Hoang v The Queen
[2022] HCATrans 32
[2022] HCATrans 032
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S146 of 2021
No S147 of 2021
No S148 of 2021
No S149 of 2021
B e t w e e n -
QUY HUY HOANG
Appellant
and
THE QUEEN
Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 16 MARCH 2022, AT 9.51 AM
Copyright in the High Court of Australia
MS G.A. BASHIR, SC: May it please the Court, I appear in this matter with MR D.L. CARROLL, who is appearing remotely, and MS G.E.L. HUXLEY for the appellant. (instructed by AA Criminal Lawyer)
MR D.T. KELL, SC: May it please the Court, I appear for the respondent with MS E.S. JONES in this matter. (instructed by Office of the Director of Public Prosecutions (NSW))
KIEFEL CJ: Yes, Ms Bashir.
MS BASHIR: Thank you, your Honours. I trust that your Honours have received our oral outline and submissions.
KIEFEL CJ: Yes, thank you.
MS BASHIR: Thank you. Your Honours, I start then at paragraph 1 of that outline. This case concerns issues as to the proper construction of the provisions of the Jury Act1977 (NSW) and the constitution of the jury, relating in particular to the provision for mandatory discharge of a juror if, in the course of a trial, the juror has engaged in misconduct in relation to the trial. It has particular importance for the conduct of jurors minded to make private inquiries as to matters relevant to the trial where they are sworn as the judges of fact in that trial.
If I could take the Court directly to the sections in the joint book of authorities, the first book, at pages 29 to 30. Your Honours will see at page 29 that section 53A is confined to where the conduct occurs in the course of the trial, and that is in the first line of subsection (1). Misconduct, with which this appeal is concerned, is then defined in subsection (2) and it is:
misconduct, in relation to the trial –
and there are two limbs, the first limb directing attention to the conduct component of a relevant offence against the Jury Act. The second limb, (2)(b), applies to:
any other conduct –
that is conduct that falls outside of (2)(a) conduct, and this limb has attached to it the further component, namely, that the other conduct must give:
rise to the risk of a substantial miscarriage of justice in the trial ‑
Looking back to section 53A(1)(a) and (b), it is clear that mandatory discharge of a juror can be triggered by what might look like mere technicalities on their face, but they are irregularities that strike at the heart of the jury system, that is, they go to the constitution and authority of the jury. In those circumstances – that is (1)(a) and (1)(b) – verdicts can be saved in some circumstances by a section that was introduced at the same time as section 53A, that is section 73 of the Act which your Honours can find at page 45 of the book.
Your Honours, in relation to that, it is our submission that there has been another legislative choice here, that is, having turned their mind to section 53A, the legislature has excluded section 53A(1)(c) from section 73 – the verdicts cannot be saved where a:
juror has engaged in misconduct in relation to the trial ‑
Could I take your Honours now – and I will come back to the sections of the Act – but if I could take your Honours now to the second joint book of authorities and to the decision of the Court of Criminal Appeal in the matter of Zheng at page 233 of the second book.
KIEFEL CJ: Which tab number is that, Ms Bashir?
MS BASHIR: Sorry, your Honours.
GORDON J: Tab 17.
MS BASHIR: Tab 17. It is (2021) 104 NSWLR 668. Could I take the Court to the book at page 246? The paragraphs which we rely on are the paragraphs from 65, at the bottom of the page, through to 67. At 65, at the very bottom of the page, your Honours will see that the emphasis in paragraph 65 is on “conduct”. Subsection (2), requiring:
a finding that certain “conduct” has occurred.
Indeed, his Honour held, at paragraph 67, that one looks to the conduct and there is a two‑stage process of:
finding that certain conduct has occurred; and (ii) an analysis of its character –
It is our submission that that supports the appellant’s construction. In answer to the respondent’s submission that “misconduct” means an offence against the Act, it is our submission that, turning back to section 53A, the legislature has chosen not to so define “misconduct”. It is not defined as an offence against the Act and it is defined as the conduct constituting that offence. So, that is in answer to the respondent’s submissions at paragraphs 36, 37 and 39.
Further, that this definition in section 53A does not embrace or turn on the purpose of a juror. That legislative choice to define misconduct by virtue of the conduct, as opposed to the complete offence, directs attention to conduct deemed to strike at confidence in the jury system, including in the modern era, and I will come to the purposes in a moment.
