Goodall v The Queen

[2007] HCATrans 397

[2007] HCATrans 397

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M50 of 2007

B e t w e e n -

DAVID HENRY GOODALL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 AUGUST 2007, AT 11.54 AM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC:   May it please the Court, I appear on behalf of the applicant.  (instructed by CD Traill Lawyers)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS C.M. QUIN, for the respondent.  (instructed by Director of Public Prosecutions (Vic))

HAYNE J:   Yes, Mr Holdenson.

MR HOLDENSON:   The questions on this application arise from the factual situation of a trial judge having discharged one juror without verdict directed that the trial continue with the 11 remaining jurors.

HAYNE J:   That is, his Honour acted under section 43 of the Juries Act?

MR HOLDENSON:   That would appear to be the case.

HAYNE J:   Is it anything else, Mr Holdenson?

MR HOLDENSON:   There is no complaint with respect to his Honour acting under section 43 of the Juries Act.  Immediately subsequent to the one juror becoming distressed and the retirement of all 11 jurors into the jury room defence counsel made application that the entire jury be discharged without verdict and he expressly submitted that at least one member of the jury was, his words, not impartial.  His Honour did not reject that proposition.  He merely responded that he did not think that that was necessarily right. 

His Honour was subsequently informed by the foreman of the jury that the distressed juror had himself been a victim of sexual abuse, albeit we know nothing as to the nature of that abuse, its effect, whether or not it was the subject of a prosecution or the manner in which the victim was dealt with whenever it was by the criminal justice system.  That juror’s experience together with two matters, first, the prosecutor’s invitation to each member of the jury to use his or her own experiences in judging the witnesses and the truthfulness and reliability of their evidence and, secondly, the juror’s resultant distress could only have meant that there was a real question as to the ability or capacity of that one juror to consider the evidence dispassionately, impartially, unemotionally and in a detached manner.  They are the words used in the joint judgment of Chief Justice Mason as he then was, and his Honour Mr Justice McHugh in Webb v Hay (1994) 181 CLR 41.

Just pausing there, those three matters in combination, first, the juror’s experience, secondly, the prosecutor’s invitation and, thirdly, the resultant distress, constitute the factual foundation or premise for the analysis of what occurred at this trial.  If I might just pause there, that is where, in my respectful submission, the Court erred when in the judgment below, in the judgement of his Honour Justice Redlich at paragraph 31 at page 152 of the application book, his Honour erred with respect to the characterisation of the premise where his Honour said that he did not accept the premise referable to the applicant’s argument, referable to the test “on the basis that the juror had been the victim of a crime of the kind with which the accused stood charged”. 

HAYNE J:   The juror of whom you speak was discharged.

MR HOLDENSON:   That is correct.

HAYNE J:   The critical question is whether the primary judge’s discretion under section 43 miscarried.

MR HOLDENSON:   That is correct.

HAYNE J:   How did it miscarry?

MR HOLDENSON:   It miscarried in several ways.  It miscarried in the sense that his Honour did not conduct any form of inquiry as to what had occurred in the jury room with respect to the communication between the juror who was subsequently discharged and the others and there was no analysis referable to the appropriate inquiry as to whether what had occurred resulted in the satisfaction of the requisite test for the reasonable apprehension of bias.

HAYNE J:   Of whom, the remaining jurors or the discharged juror?

MR HOLDENSON:   No, the remaining jurors.  The Court below, in my submission, proceeded on an erroneous basis with respect to, first, the juror who was discharged and why, and then looked at whether or not there should have been a discharge of the remaining 11.  In that manner the Court has disregarded what may well have been the true situation, namely, with respect to the one juror who was discharged, the satisfaction of the test of reasonable apprehension of bias coupled with the communication with the others which, to use that terrible expression, infected them in such a manner that they too were precluded from analysing the issues in the case unemotionally and in a detached manner or perhaps, to use the language more particularly, again from the joint judgment of Chief Justice Mason and Mr Justice McHugh in Webb v Hay (1994) 181 CLR 41 at the very foot of page 54 of the report, last line, albeit referable to the facts in that case:

The gesture of the juror may have been spontaneous, but a fair-minded person might fairly apprehend that it revealed a state of mind that was not compatible with the unemotional and impartial consideration of the case.

