Director of Public Prosecutions v Price (a pseudonym) (Ruling No. 3)
[2024] VCC 2121
•17 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AADAM PRICE (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2024 | |
DATE OF RULING: | 17 May 2024 | |
CASE MAY BE CITED AS: | DPP v Price (a pseudonym) (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2121 | |
REASONS FOR RULING
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Subject:CRIMINAL LAW
Catchwords: Rape trial; Application to discharge jury; application to discharge juror; Juror in possession of book “Prima Facie” in jury room; whether appears that juror is “not impartial”.
Legislation Cited: Sections 43 and 45 Juries Act 2000; Jury Directions Act 2015.
Cases Cited:The Queen v Boland [1974] VR 844; Matthews v The Queen [2021] VSCA 20; DPP v Lehrmann (No 5) [2022] ACTSC 296; HCF v R [2023] HCA 35; Kennedy v The King [2023] VSCA 86.
Ruling: Application to discharge juror and jury refused.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Y Hardjadibrata | Office of Public Prosecutions |
| For the Accused | J Barreiro | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1On 16 May 2024, the accused, Aadam Price,[1] applied for the jury to be discharged from delivering verdicts in his trial. In the alternative, he made an application that a particular juror be discharged.
[1]A pseudonym.
2On the following day, I ruled against both applications. As the trial was in progress, I stated that I would deliver my reasons for the ruling at a later time. I now provide those reasons. I express my reasons as if they were delivered at the time of the ruling.
Background
3Mr Price is charged with three charges of common law assault, three charges of rape and a charge of making a threat to kill. The complainant in each of the charges is his wife. The offences are said to have occurred between 31 October 2018 and 5 December 2018.
4On 10 May 2024, a jury of 12 was empanelled to hear the charges against Mr Price.
5On 15 May 2024, I brought to the attention of the parties that my associate, while in the jury room attending to her duties, saw a copy of the book “Prima Facie,” written by Susie Miller, on one of the desks provided for the jurors’ use. I noted, from my limited knowledge of the book, that it was a work of fiction but that it dealt with the topic of sexual abuse.
6Having brought the matter to the attention of the parties, I invited them to consider what, if anything, should be done arising from the book being in the jury room while the trial was proceeding.[2] Both defence and prosecuting counsel sought time to consider the matter before making submissions.
[2] T 189.15.
7On the following morning Mr Barreiro, counsel for the accused, having obtained a copy of the book, submitted that the jury should be discharged. He submitted that the book’s underlying premise is that sexual assault complainants ought to be believed, and that the system of criminal justice needs drastic change in order to achieve justice for complainants.[3] He added that the book was seen “in a prominent location in the jury room.”
[3]T 192.27.
8Mr Barreiro stated that the “book tells a fictional story of a criminal defence barrister who defends accused persons in sexual assault cases who then goes on to be raped herself and ultimately goes through the system.”[4] He stated that the book had been adapted from a play that has been staged in Melbourne, London and New York.
[4] T 193.18.
9Mr Barreiro referred to a number of passages from the book in support of his submission concerning its underlying premise. He focused, in particular, on the protagonist’s monologue between pages 322 – 332 of the book. I do not intend to set out in any detail his references to those passages. They commence at transcript page 193. Mr Barreiro submitted that in that monologue the protagonist expressed her views that the system doesn’t work when “barristers do the sorts of things that they do, in terms of putting inconsistencies and the like to complainants”.[5]
[5] T 194.19.
10Mr Barreiro submitted that regardless of the points the author makes, and whether or not as a matter of policy they are justified, the issue is whether the prominence of the book in the jury room, and what might have occurred in the jury room, will compromise the accused’s right to a fair trial.[6]
[6] T 197.27.
11Mr Barreiro submitted that the test to be applied is set out in The Queen v Boland,[7] and that there needed to be a high degree of need to discharge the jury, that there be a real risk that an accused’s rights might be undermined, and that there is nothing that can be done to ensure the accused receives a fair trial.[8]
[7] [1974] VR 844.
[8] T 198.6.
12Mr Barreiro resisted any inquiry being made of the juror but nevertheless submitted that there was a high degree of need to discharge the jury.