The note in the example also directs attention to the conduct, making inquiries except in the proper exercise of functions as a juror. If one turns to the relevant offence considered in this case, section 68C, which is at page 40, it is our submission that here the conduct is the making of the inquiry, except in the proper exercise of function as a juror. That prohibition, in subsection (1), is supplemented by Parliament’s express statement in subsection (4), that:
Anything done by a juror in contravention of a direction given to the jury by the judge –
is deemed to be:
not a proper exercise by the juror of his or her functions as a juror.
EDELMAN J: So, Ms Bashir, one reads, on your submission, section 68C(1), for the purposes of assessing whether there has been misconduct of the provision without the purpose.
MS BASHIR: Yes, your Honour.
EDELMAN J: How does that work with section 68A? Because that would have to apply in exactly the same way, would it not?
MS BASHIR: Yes. In terms of the offences that are picked up, your Honours, it is actually quite a limited number – as your Honour has clearly already identified – because it must happen within the course of a trial, the offences – coming back to – I am answering your Honour’s question – but coming back to page 35, for example, offences in 61 and 62A one might think occur prior to the juror being sworn in at trial and so it may not – they may not be drawn in. Then, it is unlikely that a juror could be draw into 63, 64 or 66 or, really, maybe 67 and 68A. So, it really is 68, 68A, B and C, then the rest go to other people’s offences that are drawn in here.
EDELMAN J: If one looks at 68A, then ‑ ‑ ‑
MS BASHIR: Yes, so coming to ‑ ‑ ‑
EDELMAN J: ‑ ‑ ‑ the way that you would read that is that the relevant conduct that would constitute misconduct would just be – any person who solicits any information from a juror.
MS BASHIR: Yes, so it would be a juror, because it must apply to a juror in the actual trial, soliciting information, presumably from a former juror. That would be in relation to deliberations or how they formed an opinion. That would be how it would need to be read.
EDELMAN J: So, why would it have to be about the deliberations, the deliberations are only referrable to the purpose. So, if one shears the purpose out of section 68A, all one is left with – the only conduct is soliciting information from a jury.
MS BASHIR: That may well work, your Honour, because in section 53A – going back to it – the misconduct still has to be “in relation to the trial”. So, the conduct comes in and then subsection (c) means it must be that “misconduct in relation to the trial”. The purpose could be left out and it would still be specific to the trial that the juror has been sworn to serve on.
EDELMAN J: So, any person who asks a person who happens to be a juror any question, or anything that relates to the trial – even if that person does not know that that person they are asking is a juror – it involves misconduct under section 53A.
MS BASHIR: So long as it is in relation to the trial because (c) puts that the misconduct has to be in relation to the trial in which the juror is serving – which comes in through 53A(1)(c) itself – the misconduct must be “in relation to the trial”.
EDELMAN J: It is pretty dangerous for notorious trials where the identities of the jurors are not known and someone happens to ask a question of somebody who happens to be a juror.
MS BASHIR: Your Honour, it would be a question from a juror on the trial for a former juror – I do not know – because it is the mandatory discharge provision applies to a juror sitting on a trial – so, a juror in the course of a trial – and they can ask questions of other jurors on the trial, because that is specifically allowed – that is allowed in the subsections – but what they cannot do is solicit the information from a former juror.
Your Honours, what it stops and what it is aimed at is – and I will come to this in a moment in the decision of K which makes it perfectly clear – is jurors making private inquiries in relation to the very trial on which they are sitting, be that of someone at home, be that of a former juror, and clearly solicitation of a former juror would entail conduct that amounts to solicitation, so it is not just asking a question, it needs to be the solicitation of the information, and it needs to be in relation to the trial to fit within subsection (1)(c) of 53A.
In terms of section 68C – if I could just take the Court back to 68C(2), the prohibition is time limited, so it is only where the juror is – from when they are sworn in to when they are discharged. That directs attention also to the oath, in section 72 – that is that ‑ ‑ ‑
GORDON J: Do you mean 72A?
MS BASHIR: In section 72A, yes, thank you, your Honour. In 72A, that is they have to give a true verdict according to the evidence, and only the evidence that is led in the trial, so not matters, for example, solicited from a former juror or in breach of the conduct part through making an inquiry of section 68C.
