about the ‘man with the camera’ constituted an irregularity in the trial process. The matters disclosed to the judge, through his tipstaff, had the potential to form the basis of an application to discharge Juror 21 and perhaps, after proper inquiry, the entire jury. Juror 21 harboured suspicions of grave impropriety about a person closely connected with the applicant. The applicant further submitted that the tipstaff’s private investigation, together with the judge’s authorisation to the tipstaff to communicate the product of this investigation to Juror 21, amounted to a further serious irregularity.
The respondent submitted that the applicant was entitled to a fair trial, not a perfect trial.[19] It was submitted in writing that the judge’s failure to disclose the ‘photograph’ allegation and its sequelae for a week was not a matter of significance to the parties, although in oral submissions, senior counsel for the respondent retreated from this position. The respondent further submitted that, in any event, the matter was fully ventilated by the judge on 12 August 2019, and Juror 21 was discharged from further service. His Honour appropriately then considered the courses open, having heard from Juror 21 and the parties. Thus the applicant’s trial, if not perfect, was sufficiently fair and the applicant has failed to demonstrate that there was any irregularity such as to cause a substantial miscarriage of justice.
[19]Dietrich v The Queen (1992) 177 CLR 292.
Legal principles
The following principles are well established. They were conveniently restated recently in Farha v The Queen:[20]
[20][2018] VSCA 310, [24] (‘Farha’).
(a) Generally, a trial judge must disclose communications from the jury.[21]
[21]R v Black (2007) 15 VR 551, 554 [14] (‘Black’).
(b) If the communication raises something irrelevant to the trial, it can be dealt with without the need to refer the matter to the parties.[22]
[22]Ibid, citing R v Gorman [1987] 1 WLR 545.
(c) In almost every other case, a judge should state in open court the nature and content of the communication which has been received from the jury and, if it is considered helpful to do so, seek the assistance of counsel.[23]
[23]Ibid.
(d) If the communication contains information which the jury should not have imparted, then so far as possible, the communication should be dealt with in the normal way, save that the judge should not disclose information that should have remained confidential.[24]
(e) Jury deliberations should, so far as possible, remain confidential. This is a principle of the highest significance in the criminal justice system.[25]
(f) Information about the jury’s voting numbers or voting patterns should also remain confidential.[26]
[24]Ibid.
[25]Smith v The Queen (2015) 255 CLR 161, 171 [32] (‘Smith’); Juries Act s 78.
[26]Smith (2015) 255 CLR 161, 171 [32]
Analysis
This is an appeal brought under s 276(1) of the CPA. This Court is obliged to allow an appeal against conviction if the applicant satisfies the Court that:
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.
There has been no exhaustive description of what can constitute a ‘substantial miscarriage of justice’:
No single universally applicable description can be given for what is a ‘substantial miscarriage of justice’ for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test.[27]
[27]Baini (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (citation omitted).
In Baini, the High Court identified, non-exhaustively, three types of miscarriage which may arise:
(g) Where the jury has arrived at a result that cannot be supported.
(h) ‘[T]he case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial.’[28]
(i) ‘[T]he case where there has been a serious departure from the prescribed processes for trial.’[29]
[28]Ibid.
[29]Ibid.
In order for an appeal to succeed, the type of irregularity identified in (b) above requires a finding that the appellate court cannot be satisfied that the outcome of the trial was unaffected. The type of irregularity identified in (c) above — the ‘serious departure’ type of irregularity — will, if demonstrated, be sufficient by itself to constitute a ‘substantial miscarriage of justice’.
In Saricayir v The Queen,[30] this Court considered the ‘serious departure from the prescribed processes for trial’ type of miscarriage of justice. The Court noted that this principle became recognised in the context of proviso legislation and was carried into the application of s 276 of the CPA. The Court then considered a number of authorities that preceded Baini,[31] and concluded:
The authorities to which we have referred demonstrate, we think, that although there is recognised as being a kind of case where there has been a serious departure from the prescribed processes for trial, for which reason there will be, in such a case, a substantial miscarriage of justice, nonetheless the circumstances which give rise to the application of the principle are a rarity. Moreover, even in circumstances of apparently serious error, there will not always be unanimity of opinion.[32]
[30][2018] VSCA 319 (‘Saricayir’).
[31]AK v Western Australia (2008) 232 CLR 438 (’AK’); Wilde v The Queen (1988) 164 CLR 365; Quartermaine v The Queen (1980) 143 CLR 595; Andrews v The Queen (1968) 126 CLR 198; Tuckiar v The Queen (1934) 52 CLR 335.
[32]Saricayir [2018] VSCA 319, [74].