13The learned prosecutor, Mr Hardjadibrata, referred to the decision of Matthews v The Queen[9] in which the court restated the principles in relation to discharge of the entire jury and the factors that needed to be considered in the exercise of the Court’s discretion. He noted that the discretion to discharge a jury must be exercised only to prevent a miscarriage of justice and that I needed to be satisfied that there was a high degree of need. Mr Hardjadibrata submitted, in essence, that without knowing more, I could not be satisfied that there is a high degree of need to discharge the jury. He submitted that there were a number of other considerations to which I must also have regard including that the prosecution was intending to close its case on the following day.
[9][2021] VSCA 20.
14Mr Hardjadibrata submitted that as at the time of argument, there did not appear to have been anything the juror had done that transgressed the directions the jury received at the outset of the trial. He submitted that the directions given to jurors did not preclude them from reading works of fiction. Mr Hardjadibrata noted that this was a very astute jury who had even noted differences in the wording of the rape charges on the indictment, something that had eluded several prosecutors. He also submitted that no juror has raised any irregularity having occurred in the jury room.
15Mr Hardjadibrata submitted that in order to determine the defence application, an inquiry should be made of the juror, including inquiring whether anything was said or done that might have contaminated the minds of the other jurors.
16Following the submissions of counsel, I ruled against the application to discharge the jury at that time, stating that it was necessary to question the juror before deciding what further steps were to be taken. Counsel were invited to provide a list of questions that they would like me to ask of the juror.
17I should note that the jury were not sitting this day, and so counsel had further opportunity to consider the issue in dispute.
18On the following morning further submissions were received from both counsel.
19Mr Barreiro placed reliance on the ruling of McCallum CJ in DPP v Lehrmann[10]. In that case, where a juror had brought into the jury room academic research about sexual assault complainants, her Honour stated
It is neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any. The juror in question has this morning given an explanation that the document was not used or relied upon by any juror. However, it is appropriate in the circumstances to approach that evidence with some scepticism. At the very least, the fact that the paper was located and taken into the jury room by the juror indicates that it may have influenced that juror’s contribution to the jury’s deliberations. The unfairness to both parties is manifest.[11]
[10] (No 5) [2022] ACTSC 296.
[11] Ibid [6].
20Mr Barreiro acknowledged that the Lehrmann case was “somewhat different” as the jury in that case had been deliberating for some 5 days before the discovery of the academic research was made.
21He also acknowledged that generally, a Court and counsel do not know what material or information jurors have been exposed to before serving on a jury, what preconceived ideas they may have, or what their view of the law is. He accepted that in relation to the issue that has now arisen, we do not know if it is merely a juror who was reading the book through the course of the trial or, whether the juror brought the book specifically into the jury room in order to discuss the themes of the book with the other jurors.
22Asked by me what would be the position if the juror simply had the book for her own purposes to read during breaks, or over the lunch hour, Mr Barreiro stated that in that circumstance the entire jury should not be discharged. Mr Barreiro again resisted making an inquiry of the juror as to why she had the book with her and whether or not it was discussed with the other jurors. Mr Barreiro submitted that even without knowing more about those and other matters, there was nevertheless a high degree of need to discharge the entire jury. He submitted this was because of the danger of the evidence in the trial being interpreted through the overarching message of the book.[12]
[12]T206.18
23Following further discussion with counsel, I had my associate approach the juror who was thought to sit at the desk where the book was seen. The jury at the time were still in the jury pool room where, for reasons to do with the layout of the Geelong Court, they gathered each morning before being brought through the court to the jury room. My associate approached that juror and asked her to come into court as I had some questions that I wanted to ask her. My associate told the balance of the jury to remain in the pool room until called.
24The juror brought into court was in fact the juror that had the book. The juror was administered the oath and I then asked a series of questions. The questions and answers appear at pages 336 to 339 of the transcript.
25In essence, the juror stated the following:
· That she had been reading the book “Prima Facie” for “quite a while”.
· It was only because she has had time sitting around that she has actually “used it”.
· The book was about a case in the United Kingdom.
· She had the book probably about three months.
· The reason she brought it into the jury room is that it was in her handbag, and she had been reading it during down times. She stated she read it the other day in the park.
· As to the number of times she has brought it into the jury room, the juror stated it had been in her handbag every day since she started as a juror.