Now section 53A(1)(c), the first limb, that is (2)(a), is concerned with addressing irregularities striking at the integrity of the trial process, it is not concerned with criminal liability as the respondent would have it. The context of the Jury Act and the legislative history supports this. So, could I take the Court now to R v K, which is again in the second joint book of authorities.
EDELMAN J: Ms Bashir, just before you do, can I just understand what you say the actus reus of section 68C is?
MS BASHIR: Yes.
EDELMAN J: What is the conduct that you say is encapsulated by 68C? Because, on one view, the conduct is only making an inquiry. Why would the conduct be making an inquiry of a matter relevant to trial when that is not what the section says?
MS BASHIR: Your Honour, it is our submission that it is making an inquiry relevant to trial, except in the proper exercise of his or her functions as a juror.
EDELMAN J: Except that is not what the section says. The section says:
must not make an inquiry –
Then, the matters relevant to trial are concerned with:
the purpose of obtaining information –
on:
matters relevant to the trial –
But matters relevant to trial are concerned with the mental element, not with the physical element, are they not?
MS BASHIR: So, your Honours, just in relation to the other reading which brings in “relevant to the trial”, if one read the actus reus here as that the juror must not make an inquiry – and, of course, that is defined:
except in the proper exercise of [the juror’s] functions –
and that directs attention to subsection (4). “Relevant to the trial” is then picked up by section 53A in subsection (c) itself. So, it brings in that the misconduct must be relevant to the trial. The misconduct has to be in relation to the trial.
Your Honours, just in relation to the judgment below, which is in the joint core appeal book at page 375, and it is, actually, paragraph 4, although that lies at the bottom of 374. His Honour Justice Campbell found, contrary to the majority, that the:
internet inquiry involved misconduct because the question of clearances under the Child Protection (Working with Children) Act2012 (NSW) was a matter relevant to the trial within the meaning of s 68C of the Jury Act ‑
So, it was the inquiry itself. He does deal with purpose later on, but we do say that that turns on the conduct. But I will come back to that. I do want to take the Court to K. That is at tab 12 of the second joint book of authorities. The case starts at page 161. But if I could take the Court to 178, and we would just highlight paragraphs 80 to 90 because, of course, what happened in K was an internet search in relation to the accused which turned up in a murder trial that the accused had formerly been acquitted of murdering a different wife. But what his Honour Justice Wood here foreshadowed at paragraph 80 was the large amount of information:
now available on the internet, concerning criminal investigations and trials –
and there even being:
legal databases and the judgments systems –
and the problems because the generation was getting more and more familiar with the internet. Then, his Honour concluded at paragraph 82:
It is not possible to place any practicable limit on the content or the extent of the material available in this way, and the powers of the courts –
were quite limited in that respect. So, the remedy was – and at this stage there was no section 68C – to prescribe the conduct of jurors, was one of the remedies. And his Honour does talk about section 68A also, at paragraph 84. But at 87 there is the recommendation that an offence similar to the one that was already in Queensland be brought in. His Honour, at paragraph 88 – and we will come back to this – talked about relevance – what relevance to the trial meant. It is not section 55 relevance, and how could it be if someone makes an inquiry in relation to the accused which is clearly captured by section 68C. So:
any matter relevant to the trial, including the history of the offence, and its investigation, and the proceedings themselves.
Also recommended at paragraph 90, additional instructions so the jurors are warned:
not [to] undertake any independent research, by internet or otherwise –
and:
informed at the outset that it would be an offence for them to make any such inquiry.
Then there was the case of Skaf, and that is over at page 188. This is R v Skaf (2004) 60 NSWLR 86, and could I take the Court to paragraph 241 which is I think at page 199. At the bottom of the page it just throws up, at the very bottom of the page, one of the vices, which is that information obtained by making such inquiries ‑ and here it was going on a private view:
was not evidence and it was obtained in circumstances amounting to a want of procedural fairness . . . in that the accused were unable to test the material, comment upon it or call evidence to rebut or qualify it.
The purpose, you will see, plays no part in any of the irregularities here.
EDELMAN J: That would enliven section 53B(b), would it not? A discretionary discharge of a juror because of matters such as reasonable apprehension of bias, conflict of interest, familiarity with the subject matter of the trial or other similar matters?
