Ceric v The State of Western Australia - [2022] WASCA 103

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CERIC -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 103
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   9 JUNE 2022
DELIVERED          :   5 AUGUST 2022
FILE NO/S:   CACR 80 of 2021
BETWEEN:   BESIM CERIC
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHEPHERD DCJ
File Number            :   IND 2123 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of one count of possession of methylamphetamine with intent to sell or supply - Trafficable quantity of methylamphetamine - Whether primary judge made an error of law in jury direction regarding prosecutor's submission that DNA evidence 'proves nothing' - Whether there was a miscarriage of justice by the primary judge not discharging the jury after complaint of intimidation

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Result:

Appellant's application for an extension of time granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S D Freitag SC
Respondent	:	B M Murray

Solicitors:

Appellant	:	Paul Catalano Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Eric v The State of Western Australia [2019] WASCA 101
Kitto v The State of Western Australia [2009] WASCA 161
R v McCosker [2010] QCA 52; [2011] 2 QdR 138
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

JUDGMENT OF THE COURT:

This is an appeal against conviction. The appellant requires an extension of time as his notice of appeal was filed just under one month out of time. The respondent did not oppose the extension.[1] The extension of time should be granted.
[1] Appeal ts 8 - 9.
The appellant was tried before Shepherd DCJ and a jury on one charge of possession of a trafficable quantity of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA). On 1 April 2021, he was found guilty of this charge. On 5 May 2021, he was sentenced to 4 years' immediate imprisonment with parole eligibility.
There are two grounds of appeal. Ground 1 alleges an error of law in her Honour's summing up. In essence, it is said that her Honour's direction concerning a comment made by the prosecutor in his closing address 'confused' the jury and was 'inadequate'. Ground 2 alleges that there was a miscarriage of justice because her Honour failed to discharge the jury after they complained that they had felt intimidated by eye contact made with them by 'associates' of the appellant.
The question of leave to appeal in respect of the grounds was referred to the hearing of the appeal. For the reasons that follow, leave to appeal on both grounds should be refused and the appeal dismissed.