· As to why the book was on the desk, the juror stated she had been reading it in between sessions and just did not put it back in her handbag. She had also left her crackers and other bits and pieces on the desk. She did not know she had to pack her bag.
· The juror did not know how many times she had left the book on the desk.
· Asked whether any juror had discussed the book with her, the juror stated that they had been talking about books in general and she stated she was reading about how someone had been assaulted and it was actually a barrister and that it occurred in the United Kingdom. Another juror spoke of a book that she or he was reading to do with a concentration camp.
· The juror reading ‘Prima Facie’ also said something like “it’s not a good book to be reading during this case”. She said that the discussion was very general and nothing in depth about the book was discussed.
· The discussion concerning the book occurred on a single occasion.
· When I referred to the subject matter of the book being very much about an allegation of rape and asked whether the book has impacted on how that juror was viewing the evidence in the trial, the juror answered “No. Not really, because it’s all about her relationships with her family as well and about her support structure. It’s not necessarily about – look, it is about the rape but it’s not as – you know, it’s about other aspects of her life.”
· Asked whether she thought the book might have impacted upon her ability to judge this case in a fair way, the juror responded “definitely not, this is fiction. This is real life. There is a big difference”.[13] (I should note that the transcript does not reflect accurately what the witness stated. Counsel have agreed that the passage I have just recited is in fact what the juror stated.)
[13]T338.
26Neither counsel wanted me to ask the juror any further questions. The juror was then placed in another room separated from the other jurors and was asked that she not discuss with the other jurors, if the opportunity presented itself, what had just been discussed with her.
27Following the information provided by the juror, Mr Barreiro submitted that the juror should be discharged. He submitted that notwithstanding the juror’s subjective view that the book had not influenced her ability to be true to her oath and give an impartial verdict, and even accepting that it is a work of fiction, the subject matter of the book is the subject matter of this trial. He submitted that the book also deals with the criminal trial process, and that it is “a rallying cry for the altered approach” suggested in the passages at pages 332 and 333, particularly that the “law of sexual assaults spins on the wrong axis.”
28I was referred by both counsel to the High Court decision in HCF v R.[14]
[14][2023] HCA 35.
29Mr Hardjadibrata referred, in particular, to paragraph 13 of the joint judgment of Gageler CJ, Gleeson and Jagot JJ.[15]
[15]T343.14.
30At paragraph 13, their Honour’s stated:
Accordingly, in all cases of jury or juror misconduct, what is required to establish a miscarriage of justice, and what will also establish a substantial miscarriage of justice, is that a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. Although the terms have been used interchangeably in this context, the test is best expressed in terms of a reasonable "apprehension" rather than a reasonable "suspicion".
31Mr Hardjadibrata submitted that the juror has been reading the book for some three months and at the empanelment stage, all members of the panel were given opportunity to be excused from serving on the jury following the usual directions concerning the possibility that a potential juror might be biased. The juror did not seek to be excused and swore an oath to render a true verdict. Mr Hardjadibrata reiterated that the juror has done nothing wrong, has not breached any direction given, and had stated on oath during questioning by me that her reading of the book has not affected her ability to deliver a true verdict. Mr Hardjadibrata submitted that the juror appeared to be a frank and honest person.
32With regard to s 43 Juries Act 2000 (Vic), which grants a judge the power to discharge a juror if it appears to the judge that the juror is not impartial, Mr Hardjadibrata, in essence, argued that there is no basis to find that the juror is not impartial and relied on her evidence that the book had not affected her ability to reach an impartial verdict. Mr Hardjadibrata submitted there was no other reason to discharge the juror.
33Regarding the defence submission that the book is a rallying cry for reform of the system weighted against complainants, Mr Hardjadibrata submitted that our system does not permit the ascertaining of the views of potential jurors, and that juries are made up of persons from different backgrounds and political perspectives, who take an oath or affirmation to render a true verdict according to the evidence. Mr Hardjadibrata further submitted that weight must be given to the juror’s statement that what she has read is not going to affect her judgment. An objective observer sitting in court, Mr Hardjadibrata submitted, and having heard the sworn evidence of the juror, would take the view that there is no apprehension of bias. Regarding the possibility of subtle influences, Mr Hardjadibrata submitted that we hear from the media and other sources all sorts of matters that might subtly influence a person’s thinking. However, we have to go back to the oath or affirmation and trust that potential jurors can reach impartial verdicts.