MS BASHIR: Well, in our submission, it is clearly caught by 68C, because it is making an inquiry, making an inquiry is defined as going on such an outing and a private view, and this section, 68C, was brought in to deal with the circumstances thrown up by K and Skaf in particular. Your Honour, if I could just take the Court to paragraph 277, and again it talks about information coming to light that is not admissible evidence, and there being:
no mere technicality. The rules embody significant policies designed to achieve fairness and efficiency.
One needs those rules in a criminal trial. Then at 282, again there are recommendations, and one of the reasons for:
not undertaking external research into the law . . . is that it may risk taking the juror to legal principles that do not apply in New South Wales –
That may be wrong, that may be incomplete, and of course, often no one will know the extent, particularly in the fast‑running context of the course of the trial as opposed to an investigation pending an appeal. So at 284(a) is thrown up that what occurs is that jurors, who are sworn judges of the facts, turn into investigators and so it strikes at impartiality as well. At 285 again there is a further recommendation that an offence plea has come in, and so that is then what happened.
Your Honours have the second reading speech for the Jury Amendment Act2004, which is in the third joint book of authorities at 288, and your Honours will see there outlined the reasons for the introduction of section 68C, including reference to these cases, and also that it was accompanied by non‑legislative changes, in particular a suite of directions directly addressing the prohibited conduct. Your Honours will see them in this trial, those directions were given at the outset of the trial, and your Honours will find that in the book of further materials at pages 5 to 9, are the written directions, and those directions were given orally in the trial.
I can show your Honours where that is at CAB 379, paragraphs 29 through to 30, but paragraph 30 does not summarise completely the written directions, and if one goes to the written directions which are in the book of further materials, page 5 ‑ ‑ ‑
GORDON J: May I ask a question about that, and why it is that subsection (4) is not relied upon in section 68C in this case?
MS BASHIR: Subsection (4) is relied upon, your Honours.
GORDON J: Well, is it relied upon here as a basis for the quashing of the verdicts? I could not see it in your written submissions?
MS BASHIR: Yes, your Honour, it is subsection (4) of 68C.
GORDON J: I had understood that it was a reference to paragraph 1 ‑ ‑ ‑
MS BASHIR: Yes.
GORDON J: ‑ ‑ ‑ and I had understood that (4) was in effect a deeming provision which in effect did not render one not applicable but in effect put one aside for the purpose of these kinds of inquiries.
MS BASHIR: Yes.
GORDON J: You do not accept that?
MS BASHIR: Yes, we argue that, and we rely on that, your Honour.
GORDON J: Because it was not addressed by the Court of Appeal below at all.
MS BASHIR: No, it does not appear to have been, your Honour. And that is despite going through the judgments of JP (No 1) and Sio (No 3), which clearly relied on that basis in the deeming provision for discharging the jurors in those cases. We absolutely rely upon it, your Honour.
GORDON J: So, just so I am clear about your submission then – because I must say I misunderstood it, is it your position that you would start with (4) and if the fallback from (4) it then becomes subsection (1)?
MS BASHIR: Your Honour, we do not say that subsection (4) can stand separately from subsection (1) – they do need to be together.
GORDON J: Right.
MS BASHIR: But what it does is it deems the making of the inquiry in subsection (1) to be a prohibited one.
GORDON J: I see.
MS BASHIR: Because it defines those last words of subsection (1).
GORDON J: Does it mean then, on that construction, that the only question to ask is whether or not the matter that is inquired about is relevant to the trial?
MS BASHIR: Yes, and there has to be the making of the inquiry.
GORDON J: I assumed so. So is the making of the inquiry contrary to the direction?
MS BASHIR: Yes.
GORDON J: Then the second question is, is it an inquiry about a matter relevant to the trial?
MS BASHIR: Yes.
GORDON J: Then the third – as I understand the way you put it – the third question then becomes, is that inquiry about a matter relevant to trial contrary to the direction given?
MS BASHIR: Yes.
EDELMAN J: Why then do you need to strip section 68C(1) of the mental element of purpose? If you rely on 68C(4), you do not need to remove a mental element from 68C(1).
MS BASHIR: Your Honour, our argument is that the legislature has made that choice through relying on the words “conduct”.
EDELMAN J: No, misconduct.