The evidence

The State adduced evidence to the following effect.
On the evening of 28 March 2019, the appellant was driving in a southerly direction along the Albany Highway in a car registered in his mother's name. There were no other passengers in the vehicle. A number of police officers were performing traffic duties in the vicinity of a roadhouse at North Bannister. The appellant was subjected to a roadside police stop where he was tested for alcohol and drugs. Upon being stopped by police and then informed of the purpose of the stop, the appellant said that he had a smoking implement in his car.
The appellant's vehicle was searched by police. In the boot, police found three recyclable shopping bags. Inside a black IGA shopping bag police found some personal toiletries items, domestic cleaning equipment and an Ajax container (the container). A police officer, Senior Constable Page, wearing a clean set of gloves, removed the container from the bag. Using an instrument referred to as a pryer, she attempted to open the container, but could not open it fully. At this point, she decided that further dealings with the container should be videoed. While making arrangements for video equipment to be obtained and turned on, she kept the container under continual watch. In all, she estimated she had the container under surveillance for 10 minutes. No other person touched it.
Eventually, the container was placed in a security movement envelope and taken, along with the appellant, to the Williams police station. There, the container was unpackaged by police. This process was video‑recorded. Inside the container police found a yellow plastic drinking straw with a shaped end and an empty clipseal bag. The police also found a package wrapped in black tape. The package comprised a clipseal bag which, upon later analysis, was found to contain 62 g of methylamphetamine, the vast majority of which was of a purity between 62 and 71%.
While at the Williams police station the appellant's mobile telephone was examined by Sergeant Hamilton, who took a series of photographs of text messages recorded on the appellant's Facebook feed.[2] The text messages suggested that the appellant had, between December 2018 and March 2019, been involved in illicit drug transactions.
[2] Exhibit 7 (the photographs of the text messages) and MFI 8 (a schedule setting out the relevant conversations taken from the text messages).
On the morning of 29 March 2019, a police officer returned to the appellant's vehicle which had been left near the roadhouse at North Bannister. There they retrieved the rest of the contents of the black IGA bag and returned to the Williams police station. Police seized an electric toothbrush from amongst the personal items in the bag.
The container, the yellow straw, the black tape, the clipseal bags and the toothbrush, along with various swabs taken by a police forensics officer, Constable Stewart, were conveyed to Dr Fiona Baxter, a PathWest scientist, who undertook a DNA analysis of the items.[3] Dr Baxter gave evidence at the appellant's trial. Significantly, she found DNA which matched the appellant's DNA profile on a swab taken from the ends and interior tube of the yellow straw. She said that the DNA profile on the straw was 460 million times more likely to have come from the appellant than someone else. Dr Baxter found, on the ends of one of the strips of black tape (tape 2), DNA which matched the appellant's DNA profile, that was more than 100 billion times more likely to have come from the appellant than someone else. Dr Baxter examined the head of the electric toothbrush which had been seized from the appellant's motor vehicle on 29 March 2019. She found a DNA profile which matched the appellant and that was more than 100 billion times more likely to have come from the appellant than someone else.
[3] MFI 10 (a schedule setting out the relevant items for DNA analysis).
In addition to these DNA profiles, Dr Baxter found, on the inside of the clipseal bag that contained the methylamphetamine, a DNA profile which matched a person named Evan Claudio. Dr Baxter testified that this profile was more than 100 billion times more likely to have come from Mr Claudio than someone else. Dr Baxter testified that Mr Claudio's DNA profile had been on the PathWest database which included charged suspects, uncharged suspects, offenders and a number of people who have volunteered to have their DNA profiles included on the database.
Ground 1 concerns a submission made by the prosecutor concerning the significance, or otherwise, of the presence of Mr Claudio's DNA, and in particular whether the trial judge's direction as to the prosecutor's submission was erroneous or gave rise to a miscarriage of justice.
The State adduced expert evidence from Detective Senior Constable Lyon concerning methylamphetamine, its use, how it is distributed and its value at about the time of the alleged offences. He testified as to the average prices of methylamphetamine around the time of the alleged offending; based on this, the State asserted that 62 g of methylamphetamine would have been worth, at the time of the alleged offences, just over $10,000. Detective Lyon also testified as to the common indicia of those involved in selling methylamphetamine and the means by which drug dealers communicate, including using text messages and various encrypted applications. He also testified to the effect that such communications do not generally refer to drugs directly. Rather, references to drugs are in code. Detective Lyon also said that plastic drinking straws with shaped ends may be used to package methylamphetamine (although not to smoke it).
The appellant elected not to give or adduce evidence in his defence.[4]
[4] ts 205.

