Damien Aubrey Platt v The Queen
[2018] VSCA 276
•1 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0054
| DAMIEN AUBREY PLATT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE, WHELAN and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 October 2018 |
| DATE OF JUDGMENT: | 1 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 276 |
| JUDGMENT APPEALED FROM: | DPP v Platt (Unreported, County Court of Victoria, Judge McInerney, 22 February 2018) |
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CRIMINAL LAW – Application for leave to appeal – Refusal to discharge juror – Association between relative of applicant and relative of juror – Questioning of juror – Juror ignorant of association – No apprehended bias – Webb v The Queen (1994) 181 CLR 41, Dupas v The Queen (2010) CLR 237, R v Hood [1968] 1 WLR 773 applied – Najibi v The Queen (2016) 260 A Crim R 491, Wu v The Queen (1999) 199 CLR 99 considered – Juries Act 2000 (Vic) s 43.
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| APPEARANCES: | Counsel | Solicitors |
| APPLICANT | Mr D N McGlone | Mike Wardell Barristers & Solicitors |
| RESPONDENT | Mr B L Sonnet | Mr John Cain, Solicitor for Public Prosecutions |
TATE JA
WHELAN JA
NIALL JA:
On 6 December 2017 the applicant was convicted following a six day trial in the County Court at Ballarat of one charge of recklessly causing injury, two charges of rape, and one charge of reckless conduct endangering the safety of a person. He was acquitted of other charges. He was sentenced on 22 February 2018 to a total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years.
The applicant now seeks leave to appeal on a single ground which is that the trial judge erred in not discharging a juror. The application gives particulars of the ground as follows:
The learned trial judge erred in failing to discharge a juror whose family-owned business previously employed the Applicant’s mother.
Relevant events at the trial
The trial began and the jury was empanelled on Tuesday 28 November 2017. As is common practice, prior to the empanelment the prospective jurors were given what was described as ‘a list of witnesses and/or persons mentioned’. The judge observed that his practice was to have the tipstaff give the document to each of the panel members ‘to ensure they don’t know anyone’.[1] The judge’s instructions to the panel were not transcribed. On the hearing before us counsel for the applicant, who was counsel at the trial, told us that the judge had followed the course usually followed by trial judges in this State, in telling the panel members that they should apply to be excused if they knew the accused, or one of the people involved in the case, or something about them, or something about the case.[2] The Court was required by s 32 of the Juries Act 2000 (‘the Act’) to provide members of the jury panel with information about the type of charge, the name of the accused, the names of the principal witnesses, and any other relevant information, and then call on persons on the panel to seek to be excused. Those statutory requirements were complied with in this case.
[1]Transcript of Proceedings (28–30 November, 1, 4, 6 December 2017) 30 (‘T’).
[2]Judicial College of Victoria, Victorian Criminal Charge Book (at 11 July 2018) pt 1 Preliminary Direction, ‘Jury Empanelment’ [1.2.2] (‘Victorian Charge Book’).
Counsel for the applicant also confirmed that once the jury were empanelled they were given the standard introductory directions by the trial judge, emphasising (amongst other things) that they must base their decision on the evidence heard or received in court and that they must not seek information outside the courtroom, including by discussing the matter with persons who are not jurors.[3]
[3]Victorian Charge Book [1.5.2].
On the first day of the hearing the case was opened by the prosecution and the jury heard the defence response. The jury then commenced viewing the pre-recorded evidence of the complainant before the court adjourned for the day.
When the Court resumed the following morning counsel for the applicant made an application to discharge the jury, or, in the alternative, to discharge a particular juror. Counsel for the applicant raised the relevant issue. The judge brought the juror into court alone and asked him about it and then concluded that he did not intend to discharge the jury or the juror on the basis of that evidence. It is necessary to have regard to the entirety of that relevant interchange. It is set out in full in the annexure to these reasons.[4]
[4]T 60–5.
The following matters relevantly emerge from the interchange set out in the annexure.
(a) Counsel had been told by the applicant that the applicant’s mother had told him:
·that a particular juror was the son of the mother’s former employer, at a particular bakery;
·that the mother had worked at the bakery for some 15 years;
·that her employment came to an end some seven years ago and as a result an unfair dismissal application had been made which ‘went through the courts’;
·that at that time the applicant had been charged with burglary and theft (unrelated to the bakery); and
·that those charges had been ‘common knowledge’ because it had been discussed between the mother and the mother’s employer.
