Frith v The Queen

[1990] HCATrans 289

A',r -!.J, AUSTRALIA 1,.,

->,»~}!~««<(.t...C

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S58 of 1990

B e t w e e n -

ROBERT JOHN FRITH

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 DECEMBER 1990, AT 11.06 AM

Copyright in the High Court of Australia

Frith 1 5/12/90

MR M.L. SIDES, QC:  May it please the Court, I appear with

my learned friend, MISS C.J. LYONS, for the

applicant. (instructed by Riley Marks McLachlan)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR R.A. HULME for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON CJ:	Mr Sides?
MR SIDES:	If Your Honours please.  I hand up, Your Honours,

the outline of the applicant's submissions.

MASON CJ: Yes.

MR SIDES:  Your Honours, this is an application for leave to

appeal against a decision of the Court of Criminal

Appeal of New South Wales on 30 April 1990

dismissing the applicant's appeal against

conviction.

MASON CJ: Well, we are familiar with the history of the

matter.

MR SIDES:  If Your Honours please. Your Honours, the point

involved in this application for leave arises out

of the presence in court of a person whom was treated and apparently was the husband of the

forewoman.

The trial, Your Honours, occupied, I think,

some 23 days and on the fourteenth day of the trial
the presence of that man in the court-room was

drawn to the trial judge's attention and there was

some discussions about his presence in chambers, at
page 190 to 191 of the appeal book.

Your Honours, at that point in time, there was no application to discharge the jury but the matter

was dealt with in chambers in the presence of the

applicant's counsel, the Crown prosecutor and
counsel for the co-accused and His Honour.	And it
was transcribed.

Mr Brewer, who appeared for the applicant,

expressed his concern to the trial judge in

chambers of the presence of the man who was
apparently the husband or closely associated with
the forelady. And he had apparently been present

in court throughout the trial and apparently had

been seen to drive the forelady both to and from

the court.

The point that the trial had reached at this

stage on its fourteenth day was that the Crown case

had closed, the case for the co-accused Black was

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running and the applicant had yet to commence his

case.

There was some discussion about the matter and

the Crown prosecutor indicated that he thought the

matter could be dealt with by underlining the

directions that His Honour had given in relation to

the trial and nor was he prepared in the absence of

the warnings at the outset of the trial. His

anything further to discharge the forelady.

In response to that, Mr Brewer said that he

did not think that the discharging of the forelady
would cure the problem and the Crown prosecutor
indicated that he thought it was again appropriate,
at the end of the day, to make a special warning to

the jury to underline the importance of the

warning. No application was made, Your Honours, at

that stage to discharge the jury although we would

submit that it is not surprising that an

application was not made at that stage in light of the fact that His Honour indicated fairly early in the discussions that he felt he was not justified

in aborting the trial nor in discharging that

juror.

~hen, Your Honours, there was a further

incident which is at page 232 of the appeal book

when friends of the Crown prosecutor were seen in
the court and, again, the matter was dealt with as
before in chambers, again in the absence of the

applicant.

rt·was brought to His Honour's attention that

there were two people who apparently were friends

of the Crown prosecutor who had been in the public

gallery and who had in some way communicated by way

of acknowledgment with the man that had been the
subject of the earlier discussions. Later on, on

the next day I think it was, the formal application

was made and that appears at page 241 of the appeal

book and Mr Brewer made that application in court

but in the absence of the jury in very brief terms
by referring to the two pages of the transcript

wherein the matters that I have outlined to Your

Honours were dealt with and whilst conscious of

His Honour's ruling made the application in a

formal sense.

So, there was an application made, it might be

suggested a little belatedly but none the less it

was made and as I have indicated the explanation

for it not being made earlier may well have been

His Honour's indication that he would not abort the

trial and it was in effect the formality that

counsel was attending to on that latter occasion.