In this case, I consider that the applicant has established an irregularity in the trial process. The first communication became known to the judge on 5 August 2019. Juror 21’s assertion that the applicant’s support worker had been present in the jury pool room when the panel was struck and, in fact, took a photograph of the juror and perhaps others, was properly conveyed by the tipstaff to the judge. It was not irrelevant or otherwise confidential information and, in my view, it was information of real significance to both the prosecution and defence. To the prosecution because it has a duty, so far as possible, to act in the interest of fair process. To the defence because this communication may well have indicated that Juror 21 was bringing a bias to his task, or at the least, was becoming distracted by an irrelevant consideration. The support person was present with the applicant throughout the first week of the trial and obviously closely associated with him.
As the second week of the trial commenced, I consider that this assertion by Juror 21 needed to be brought to the surface. Indeed, I consider that the principles that I have set out in paragraph 77 above obliged his Honour to do so. This was not a communication that was irrelevant to the trial. It concerned a jury member’s preparedness and capacity to bring an impartial and focussed mind to his task. The respondent, in this case, pointed to the fact that the applicant had been the subject of three earlier, uncompleted trials. I consider that to be an entirely irrelevant consideration. Irregularities cannot be cured or excused by the previous trial history. This trial is either beset by irregularity or it is not.
I consider that the irregularity that I have identified was compounded by a number of other factors. In short, they are as follows:
(j) Juror 21 then participated in the trial process for a further week before he was discharged after further apparently paranoid assertions. The other 11 jurors had therefore been exposed to Juror 21 for two weeks before he was discharged.
(k) The investigations undertaken by the tipstaff were at the judge’s direction while the trial continued. This process needed to be conducted by the trial judge with the assistance of counsel and it needed to be absolutely transparent. It was inappropriate for the tipstaff to conduct a private investigation at the direction of the judge. In R v Stretton,[33] a tipstaff was used as a conduit between a juror and the court. Kaye J (with whom Fullager J agreed) said this:
[33][1982] VR 251 (‘Stretton’). In Stretton, a tipstaff conducted a conversation with a juror, at the judge’s behest, about a matter that directly impacted the trial (juror bias).
I agree that it is highly inappropriate for the tipstaff or keeper to be used as a conduit between the jury and the Court. If there is a matter which has been raised in the way that occurred during this trial, the tipstaff should not indulge in an examination to find out the nature and extent of bias, intimidation or any other matter disclosed by the juror.[34]
[34]Ibid 257.
This is precisely what occurred in the present case.
(l) The information conveyed by the tipstaff to Juror 21 (that the CCTV footage showed that the support person was with the applicant at the relevant times) amounted to a direction given from the trial judge through the tipstaff, designed to ameliorate prejudice. Whilst, no doubt, this process was well intentioned, it involved appraising Juror 21 of matters that were intended to affect how that juror approached the case.[35] I consider this to be a fundamental irregularity.
(m) For a week, the parties were denied participation in the court’s dealings with Juror 21 or knowledge of those dealings. They were thus denied the opportunity to make submissions about Juror 21’s continuing service as a juror or about whether the entire panel should be discharged.
[35]See Stretton [1982] VR 251.
Conclusion on ground 1A
After some hesitation, in discussion, senior counsel for the respondent accepted that the events outlined above constituted an irregularity, but contended that the events of 12 August 2019 cured the irregularity or any prejudice that may have arisen from it, and thus there was no substantial miscarriage of justice. For my part, I am unable to accept this submission. The rule that was breached so as to give rise to the irregularity exists to ensure procedural fairness and to maintain public confidence in the administration of justice. In my view, from the moment this allegation made by Juror 21 was kept from the parties and a private investigation was commenced, this trial ceased to be a fair trial according to law. It could not be revived by the events of 12 August 2019 and the ultimate discharge of Juror 21. The damage to public confidence had been done and the applicant was denied the opportunity to make a timely application for a discharge of either Juror 21 or the jury itself. I consider that what occurred (and what did not occur) on 5 and 6 August 2019 constituted a serious departure from the prescribed processes for trial, such as to constitute a substantial miscarriage of justice.[36] Put another way, the unusual circumstances that I have identified give rise to the application of the principle on this issue that was set out in Saricayir.[37]
[36]See Baini (2012) 246 CLR 469, 479 [26]. See also AK v Western Australia (2008) 232 CLR 438, 456 [55]–[56]; Handlen v The Queen (2011) 245 CLR 282.
[37][2018] VSCA 319, [74].
In the event that I am in error in my subjective evaluation of the extent of this departure from proper trial processes, in my view, it cannot be said that the irregularity did not make a difference to the outcome of the trial. Assuming Juror 21 shared his developing concerns with other jurors, I suspect that it did not. I suspect that the jury (or most of them) would have regarded Juror 21 as paranoid, perhaps delusional, however, I have no way of knowing this. This was essentially an oath against oath trial of allegations from two complainants. It may be that one or more of the jury thought that someone was trying to influence or intimidate Juror 21. It may be that Juror 21’s allegations distracted other jurors from their difficult task. It may be that his sudden removal from the jury (without any real explanation) superimposed on his previous conduct and statements, lent his assertions some ostensible authenticity. It may be that all other jurors regarded Juror 21 as unstable and were relieved at his sudden departure. I have no positive knowledge of any of these matters. I am unable to reach the positive conclusion that the irregularity which extended over the course of a week and culminated with Juror 21’s further disclosures did not make a difference to the outcome of the trial.