(b) The judge enquired into the matter by questioning the juror in open court in the absence of the other jurors. When asked, the juror professed to have no knowledge of the applicant, his family, or anything about him.
(c) When asked about the particular bakery, the juror said that it was his father’s, and that he had worked there when he was ‘younger’. When then asked if he had any knowledge of a person called Platt he said he did not. When asked specifically about Mr Platt’s mother, his responses indicated he had no knowledge of her. When asked if he knew anything about Mr Platt’s background, he said no.
(d) The judge then said: ‘I don’t intend to discharge the jury on the basis of that evidence’.
A further interchange with the relevant juror which occurred immediately afterwards is also potentially relevant. The informant had not been in court on the first day of the trial. The informant was in court on the second day and the prosecutor advised that the informant knew the juror who had been questioned. The informant had told the prosecutor that he used to work with him. The judge then asked the juror to come out again (alone) and he questioned him about his association with the informant. The juror told the judge that he had worked with the informant about 20 years before and that the informant had not been a policeman then. The judge asked whether there were any issues with his being an independent juror arising out of this and the juror said that there were not.[5]
[5]T 65–6.
No complaint is made as to the judge’s decision not to discharge the jury or this juror on the basis of his prior association with the informant. The respondent, however, does rely on this interchange in relation to the complaint which is made concerning the juror’s association or possible association with the applicant’s mother and knowledge of the applicant through her and his parents.
Submissions
The proposed ground of appeal asserts an error by the trial judge in not discharging ‘a juror’. The applicant’s written case refers to s 43 of the Act and relies upon the High Court decision in Webb v The Queen[6] concerning the test to be applied in determining whether a juror should be discharged because of apprehended bias. Reference is also made to the decisions of this Court in R v ALH,[7] Zhu v The Queen[8] and Najibi v The Queen,[9] which address the same issue.
[6](1994) 181 CLR 41 (‘Webb’).
[7](2003) 6 VR 276 (‘ALH’).
[8](2013) 35 VR 77 (‘Zhu’).
[9](2016) 260 A Crim R 491 (‘Najibi’).
In the written case the applicant submitted that in the circumstances of the case the learned judge erred in not finding either that the juror was not impartial within the meaning of s 43(a) of the Act, or that the juror should not continue to act as a juror pursuant to s 43(d) of the Act.
The respondent also relied upon the High Court decision in Webb in its written case and submitted that in this case the juror:
·did not seek to be excused whilst a member of the jury panel on the basis of familiarity with the applicant;
·readily answered all questions put to him;
·repeatedly denied knowing the applicant or any member of his family;
·admitted that the specified bakery belonged to his father;
·stated that he had only worked at the bakery when he was younger;
·denied knowing the applicant’s mother;
·understood the importance of why he was being asked the questions; and
·readily admitted to knowing the informant and having worked with him some twenty years before.
The submissions made orally in support of the application on behalf of the applicant ranged more widely than those made in the written case. It was submitted, at times at least, that the judge ought to have taken into account the fact that if the juror was in fact biased he would answer as he did and deny knowledge of the applicant, and that those answers would be a consequence of the juror’s ‘improper purpose’. At times it seemed to be contended that the judge ought to have found actual bias; and at times that was resiled from. Counsel also developed a submission that the courts needed to be sensitive to the risk of information inappropriately finding its way into the jury room and in that context relied upon the decisions in R v GAE,[10] R v Cotter[11] and Costa v The Queen.[12] Counsel submitted that the concerns which he had raised before the judge had been ‘established’ by the juror’s evidence that his family did own the bakery, which had employed the applicant’s mother, and that the juror had worked there. It was submitted that the judge should not have relied upon the juror’s denials of any knowledge of the applicant.
[10](2001) 1 VR 198 (‘GAE’).
[11](2004) 147 A Crim R 540 (‘Cotter’).
[12][2013] VSCA 5 (‘Costa’).
In the course of oral submissions counsel for the applicant also submitted that the juror should have been discharged because an apprehension existed that the juror might make inquiries with his family, prompted by the concern raised with him, and then introduce the results of those inquiries to the jury deliberations. In that connection the decisions in GAE, Cotter and Costa were also relied upon.