Frith 5/12/90

Your Honours, it is submitted that the court

below fell into error in not allowing the

applicant's appeal. Whilst an appellate court will

not likely interfere with the exercise of a trial

judge's discretion not to discharge a jury, none

the less it will do so if there has been a

miscarriage of justice.

In Hodgkinson's case, (1954) VR 140, the Court

said that the exercise of the discretion would not

be reviewed except on very substantial grounds. In

that case, a juror had spoken to a detective during

a luncheon adjournment about another detective who

had some involvement in the case. This was not

drawn to the judge's attention until after the

verdict but the court there referred with approval

to the passage of Lord Hewart in Ex parte McCarthy

that is set out in paragraph 1 of our written

submissions and they found that the verdict could

not stand as justice would not be seen to be done
and the incident was likely to give rise to a

reasonable suspicion concerning the fairness of the

trial.

We would submit to Your Honours that the test

involved is a fundamental one that justice be done

and be seen to be done and it is the appearance of

justice being done that is to be stressed and it is

enough that there is a suspicion of improper
influence to give rise to the exercise of the trial

judge's discretion to discharge the jury in

circumstances such as this case.

Your Honours, in Spencer's case,

(1987) AC 128, one juror had been discharged after

he had demonstrated bias. He was allowed to remain

in the precincts of the court so that he could

drive three jurors who remained serving on the jury

home after court. The learned trial judge warned

the three jurors who remained as serving jurors in

the case not to discuss the case with the juror who

had been discharged in the course of the journey
home.	They disobeyed this direction.

This incident occurred, the discharge of the

first juror, apparently just before or during the
trial judge's summing up, and the trip home
occurred and the discussions occurred, before the

jury retired for their deliberations.

Your Honours, Lord Ackner, with whom the other

Law Lords agreed, said this at page 145 at the

bottom of the page, the last paragraph:

It may well be that Mr Peet -

and Mr Peet was the juror who was discharged

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who apparently during the greater part of the

trial had been expressing to his fellow jurors

and in particular the three jurors whom he

drove to and from court his firm view that the
defendants were all guilty, did not in the

conversation in his car after his discharge,

add any further strength to the opinion which

he had been expressing. However, in the

circumstances of this case I find myself

unable totally to discount the likelihood of

such a possibility. Mr Peet was clearly very

concerned that the defendants should be

convicted. As the trial judge appreciated,

there was the real possibility that Mr Peet in

the course of his conversations with his wife

may have heard things which it would be better

if he had not.

His wife had apparently worked in the hospital where the accused had been, working in relation to

the charges.

I take Your Honours down then to the final

paragraph in His Lordship's judgment:

I therefore have a lurking doubt, that

justice may not have been done, which makes me

conclude that the verdict was unsafe.

His Honour Lord Hailsham agreed with

Lord Ackner's remarks, but made his own comments at

page 133 of the report. The only relevant passage

I think I need take Your Honours to on that page is just above the letter E; His Lordship said:

In my view this constituted a serious breach

of natural justice and the resulting verdict

must be treated as unsafe and unsatisfactory.

And he indicated it was not an appropriate case for the application of the proviso.

The next case that I would take Your Honours

to is the decision of the Full Court of the Federal

Court in Duff v The Queen, (1979) 39 FLR 315. This
case was a lengthy trial and during one of the, I

think it was, weekend adjournments, the trial

judge's associate and a juror had both been present

at a party where there was some short conversation

between them. The learned trial judge called his

associate, who gave evidence of the details of the

conversation that transpired between the juror and

the associate. At page 336 the court sets out the

findings of the trial judge at first instance;

that:

Frith 5 5/12/90

"Having heard the account of what

occurred it does seem to me to be innocuous".

The court went on then to consider the appropriate

test that it should apply, and it first considered

Trewartha v Confidence Extended Co case, and a judgment of the Acting Chief Justice, and they made

reference to this passage:

"It is highly desirable, and it has always

been so considered, that not only should

justice be administered purely and without any

actual bias on the one side or the other on
the part of the tribunal which hears the case,

but further than no reasonable ground of

suspicion should be allowed to arise as to the

fairness of that tribunal."