MS BASHIR: Of course, our alternative argument is ‑ ‑ ‑
EDELMAN J: The word is misconduct, not conduct.
MS BASHIR: Conduct in what we are calling the first limb. It directs attention to conduct, it does not simply say “an offence against this Act”. It says in subsection (2)(a):
conduct that constitutes an offence against this Act ‑
So, it is our submission that the legislature has made that choice, rather than simply leaving it as an offence against the Act, and subsection (b) does not rely to any other purpose, which is how the Court of Criminal Appeal used it, it is conduct that does not fall within such conduct.
EDELMAN J: So, your primary act is that one constitutes an offence without a mental element and then your fallback argument is to rely on the deeming provision.
MS BASHIR: Yes. The deeming provision works on both of our constructions – that is our primary construction, and our fallback construction, in our submission. Your Honours, I was just taking the Court to the written directions, and what one sees – even under the heading “Nature of a criminal trial” – this is on page 5 – is this reference to the variant, at about the fourth line, so I think it is about line 24, that:
The trial is conducted on the basis that the parties determine the evidence to be placed before jury and identify the issues that the jury needs to consider . . . A criminal trial is not an investigation . . . and is not a search for the truth. Therefore neither the judge nor the jury has any right to make investigations or inquiries of any kind outside the courtroom and independent of the parties.
And so on. Then “Role of judge and jury”. So, the jurors are the judges of the facts, and they must follow – very bottom of the page:
The jury must follow directions of law stated by the judge ‑
and they have to:
act in accordance with the oath . . . A true verdict is not one based upon . . . material obtained from outside the courtroom.
At the bottom of the page, again, under “Onus and standard of proof” emphasises:
based upon the evidence placed before the jury.
That is in the trial – and page 7, again:
proved by the evidence ‑
Then down at the bottom the “Duties of a juror to report irregularities”, and that:
This should occur immediately the juror learns of the misconduct.
Of course, that is exactly what the foreperson did her, by reference to this very direction, and one of those is that someone is:
making inquiries outside the jury room –
That is at the top of page 8. Then the criminal conduct is outlined at paragraph 1. But in terms of the admonitions to the jury, the purpose is not referred to, it is only referred to in relation to the statement of the criminal offence, and so again we say that the suite of directions which can be clearly seen here, picks up all of those purposes that we have been speaking about. It is, in our submission, wrong to say that this does not intrude – the Act does not intrude – into the private lives of jurors. It specifically prohibits private enquiries; that is exactly what it is directed at.
KIEFEL CJ: Ms Bashir, do you accept that the offence in section 68C(1) involves the subjective intention of a juror in obtaining information?
MS BASHIR: Yes, your Honour ‑ ‑ ‑
KIEFEL CJ: It does.
MS BASHIR: ‑ ‑ ‑ the offence certainly does. Yes, we accept that. Your Honour, I am coming to that rather slowly. But I did just want to, your Honours, say that the – so it prohibits private inquiries, but we say the limitations that make it proportionate are it is only during that period when the juror is serving on the trial and it does that in order to preserve the integrity of the trial itself, and the jury system.
So, then what happened after this was the case of Wood happened where, despite section 68C, the jurors said that they were going to go up on a private view when they had been directed not to, and I will just give the Court the reference to the paragraph number. It is in the joint book of authorities 2 at page 210 and at paragraph 33, which draws in “impartiality” and public “confidence” in the jury system and ‑ ‑ ‑
GORDON J: What paragraph was that please?
MS BASHIR: Paragraph 33. And justice being “seen to be done”. That is exactly then what we see when section 53A is introduced by the Jury Amendment Act, and this is in that joint book of authorities, the third one, at 290. The second reading speech commences at the bottom of the page, and at the end of that first – after talking about trial by jury being a “foundation stone” at the end of the first paragraph:
Public confidence in the institutions of the modern criminal justice system is critical to its continued successful operation.
We say that sort of harks back to what Justice Wood said in the decision in K, and internet searches becoming more and more prolific, being one of those things. The second line of the second paragraph:
As society changes and develops, juries must keep pace –
So, an express power was given to discharge an individual juror. Your Honours will see the reference to section 53A in about the middle of page 291, and it really does not say much more than repeat the terms of the section. At 292, the paragraph starting “Finally” talks about section 75C, which allows jurors to report on other jurors, which is exactly what happened here, particularly in determining misconduct, and it is talking about “irregularities”, not the offence, and it is for the:
efficiency and effectiveness of the . . . justice system –
and stopping unnecessary appeals, and in many cases stopping the derailing of the whole trial, because previously the whole jury may have had to have been discharged.