In the course of the applicant’s oral submissions it emerged for the first time that an affidavit existed which had been sworn on 13 March 2018 by the applicant’s mother. The affidavit was not in the application book; had not been referred to in the applicant’s written case, which had been filed after the affidavit had been sworn; and had not been served on the respondent prior to the hearing. Counsel for the applicant was aware of the affidavit at the time he prepared the applicant’s written case. He was unclear as to whether the affidavit had been filed, why it had not been included in the application book, and why no reference had been made to it in the written case. Counsel for the applicant indicated that his belief was that the affidavit had been filed, and he did seek to rely upon it. He said that he did so for the purpose of establishing an evidentiary foundation for the factual matters which he had raised before the trial judge.
Counsel for the respondent did not object to the Court receiving the affidavit, provided reliance on it was confined to providing an evidentiary basis for the factual assertions made to the trial judge. Counsel for the respondent objected to a paragraph of the affidavit which the respondent contended introduced factual matters not referred to in the application that was made to the trial judge.
As to the submission that there had been a risk that the juror might make inquiries of his family after the issue had been raised, counsel for the respondent relied upon the decision of the High Court in Dupas v The Queen[13] which had emphasised the importance of the assumption that jurors would decide cases, when properly directed, according to the law and by reference only to the admissible evidence.
[13](2010) 241 CLR 237, 248–9 [29].
The relevant principles concerning s 43 of the Act
Section 43 of the Act relevantly provides:
A judge may, during a trial, discharge a juror without discharging the whole jury if ―
(a) it appears to the judge that the juror is not impartial; or
…
(d)it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
Counsel for the applicant appeared to suggest in the course of argument that a complaint as to apprehended bias falls within s 44(a). It is not necessary for us to determine the issue, but, in our opinion, that is not likely to be so. Section 44(a) concerns the situation where it appears to the judge that there is an absence of impartiality; that is most likely to represent actual bias. An issue as to apprehended bias, in our view, probably falls to be determined under s 43(d). Whilst it was not always clear in the course of oral submissions, it seems to us that the basis of the proposed ground of appeal is apprehended bias. In any event, there is no basis for a conclusion of actual bias in this case.
The principles which apply to an application for the discharge of a juror under s 43 of the Act were the subject of detailed consideration by this Court in Najibi.
Najibi concerned a trial judge’s decision to discharge a juror on the basis of concerns raised as to his mental stability. The concerns were raised in a note prepared by other jurors and were, at least to some extent, confirmed by a note from the juror himself and by certain of the answers given by the juror when the judge inquired into the matter with the juror. In that context this Court reviewed the relevant legislative history[14] and the relevant authorities,[15] addressing in particular the issue of the relationship between consideration of the discharge of a juror under s 43 of the Act and consideration of the discharge of a jury applying the ‘high degree of need’ test laid down in R v Boland.[16] The Court observed that the authorities concerning that relationship are not ‘readily reconcilable’.[17]
[14]Najibi (2016) 260 A Crim R 491, 519–20 [180]–[191].
[15]Ibid 520–9 [192]–[237].
[16][1974] VR 849 (‘Boland’).
[17]Najibi (2016) 260 A Crim R 491, 529 [238].
This Court in Najibi held that the issue of whether a single juror should be discharged is to be considered and determined by reference to the text of s 43 of the Act.[18] If one of the circumstances set out in s 43 is established, the juror ought to be discharged notwithstanding the use of the word ‘may’ in the section.[19] This Court explained that the issue as to whether the entire jury should be discharged, and the issue as to whether a single juror should be discharged (with a direction that the trial should continue under s 44 of the Act), are separate matters, although the relevant considerations are likely to overlap.[20] In relation to s 43, this Court said that the ‘high degree of need’ test laid down in Boland, concerning discharge of the jury, should not be used as a ‘substitute’ for the text of s 43.[21] Having said that, this Court explained that where one of the circumstances provided for by s 43 is found to exist it is very likely that there will be a high degree of need to discharge the particular juror.[22]
[18]Ibid 529 [238]–[240], 531 [256].
[19]Ibid 530–1 [247]–[251].
[20]Ibid 532 [257]–[259].
[21]Ibid 530 [246], citing Boland [1974] VR 849.
[22]Ibid 530 [243]–[245].
This Court in Najibi held that the issue of whether one of the circumstances provided for in s 43 exists is a matter which attracts the application of House v The King.[23] The Court went on to say:
Further, because what is in prospect is the discharge of at least one juror, a judge should require considerable persuasion before concluding that any such circumstance is present. It is also a reason, we think, why para (d) should be narrowly construed, and why circumstances alleged to fit within that paragraph should be rigorously examined before a judge is satisfied that the circumstances relied upon do fall within the paragraph.[24]
[23]Ibid 529–30 [241], 533 [264]–[266]. This Court also held House v The King applied to decisions under s 43 of the Act in Zhu (2013) 38 VR 77, 80–1 [58]–[59], 82 [65].