The real issue at trial

The only element of the charge in real dispute at the trial was the element of possession and, in particular, whether the State had proved beyond reasonable doubt that the appellant had knowledge of the methylamphetamine which had been secreted in the container found in the boot of car he was driving. The State's case as opened did not allege that the appellant was the owner of the methylamphetamine. The State expressly left open the possibility that the appellant was in joint possession of the methylamphetamine with an unknown person or persons.
The State's case on the question of knowledge was circumstantial and relied upon the combined strength of the following circumstances, all of which, as it turned out by the end of the evidence, were either unchallenged or uncontroversial, being:[5]
[5] Closing address 2 - 24.
(1)The registered owner of the car in which the appellant was travelling was his mother.
(2)The appellant was the sole occupant of the vehicle.
(3)The IGA shopping bag in the boot contained personal toiletires.
(4)The appellant's DNA was identified on the toothbrush.
(5)There was no other personal property in the boot which apparently belonged to anybody apart from the appellant.
(6)The appellant's DNA profile was found on the straw and the ends of a piece of black tape, both of which were inside the container.
(7)A straw is an item which is used in connection with the packaging of methylamphetamine.
(8)The black tape from which the appellant's DNA profile was obtained from part of the tape which was wrapped around the clipseal bag that contained the methylamphetamine.[6]
(9)The value of the drugs, in excess of $10,000, suggested that the drugs would not be left with someone who was unaware of their presence, in particular, having regard to the risk that an ordinary container might otherwise be discarded.
(10)It would be unlikely that someone would keep a container which usually holds bleach together with toiletries including their toothbrush.
(11)Text messages retrieved from the appellant's mobile telephone indicated that in the period of approximately three months immediately prior to his arrest he was involved in drug dealing.[7]
[6] ts 167.
[7] This evidence was not adduced as propensity evidence, nor was it suggested that any of the messages related directly to the 62 g of methylamphetamine found in the container. The evidence was adduced by the State to rebut innocent association by the appellant.
During his closing address, the prosecutor sought to deal with a number of arguments that he anticipated would be put to the jury by defence counsel. One such argument concerned the presence of Evan Claudio's DNA on the inside of the clipseal bag in which the methylamphetamine was contained. The comment the subject of ground 1 was made is in the italicised sentences of the following submission by the prosecutor:[8]
Now, my learned friend may point out to you that there was another person's DNA found on the inner aspect of the clipseal bag which the State and the defence agree that was the bag that had the drugs actually inside of it, the actual crystal substance. But, okay, well, what does that actually mean? What does it actually mean to have someone's DNA somewhere?
Now, you've heard from the scientist, Dr Baxter, that DNA can get on an item from direct and indirect means. And perhaps Mr Claudio did touch this bag. Perhaps he did deposit his DNA on it directly. Let's put aside indirect transfer. What does that actually prove? In and of itself nothing. It proves nothing.
And this feeds into what the State says about the circumstantial case in this matter because the presence of DNA of a person on a singular item is just one circumstance. In and of itself, not much. Like here with Mr Claudio. Sorry I withdraw that. Like here with [the appellant]. When you combine all those circumstances together, you can draw that the accused is guilty as the only reasonable inference.
[8] Closing address ts 19 - 20.
The defence case as articulated by the appellant's trial counsel was that the State had failed to prove beyond reasonable doubt that the appellant knew of the methylamphetamine secreted in the container and therefore did not possess it.
In his closing address to the jury, the appellant's trial counsel submitted:
(a)There was a 'degree of unbelievability' to Senior Constable Page's evidence that she kept the container under 'strict observation' in the 10‑minute period between the discovery of the container and the commencement of the video‑recording at the scene. On the evidence, there were other police officers in the vicinity, the implication of which is that the appellant's DNA could somehow have been placed on the items in the container, presumably by some indirect method. It was also suggested that, when Senior Constable Page attempted to open the container, there may have been some cross‑contamination of the appellant's DNA onto its contents.[9]
(b)The evidence presented by the State left open the possibility that someone other than the appellant had access to the mobile telephone on which the text messages were discovered. Even if the text messages aroused the jury's suspicion or were indicative of an involvement with illicit drugs, there was nothing in the messages which directly linked the appellant with the methylamphetamine the subject of the charge. Further, the text messages, at best, only indicated that the appellant was involved in low‑level drug distribution and not with a transaction involving approximately 60 g of methylamphetamine.[10]
(c)Many of the common indicia of drug dealing such as electronic scales, a tick list, multiple mobile telephones, cutting agents or unexplained cash were not found by police which, it was suggested, pointed away from the appellant's guilt.[11]
(d)The presence of the appellant's DNA on the straw and the tape says nothing about how that DNA 'got there and the circumstances that pertain to it generally'.[12] In particular, it did not exclude the possibility that the appellant's DNA had been indirectly transferred to the items.[13]
(e)That the police investigation was inadequate. In particular, the police did not search the appellant's house or undertake checks into his finances.
[9] Closing address ts 28 - 29.
[10] Closing address ts 30 - 31.
[11] Closing address ts 32.
[12] Closing address ts 35.
[13] No allegation was made at trial that the appellant' DNA had been improperly or deliberately placed on the objects by any State witness.
As the prosecutor had foreshadowed, defence counsel sought to use the presence of Mr Claudio's DNA on the inside of the clipseal bag to the appellant's advantage. Defence counsel expressly referred to the prosecutor's submission that the presence of Mr Claudio's DNA 'proves nothing'. Defence counsel submitted it was difficult to reconcile the State's submission that Mr Claudio's DNA 'meant nothing' given, in substance, the State's circumstantial case heavily relied on the presence of the appellant's DNA on the straw and tape ends. Defence counsel said:[14]
Now, the State's case on possession focuses to a significant [extent] on the DNA and the DNA supports our case, with respect, a great deal more than it does theirs … and it's a matter for you, I still can't reconcile that position concerning Mr Claudio. A DNA hit inside the packaging. Insufficient evidence. No charge.
[14] Closing address ts 35.
Defence counsel concluded his closing address by making the following submission:[15]
But the lack of evidence here, insufficient evidence, Mr Claudio. The lack of evidence here is similar. Insufficient evidence in relation to [the appellant]. And I'd suggest to you that test, that very difficult test my learned friend has, he has not met and on that basis, the only verdict open to you is a verdict of not guilty in this case.
[15] Closing address ts 37.