I consider that the applicant has established ground 1A.
Ground 1 — Did the trial judge err by refusing the applicant’s application to discharge the jury?
Ground 1 is a factual extension of ground 1A. The applicant complained that the judge’s refusal to discharge the jury on 12 August 2019 resulted in a substantial miscarriage of justice. The applicant contended at trial that the nature of Juror 21’s concerns, which he had communicated to another juror, gave rise to a ‘high degree of need’ to discharge the whole jury.
Analysis
Whilst this ground is a factual extension of ground 1A, it is conceptually different. In substance, this ground alleged that the exercise of a judicial discretion has miscarried. The principles governing the exercise of a trial judge’s discretion to discharge a criminal jury are settled. In short:
·The discretion to discharge the jury can only be exercised when there is a ‘high degree of need for such discharge’.[38]
·The discretion to discharge the jury is to be exercised only when that course is necessary to prevent a miscarriage of justice.[39]
·Ordinarily, a trial judge will be in a better position than an appeal court to assess whether, having regard to the course and atmosphere of the trial, any prejudice may be dispelled by a clear warning to the jury.[40]
·An appeal predicated upon a trial judge’s failure to discharge a jury is not an appeal against that failure, but an appeal against the conviction.[41] The applicant bears an onus of demonstrating that the exercise of his Honour’s discretion was infected by error. In Victoria, if the applicant is able to do this, then the respondent must demonstrate that the error did not make a difference to the outcome of the trial.[42]
·An appellate court will not lightly interfere with the discretion to refuse an application to discharge a jury.[43]
[38]Crofts v The Queen (1996) 186 CLR 427, 432.
[39]Ibid.
[40]Ibid.
[41]Maric v The Queen (1978) 20 ALR 513, 520.
[42]Baini (2012) 246 CLR 469, 479 [26]; Andelman [2013] VSCA 25, [85].
[43]R v Weaver [1968] 1 QB 353, 359–360.
I have set out his Honour’s reasons for declining to discharge the jury at paragraph 64 of these reasons. To recapitulate, the judge exercised his discretion not to discharge the jury because:
·Juror 21 said that he did not communicate his concern that the man with the phone was linked to the accused.
·Juror 21 said that he did not communicate his concern that the person in his street was linked to the accused.
·The judge said he accepted these answers as factually correct.
·This was the fourth jury empanelled to determine the issues between the Crown and the accused. No trial has proceeded to verdict.
·The trial was at a very late stage of proceedings.
·It is essential that a link be made out between the man with the phone and the accused for the ‘high degree of need’ test to be satisfied. This link has not been established.
I am satisfied that his Honour’s exercise of judicial discretion not to discharge the jury has been attended by sufficient error as to vitiate that exercise. I consider that the following factors constitute, individually and in combination, vitiating errors:
(n) Nowhere in his Honour’s inquiries or reasons for discharge does his Honour take into account the fact that the parties had not been advised of the 5 August ‘mobile phone’ revelations, or the subsequent inquiry carried out by his tipstaff, until 12 August. The failure to consider this factor when exercising his discretion not to discharge the jury was of some consequence. The entire panel had been exposed to Juror 21 for two weeks, as at 12 August. For the second of those two weeks, the applicant and the prosecution had been denied the opportunity to observe the juror, and to make submissions based on the 5 August revelations and their subsequent observations. I consider the fact that the judge only belatedly advised the parties of the 5 August disclosures was a fact relevant to the subsequent exercise of judicial discretion and that his Honour was obliged to take it into account. In failing to do so, his Honour fell into error.
(o) I consider that his Honour also erred in the scope of the inquiries made of Juror 21. I have set out those inquires and the juror’s responses at paragraph 60 of these reasons. It will be recalled that prior to his Honour’s inquiries, he had read to the court a note from Juror 21, which led his Honour to conclude that ‘this man is paranoid’. In those circumstances, and bearing in mind that by 12 August, the jury had been empanelled for two weeks, I consider that it was incumbent upon his Honour to make broad and non-leading inquiries of the juror as to his security related interchanges with any other jurors over the course of that fortnight. Only then could an adequate evaluation be made of whether there was a high degree of need to discharge the jury. With respect to his Honour, a most experienced and careful judge, I have concluded that the inquiries, directed at the sole question of whether Juror 21 linked his asserted stalker to the applicant’s support person, to be much too narrow. Juror 21 appeared to be labouring under some form of mental illness. In my view, his Honour was obliged to ask the juror about any conversations at any time that he may have had with any of his fellow jurors to do with any threat he felt to his personal security. These questions should also have been framed in a non-leading form. I consider the questioning of Juror 21 should have been different, broader and less prescriptive. There was a real prospect that this paranoid juror had spoken to other jurors about his apprehensions. They had been exercising his mind for a fortnight. I consider that the inquiry should have been less focussed on the lack of a link to the accused and more focussed upon what this juror had actually said to other jurors over the entire fortnight. Moreover, it was unnecessary to link Juror 21’s allegations to the applicant. The critical point was that the juror was alleging he was being intimidated by one of the parties to the case. It matters little which party it was. The failure to conduct such an inquiry constitutes an error.