[24]Ibid 530 [241].
In Najibi the Court said that the existence of a reasonable apprehension of bias in relation to a juror has been consistently regarded as a circumstance requiring that the juror be discharged.[25]
[25]Ibid 530 [243].
The conclusion that the power to discharge a juror is discretionary and attracts the narrower kind of appeal scrutiny explained in House v The King may need some qualification where the disqualifying ground is the existence of a reasonable apprehension of bias on the part of a juror.
In Wu v The Queen[26] Gleeson CJ and Hayne J doubted that it is always useful to describe the exercise of the power to discharge a juror or the jury on the grounds of apprehended bias as the exercise of a discretion by the judge. Their Honours went on to say that if satisfied that a circumstance gives rise to a reasonable apprehension or suspicion, the judge would be bound to discharge those of whom the apprehension or suspicion would be held (whether that is a single juror or the whole jury). No discretion would fall to be exercised in such a case.[27]
[26](1999) 199 CLR 99.
[27](1999) 199 CLR 99, 103–4 [9]–[10].
The assessment of actual or apprehended bias is, we consider, better regarded as evaluative rather than discretionary,[28] and admits of only one correct legal answer. We consider that it is not a matter where this Court could properly uphold a judge’s conclusion because it was open, even if this Court had formed a different view. But, as will appear, the distinction between an evaluative and a discretionary decision is not material to the outcome of the present application.
[28]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, 421 [49] (Gageler J), 429 [85]–[87] (Nettle and Gordon JJ).
The High Court in Webb addressed the test to be applied concerning apprehended bias by a juror.
Mason CJ and McHugh J said that circumstances warranting a discharge are those which give 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’.[29]
[29]Webb (1994) 181 CLR 41, 53.
Brennan J expressed the test as follows:
It is a valid ground of objection to the continued sitting of a judge or juror in a criminal trial that a fair-minded and informed member of the public would entertain a reasonable apprehension that the judge or juror will not discharge his or her duty impartially.[30]
[30]Ibid 57.
Deane J explained that the test for apprehended bias in relation to a juror is the same as that which applies in relation to a judge, being whether a fair-minded lay observer with knowledge of all the material objective facts ‘might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question’.[31] He said that the same test should apply to a juror as applies to a judge.[32] Toohey J expressed the test in the same terms.[33]
[31]Ibid 67.
[32]Ibid 69. See also ALH (2003) 6 VR 276, 279 [8] (Callaway JA).
[33]Ibid 87.
It is unnecessary to address the issue of whether there is any significance in the different formulations of the test between Mason CJ and McHugh and Brennan JJ on the one hand and Deane and Toohey JJ on the other. We proceed on the basis that what might be termed the ‘double might’ test for reasonable apprehension of bias, as expressed by Deane and Toohey JJ, is the applicable formulation.
Deane J in Webb explained that there are four categories of case which might give rise to disqualification for apprehended bias. The first is disqualification as a result of some direct or indirect interest in the proceedings. The second is disqualification by conduct either in the course of or outside the proceedings. The third is disqualification by association where some direct or indirect relationship existed. The final category is disqualification by extraneous information, being knowledge of some prejudicial but inadmissible fact. Deane J observed that the fourth category commonly overlaps with the third.[34]
[34]Ibid 74.
Webb was a case where an issue as to apprehended bias arose as a result of incidents occurring in the course of the trial itself. There are a number of cases that address that position, including ALH.[35]
[35](2003) 6 VR 276. Other cases addressing that position include R v Hodgkinson [1954] VLR 141, and R v Chung (2010) 25 VR 221.
There are many decisions which address the issue of what Deane J characterised as disqualification by association. Each case must of course turn on its own facts, but a brief review of similar cases does highlight some relevant matters.