If that test is satisfied with respect to one, the one who was discharged, coupled with the communication with the other 11, whatever it be, not the subject of inquiry, may well have resulted ‑ ‑ ‑

HAYNE J:   You say not the subject of inquiry.  His Honour required the jury after the discharge to retire as 11 to consider whether they can perform their function and the foreman came back and said, in effect, let us get on with it, they certainly do.

MR HOLDENSON:   Yes, that is correct, in response to ‑ ‑ ‑

HAYNE J:   Yes.  So where does the discretion to proceed with 11 miscarry?  What is the wrong principle or wrong decision?

MR HOLDENSON:   First, correct test not applied, the reasonable apprehension of bias test was not applied, secondly, failure to take into account a relevant consideration.  Could I identify the relevant consideration for your Honours by reference to a passage in the judgment of his Honour Justice Brennan as he then was in Webb v Hay again, at the very foot of page 61 of the report.  Your Honours will see reference there to the English case of Reg v Gough and the speech from Lord Goff of Chieveley, last three lines on the page:

But there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias.

In this case the mere statement by the foreman of the jury that the jurors believed that they could return a true verdict according to the evidence simply meant that the judge could find that there was no foundation for the proposition that the jury was actually biased.  What the question and the answer provided by the foreman does not deal with because it could not is unconscious or subconscious matters, that is, whether or not the profound distress experienced and displayed by the juror, coupled with their inter-reaction with him, coupled with something which he might have said to them, in some way impacted upon their subconscious/unconscious, as per the passage endorsed in the judgment of his Honour Justice Brennan, and thereby precluded them from dispassionately considering the evidence.

This case was decided in the Court below, in my submission, in a manner different from the way in which the case ought to have been decided as the case of I v Western Australia (2006) 165 A Crim R 420 was decided, that being one of the cases provided to the Court. In that case the juror expressly stated to the trial judge that she believed that she could bring an unbiased and unprejudiced mind to the case. That is apparent at page 424 in the exchange at about point 4 or point 5 on the page where the learned District Court judge said to the juror:

Deane DCJ:   --- or do you believe that you would not be able to do that? 
Juror No 42:   I believe I would be able to do that, yes.

That is referable to bringing an unbiased and unprejudiced mind to the evidence.  The learned trial judge in that case simply accepted that statement of belief and did not discharge the juror.  In the Court of Appeal it was held unanimously that the learned trial judge had thereby erred.  Could I take your Honours to the relevant passages in the judgment of the President of the Court, President Steytler, at the very foot of page 427 where your Honours will see paragraph 21, three lines into the paragraph:

Where a juror is asked about his or her ability to consider a matter impartially, the answer, while it must be taken into account, is not binding upon a trial judge.  As will be apparent, the test is an objective one involving a fair-minded and informed observer, who would take account of what was said by the juror but would also be guided by other relevant considerations.  I have already referred to what was said by Lord Goff in Gough to the effect that a juror’s mind may unconsciously be affected by bias even if, in good faith, a juror believes that he or she is acting impartially.

That is the passage to which I have already taken the Court.  The way in which it was finally resolved by the learned President in that case is within paragraph 24 further down that page, page 428, halfway through the paragraph:

As I have said, without knowing what the juror’s preconceived opinion was, or upon what basis it was formed, it is impossible to assess whether or not a fair-minded and informed member of the public would have formed a reasonable apprehension that the juror would not be impartial notwithstanding these directions.  As I have stressed, bias, by its very nature, can operate either at a conscious or subconscious level.

Insofar as that reasoning is applicable to this case, in my submission, this result follows.  The foreman unequivocally stated, as your Honour Justice Hayne identifies, that the jurors believed that they could return a true verdict according to the evidence.  His Honour accepted that statement of belief.  His Honour, however, knew nothing of what had transpired in the jury room in the presence of the one distraught juror.  His Honour failed to carry out any inquiry, notwithstanding the fact that defence counsel made an application that an inquiry be conducted in that regard, and that is apparent from the very foot of page 16 of the application book, last three lines on the page, and with respect he put it correctly, line 29:

It should be, though, in my submission, Your Honour, that some form of enquiry be made of the Foreman and the remaining 10 normal jurors as to whether this particular juror’s history, reaction, has had an effect on other members of the jury so that they can’t bring an impartial mind to the determination of the issues.