Ground 1

Ground 1 is in these terms:
There was an error of law in the direction given by the Trial Judge as to the DNA evidence and as to the comment by the Trial Prosecutor in his Closing Statement that the DNA evidence of a Mr Evan Claudio 'proved nothing'.
As we have said, this ground is concerned with the comment made by the State prosecutor in his closing address to the jury set out in the second paragraph of the quote in [18] above.
It is to be noted that the ground does not allege that the prosecutor's comment was improper or itself gave rise to a miscarriage of justice. The ground is focused on how the trial judge dealt with it in her summing up to the jury.
Mr Frietag SC for the appellant submitted that her Honour's directions on the comment were confusing and inadequate. He submitted that her Honour should have directed the jury to this effect:[16]
Members of the jury, you can consider the DNA result … regarding Mr Claudio as part of the circumstantial case presented by the State. Whether it proves anything in relation to the State case is a question for you. It's not for the defence to prove anything in relation to this case … It is for the prosecution to prove their case beyond reasonable doubt, and the DNA evidence relating to the accused and Claudio can be taken into account by you in making a decision about the State case.
[16] Appeal ts 13.
Senior counsel for the appellant submitted that this direction was necessary to guard against the real possibility that the jury would understand the prosecutor's comment to mean that the evidence as to Mr Claudio's DNA was irrelevant and should be put to one side. Consequently, the jury would fail to take into account the presence of Evan Claudio's DNA on the inside the clipseal bag in its consideration of the State's circumstantial case that the appellant possessed the methylamphetamine in the container.[17]
[17] Appeal ts 14.
For the reasons given below, there is no merit to the propositions that:
(a)the State prosecutor's comment could rationally have been understood in its context to mean that the presence of Evan Claudio's DNA was not to be considered by the jury in its assessment of the prosecution's circumstantial case; or
(b)her Honour's directions on the issue were confusing or insufficient; or
(c)the direction the appellant says should have been given was necessary.
The prosecutor's comment is to be understood against the following background. The State's case was not that the appellant was the owner or an owner of the methylamphetamine in the container. Nor did the State contend that the appellant was in sole possession of the drug. The State opened its case on the basis that the appellant may have been one of a number of people in joint possession of the methylamphetamine. Accordingly, on the State's case, even if the presence of Mr Claudio's DNA on the inside of the clipseal bag that contained the methylamphetamine gave rise to the possibility that Mr Claudio was a possessor of the drug, this fact did not detract from the State's case that the appellant was also in possession of the drug.