In R v Hood[36] the Court of Appeal in England addressed a situation where an accused’s wife, who had been a witness, recognised one of the jurors as a neighbour and suggested that the juror had known that both she and her husband had previous convictions. The issue was raised during the course of the trial and the judge determined not to discharge the particular juror. When the matter came before the Court of Appeal, that Court had before it an affidavit from the juror deposing to the fact that he had indeed recognised the accused’s wife and that he did know that the accused had prior convictions. He said that he had not informed the other jurors of his knowledge. The Court of Appeal considered that the judge’s discretion not to discharge the juror had been exercised on the basis of information which was ‘inaccurate’, but the appeal was nevertheless dismissed because, having regard to the evidence as a whole, the Court was persuaded that no miscarriage of justice had occurred as a result of the conviction.[37] In the particular context of a consideration of the possibility that a juror knew of prior convictions, the Court observed that the judge had been correct not to put inquiries to the juror which might by their very nature present ‘very grave problems’.[38]
[36][1968] 1 WLR 773 (‘Hood’).
[37]Ibid 777.
[38]Ibid 776.
In R v Stretton[39] the Full Court of the Supreme Court of Victoria considered a number of issues concerning the jury in a criminal trial, one of which was that a particular juror was known to the accused because they had played football against each other. A suggestion was made that the juror concerned ‘would have heard’ of the prior convictions of the accused. Starke J described this concern as ‘drawing a very long bow’ and concluded that the concern would not justify the exercise of the judge’s discretion to discharge the jury.[40]
[39][1982] VR 251.
[40]Ibid 253.
In R v Hill[41] the Court of Criminal Appeal in South Australia considered a situation where it was revealed after a trial that a particular juror had known a prosecution witness. The Court was divided on the matter, the majority holding that there had been no miscarriage of justice because, amongst other things, the particular witness’s evidence was uncontroversial.[42] Duggan J, one of the majority, cited observations made by Kirby P in relation to apprehended bias to the effect that it was relevant to know the duration of the relationship, its intensity and nature, and the time that had elapsed between its last renewal and the performance of the judicial functions.[43] Lander J, the other judge in the majority, observed that the relationship in that particular case was between a juror and a witness and that it would have been ‘quite different’ if the relationship had been between the juror and the accused.[44]
[41](1999) 74 SASR 262.
[42]Ibid 268 [37], 269 [49]–[50].
[43]Ibid 267–8 [35], citing S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 368–9.
[44]Ibid 271 [64].
Authorities concerning the inquiries which might be made of a juror where an issue of this kind arises were reviewed in some detail by the Court of Appeal in Western Australia in I v Western Australia.[45] The Court in that case referred to different judicial views that had been expressed on the issue, and then observed:
there is a clear preponderance of authority in favour of the proposition that a trial judge can, and should, question a juror (preferably in the absence of the rest of the jury) in order to ensure that the judge properly understands any situation that has arisen that raises the spectre of possible bias.[46]
The Court cited with approval observations made by the Court of Criminal Appeal of the Supreme Court of Victoria in R v Evans[47] to the effect that the nature and extent of a judge’s investigation of such a matter is a matter for the judge’s discretion.[48] In the particular case under consideration in I v Western Australia a juror had indicated to the judge that he had a preconceived opinion about the accused but had said that it did not concern ‘this matter’, and, when asked whether he believed he could bring an unbiased and unprejudiced mind to the evidence, he had said that he could. The Court of Appeal of Western Australia found that to be unsatisfactory as the judge had not inquired into what the preconceived opinion was.[49]
[45](2006) 165 A Crim R 420.
[46]Ibid 426 [16].
[47](1995) 79 A Crim R 66.
[48](2006) 165 A Crim R 420, 427 [20].
[49]Ibid 428 [22]–[25].
In R v McCosker[50] the Court of Appeal of Queensland considered the position of a juror who had had a conversation with the accused’s wife in which the wife had said she thought the accused was ‘guilty of something’ and in which they had discussed the accused and his wife’s matrimonial difficulties. The Court found that a reasonable apprehension of bias arose as a result of the first matter but not the second.[51]
[50][2010] QCA 52.
[51]Ibid [68]–[71].
Finally, reference might be made to this Court’s decision in Zhu.[52] In that case a juror volunteered in the course of the trial that he had recognised a witness. He said that he did not have a relationship or friendship with him but that he had seen him and spoken to him at poker tournaments. The trial judge had exercised her discretion not to discharge the individual juror and this Court held that it had been open for her to reach that conclusion. The Court referred to the juror’s ‘conscientiousness’ in alerting the judge to the fact that he had recognised the witness as a factor which had ‘no doubt enhanced the trial judge’s confidence in the juror’.[53]
[52](2013) 38 VR 77.
[53]Ibid 82 [65].