Just as in the case of I, his Honour had failed to carry out the requisite inquiry and so, as I have said by way of submission, first, not in a position to apply properly or at all the requisite test and, secondly, in so doing, failed to take into account a relevant consideration, namely, the question of unconscious or subconscious matters.  The answer of the jury, the foreman of the jury could not possibly, in my submission, address matters subconscious or unconscious, nor could it because self-evidently that which is unconscious is unconscious. 

There is another way of looking at this case which, in my submission, gives rise to a special leave question and it is very much an alternative submission.  Could I just remind your Honours of how it arises.  Could I take your Honours to the applicant’s summary of argument at page 172 of the application book where your Honours will see at the foot of the page, paragraph 44 and a few paragraphs which go over to the next page and expressed to be in the alternative and referable to this Court’s decision in Stanoevski (2001) 202 CLR 115. It is an alternative argument and Stanoevski, so far as my researchers disclose, has never been considered in this context, namely, the exercise of discretion with respect to a matter other than admissibility or exclusion of evidence. 

Had the trial judge in this case carried out an inquiry, in my submission, the requisite inquiry, it is possible that he would have come to discharge the remaining 11 jurors.  Had that been the case, no one could possibly have characterised his decision as unreasonable.  If that is correct, then on the basis of those few passages cited from the two judgments in Stanoevski, the respondent is literally precluded from contending that there was no miscarriage of justice, that is, the applicant having been denied by reason of the failure of the trial judge of an opportunity for the discharge of the remaining 11 jurors, a discharge which could not be described or characterised as unreasonable, there has been, it necessarily follows, a miscarriage.

The Court below, in my submission, distracted itself by considering the arguments put on behalf of the applicant with the wrong context in mind.  That context is characterised, for example, in the judgment below in the judgment of her Honour Justice Neave at page 143 of the application book where your Honours will see paragraph 3, indeed the third paragraph on the page, third line:

In this case the argument, put simply, amounts to the generalisation that victims of sexual assault are incapable of bringing an objective mind to the issues to be resolved in the trial of an accused for sexual offences, while other members of the jury who have not had such an experience are capable of doing so.

It is not suggested for one moment that a juror may not evaluate the evidence in a case by reference to his or her own personal experiences of the particular offence the subject of trial.  The submission is, however, that some experiences may lead in some circumstances, as here where when the invitation is expressed by the prosecutor there is the profound distress displayed in the very solemn setting of a criminal trial which is then shared with the remaining members of the jury behind the locked door of the jury room, it may lead to the situation where that juror has a state of mind which is simply not compatible with the objective and detached consideration of the evidence and the issues in the case.  That is the point that is made.

With respect to the other 11, the empathy, and one would hope that there is empathy, for that juror, perhaps together with the effect unconscious of whatever that juror had said, may have relevantly impacted upon the mind of one or more jurors in such a manner as to preclude the requisite unemotional and detached consideration of the evidence and the issues and/or satisfying the test for the reasonable apprehension of bias.  It only need be satisfied with respect to one of the remaining 11, not all, as is suggested in the respondent’s summary of argument in this Court.  A fair‑minded, informed, lay, reasonable observer might entertain a reasonable apprehension that one juror might not have brought an impartial and unprejudiced mind. 

How would it be, it could be asked rhetorically, if the conversation in the jury room started off with, “Sex abusers never admit they do it, they always deny it just as in my case, and look at the misery it causes”, if that was the start of the conversation.  His Honour was correct to discharge the one juror, notwithstanding the statement in the note to the effect, expressly to the effect, that he is now fit to carry on.  His Honour ought to have conducted some sort of an inquiry into the remainder and whether or not they have to go to the Stanoevski argument.  The primary submission is that the test was satisfied, if not, there is an error in the exercise of discretion, and in the further alternative, Stanoevski.

The case need not be determined on the basis of, was there a juror or jurors biased against the accused.  The case is to be determined by reference to whether or not there was a risk resulting in the satisfaction of the test that one or more of the 11 might not have brought the proper mind to the resolution of the issues in the case, one of which was to subject to scrutiny, in accordance with his Honour’s directions, the evidence of the complainant.  The applicant otherwise, subject to your Honours, relies upon the written submissions in the applicant’s summary of argument.

HAYNE J:   Yes, thank you, Mr Holdenson.  We need not trouble you, Mr McArdle.

In our opinion the decision of the Court of Appeal is not attended by doubt.  Special leave to appeal is refused.

The Court will adjourn to reconstitute.

AT 12.16 PM THE MATTER WAS CONCLUDED