34Mr Hardjadibrata further submitted that the juror was simply continuing to read a book that she had started before being selected on the jury and was not conducting any research or acting contrary to any of the directions I had given to the jury.
Analysis and Conclusion
35In my opinion, the juror in question did not disobey any of the directions that I gave to the empanelled jury.
36The directions and warnings given to the jury included that they must not base their decisions on any information obtained outside of the courtroom; they must completely ignore anything they might see or hear in the media about the case or the people involved in it; they must not make any investigations or inquiries or conduct any independent research concerning any aspect of the case or any person connected with it, including researching the law that applies to the case, accessing legal databases, legal dictionaries, legal texts, earlier decisions of this court or other courts, or other material of any kind relating to the matters in this trial. The jurors were informed of the reasons why they should not do any of those things and were also told that if one of their fellow jurors was to breach the instructions then a duty would fall on the rest of the jury members to inform me or a member of my staff without delay.
37Even if it might be thought that there was a breach of those preliminary directions, particularly of the words “other material of any kind relating to the matters in this trial,” in my opinion, it was not a deliberate or wilful breach.
38The juror was open about having the book when questioned and had even left the book on her assigned desk knowing that my associates enter the jury room. Importantly, neither party suggested a deliberate act of misconduct, although Mr Barreiro did submit that the juror’s conduct, whilst not deliberate, may be characterised as an act of misconduct because the juror brought into the jury room material relevant to the subject matter of the trial that could potentially influence both the juror and other jurors.[16]
[16]T353.4.
39However, as was said in HCF in the joint judgment of Gageler CJ, Gleeson and Jagot JJ:
Failure of a jury or juror to fully appreciate and therefore apply a procedural direction about what is to occur in the course of a hearing does not, without more, provide a foundation for a positive feeling of actual apprehension or mistrust on the part of a fair-minded and informed member of the public that the jury or juror might have failed fully to appreciate and therefore apply a substantive direction about how a verdict is to be rendered. On this basis, the assumption, which is "fundamental to the criminal jury trial", that jurors understand and conform to a trial judge's directions continues to apply to the jurors in the present case other than in the proven respect of the identified misconduct.[17]
[17] Ibid [62].
40In my opinion, there is not anything “more” to the juror’s conduct than that which was disclosed upon questioning. In my opinion, there is no basis to assume that the juror and the jury will not understand and conform to directions given and to be given.
41More germane to the issue, is section 43 Juries Act 2000. Section 43 states:
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
(b) the juror becomes incapable of continuing to act as a juror; or
(c) the juror becomes ill; or
(d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
42The only possible bases, in the circumstances of this case, for discharging the juror is if it appears to me that the juror is not impartial (s 43(a)) or if it appears to me that for any other reason the juror should not continue to act as a juror (s 43(d)).
43In Kennedy v The King,[18] McLeish and Kennedy JJA stated:
The common law principle that a jury should only be discharged where it is established that there is a high degree of need to do so is of long standing. It does not, however, find expression in ss 43 and 44 of the Juries Act 2000. It has been observed that, if any of the circumstances set out in s 43 are established, that fact alone is very likely to import a high degree of need that the individual juror in question be discharged. At the same time, the expression should not be used as a substitute for the statutory language, or as an overriding limitation on the operation of the section.[19]
[18] [2023] VSCA 86.
[19] Ibid [49].
44In the same case, Priest JA stated:
Properly construed, s 43 is concerned solely with the discharge of a single juror, not the whole jury. Thus, it provides that a judge ‘may ... discharge a juror without discharging the whole jury’ if any one of the four criteria provided for in the section are met. Unless one of the four criteria is established, there is no occasion to discharge a juror under s 43. A decision whether any of the circumstances in paragraphs (a) to (d) involves a value judgment attracting House principles; and the judge ‘should require considerable persuasion before concluding that any such circumstance is present’. Furthermore, paragraph (d) should be narrowly construed, and any circumstances said to fit within that paragraph ‘rigorously examined before a judge is satisfied that the circumstances relied upon do fall within the paragraph’. But when a judge is considering the discharge of a juror, nothing in s 43 imports the common law ‘high degree of need’ test which is apposite to the discharge of the entire jury (albeit it might be expected that in finding one or more of the criterion in paragraphs (a) to (d) to be present, the judge would likely consider that there was a high degree of need to discharge the juror)…[20]
[20] Ibid [6].