The applicant’s mother’s affidavit
In the course of the hearing we indicated that we would receive the affidavit of the applicant’s mother subject to the respondent’s objection.
In her affidavit the applicant’s mother referred to the fact that she was in Western Australia at the time of the trial but that she had made a pre-existing arrangement so that the applicant could be in regular contact with her by telephone through the course of the trial. She then deposed to a conversation she had had with the applicant about the particular juror. The applicant’s counsel explained that this was the conversation relied upon as the basis for the application he made for discharge of the jury or the particular juror.
In passages of the affidavit not objected to by the respondent, the applicant’s mother deposed that:
·she had worked at a bakery owned by the juror’s parents for approximately four and a half years;
·her employment ended in 2011 after she resigned following a workplace dispute over pay, which was settled after she ‘took up’ the dispute with Fair Work Australia;
·at the time she worked at the bakery she had been ‘having difficulties’ with the applicant who had developed a ‘drug problem’. She had spoken about this to her employers and it was common knowledge in the workplace; and
·most members of her employer’s family had met the applicant, ‘although not’ the specified juror.
These unobjected to portions of the affidavit broadly reflected aspects of what the trial judge had been told at the time of the application for discharge of the juror, but there are significant differences. The affidavit indicates that the applicant’s mother worked at the bakery for four and a half years rather than ‘some 15 years’. There is no reference to any unfair dismissal claim; the mother says she resigned. The affidavit makes no reference to prior charges of burglary and theft, referring instead to ‘difficulties’ and ‘a drug problem’. The affidavit makes no reference to the workplace dispute having gone ‘through the courts’, instead stating that it was settled after being ‘taken up’ by Fair Work Australia.
It is noteworthy that the affidavit does not suggest that the applicant’s mother ever conveyed any information to the juror about the applicant.
The paragraph in the affidavit that the respondent objects to reads as follows:
Prior to the termination of my employment I had enjoyed a good and close relationship with the [named] family. I had formed a friendship with two of the daughters, [names], and would socialise with them outside of work hours. They attended my wedding on [date] where the [applicant] was also in attendance. I had met [the juror] when socialising with his sisters and when he would come into work.
The principles which apply in relation to the admission of fresh or new evidence on an application for leave to appeal conviction are well established. The fundamental rationale for an appellate court setting aside a conviction relying upon fresh or new evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice.[54] Without derogating from that fundamental principle, the general considerations which guide a court in determining whether to permit reliance upon fresh or new evidence are whether the evidence could with reasonable diligence have been produced at the trial; whether the evidence is apparently credible or, at least, capable of belief; and whether the evidence is sufficiently relevant and cogent.[55] A distinction is drawn in some of the authorities between ‘fresh’ evidence and ‘new’ evidence, depending upon whether or not the evidence was available and could have been produced at the trial.[56]
[54]Gallagher v The Queen (1985–6) 160 CLR 392, 395–6, 399; Mickelberg v The Queen (1988–9) 167 CLR 259, 301.
[55]R v A H K [2001] VSCA 220 [8], [67]; Weng v The Queen (2013) 279 FLR 119, 126–7 [29]–[30].
[56]Werden v The Queen [2015] VSCA 72 [67]–[68]; Knowles v The Queen [2015] VSCA 141 [103]–[105].
In this case it is clear from the affidavit itself that the evidence in the affidavit could with reasonable diligence have been produced at the trial. The applicant’s mother swears that she was in regular contact with the applicant by telephone. Clearly, the matters deposed to could have been placed before the trial judge.
More fundamentally, the affidavit, even if regard is had to the objected to paragraph, does not relevantly and cogently advance the applicant’s contentions. In significant respects it detracts from the matters relied upon before the trial judge. The affidavit makes no reference to any prior criminal matters concerning the applicant having been disclosed. No suggestion of any contact between the juror and the applicant is made. No suggestion of any passing of information by the mother to the juror is made. The circumstances of the applicant’s mother’s termination of employment seem less contentious than was suggested to the judge.
Most importantly, there is no basis in the affidavit for a conclusion, or even a significant concern, that the juror’s professed ignorance of the applicant was untrue or was unreliable.
The circumstances in which the affidavit was brought to the Court’s attention and was sought to be relied upon were quite unsatisfactory. We have considered it nevertheless. We do not consider that the fresh or new evidence contained in the affidavit ought to be admitted on this application. This is because the matters deposed to could with reasonable diligence have been produced at the trial, and because, in the circumstances we have set out, the matters deposed to are insufficiently relevant and cogent to be admitted.