EDELMAN J: Well, I think you may be running two different things together. It is talking about both irregularities and misconduct.
MS BASHIR: Misconduct is a form of irregularity.
EDELMAN J: Well, one might think that an irregularity not amounting to a misconduct is what is covered by section 53B.
MS BASHIR: Section 53B – sorry, your Honour, I will just grab my ‑ ‑ ‑
EDELMAN J: Particularly sub (b).
MS BASHIR: Yes, so partiality. That can be from other conduct also. So, for example, in New South Wales we had what was called the flirting juror case, where the juror was said to be making eyes at one of the accused. When it was looked into it was held that that was not the case, but that of course raises questions as to partiality, and Webb & Hay, of course, is classic application of 53B if one were to only discharge the one juror, rather than the whole jury as used to occur.
But, your Honour, just in relation to where inquiries are made, it is our submission that that is clearly the aim and captured by 53A, and particularly drawing in 68C, which in subsection (5) draws in making of inquiries – that is looking for the extraneous material, searching an electronic database, asking a question of any person comes in.
Could I just take your Honour to some – I have already taken your Honour to the other offences that could be drawn in, and to the oath, and to the fact that it is not invalidated. I have referred to section 75C and that is found in this book at pages 47 to 48, and then there is investigation of an irregularity, is at 73A, and that is what it is called, and that is for the sheriff’s office. In fact, one of the parts ‑ I am sorry I did not take you to ‑ in the second reading speech is the distinction that was drawn at the very end of that speech by the Attorney between – sorry, it was in the 2004 speech at page 289 in the third book that:
Where it is reasonably suspected that an offence under section 68C has occurred –
So the sheriffs are not investigating the criminal offence, they are looking to the irregularity, and that is in relation to 68C, it is called an “irregularity”, but then for the criminal offence it gets:
referred to the police for investigation and prosecution.
One of the reasons for the introduction is deterrence from disobeying judges’ instructions, and, your Honours section 71 sets out how such an offence ‑ proceedings for such an offence is to proceed, and it is by way of a summary prosecution in the Local Court, so clearly that cannot happen while the trial is proceeding. It is our submission that our construction facilitates many fundamental purposes, and if I could just go through them very quickly.
First, open justice in a criminal trial in a modern world where there is prolific extrinsic access to the internet, while the fairness of the trial demands ensuring the defendant, parties, judge, and the public know of the evidential material considered by the decision‑making body. Second, procedural fairness, so accused persons not being subject to material or information via an internet search relevant to a trial and known to a juror but potentially unknown to them and which is not evidence in the trial.
Third, that jurors do not pick and choose the principles or the law or the orders of judges which they will obey and those which they will disobey. Jurors are not set above the system of the administration of justice, they are part of it, and that system is integral on judges being able to have confidence that jurors will obey the directions of the trial judge, and that is fundamental in relation to the rule of law. These are the very principles governing those foundational directions given at the beginning of the trial that we have just seen.
Next, that each juror is a judge of the facts and cannot become investigators, as we have said, that would lead to the undermining of the jury system, and certainly public confidence on which it depends, to permit jurors to investigate matters under the auspices of personal curiosity.
EDELMAN J: But your submission is not about investigation by a juror, your submission goes far beyond that, it is whether or not the juror is investigating. The juror might be looking into or asking a question for purely coincidental reasons, or maybe for reasons in circumstances where the juror is not even aware that they are relevant to the trial, but your submission captures all of that conduct.
MS BASHIR: Our submission does capture – I am coming to the overlapping purposes, certainly, but our submission, your Honour, does capture making an inquiry is – that is an investigation. That is what I am referring to as an investigation.
EDELMAN J: Not overlapping purpose, no purpose at all. A juror may have no purpose at all to have anything to do with the trial, but it may just be a pure coincidence – the juror may not even be aware that the question being asked of some person has got anything to do with the trial, because the issue has not yet emerged, but on your submission, all of that is the actus reus, and that constitutes the inquiry.