I skip the end of the passage, and the court noted

that that:

passage was cited with approval by the Full

Court ..... in Victoria in R. v Hodgkinson -

and went on to observe as follows:

Barry J., in delivering the judgment of the

Full Court stated the test for determining the

course to be followed, when an irregular

contact with a juryman occurs, in these

terms -

and they then quoted His Honour:

"We must, therefore, make up our own minds

whether the incident was of such a character

that, if the verdict is allowed to stand,

justice would not appear to be done or that

the incident was likely to give rise to a
reasonable suspicion concerning the fairness

of the trial."

Their Honours then went on to consider White's case

and Twiss' case, before proceeding to consider the

judgment of the Chief Justice in David Syme & Co

towards the bottom of page 337.	The Court said
this:

Subject to a qualification presently to

be mentioned, that test is consistent with the

judgment of Griffith C.J. in David Syme & Co.

v. Swinburne -

where the Chief Justice had said:

"The matter is now put forward as misconduct

on the part of a juryman. That under some

Frith 6 5/12/90

circumstances may be a ground for a new trial,

but the granting of a new trial on that ground

is discretionary -

and he referred to -

"Morris v. Vivian, and a new trial is granted

only because there is reason to believe that the course of justice has been substantially

affected".

The Court then went on to observe:

His Honour was there concerned with a new

Judicature an appellant bears in civil proceedings. In these proceedings, the qualifying rule -

trial application made after the

and I interpolate to say that the court is there

referring to criminal proceedings -

the qualifying rule is whether an irregularity

in the trial could not reasonably be supposed

to have influenced the result.

Chief Justice Griffith was looking to the effect which an irregular contact with a

juryman may have had upon the result, and it

is the possibility of an effect upon the fairness of the trial which attracts the

court's attention.

Irregular contacts between a party and a

juryman are of particular concern -

and they refer to His Honour Mr Justice O'Connor in

Swinburne's case and went on -

but no question of that kind arose here. In

the present case, there was little to suggest

that contact with the juryman was capable of

affecting the fairness of the trial. The appearance of the chance meeting at a

private party would not by itself give rise to

a reasonable suspicion as to the fairness of

the trial. Nor could the ensuing conversation

give rise to a reasonable suspicion of an

improper extra-curial communication with a

juror once the circumstances and terms of the

communication were disclosed.

Your Honours, in perhaps the most recent case

concerning this aspect of jury trials in criminal

matters, was a decision again of the Victorian court

in Queen v Chaouk, (1986) VR 707. This was a

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slightly different situation than those cases I have

first day of their deliberations were retired to

previously referred to because the incident here the

arqse during the course of the jury's deliberations.

a motel for overnight accommodation and a number of

sheriff's officers sworn to be their keepers in the

overnight situation. They were transported from the

court building to the overnight accommodation by

taxi and apparently three of them went in a taxi to

and from the court in the absence of a sheriff's

officer.

His Honour Mr Justice Kaye had this to say at

page 710 of the report, at about line 30:

Nevertheless, the rule remains that there

must be no communication, or risk of
communication, between outsiders and the jury

once they have entered upon their

deliberations concerning their verdict.

His Honour, then goes on in the ensuing pages to

review a number of authorities, including the ones

of Duff and Hodgkinson that I have already referred

the Court to and to other authorities and at

page 714 at about line 16, His Honour observed:

A reasonable bystander might well have

speculated what might have been said by a

taxi-driver to the separated and unaccompanied

jurors. Those circumstances and

considerations do not permit the application

of the proviso.

His Honour Mr Justice Fullagar, at page 715,

line 12 said:

was there a reasonable possibility that the

jury was in some way influenced in arriving at

its verdict against the accused person by

unsupervised contact with the outsider, or by

reason of the unascertained period of

reason of any conversation or events which

actually or might have occurred during that

period? Unless the answer to that question

was in the negative,I think the verdict of
guilty would have to be set aside, whether one
characterizes the irregularity as major or

minor or serious or otherwise.