We turn then to the trial judge’s ruling based upon the material which was before him.
Analysis of the trial judge’s ruling
The judge adopted the appropriate course after the issue was raised by bringing the juror into court alone and seeking to clarify the matter. For obvious reasons, as alluded to in Hood, the judge did not specifically question the juror about his knowledge of the prior charges of burglary and theft.[57] The juror’s statements that he had no knowledge at all of either the applicant or the applicant’s mother meant that the judge’s inquiries could not go any further without potentially trespassing into areas that might create problems rather than resolve them. It was open to the judge to accept the juror’s statement that he had no knowledge of either the applicant or the applicant’s mother, as the judge clearly did.
[57][1968] 1 WLR 773, 776.
It was not suggested that the juror had, or had had, any personal association with the applicant. The association asserted was between relatives of the juror and a relative of the applicant. An association of that kind, of which the juror credibly professed to be entirely ignorant, in the circumstances of this case, falls short of the kind of association which would require the discharge of the juror.
Counsel for the applicant at the trial did not suggest further inquiries by the judge, other than the inquiry about the specific bakery, which the judge took up.
The respondent relied upon the ‘conscientiousness’ of the juror, as revealed by his responses to the later questions about his association with the informant. We do not consider that to be relevant because the judge had already made his determination before that inquiry was undertaken. Suffice it to say, that nothing occurred in that subsequent exchange which would have undermined the judge’s acceptance of what the juror had told him about the absence of any knowledge of the applicant or the applicant’s mother.
The applicant’s submissions concerning the risk that the juror would make enquiries of his family and bring the results into the jury room, and his reliance on GAE, Cotter and Costa, were misconceived in our opinion.[58] There is no basis for a conclusion that the juror would not have followed the directions he and the other jurors had been given about not seeking information outside the courtroom. GAE, Cotter and Costa are cases concerned with improper communications between court officers and jurors (GAE and Costa) and the inadvertent receipt by a jury of prejudicial material which was not part of the evidence (Cotter). Those cases have no relevant application here.
[58](2000) 1 VR 198; (2004) 147 A Crim R 540; [2013] VSCA 5.
Leave to appeal will be refused.
ANNEXURE
COUNSEL:Yes, Your Honour. There’s a matter that’s come up overnight.
HIS HONOUR: Yes.
COUNSEL:My client was speaking to his mother, who’s in Western Australia. She was previously in support during the course of the other trial, but this being called on, she’s in Western Australia. There was a discussion about the juror (name supplied).
HIS HONOUR: About the juror who?
COUNSEL: (Name supplied).
HIS HONOUR: Who’s the juror (name supplied)? One of the jurors, you mean.
COUNSEL:One of the jurors. It just said my client raised that he was familiar with the name. Sorry, I should make it clear. This is an application to discharge, Your Honour. It’s twofold: it’ll be one ‑ ‑ ‑
HIS HONOUR: Discharge what?
COUNSEL: The jury.
HIS HONOUR: Why? Discharge one of the jury.
COUNSEL:Well, I’m going to make it formally to discharge the whole jury.
HIS HONOUR: Don’t intend to do that.
COUNSEL:And in the alternate, I’d make an application under s.43 of the Juries Act to discharge a single juror.
HIS HONOUR: Why would I do that in this case?
COUNSEL: Well ‑ ‑ ‑
HIS HONOUR: I haven’t got the Juries Act. Can you ask someone to bring the Juries Act up, please?
COUNSEL: The section ‑ ‑ ‑
HIS HONOUR: Madame Tipstaff, ask them to bring the Juries Act.
MR BOURKE: Does it assist if I hand up a computer that’s got it on, Your Honour?
HIS HONOUR: No, it won’t. Sorry, I apologise – I’ve got it. Yes.
COUNSEL: So, it’s s.43, Your Honour.
HIS HONOUR: Yes.
COUNSEL:It’s at – you can discharge a jury if it appears to the judge that the jury is not impartial.
HIS HONOUR: How would that appear to me?
COUNSEL:Well, this is what I’m going to raise with you now. This conversation – (name supplied) is the son – (name supplied) would appear to be the son of my client’s mother’s former employer.
HIS HONOUR: Wait on, wait on. (Name supplied).
COUNSEL: Yes. (Name supplied).
HIS HONOUR: Can you get me – wait on, where’s my notes? Here. (Name supplied).