MS BASHIR: Well, your Honours, we do not abandon that it must be relevant to the trial. We do say that it must be relevant to the trial, and it is that – that is the investigation that is prohibited.
EDELMAN J: It must be relevant to the trial at the time it is asked? What if it emerges later as a relevant issue?
MS BASHIR: No, your Honour. Clearly, it is in the course of the trial and so it must be at the time that it is asked; yes, your Honour. Your Honour, the juror’s motivation for making an inquiry does not necessarily exclude – this is coming to the alternative submission in relation to purpose – a juror’s motivation for making an inquiry does not necessarily exclude the presence of – if there is the relevant purpose as stated in section 68C – that is, if the purpose is relevant to the construction.
We do rely on the decision of Zaburoni v The Queen and that is – I am sorry, your Honours, I will just get the tab number – tab 9 (2016) 256 CLR 482 and it is at page 130 of the book, paragraph 17. Your Honours Justices Kiefel and Keane and Justice Bell in this judgment referred to the fact that motive is not necessarily intent. Then, at paragraph 19, that dual purposes do not necessarily mean that one of those purposes cannot satisfy an offence provision.
If I could just give the paragraph numbers for Roy v O’Neill without going to them – paragraphs [20] and [29], where the Chief Justice referred to dual purposes being able to “go hand in hand”. Paragraph [38], where Justices Bell and Gageler referred to the practical difficulties if – and it was there in relation to the scope of an implied licence – were:
to become entangled in subtle notions of “mixed” or “contingent” purposes.
Paragraph [45], that a dual purpose there did not defeat the offending purpose. And, at paragraph [90], your Honours Justices Keane and Edelman talked about the “unworkability” of what was the argued approach and courts having to develop:
fine philosophical distinctions –
and:
speculative intentions –
being:
hopeless in practice.
Your Honours, we do rely on what would happen, in practice, if what is contended here – and what the Court of Criminal Appeal held – about personal curiosity was accepted. We do say that section 68 ‑ ‑ ‑
KIEFEL CJ: Ms Bashir, in section 68C(1), what is the point of the juror’s motive in relation to the offence?
MS BASHIR: Your Honour, we say there is not a point. But we say that the Court of Criminal Appeal in this very case held that what might be regarded as the motive – and we say it was only one of the purposes thrown up by the note in MFI 99 – so the motive might have been to see one of them – whether I was subjected to those requirements, but we say that is not what is captured by the word “purpose”.
KIEFEL CJ: In section 68C(1).
MS BASHIR: Yes, in section 68C, yes.
KIEFEL CJ: So, you argue, do you, that “purpose” there simply means “with the aim of” or ‑ ‑ ‑
MS BASHIR: Yes, the intention is to obtain.
KIEFEL CJ: I mean, there has to be a mental element in relation to the offence, such as an intention to obtain the information.
MS BASHIR: Yes.
KIEFEL CJ: But you are saying that the motive, or the reason, for the juror doing it adds nothing to the offence – indeed, it would adversely affect the operation of the subsection.
MS BASHIR: Absolutely. Yes, it would undercut the very purpose of the whole provision if jurors could – if it was defeated by a juror’s personal curiosity.
KIEFEL CJ: I asked it for a different reason.
MS BASHIR: Yes, and we say it does not – we say it is not necessarily when one looks at 68C through the lens of 53A that it is not one purpose rather than another. If one is looking at either the capacity for there to be an offence – and one part of the majority judgment at paragraph 121 said something like that – in another part, they said the judge had not found the juror guilty of misconduct, at 137. Or, if it is on a Briginshaw standard – which the case of Zheng said is the standard that section 53A operates.
So it is not having to have one purpose rather than another, and it is our submission that if the respondent’s argument was correct it would result in the improbable consequence that directions given at the outset of a trial could be defeated by a juror’s personal curiosity or a juror could be seized of highly prejudicial information because he or she was personally curious. The respondent does not explain what they mean by the permissible purpose of jurors in their submissions at paragraphs 42 and 74 and how could it ‑ ‑ ‑
KIEFEL CJ: Ms Bashir, do I understand that your construction of section 68C(1) is not critical to your principal argument in relation to 53A(1) and (2), because for the purposes of 53A(1) and (2) you would disregard any motive or intention that is part of the offence in 68C(1) in any event?