McHUGH J: But that is the big difference between all these

cases and the present case, that there is no

irregularity.

MR SIDES:  We would submit there is a suspicion of it,

Your Honours.

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McHUGH J:  No, there has got to be an irregularity.

MR SIDES: _The point that we are making is that all there

has to be is a real suspicion of outside

interference with the jury and that is, we would

submit, sufficient in some of the cases, as in

Chaouk, it was the suspicion of it, there was no

positive proof -

McHUGH J: But you had an irregularity.

MR SIDES: It was an irregularity - - -

McHUGH J: For the jury to be travelling -

MR SIDES:	To be travelling in that case.
McHUGH J:	- - - in that situation.

MR SIDES: But the reason, we would submit, the reasons

why -

MCHUGH J:  The same in Duff.

MR SIDES:  - the verdict was set aside in Chaouk's case

was the irregularity gave rise to a suspicion	of
improper contact or influence upon the jury.	In
the Duff situation, the court said that what

occurred was innocuous. It was irregular but it

was innocuous and would have had no influence.

Of course, Your Honours, it is not irregular

for serving jurors to go home at night and be with

their spouses and family. That is not an

irregularity. Nor is it, prima facie, an

irregularity for a juror to travel home with a

spouse. But what takes this case out of the norm

is the fact that this gentleman was apparently so

fascinated by this trial that he remained in the

court each day and listened to the evidence and he

was in - - -

McHUGH J: That was his right.

to exclude him. The trial judge had no power

MR SIDES: Absolutely. It was his right as it was the right

of any member of the public to be in the court during the time that the court was sitting and

whether or not the jury was in court.

McHUGH J: Well, how can that be an irregularity?

MR SIDES: It creates - it is not an irregularity in that

sense and we would submit that you do not have to

have what is termed an irregularity. What is

required, we would submit, and sufficient is that

there was a real suspicion of outside influence.

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McHUGH J:  How? I mean, what is the ground for suspecting

that -

MR SIDES:· Well, the grounds for - - -

McHUGH J:  - - - juror was going to disregard the directions

of the trial judge or her husband who was in court

no doubt heard it and was going to?

MR SIDES:  Your Honours, if you go to page 6 of the appeal

book, the terms of His Honour's direction to the jury on the very first day before they heard any evidence may well have invited this woman and her

husband to discuss the case. At line 24:

That being so, you should be uninfluenced by

other persons in your deliberations.	I
suggest - - -

and it was only a suggestion -

you keep your deliberations amongst yourselves

and in the jury room. Please do not go
discussing the facts with friends, relatives

or other acquaintances who have not, for a

start, heard any of the evidence or all the

evidence as you have and who will try to

persuade their views upon you.

Now, of course, this man had heard all the

evidence so it may have been, and I am sure

His Honour did not intend this but the way

His Honour said it, it may have been that the

forewoman assumed because her husband was in court

and heard all the evidence that she was entitled to

discuss it with the husband and she was not
breaching His Honour's directions in that regard

and the matter having created some concern with

counsel and being raised did not then attract any

special warning from the trial judge.

At the end of the day on which the matter was

brought to his attention, His Honour did not say

anything to the jury by way of warning but, on the

following afternoon which was the Friday, the 26th,

His Honour did apparently say something to the jury

at page 201 of the application book and that is

recorded - it is not recorded in full, but it is

recorded as His Honour gave the usual warning to

the jury. Now, we do not know the precise terms of

it. The usual warning would be a warning not to

talk to people as they made their way to and from

the court but what we would submit to Your Honours

is that the fact that it is recorded as a usual

warning meant that His Honour in no way gave a

specific warning to cover the situation that had

created the concern for counsel in the trial. He

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did not give a specific warning as the Crown

Prosecutor had suggested he might to underline the

situation.