(p) Further, and associated with the last point, I am of the view that his Honour was obliged to take into account, but did not, the risk that the jury or some of the jurors may infer that someone associated with the applicant was the person responsible for Juror 21’s apprehensions. By 12 August, Juror 21 was obviously agitated about his and his family’s security, and was making extravagant claims. This state had developed over a least a week and he had admitted to sharing part of his concerns with two other jurors. Whilst I am not prepared to conclude that Juror 21 did directly convey his suspicions that the support person was responsible for the ‘mobile phone’ incident, or that the support person was the person who tracked him to his house, I do conclude that Juror 21 conveyed to another juror his concerns that he and his family were at risk from some party in the case. So much flows from his ‘getting too close to home’ remark, uttered in the context of his earlier ‘mobile phone’ complaint to the same juror. Assuming this to be the case, I consider the inevitable consequence of this remark is that there was a risk that those on the jury who came to hear of it may conclude that Juror 21 was asserting that his security was threatened by someone associated with the applicant. In my view, the judge erred in not considering this risk whilst conducting his evaluative task. Had his Honour considered this risk, he may have elected to ask broad questions of the balance of the panel as to whether they felt they were able to continue to serve on this trial. They may have mitigated this risk to some degree.
(q) In my view, his Honour was obliged to consider Juror 21’s reliability when exercising his discretion not to discharge the entire jury. It is apparent from his reasons for rejecting the discharge application that the judge accepted uncritically the words of the juror as to what he saw and said. I consider that his Honour’s discretionary evaluation required a critical assessment of Juror 21’s reliability. As I have observed, Juror 21 was, by his Honour’s assessment, paranoid. His statement that the support person was the mystery photographer was demonstrably false. The content of his note to the court was florid and perhaps delusional. There were certain internal inconsistencies in his accounts to the tipstaff and to the court.[44] I consider that his Honour’s failure to consider Juror 21’s reliability when exercising his discretion not to discharge the entire jury constitutes an error. If ever a participant in the trial process required close and critical scrutiny, it was Juror 21.
(r) Whilst it is factually correct that this was the fourth jury empanelled to try the applicant, the fate of the first three trials had, in my view, nothing to do with the exercise of his Honour’s discretion in this trial. It cannot be that factors which create a ‘high degree of need’ in the first three trials may not constitute the same degree of need in the fourth trial. I consider his Honour erred in taking into account an irrelevant consideration.
[44]For example, Juror 21 said to the tipstaff that he had seen the support worker walking down his residential street. To the court, the juror said that it was a man who looked like the support worker. To the tipstaff, on Monday 5 August, a photograph in the jury pool room was apparently taken of Juror 21 and perhaps others by the support worker using a mobile phone. To the court, Juror 21 wished to take that statement back — instead, he saw a man with a phone ‘in his chest’ (indicating his breast pocket) and he saw a flash.
Conclusion on ground 1
The applicant has established that error attended the exercise of his Honour’s discretion not to discharge the jury. I consider that any single error of the errors that I have identified, or more than one in combination, is sufficient to vitiate the exercise of that discretion, but that is insufficient to make good this ground. I have set out earlier in these reasons[45] various principles that govern an appeal from a discretionary failure to discharge a jury. An appeal predicated on such a failure is not an appeal against that failure, but an appeal against the conviction. If the applicant is successful in establishing that vitiating error attended the discretionary exercise, the respondent must then demonstrate that the applicant’s convictions were inevitable.[46]
[45]At paragraph 90.
[46]Baini (2012) 246 CLR 469, 479 [26]; Andelman v The Queen [2013] VSCA 25, [85]. (‘Andelman’).
The applicant has demonstrated a risk that the jury may have acted upon the assertions of Juror 21, but no more than that. I consider it likely that other jury members, had they become aware of the juror’s assertions, would have viewed them as products of his imagination. There is, however, a residual risk that some of the jury, had they become aware of Juror 21’s assertions, may have taken them seriously and drawn a connection adverse to the accused. This risk, in my view, was magnified to some extent by Juror 21’s peremptory, and effectively unexplained, removal from the jury. If the onus were on the applicant to demonstrate a substantial miscarriage of justice, I would reject this ground of appeal, as the applicant has established a risk, not a miscarriage.