It is convenient to refer to each of three paragraphs of the prosecutor's submission repeated at [18] above.
As the first paragraph of the prosecutor's submission makes clear, the comment was made in anticipation of a submission by defence counsel, to the effect that the presence of Mr Claudio's DNA on the clipseal bag was a barrier to proof of the prosecution's circumstantial case on the element of possession. The prosecutor, in this paragraph, sought to focus the jury's attention on what the presence of Mr Claudio's DNA 'actually mean[t]'. The second and third paragraphs of the prosecutor's submission together address this issue.
In the second paragraph of the submission, the prosecutor, in effect, invited the jury to analyse the issue on the basis (favourable to the appellant) that Mr Claudio had actually touched the inside of the clipseal bag. Having done this, the prosecutor then posed the question, 'What does that actually prove?' The prosecutor then answered this question by stating, 'In and of itself, nothing. It proves nothing'.
The words 'in and of itself' qualify the words 'nothing. It proves nothing'. In substance, the prosecutor was submitting that, by itself, the presence of Mr Claudio's DNA on the clipseal bag does not detract from the State's circumstantial case that the appellant possessed the methylamphetamine.
This is made patently clear by the third paragraph of the prosecutor's submission. This paragraph, in effect, reiterated to the jury that the State's case relied upon the combination of all of the relevant circumstances and that, based on their combined strength, the jury should be satisfied beyond reasonable doubt that the appellant possessed the methylamphetamine, notwithstanding the presence of Mr Claudio's DNA on the clipseal bag.
The prosecutor did not in terms convey, nor, in our opinion, could the jury have reasonably understood him to be conveying to the jury that they could not take the presence of Mr Claudio's DNA into account when assessing the State's circumstantial case. Rather, the prosecutor submitted - and could only reasonably have been understood to be submitting - that, properly considered, the presence of Mr Claudio's DNA was not inconsistent with the State's case. The submission was one properly open to the prosecutor to make, having regard to the State’s case and the evidence it adduced in support of it.
It must not be overlooked that the impugned comment was part of a submission made by the prosecutor to the jury in the course of a closing address. At the start of the trial and in her summing up, her Honour gave the jury conventional directions as to how they should deal with the submissions of counsel. In her opening remarks to the jury on the first day of the trial, her Honour explained to the jury the roles played in the trial by the judge, the jury and counsel. In uncontroversial terms, her Honour instructed the jury that they were to find the facts based only on the evidence that was presented in the trial. Her Honour said:[18]
So you are the judges of fact in this case, not me. And not counsel, not anyone else.
[18] ts 22 - 23.
In her summing up, her Honour again addressed the role of counsel. She began her summing up by instructing the jury that nothing that they had just heard in counsel's closing addresses was evidence.[19] Her Honour reminded the jury of its role as the sole finder of facts and that anything her Honour or counsel said about the facts was not binding upon them.[20]
[19] ts 228.
[20] ts 229.
In summarising the evidence, her Honour reminded the jury that they were the sole judges of the facts. Specifically as to the evidence of Mr Claudio's DNA, her Honour, in discussing the defence case, said:[21]
Mr Hager [defence counsel] says that what you do have is a DNA profile of or consistent with the reference sample from Evan Claudio on a significant piece of evidence; so, the inside of the bag where the drugs were found.
And Mr Hager says that, if his profile means - sorry, if you're being asked if the DNA doesn't mean anything, if his DNA profile - so, Mr Claudio's DNA profile - proves nothing, then what does that mean in respect of the DNA on the straw and the tape mean in respect of the accused man?
And I just pause there because there was some comment made in closing addresses by both parties, and you've just got to remember that what's said by counsel in closing; undoubtedly very helpful and persuasive in respect of their own cases. It's not the evidence. So you've got to go back to what the evidence is. And I also need to remind you that you can't speculate about evidence that you haven't heard. You've got - you've heard the evidence and you cannot speculate about matters about which we have heard - you've heard no evidence.
So Mr Hager says to you, ultimately, how can you be satisfied that the State has proved beyond reasonable doubt that [the appellant] knew of the existence of the drugs within that Ajax container and therefore the State has failed in this prosecution, and you ought to return a verdict of not guilty.
So that's all I want to say about the evidence. So what's going to happen now, so the question that you need to decide is, having regard to the whole of the evidence and the directions of law I've given you, has the State proven beyond reasonable doubt that [the appellant] is guilty of the charge that you're considering. You've got the indictment in front of you. I've explained the law to you.
[21] ts 269 - 270.
Her Honour's directions, as set out above, made it clear to the jury that comments such as the one made by the prosecutor were not in any way binding upon them and that, in considering the State's circumstantial case, they had to consider all of the facts before concluding that the State had proved beyond reasonable doubt the circumstantial case put by the State, being that the appellant had knowledge of the methylamphetamine found inside the container. Her Honour's directions were neither confusing nor inadequate. There was no requirement for her Honour to give the direction now contended for by senior counsel for the appellant.
Ground 1 has no reasonable prospect of success.