You see, in Page's case, which was the

unreported case of the New South Wales Court of

Criminal Appeal of 24 August 1989, what had happened there was that the jury had retired to

commence its deliberations and the court then

discussed other pleas of guilty that the accused

person was to enter to similar charges the next day

and it was discovered that there was in court

during these discussions a spouse of one of the

jurors who was there for the purpose of driving the

juror home and what His Honour did there was to

specifically warn the jury not to discuss the

matter with their spouse, the jury going home

overnight during their deliberations as is now

permitted by the New South Wales Jury Act and he

warned or cautioned the spouse of the juror who had

been in court while these matters were discussed.

Now, we would submit to Your Honours that is

the sort of thing that was called for in this case.

The warning that His Honour gave to the jury

appears at pages 6 and 7 of the Court of

Criminal Appeal's judgment and those sorts of

warnings, we would submit, are the sorts of

warnings that were called for in a situation such

as this. We would submit it goes further in this

case, that when the matter was brought to

His Honour's attention in chambers it was discussed

in the absence of the applicant and the

co-offender, but His Honour did not then conduct

any further inquiries in relation to the matter.

We would submit that the material that was

placed before His Honour in chambers was sufficient

to give rise to a reasonable suspicion that

something was going on that might influence the

jury deliberations.

DEANE J:  Was the argument that the warning was inadequate put in the Court of Criminal Appeal? I notice the

only ground of appeal to that court and to this

Court relates to the failure to discharge the jury.

MR SIDES:  Yes, Your Honours. I cannot answer that but the

judgment of the Court of Criminal Appeal in

relation to this aspect of the appeal is very brief

indeed.

DEANE J:	Well, it seems to indicate that no suggestion was made that there was anything wrong with the
warnings.

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MR SIDES:  It may suggest that. The Court of Criminal

Appeal simply says that the warnings were adequate

and sufficient, I think, were the terms that they

used.

DEANE J:  It is at page 413. The way the Court of

Criminal Appeal puts it would seem to indicate that

no attack was made on the adequacy of the warnings.

MR SIDES:  Yes. They observe at about line 20 on page 413:

The learned trial judge, when the matter

was drawn to his attention, dealt with it in a

manner that seems to me to have been

sufficient and appropriate -

and at the top of that page at line 4:

As is usual, the trial judge gave the

jury a warning at the commencement of the

trial not to discuss the case or the evidence

in the case with anybody else during the

course of the hearing and that warning was
repeated on numerous occasions. There is no
reason to believe that the lady in question

disregarded the instruction.

DEANE J:  Then is the position this, that we assume that no

complaint was made at the trial about the adequacy
of the warning as distinct from the failure to

discharge?

MR SIDES:  No. There was no complaint made at the trial

at any stage it seems as to the adequacy of the

warning His Honour gave on the first day - that is

on page 6 of the appeal book.

DEANE J: Yes, I follow that.

MR SIDES:  The Crown prosecutor, as I have indicated,

suggested that that warning be underlined, after

the matter was drawn to His Honour's attention, and

whatever His Honour said on that later occasion on	the afternoon of the 26th, after the incident was
drawn to his attention, there is no complaint
recorded as to the terms of that warning being
sufficient.

DEANE J:  And you cannot tell us whether the attack on the

adequacy of the warning was ever raised in the

Court of Criminal Appeal.

MR SIDES:  I cannot tell Your Honours positively one way or the other.

DEANE J: It makes it a little difficult for us to deal with

the matter other than on the basis that whenever a

Frith 12 5/12/90

juror's spouse is present in court during a trial

the juror should be interrogated or there should be

a.discharge of the jury.

MR SIDES:  It may not need to be as broad as that. What has

to be balanced, we would submit, are the right and

entitlement of the public to be present during
criminal trials and the right of the accused to
receive a fair trial. It might well be that that
balance can, in most cases, if not all cases, be
properly achieved by an appropriate warning to the
jury about - a more appropriately worded warning

than the one His Honour gave at the outset.