Applying the statement of principle in Baini,[47] the persuasive onus, however, does not rest with the applicant. As I have said, the respondent must demonstrate that the failure to discharge the jury did not affect the ultimate outcome of the trial — in other words, the respondent must demonstrate that the convictions were inevitable. The respondent has failed to demonstrate this. This was a finely balanced trial. The applicant’s denials in his interview and on oath, together with other sworn evidence, competed with the sworn accusations of the two complainants. The jury deliberated for three and a half days. They replayed a good deal of recorded evidence. I am unable to conclude that the convictions were inevitable.
[47]And considered by this Court on remitter in Baini v The Queen (2013) 42 VR 608 (‘Baini remitter’); Andelman [2013] VSCA 25; Saricayir [2018] VSCA 319.
Ground 1 should be upheld.
Ground 2 — Did the trial judge err by allowing the jury ‘unsupervised and unrestricted access’ to the complainants’ recorded evidence during its deliberations?
It will be recalled that both GC and NM’s evidence-in-chief and cross-examination were pre-recorded at an earlier aborted trial. It was played to the jury over several attenuated court days in this trial.
On 18 August 2019, the jury retired to commence deliberations. At around 4.00 pm on 19 August, the jury asked two related questions:
May we please watch the video testimony of [GC] and [NM] again? Only their testimony of the actual events relating to the charges and the cross-examination.
Can we re-watch the evidence given by [GC] and [NM] regarding the charges alone (this is with the conclusion of peripheral information such as descriptions of the office layouts et cetera)?
The judge told the jury that he was considering playing the evidence in open court, or alternatively, he may allow the jury to have the DVD of the complainants’ evidence, so they could ‘watch whatever [they] like from those DVDs’. Court then adjourned for the day.
On 20 August, senior counsel for the applicant submitted that his Honour ought refuse access to the complainants’ recorded evidence. The basis for this submission was that if this course were followed, there was a risk that jurors may attach undue weight to the portions of recorded evidence they had viewed, at the expense of the other evidence in the case. Counsel relied upon Gately v The Queen,[48] AB v The Queen,[49] and R v SCG.[50]
[48](2007) 232 CLR 208 (‘Gately’).
[49](2019) NSWCCA 82 (‘AB’).
[50](2014) 241 A Crim R 508 (‘SCG’).
Counsel for the prosecution contended that the judge ought comply with the jury’s request and that it was more practical for the jury to take the discs into the jury room.
His Honour concluded that it was more practical to supply the jury with the discs requested and that he would direct the jury that whilst they were at liberty to view whichever parts of the discs they wished, they must determine the case on all the evidence. His Honour informed the jury that the evidence of GC occupied five hours and 39 minutes, and that the evidence of NM occupied three hours and 46 minutes. The judge advised the jury that he thought that to be impractical and then read the two relevant questions. He then said:
So it’s plain from your notes that presently you do not wish to watch the entirety of the evidence but matters that are relevant to you in your deliberations. Playing the tapes in open court and having you direct me as to what should be stopped and forwarded and the like, one, would be cumbersome, but two, would give all present perhaps some insight into your deliberations which is entirely inappropriate in my opinion.
But in giving you these DVDs, you must remember that the evidence of the complainants is only part of the case. There is the evidence of [PC][51], there is the evidence of [AM], there is the evidence of the informant, Detective Senior Constable Ross, both in respect to her conversation with the accused man in 2015 and the two records of interview. Then there is the evidence of the accused man himself as well as the evidence of PS and VH and you took your oath to determine this case upon the evidence. That means all of the evidence. So you must understand that there must be a balance in the way that you go about these things.
Bearing that in mind, I will provide the tapes to you or DVDs to you together with a document that lists the actual times in which evidence was given on the various days. So that is what I propose to do but I emphasise, this case is not simply about the evidence of the complainants. It is, in my view, a complex matrix of the evidence of many witnesses, including the complainants, [PC], [AM], the informant, together with the conversations that she had with the accused man, including the records of interview and his denials contained therein, his evidence in the witness box both in evidence in chief and in cross-examination, the evidence of PS and the evidence of VH.
So you must bear all of the evidence in mind when coming ultimately to your verdict. But when a jury asks a question and asks for information, it is my opinion that that question and request must be answered and so accordingly, you will be provided with those DVDs.
[51]GC’s brother.
Parties’ submissions
In short, the applicant submitted that a substantial miscarriage of justice occurred as a result of the jury being provided with copies of the complainants’ recorded evidence for the following reasons:
(s) It unbalanced the weighing process in the jury’s evaluation of the evidence.
(t) The practicalities were in favour of replaying the evidence in court.
(u) It was desirable that the court knew what it was the jury was watching.
The respondent submitted that this ground was ‘devoid of merit’. The judge was entitled to provide the jury with the complainants’ evidence at the jury’s request pursuant to s 223(1) of the CPA. Further, the comprehensive direction that the judge gave — that the jury should consider the whole of the evidence in the trial, including that which was relied upon by the applicant — ought to have assuaged any concerns about the provision of the recorded evidence.