Ground 2

Ground 2 states:
There was a miscarriage of justice in that when the Jury sent a note to the Trial Judge complaining of intimidation by 'associates' of the Appellant, the Trial Judge did not discharge the Jury and discontinue the Trial.
The alleged miscarriage of justice arises from the following circumstances.
On 31 March 2021, counsel delivered their closing addresses. The transcript indicates that at about 12.37 pm, her Honour began her summing up. At 1.08 pm, the jury retired for lunch. Her Honour told the jury that her summing up would resume at 2.00 pm.[22] Then, in the absence of the jury, her Honour raised with counsel the comment the subject of ground 1. At about 1.23 pm, after dealing with the matter, the court adjourned.
[22] ts 239.
At about 2.07 pm, again in the absence of the jury, her Honour cleared the public gallery and ordered:[23]
There is to be no one inside the courtroom this afternoon in the public gallery.
[23] ts 249.
It is apparent that her Honour took this action having regard to a note that had been sent to her by the jury during the lunchbreak. The note, which was read aloud to counsel, was in these terms:[24]
Your Honour three associates of the accused who entered the court this morning made intent eye contact for long periods to members of the jury. One associate made deliberate communication with the accused and the accused was communicating back to him. Members of the jury felt it was important to note that they felt intimidated by these actions and their presence. Jury.
[24] See ts 249; MFI C.
After explaining that she had cleared the public gallery after receiving a note, her Honour enquired, 'Do I need to do anything else? Counsel?'.[25]
[25] ts 249.
Defence counsel did not, at this, or any other, stage after being made aware of the existence of the jury's note, seek to discharge the jury. Initially, after stating that he had not seen the behaviour referred to in the note, defence counsel said:[26]
I would ask, with respect, that, in dealing with this, the jury are once again reminded to focus on the evidence[.]
[26] ts 250.
Her Honour then said that there was 'another step' she could take, being to:[27]
ask the jury whether the content of the note [was] such that any member of the jury [felt] unable to discharge their duty consistent with their oath or affirmation to return a verdict only on the evidence.
[27] ts 250.
Her Honour said that she would pose the question on a 'yes or no' basis. She said she would close the public gallery and make sure no one entered the courtroom that afternoon, and that she would inform the jury that she had taken these steps 'so that they can actually just concentrate on their job'.[28] Defence counsel adopted the course suggested by her Honour.[29]
[28] ts 250.
[29] ts 250.
After some discussions with the prosecutor about the form of the question to be posed to the jury, the prosecutor effectively adopted the course suggested by her Honour.[30]
[30] ts 251 - 252.
Prior to the jury returning to the courtroom, defence counsel sought a brief opportunity to take instructions from the appellant.[31] It is evident from the transcript that those instructions were taken from the appellant in a short period, perhaps no more than a minute. He then announced to her Honour:[32]
Your Honour, the position is that we would ask you to make that enquiry.
[31] ts 252 - 253.
[32] ts 252.
Upon the jury returning to the courtroom, her Honour read aloud the note, and said:[33]
First of all, thank you for your note. I've got a couple of things to say to you. First of all, I have closed the gallery now, so I have made an order that no one is permitted to enter the courtroom this afternoon. So no one else will be allowed to come into the courtroom other than the security staff and people who formally work in this building.
But what I need to ask you, and I'm not asking any of you to respond aloud, that would be improper, what I'm going to do is tell you what I'm going to ask you and then I'm going to have to ask you to go back into the jury room so that you can think about the answer to the question that I'm going to ask you, write it in a note and I'll have the note back and then we'll go from there.
My question is this: does any one of you feel unable now to return a verdict based solely on the evidence that you've heard in this trial consistently with the oath or the affirmation that you took at the beginning of the trial? I don't want you to answer out loud.
I want you to go back into the jury room and answer that question. Does any of you feel unable now to return a verdict based solely on the evidence that you've heard in this trial - so consistent with the oath or the affirmation that you took at the beginning of the trial? So it's just a yes or a no answer.
I don't want to hear anything, I'm not allowed to hear anything about your deliberations, I just need you to answer that question and I don't want to put any one of you on the spot, so I'm going to give you the opportunity to answer the question in the privacy of the jury room, if you could go and do that now, please.
[33] ts 252 - 253.
The transcript records that the jury retired to the jury room at 2.19 pm and returned at approximately 2.20 pm with a note answering the question posed by her Honour, with the single word 'No'.[34]
[34] ts 253; MFI D.
Shortly after, her Honour resumed her summing up.