DEANE J: But you are missing my point, I think, and that

is, if the adequacy of the warning had been
disputed at the trial we would at least know what

the additional warnings were. But in a situation

where the warnings were apparently accepted as

adequate after the situation had been identified

and subject, of course, to the general question of

discharge, it is very difficult for you to make any

point about the inadequacy of the warning in this

Court.

MR SIDES: Yes, I see Your Honour's point. We would submit

in those circumstances, then the overriding test

would have to be in this Court whether, in fact,

there was a miscarriage of justice in the light of

the inadequacy of the warnings that I have

demonstrated. It might be the case, Your Honours,

that in light of the comments of the Crown

prosecutor when the matter was first drawn to the

trial judge's attention that this happens fairly

frequently, that there is a serious flaw in the

terms o·f the warning that His Honour did give on
the very first day, and that is the warning that is

traditionally given. The reference to not

discussing it with spouses because they have not

been in court and heard all the evidence is no

doubt an attempt to underline the importance of the warning, but at the same time can be and, indeed we

would submit, is misleading.

The matters of grave concern, we would submit,

are the fact it seems that this gentleman was in

court during periods of time when the jury was

excluded. Now, as is common in long trials, there

were numerous occasions on which the jury was

excluded in the course of this trial.

I do not seek to take Your Honours to all of

those instances because it seems that most of them
on the material in the transcript could be

described as innocuous in the sense that evidence

was objected to that was admitted, some of them

related only to the co-accused and not to this

Frith 13 5/12/90

applicant. And on the transcript that is

available, although quite often things are

discussed that are not reproduced in the

transcript, it seems that there is no moment in

those.

There are four instances, we would submit,

when the jury were absent that give rise for

concern in this trial. Firstly, there was at the

end of the Crown case an application that

His Honour direct a verdict.	A no case submission
was made.	The transcript, Your Honours, at pages

186 to 189, reproduces, as is the case with

transcripts, those submissions in summary form, but

one could imagine that the evidence was discussed

at some length and, of course, His Honour rejected

the application.

Now, we would submit that for a person who was

in court that rejection of the application by the

trial judge may well have had a significant impact

upon such a person.

Now, secondly Your Honours, the second matter

is at page 100 to 102 of the application book, when

there was a discussion about the evidence a witness

Bignall was to give. At the bottom of page 100 Mr

Brewer indicated that he objected to some further

evidence and at the top of page 101, after the jury

had been sent from the courtroom, the transcript

reveals that:

Mr Brewer stated that the presence of the

green Fl00 at Johns River at the time in

question would not be denied in the defence

case but indicated his objection to any
evidence as to the cost of the vehicle and the
spending of money on new boat sheds submitting
the evidence was irrelevant and could be

interpreted by the jury as a motive for the

accused Frith to be involved.

His Honour admitted the evidence and the witness,

Mr Bignall, returned to the witness box and the

evidence was led from him at about line 18 on

page 102 and what he was asked to recall was a

conversation between Mr Bignall, the witness, and

the co-accused, Mr Black.

Q. Nevertheless, could you tell us please what

you recall being said by Mr Black on that

particular topic?

A. Yes. He said that he had a mate that

lived on the Hawkesbury River and that he

was running a hire boat service and that

he was going to build some new boat sheds

Frith 14 5/12/90

and it was said about the vehicle - I had

said about it being a new Fl00 and he said

that the vehicle was estimated to be

valued at $22,000.

Now it is hard to decide, I suppose, precisely

whether the witnessing fact came up to proof in

that. There is little to be gleaned, from the

evidence that was given there in answer to the

question, any evidence of motive to obtain money to
fund the purchase of the vehicle or indeed the

building of boatsheds. Clearly the conversation

refers to the applicant. There was other evidence
in his own sworn testimony, that he lived on the

Hawkesbury River and ran a boat hire shed. Clearly the inference was open that what was being objected

to in fact contained much more detail and more

material that would justify the giving rise of

inference of a motive on the part of the applicant

Frith, than that which was ultimately led from the

witness, and we would submit again that the
prejudice would flow, because if the man in the
public gallery communicated this incident and the

discussion of this evidence to his wife, the

forewoman, then she might have had available to her

and communicated to other jurors what had been

discussed in their absence and what we would submit

was of some significance.