Analysis
Since the advent of pre-recorded evidence, juries have frequently asked to view that evidence or parts of it during their deliberations. In this case, counsel for the applicant at trial referred his Honour to a number of cases[52] which, in varying degrees, have deprecated the practice of providing juries with discs of pre-recorded evidence. The principles that emerged from those cases were:
[52]Gately (2007) 232 CLR 208; AB (2019) NSWCCA 82; SCG (2014) 241 A Crim R 508.
(v) Replaying the evidence of one witness carries with it the risk that undue weight will be given to that evidence as compared to other evidence in the case.
(w) Replaying the evidence of one witness repeatedly may enhance the weight a jury accords to that evidence, as compared to evidence that is not replayed repeatedly. Ordinarily, the evidence should be replayed in court.
(x) If a trial judge accedes to a jury request to reply evidence, it should be accompanied by a strong warning of the dangers of giving the evidence disproportionate weight on account of its recent repetition.
None of the cases referred to by the applicant were conducted under the CPA, which relevantly provides under s 223:
(1)For the purpose of helping the jury to understand the issues or the evidence, the trial judge may order, at any time during the trial, that copies of any of the following are to be given to the jury in any form that the trial judge considers appropriate—
…
(ha) the transcript of the evidence in the trial;
(i)transcripts of evidence or audio or audio-visual recordings of evidence …[53]
[53]CPA s 223(1)(ha)(i).
The exercise of the discretion created by s 223(1) of the CPA must always be subject to the overarching responsibility to protect an accused’s right to a fair trial. This ground involves a challenge to the exercise of that judicial discretion. The principles developed in House v The King[54] apply. It must appear that some error has been made in exercising the discretion, or in the absence of an identified specific error, the decision is unreasonable or clearly unjust.[55]
[54](1936) 55 CLR 499.
[55]Ibid 507.
For my part, I consider that the applicant has failed to establish this ground. His Honour was statutorily empowered to provide the discs to the jury upon their request. The jury had already been provided, without objection, with a full transcript of the evidence in the case. The provision of AVRs of what the jury already had in transcript form, can only have been to enable the jury to better recall or understand the evidence in the case, which is the purpose contemplated by s 223(1) of the CPA. Given the extent of the overall evidence requested and the danger of the jury disclosing either some of its deliberations or hinting at voting patterns by playing requested portions in open court, I consider that there was practical merit in allowing the jury to have the discs in their jury room, to play at their convenience, provided they were supplied with a strong warning about the dangers of overvaluing the weight of the impugned evidence.
The applicant contended that no ‘maintaining balance’ direction could address the risk of imbalance that inhered to the proposal to provide the relevant discs to the jury. I disagree with this. I have set out his Honour’s direction in paragraph 102 of these reasons, which I consider appropriate in the circumstances. The judge directed the jury comprehensively that the recorded evidence of the witnesses was only part of the case. He reminded the jury on two occasions of the fact that the applicant had given evidence and been cross-examined. He reminded them that the applicant had been interviewed twice and had denied the charges, and he directed the jury to have regard to the whole of the evidence which they were ‘bound to consider’.
Further, the jury could have requested access to the AVR of any other evidence, including that adduced on behalf of the applicant and, in fact, subsequently requested and received the AVR of defence witness PS’s evidence. There was no objection to this from the applicant.
The applicant further contended that the practicalities were in favour of replaying the requested evidence in court and that knowing what the jury was watching was desirable, rather than undesirable, as it permitted the court to assess the necessary directions,[56] and for the parties to participate in that process.[57] As I have indicated, I disagree with these contentions. In total, the evidence occupies nine and a half hours, which is around two days of unattenuated court time. It may have been that the jury only wished to examine a small segment of the overall total, or having seen some of it, it resolved doubts about other portions. When his Honour ruled on this issue, the jury was in their third day of deliberations, which had been broken by the weekend. I consider that to then ask the jury to spend perhaps a further two days watching in court the relevant evidence-in-chief and cross-examination concerning all 15 charges on the indictment would have subjected them to an unnecessarily cumbersome and totally avoidable process. In my view, supplying the jury with the AVR discs, together with appropriate directions, in the circumstances, was an efficient and just answer to their requests.
[56]See Gately (2007) 232 CLR 208, 219–220, [28].
[57]See Black v The Queen (2007) 15 VR 551, 555 [17].
The applicant has failed to establish any error made in the exercise of this discretion, nor has he established that the decision to exercise the discretion to allow the jury access to the requested AVRs of the evidence was unreasonable or clearly unjust.
I would refuse leave to appeal on ground 2.
Postscript
If these reasons demonstrate anything, they demonstrate that the lot of a trial judge can be trying indeed. In this case, his Honour was confronted with a frail 92 year old accused facing his fourth jury trial. There were a multitude of difficult decisions to be made about evidence and trial management. Superimposed upon this was the Juror 21 problem. One mistake on 5 August led to the cascading sequence of events that are outlined in these reasons. It ought not be overlooked that this trial was conducted with humanity and sensitivity.