COUNSEL: Yes.
HIS HONOUR: (Name supplied), transport manufacturer.
COUNSEL: That’s right.
HIS HONOUR: Yes – is what? Supposed to be who?
COUNSEL: The son of my client’s mother’s former employer.
HIS HONOUR: Former – who was who?
COUNSEL:I don’t know (name supplied)’s father, but there’s two sons, (name supplied) and James. Now, in regards to the situation – my client’s mother worked at the [bakery name] on [street name] for some 15 years. Approximately seven years ago, her employment came to an end and an unfair dismissal application was made and it went through the courts. At the same time, my client had been charged with burglary and theft.
HIS HONOUR: What, of the bakery?
COUNSEL:No, not of the bakery. In his priors, you’ll note that he’s got his first prior 2011 – was in regards to ‑ ‑ ‑
HIS HONOUR: What’s that got to do with (name supplied)?
COUNSEL:Apparently this was common knowledge with the (name supplied), because it was something that was discussed between my client’s mother and the (name supplied).
HIS HONOUR: But why would be discussed by the son?
COUNSEL:No, it was discussed with the – because it’s a family-owned business and the family was aware that my client’s mother was dealing with her son having difficulties with those matters.
HIS HONOUR: And why didn’t your client ‑ ‑ ‑
COUNSEL: He wasn’t aware of it at the time. It was only ‑ ‑ ‑
HIS HONOUR: What do you mean, he wasn’t aware of it at the time?
COUNSEL:Well, it was only – in terms of the jury selection, it was during the course of his conversation with his mother last night. He rang me immediately.
HIS HONOUR: Yes, well, the only way – and you suggest because of that that (name supplied) might be tainted in some way.
COUNSEL: That’s right, yes.
HIS HONOUR: Well, the only way I can find that out is asking. Ask (name supplied) to come out, please.
TIPSTAFF:(Indistinct words)?
HIS HONOUR: No. Not ‘perhaps’, if there’s a trial.
TIPSTAFF: Of course.
(At 10.26 am the juror entered the court.)
HIS HONOUR: (Name supplied), just stand there. I’m sorry to bring you out individually, but there’s no other way to do this. There’s a query as to whether you may know Mr Platt, his family, or anything about him.
JUROR: Nup.
HIS HONOUR: Don’t know?
JUROR: Nup.
HIS HONOUR: Righto, okay.
JUROR: Nup. (Indistinct words).
HIS HONOUR: Do you want to ask the juror person any questions? You have no knowledge of Mr Platt at all?
JUROR: Nup.
HIS HONOUR: All right.
COUNSEL:The only question is, does he have any connection with the bakery?
HIS HONOUR: What bakery?
COUNSEL: The [bakery name].
HIS HONOUR: Do you have any ‑ ‑ ‑
JUROR: It’s my father’s.
HIS HONOUR: That’s your father’s.
JUROR: Yeah.
HIS HONOUR: Ever work there?
JUROR: Oh, when I was younger. Um ‑ ‑ ‑
HIS HONOUR: Yes. But you have no knowledge of any person called Platt?
JUROR: Nup.
HIS HONOUR: It’s suggested that Mr Platt’s mother may have worked at the bakery.
JUROR: Oh, okay. No, I ‑ ‑ ‑
HIS HONOUR: You don’t know.
JUROR:No. That’s my – me – me parents’ business. I don’t - no.
HIS HONOUR: And you know nothing about Mr Platt’s background?
JUROR: No.
HIS HONOUR: Thank you.
JUROR: No worries.
HIS HONOUR: I just had to make that enquiry. You can go back now.
JUROR: Yep.
HIS HONOUR: I apologise for bringing you out, but you understand. All right?
JUROR:Nah, that’s all right. It’s gotta be (indistinct words).
HIS HONOUR: And can I ask you – well, in regard to the members of the jury, there’s no reason why (name supplied) – I’m sorry about this – but (name supplied) shouldn’t say that it’s just a query as to my knowledge of Mr Platt? That’s a simple way to say it, isn’t it?
COUNSEL: Yes, that’s fine.
HIS HONOUR: Yes, all right.
JUROR: Yep.
HIS HONOUR: We’ll be with you shortly.
JUROR: Yep – nah – that’s fine. Thank you.
(At 10.27 am the juror left the court.)
HIS HONOUR: I don’t intend to discharge the jury on the basis of that evidence.
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