Ground 2 - submissions

Senior counsel for the appellant submitted, in substance, that notwithstanding:
(a)the order to clear the court;
(b)the inquiry made by the trial judge set out at [48] ‑ [52] above which defence counsel concurred with after taking instructions from the appellant;
(c)the failure by the appellant's counsel to apply for the discharge of the jury; and
(d)the jury's negative answer to the question posed to them by her Honour;
her Honour was nevertheless obliged, effectively on her own motion, to discharge the jury on the basis of apprehended bias. That is, notwithstanding the matters referred to in the previous paragraph, a reasonable fair‑minded observer would think that, as a result of the intimidation felt by some members of the jury, they returned the verdict of guilty and not solely on the evidence that was presented at the trial.

The legal framework

Section 116 of the Criminal Procedure Act 2004 (WA) (CPA) empowers a trial judge, in certain circumstances, to discharge a jury before it gives its verdict. Section 116(2) of the CPA provides that a judge may discharge a jury from giving its verdict on a charge if the judge is satisfied it is 'in the interests of justice' to do so. The phrase 'in the interests of justice' was considered in Eric v The State of Western Australia.[35] The power in s 116(2) conferred upon a judge is discretionary in character and requires the judge to take into account, and balance, all relevant factors by reference to the facts and circumstances of the particular case. If, having considered and evaluated these facts and circumstances, there is a real and substantial risk that an accused will not receive a fair trial according to law, the jury should be discharged. See also Kitto v The State of Western Australia.[36]
[35] Eric v The State of Western Australia [2019] WASCA 101 [40] ‑ [43].
[36] Kitto v The State of Western Australia [2019] WASCA 161 [65].
As the majority in Crofts v The Queen observed:[37]
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. (emphasis added)
[37] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440 ‑ 441.
The test to be applied in determining whether an irregular incident involving a juror warrants the discharge of the jury is that set out by Mason CJ and McHugh J in Webb v The Queen:[38]
The test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.
[38] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 53.
This test was affirmed by the High Court in Smith v The State of Western Australia.[39]
[39] Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473 [55].
It is immediately to be noted that the appellant's counsel did not apply to discharge the jury. Indeed, it is apparent that defence counsel sought instructions from the appellant as to the measures proposed by the trial judge, and the appellant evidently instructed defence counsel to proceed in the manner she proposed.
In the course of oral argument, an issue arose as to whether the appellant's failure to apply to discharge the jury on the basis of apprehended bias in the circumstances referred to in the previous paragraphs amounted to a waiver of his right to do so. The issue was not the subject of considered written or oral submissions and it is not a question that must be answered in order to determine ground 2.
Whether an accused in a criminal trial can waive the requirement that all members of the jury must be seen to be impartial does not appear to have been definitively decided in Australia. However, the matter was discussed by the Court of Appeal in Queensland in R v McCosker.[40] In that case, Chesterman JA, after observing that parties in civil litigation may waive an objection to their case being decided by a judge when there might be a reasonable apprehension of bias, expressed the opinion that when the issue is with the appearance of fairness, an accused may waive the right to apply for the discharge of the jury.[41] Keane JA expressed the view that the scant authority available on the issue pointed to an affirmative answer to the question of whether an accused in a criminal trial may waive a requirement that all members of the jury be seen to be impartial.[42] Holmes JA stated that she agreed with Keane and Chesterman JJA that while no direct answer emerged as to whether an accused may waive the right to a jury all of whose members are free from the appearance of bias, the tenor of judicial comment generally favours the proposition.[43]