The next incident when the jury was excluded

that we would draw to the Court's attention was a

voir dire concerning part of the evidence of

Mr Chant. That commences at page 140 of the

application book. Mr Chant was a significant

witness in the Crown case against the applicant, he

identifying the chain saw that was found in the

boot of the Valiant that was used by the offenders

in the attempted robbery and Mr Chant being the

owner of the chain saw was able to link the chain

saw to the applicant. What was objected to was a

further aspect of his evidence and that is given on

the voir dire at page 142. Mr Chant apparently was

involved in a business of tree lopping and the

accused had taken Mr Chant to a friend's premises

to discuss some tree-lopping business and there the
applicant introduced Mr Chant to his friend, using

the name to describe his friend as "Sarge".

Your Honours will see in the answer to the second

question on that page at about line 10:

Toad and Robert came up the stairs as I recall

and he said, "They call him Sarge" and we just

jumped in the truck and left.

Then, jumping a question, the next answer at about

line 17:

Frith 15 5/12/90

Well, he was kind of introduced by Robert as

"sarge".

Now, the significance of this piece of evidence

which was rejected by the judge appears in the

evidence of Mr Coneybeare who was one of the

victims of the attempted robbery.	A number of
offenders had gone to Coneybeare's house.	They had

said to him, in effect, "It's the drug squad

police. Get outside" and during the course of the

robbery one of the offenders referred to another

offender as "sarge". He said:

Sarge, what's going on?"

That appears at page 17 of the application book, at

line 15:

Somebody said, "Sarge, what's going on?"

Q. "Sarge, what's going on?"? A. Yes.

Now, Your Honours, of course, that is just one answer in many hundreds of answers in many, many

pages of transcript. It is the sort of detail that

in some senses, I suppose, could be said might

easily be forgotten but when the jury retired to

consider its verdict, we would submit, what would

be foremost in its mind would be the offence

itself. What happened at Mr Coneybeare's premises

that night? That he - just after eight o'clock the

place was apparently raided by people who were

trying to make out they were drug squad police and

is not this sort of detail the very sort of detail

that would stick in a jury's mind; that, during the

course of the robbery, one of the offenders had

said, "Sarge, what's going on?" and the
significance of this evidence that was rejected by

the trial judge but heard by the forewoman's

husband was that this applicant had a friend whose

nickname apparently was "sarge" and we would submit

that that was capable of creating a very

significant prejudice in the minds of the jury that

the applicant was involved, having on his own

evidence, gone up to the area where the offence was

committed some day or two before the offence, and

that he had a friend from that very same area who

happened to have the nickname "sarge" which was a

name used, it might be suggested, inadvertently, by

one of the offenders in the course of the

commission of the offence.

The final incident occurred in the course of Detective Mooney's evidence and objection was taken

at page 181 of the application book. Now, there

are two aspects of the evidence that was objected

to.	Mr Brewer appearing for the applicant objected
to portions of the statement.	He objected to a

Frith 16 5/12/90

portion referring to "the vehicle attempting to

evade apprehension". That appears at line 15.

Then going down further in remarks of the Crown

prosecutor at line 30, the Crown prosecutor made reference to a discharge of a gun and, again, at line 37, there is reference to a discharge of a

firearm.

Now, this evidence was excluded by the trial

judge but from having heard that discussion the

person in the court-room might have concluded that

at the time of the arrest of the applicant there

was an attempt to evade apprehension and the

discharge of a gun in the course of that attempt, a

not dissimilar incident to the incidents
immediately following upon the attempted robbery.