45Having questioned the juror, having heard her answers, and having observed the manner in which she gave her answers, it did not appear to me that the juror is ‘not impartial’, nor do I consider that there is any other reason to discharge her. The basis of the asserted impartiality could only be a suggestion that the book has in fact or probably has impacted upon the juror’s ability to return a fair and impartial verdict based on the evidence. I do not accept that the basis has been made out.
46I have particular regard to the evidence of the juror herself, which evidence I accept. I add to that that the juror did not seek to be excused when given the opportunity to do so prior to jury selection and did not seek to hide the fact that she was reading that particular book. In my opinion, a reasonable person would understand the difference between a work of fiction and a work of non-fiction and a reader may agree or disagree with matters raised in works of fiction. The jury system works on the basis that we trust jurors to decide cases fairly and impartially, and to put aside any prejudices and biases they may otherwise have. We do not expect that jurors have no pre-existing knowledge or opinions. We do not exclude jurors who themselves have been the subject of sexual assaults. We do not tell jurors not to watch the news, current affairs programs or read works of fiction. What is asked of them is that which is stated in the oath or affirmation they each must take, namely, to try the issues faithfully and impartially and to give true verdicts according to the evidence.
47The book in question is a work of fiction. The juror had been reading it long before she was selected on the jury. Although the book may be, as was submitted by Mr Barreiro, a rallying cry for the system in which rape trials are conducted to be changed, I accept the evidence given by the juror that she did not think the book would impact on her ability to decide the case fairly and impartially. I commented to counsel during discussion that the juror was frank in all of her responses, was quick to state that it was a work of fiction, and expressed in a strong tone that she did not think the book might have impacted upon her ability to judge this case in a fair way.
48Regarding Mr Barreiro’s reliance on the ruling in Lehrmann, that case, in my opinion, is distinguishable. First, the document that was taken into the jury room by a juror was an academic research paper, the subject matter of which was sexual assault, and more specifically, “a discussion of the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault and a deeper research-based analysis of the reasons for both false complaints and scepticism in the face of true complaints.”[21] It was not a work of fiction. Secondly, the judge considered it appropriate to approach the juror’s explanation that the document was not used or relied upon by any juror with “some scepticism.”[22] I have no such concern with this juror’s explanation for having the book and it not having been relied upon by the juror or jury in their consideration of the issues. Thirdly, it is implicit from her Honour’s ruling that the juror deliberately breached her Honour’s directions, “given at least 17 times” prohibiting any research or inquiries of their own.[23] As stated, I do not consider that the juror here, if there was a breach of my directions, deliberately did so. Fourthly, the breach of her Honour’s directions was discovered during the fifth day of the jury’s deliberations. Her Honour was of the view that the paper may have influenced that juror’s contribution to the jury’s deliberations.[24]
[21] Ibid [5].
[22] Ibid [6].
[23] Ibid [7].
[24] Ibid [6].
49Nothing that has been said to me in argument or by the juror herself warrants me taking the drastic decision of discharging the juror and the jury. Moreover, I have no reason to consider that the juror and the jury will not follow directions to give verdicts only on the basis of the evidence presented in court and on no other basis. It is a significant step to discharge a juror. As was said in HCF “[a]pprehension of a violation of that oath is not lightly to be inferred.”[25]
[25] Ibid [16].
50I would add that the jury has been given the directions and will again be given directions that their verdicts must be based only on the evidence given in court and on no other basis. The jury was also given directions required by the Jury Directions Act 2015 under Part 5 concerning how to assess the complainant’s evidence, what experience shows about the circumstances in which people consent and do not consent to sexual acts, and to warn against assumptions commonly made in sex trials.[26] I have no reason to think that the juror, and indeed the jury, would not follow those directions. To what extent those directions address the concerns raised in the book was not the subject of any argument.
[26] Ts 88-90, 14 May 2024.
51Accordingly, applying s 43 Juries Act, I find that there is no basis to discharge the juror. At the risk of repetition, it does not appear to me that the juror is not impartial, nor does it appear to me that there is any other reason why the juror should not continue to act as a juror. Moreover, having reached that conclusion, I find that there is no basis to discharge the jury.
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