[40] R v McCosker [2010] QCA 52; [2011] 2 QdR 138.
[41] McCosker [95].
[42] McCosker [3].
[43] McCosker [6].
Regardless of whether the appellant waived his right to apply to discharge the jury for apprehended bias, the failure to seek the discharge of the jury is a significant factor to be weighed against the proposition that his trial was unfair and he had suffered a miscarriage of justice. Counsel present in court and attuned to the atmosphere of the trial perceived no real risk that the jury's verdict might be influenced by the conduct of persons sitting in the public gallery. That counts against a conclusion by this court that the circumstances gave rise to any reasonable apprehension that the conduct might influence the jury's verdict, or that the trial was unfair.
In our opinion, a fair‑minded member of the public, informed of all of the relevant circumstances, would not have a reasonable apprehension or suspicion that the jury might not discharge its task impartially. The following facts and circumstances in combination have led us to this conclusion:
(1)The jury did not at any stage say that it was actually intimidated by the appellant's 'associates'. At its highest, the jury expressed having felt intimidated but did not say it was actually intimidated.
(2)The judge took immediate steps to close the public gallery once informed of the jury's concern, thus removing the presence of the 'associates'.
(3)The procedure adopted by the trial judge to ascertain whether there had been any actual intimidation was taken with the consent of the appellant (and the State). Indeed, in enquiring of the jury whether any member felt unable to deliver their verdict in accordance with their oath, the trial judge went beyond what had been requested by defence counsel.
(4)The jury informed the judge that it was able to return a verdict only on the evidence and thus, in effect, that it was not actually intimidated by the actions of the 'associates'.
(5)There is no plausible basis to conclude that the jury's answer to her Honour's question should be seen as anything other than a true answer.
(6)As referred to earlier, no application was made to discharge the jury by defence counsel.
(7)The judge directed the jury, in that part of her summing up which occurred after the jury answered her Honour's question in the negative, that it could only return a verdict on the evidence and not having regard to any feelings of sympathy or prejudice.
(8)The circumstances were not such as would cause the jury to be incapable of following the judge's directions or give rise to any reasonable possibility that it would be unable or unwilling to do so.

In all these circumstances, no reasonable apprehension or suspicion arises that the jury might, contrary to their oath or affirmation and the judge's directions, deliver a verdict of guilty at least in part because persons perceived to be associates of the accused had stared at them in an intimidatory manner, rather than because the evidence satisfied them of the accused's guilt beyond reasonable doubt.
Finally, in respect of ground 2, senior counsel for the appellant submitted, in effect, that in cases like this where a jury expresses feelings of intimidation, it should be discharged even if the appellant waived his right to seek the discharge the jury on the ground of apprehended bias. The basis for this submission appeared to be the trial judge's overriding duty to ensure a fair trial.[44]
[44] Appeal ts 27, 32.
Assuming, in favour of the appellant, that the trial judge had such a power, it is plainly a power that would be exercised sparingly and not without a compelling reason. The present case is not such an instance. As we have explained, the present circumstances did not give rise to any real risk that the appellant would not receive a fair trial according to law.
The appellant has fallen well short of demonstrating the miscarriage of justice alleged in ground 2. The judge was not required in the interests of justice to discharge the jury in the present case. Ground 2 has no reasonable prospect of success.

Conclusion and orders

While an extension of time should be granted, neither ground has a reasonable prospect of succeeding. Leave to appeal must be refused on each ground, and the appeal should be dismissed.
The orders we would make are as follows:
(1)An extension of time to appeal is granted.
(2)Leave to appeal on both grounds is refused.
(3)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
5 AUGUST 2022