The second aspect, Your Honours, was the

finding of horror masks, or what is described in
the transcript as horror masks, in the premises of

Kaylene Nash at 1 Brooklyn Road, Brooklyn. The

evidence in the case and from the accused himself

demonstrated that Kaylene Nash was a friend of the

applicant and that their friendship occupied many,

many years before the incidents that gave rise to

these charges and the significance of the horror

mask being that one of the offenders that went to

Mr Coneybeare's premises was wearing what was

described by Mr Coneybeare as a horror mask.

Again, that was evidence of significance that

was capable of linking the applicant to the offence
and it was found, as I say, at the premises of his

friend of many, many years.

So, those incidence of things that were

discussed; evidence that was admitted but

apparently not led in precisely the same form; or

evidence that was excluded that was capable of

great prejudice if it was brought to the minds of

the jury. And it may well be that it was brought
to the attention of the jury. It would be natural,

we would submit, it would be only natural for this

man to discuss with his wife the forewoman what had	transpired in court during the day, each evening at
home.

If he was so fascinated by what was going on

to come back day after day one can imagine very

easily that it would be natural for him to discuss

with his friends and associates that which
fascinated him and it would be only natural to
discuss with his spouse the common experience that

they were sharing, namely, what was unfolding each

day in the courtroom, and it might be that there

was the temptation there for them to discuss what

occurred in the absence of the jury during any

Frith 17 5/12/90

particular day. It would be these incidents,

either taken alone or together, were capable if

brought to the attention of the jury of rendering

grave injustice.

The court, of course, is entitled to expect a

jury or a juror to be good to his or her oath but

that does not, we would submit, remove the

suspicion of improper influence that might arise in

a case such as this. It does not leave, we would

submit, a comfortable feeling that justice has

appeared to be done in this case.

His Honour, unfortunately, we would submit,

did not conduct any inquiries over and above what

was discussed with counsel. From all of the

authorities it is clear he had the power to

interrogate the jury involved and, clearly, had the

power to interrogate the husband.

MASON CJ: But that brings you back again the point already

raised with you that there is an absence of a

foundation for the conclusion that the warnings

actually given were inadequate.

MR SIDES: Yes. It does bring us back to that point, I

suppose, yes, Your Honour. Yes, it brings us back

to that point, Your Honour, and I think, in
relation to that, all that I might add is this,
that the two things that might have been done to

allay a real feeling of suspicion about what had

occurred were not done, we would submit. That is,

the trial judge, properly informing himself by

hearing evidence from either the husband of the

forewoman, or the forewoman herself, as to what had

transpired, and secondly, for him to give a

warning, fashioned to meet the situation that was

then confronting the court, and neither of those

two things were done, and we would submit, in the

circumstances, then one is left with the

uncomfortable feeling that justice was not seen to

be done in this case; that if one were to raise the

situation with a person in the street, as I think

Mr Justice Kaye refers to in Chaouk's case, that that person would be of the view that there was a

real suspicion and that justice had not appeared to

be done.

Really, Your Honours, at the end of the day,

that is the test, and if properly applied in this

instance, we would submit, the only conclusion that

could have been arrived at by the court below was

that, in fact, there had been a miscarriage of

justice. Those are the submissions that I wish to

put to the Court.

Frith 18 5/12/90

MASON CJ: Thank you, Mr Sides.

The Court need not trouble you, Mr Solicitor.

As no objection was made at the trial by

counsel for the applicant that the warnings given

by the trial judge against discussion by jurors of
the case with outsiders were inadequate, and as

there is not a record in the transcript of all the

warnings given by the trial judge, there is no

satisfactory basis for the argument that the

warnings actually given were inadequate. Absent a

conclusion that the warnings were inadequate, we

are not persuaded that the Court of Criminal Appeal

was in error in concluding that there was no

miscarriage of justice, or that the trial was not

unfair. The application for special leave is

therefore refused.

AT 12.03 PM THE MATTER WAS ADJOURNED SINE DIE

Frith 19 5/12/90