Conclusion
I would grant leave to appeal on grounds 1 and 1A, and I would allow the appeal and order a new trial.
ASHLEY JA:
I have had the advantage of reading in draft the reasons of Niall and T Forrest JJA. I agree with their Honours that the applicant should have leave to appeal on grounds 1 and 1A and that his appeal should be allowed on those grounds. I agree also that leave to appeal should be refused on ground 2. I have nothing to add to the reasons of T Forrest JA with respect to grounds 1 and 2. What follows are my short reasons for agreeing with the proposed disposition of ground 1A.
A review of the trial transcript shows very clearly that the judge sought to address, in a humane way, the problem of the accused man’s advanced age and ill-health, with a view of ensuring that a trial was had which was fair to both the prosecution and the accused. Unfortunately, however, something went badly wrong in his Honour’s treatment of the problem which arose with respect to Juror 21 on 5 August 2019.
The circumstances of the matter are set out in the reasons of T Forrest JA. It is beyond argument, in my opinion, that the judge erred by not immediately informing counsel of the communication between Juror 21 and his Honour’s tipstaff on that morning.[58] I further agree with T Forrest JA that this error was compounded when, without any consultation with counsel, his Honour entrusted his tipstaff with the duty of addressing the juror’s concerns, and then attempting to mollify the man.
[58]Applying principles recently summarised in Farha [2018] VSCA 310, [24].
There were several certain consequences of the course which his Honour took. First, a man who must have been in a state of some agitation for a week whilst sitting on the jury was able to sit on the jury for another week. The inference is irresistible that Juror 21 had been turning over in his mind, throughout the week which commenced on Monday 29 July 2019, the supposed taking of a photograph of him in the jury poolroom preceding empanelment. Why else would the juror have taken the matter up with the tipstaff on the morning of 5 August, speaking of an event which allegedly occurred more than a week previously, his account identifying the man with ‘a phone in his chest’, and then ‘a flash’ as the accused man’s support worker?
It is at the least very likely, had the judge immediately raised the juror’s communication with counsel, that the juror would have been questioned and then discharged. Even modest inquiry would very likely have revealed that he was deluded.
Such inquiry, of course, could not have undone the past. In the week commencing Monday 29 July, Juror 21 had been a member of the jury, with the potential for interaction which that permitted. Assuming that he had not recounted the alleged photograph incident to other jurors in the course of that week, it was only part of the story. His mere presence in the jury room, in a likely state of agitation, might well have been apt to distract other jurors from their serious task. But that, other possible interaction, and the perception of the other jurors about Juror 21’s state of mind, remained unknown as at 5 August. Whether counsel would have requested the judge to make some enquiry of the other jurors along the lines of the enquiry made in R v Goodall[59] is also unknown, likewise his Honour’s response to any such request.[60] Those circumstances, some known and some uncertain, would have borne upon the question whether the whole jury should then have been discharged — a question which would have arisen earlier in the course of the trial than it did in fact.
[59](2007) 15 VR 673.
[60]Though see his Honour’s statement on 12 August that, as matters then stood, he ‘would not entertain a royal commission in respect of the balance of the 11 jurors’.
There was a second certain consequence of the non-disclosure on 5 August. If the judge had revealed to counsel what his tipstaff had communicated to him, Juror 21 could have been questioned as to whether he had, by then, spoken to any other jury members about his concern. If he said that he had not done so, it would have been relevant to, though not necessarily decisive of, the potential question whether the whole jury should be discharged. If, on the other hand, he said that he had by then spoken to other jury members, just what he had said could have been taken up with him at a time proximate to when he had spoken to the other jurors. That may be contrasted with questions asked of the deluded man about the subject matter of his delusion about a week after his first alleged conversations with other jurors. His later answers would sensibly be approached with a note of caution.[61] The opportunity thus lost bore not only upon the question whether Juror 21 should be discharged, but upon the question whether the whole jury should be discharged.
[61]Despite the judge’s acceptance of their reliability.
Thus, on 5 August 2019, there took place ‘an error or irregularity in or in relation to the trial’: see s 276(1)(b) of the CPA. The question then becomes whether the applicant established that as a result of that error or irregularity there was a substantial miscarriage of justice. The applicant’s principal submission was that the error was of a fundamental kind, this being productive, without more, of a substantial miscarriage. The applicant’s alternative submission was that the possibility could not be excluded that, but for the error or irregularity, the applicant would have been acquitted. It could not be said that his conviction was inevitable.
In Saricayir,[62] this Court analysed in some detail,[63] by reference to Baini,[64] earlier authority cited in Baini, and authority subsequent to Baini, the concept which has been variously described as a ‘serious defect from the prescribed processes of trial’, a ‘radical’ error, a ‘fundamental error in the conduct of a trial’, and ‘an error going to the root of the proceedings’. The concept is easily stated, but its application is another matter. The difficulty in its application is illustrated by Kalbasi v Western Australia[65] where, in 2018, the High Court divided four to three upon its application to the circumstances of the case before it.
[62][2018] VSCA 319.
[63]Ibid, [59]–[80].
[64](2012) 246 CLR 249.
[65][2018] HCA 7.
The circumstances in which the concept will apply have never been categorised. So, for instance, in Wilde v The Queen,[66] Brennan, Dawson and Toohey JJA stated that:
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or to the manner in which it was conducted.[67]
[66](1998) 164 CLR 365.
[67]Ibid [372]–[373].
It is clear, however, that the concept has application only rarely.
The possible application of the concept in the circumstances of this case sensibly begins with first principles. It has been stated time and again that, in a trial by jury, the jury is the constitutional tribunal for deciding issues of fact.[68] So the importance of the integrity of the jury process in any particular case cannot be overstated.
[68]In Australia, beginning with Hocking v Bell (1945) 71 CLR 430, 440 (Latham CJ), repeated, for example, in R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) and very recently in McKell v The Queen (2019) 363 ALR 668, 678 (Bell, Gageler, Keane, Gordon and Edelman JJ).
There have been a number of cases in this State in which the conduct of, or effect of the trial upon, a juror has fallen for consideration by an appeal court See, by way of example, Stretton,[69] Goodall[70] and Papazoglou v The Queen.[71]
[69][1982] VR 251.
[70][2007] 15 VR 673 (‘Goodall’).
[71][2014] VSCA 194, [218]–[253] (Maxwell P), [272]–[281] (Weinberg JA), 3[327]–[367] (Priest JA, contra) (‘Papazoglou’).
None of those cases involved an error or irregularity the starting point of which was a relevant communication by a juror not brought to the attention of counsel. Stretton and Goodall raised the question whether the trial judge’s refusal to discharge the jury, the accused having been convicted, was productive of a substantial miscarriage of justice. Papazoglou raised the question whether the jury’s performance of its task had been compromised by what was claimed to be the non-participation of a juror in the deliberative process. Only Priest JA, dissenting, analysed that matter in the language of fundamental irregularity.
Then there is R v Black.[72] It was not a case involving refusal to discharge a jury. It was a case about part disclosure of jury communications. The applicants, having been convicted, appealed against conviction, inter alia, on the ground that the judge had refused to disclose the detail of jury notes to counsel. The leading judgment was given by Buchanan AP. Having concluded that the judge had erred by not disclosing the detail of the jury’s notes to counsel, his Honour held that a substantial miscarriage of justice had occurred and it was inappropriate to apply the proviso to s 568(1) of the Crimes Act 1958.[73]
[72](2007) 15 VR 551.
[73]Ibid, 556 [21].
His Honour said this:
I have considered the evidence, and I am of opinion that, having regard to the natural limitations that exist in the case of an appellate court proceeding upon the record, I cannot conclude that each or any of the applicants was proved beyond reasonable doubt to be guilty of the offences with which he was charged. In any event, even if I were persuaded that the evidence proved the accuseds’ guilt beyond reasonable doubt, I would allow the appeal as I consider that there was a significant denial of procedural fairness to the applicants.[74]
[74]Ibid.
The legislative regime was different, but what his Honour said anticipated, in a way, the manner in which, in the context of s 276(1)(b) of the CPA, the High Court resolved the position in Baini.
In my opinion, the failure of the judge to immediately disclose the conversation had between his tipstaff and Juror 21 on 5 August and then his Honour’s instruction to the tipstaff to take steps as would clarify the situation and (hopefully) alleviate the concerns of Juror 21, were extremely serious errors in the trial process. Conscious as I am of the rarity of cases in which it can be said that an error was of a fundamental kind, in my estimation, the judge’s errors went to the very heart of the proper conduct of the trial. On that basis alone, ground 1A should be upheld.
But if that conclusion was wrong, I consider that ground 1A should be upheld on the basis that this Court cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. In that connection, I refer to the statement of principle in Baini extracted in Saricayir.[75] That statement was considered at length by this Court in Baini v The Queen on remitter, and in Andelman.[76] In my view, in light of the principle as fully explained, possible uncertainty of outcome arising out of the circumstances of this matter could not be successfully countered by a prosecution contention that the outcome of the trial was inevitable.[77]
[75]At [59].
[76](2013) 38 VR 659, 677–8, [85], [92], 679–682 [94]–[104] (‘Andelman’). There, the Court resolved the matter on the basis that there had been a serious departure from trial process. See 678 [92]. Strictly, what was said about ‘inevitability’ was obiter dicta.
[77]That is, ‘inevitable’ in the sense described in Andelman 38 VR 659, 679–682 [96]–[104] and in Bainiremitter at [8]–[10].
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