MS BASHIR: On the primary argument, and I am now in our alternative argument. If we are wrong about that and if the purpose is read in ‑ ‑ ‑
KIEFEL CJ: You say it is not part of the offence in any event?
MS BASHIR: We say motive is not part of it and we say that purpose was present, and I will come to the actual case. But we do say, your Honours, that it just could not have – how could it have practical operation if the respondent is correct? How could it ever be practically applied through directions to the jury? If that is what the section means, why do not the suite of directions that were implemented with the reforms address it? I can give some further examples about ‑ ‑ ‑
GORDON J: Can I ask a really dumb question. If one takes the steps in order and one says, “Is there an inquiry? Is the inquiry relevant to a matter at trial?”, and the answer to both of those is yes because the inquiry was undertaken, putting aside motive for the moment, for the purpose of inquiring about a matter relevant to the trial, and one is not looking at the subjective purpose in the way that you put it, is one of the answers to that that – and we are not looking to find a conviction because that, as you point out, may be the subject of subsequent analysis, but a question about whether or not there has been misconduct for the purpose of the conduct of the trial, can I just test what questions would be asked at a practical level by the trial judge in circumstances where, consistent with what this Court said in Smith, the jury process is flawed. One does not inquire into jury deliberations. How practically does it work, on your construction?
MS BASHIR: Yes. Thank you, your Honour, thank you for that question.
GORDON J: How is one actually to undertake the exercise on the court floor?
MS BASHIR: That does throw up a section that I neglected to take the Court to, so thank you for that question. It is at page 31 of the first joint book and it is critical. It is 55DA, which is the examination of a juror.
KIEFEL CJ: I am sorry, 55?
MS BASHIR: 55DA, it is at the bottom of page 31 of the first joint book of authorities and it came in at the same time. What it allows for – again, there is the focus on conduct, that:
A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention –
The juror cannot decline to answer. But if the answer spills over into information that may tend to prove the offence, they can have a certificate and it cannot be used against the juror. So the legislature has specifically turned their mind to that and the judge can ask questions about the conduct. Indeed, in terms of where a sheriff is looking into it, at 73A the investigation into irregularities, and this is where the suspicion that the verdict “may be” – not just “may have been”, but may be “affected because of improper conduct”, then there can be questions by the sheriff and subsections (2) and (3) provide exceptions to 68A and B. So I hope that that answers your Honour’s questions, that it can work practically and the questioning relates to the conduct.
Now, can I go back, just to give some examples of why we say personal curiosity as an exception is completely unworkable. So, say, for example, during a criminal trial where a defence of diminished responsibility is raised based on a contested diagnosis of a defendant’s complex PTSD, a juror decides to – at home – look up a definition of complex PTSD in a medical dictionary. The claimed purpose there is then personal, so maybe they are wondering whether a family member has complex PTSD. In our submission, that does not defeat the operation of the section.
Similarly, I was personally curious as to that phrase beyond reasonable doubt; I was personally curious about the scope and application of a law, and, to give an example, what about a tax law that is the subject of a fraud trial on which the juror is deliberating, but they are personally curious as to whether that very law applies to them – or how it might apply.
In Wood, what if the jurors said that they were going to The Gap at night time, in defiance of the direction, but the claimed purpose was they wanted to go rock fishing, that would then defeat what was the very aim of sections 68C combined with 58A. One would discharge the juror and get on with the trial before any of the other jurors are potentially tainted by information obtained. It is, as we have said, that application of 53A(1)(c), and (2)(a) does not turn on whether a juror’s stated subjective purpose was for personal curiosity. It is not defeated by that. Can I take your Honours to ‑ ‑ ‑
EDELMAN J: Ms Bashir, just so I understand that, are you saying that it is not defeated by that if there is another purpose ‑ ‑ ‑
MS BASHIR: Yes, your Honour. Quite.
EDELMAN J: ‑ ‑ ‑ which is provided there is another purpose, which is ‑ ‑ ‑
MS BASHIR: Yes, absolutely ‑ ‑ ‑
EDELMAN J: ‑ ‑ ‑ obtaining information about matters relevant to the trial, or are you going further and saying even if there is no other purpose ‑ ‑ ‑
MS BASHIR: No, your Honour. On the alternative construction there must of course be that purpose that is defined in the Act of obtaining the information relevant to the trial, or the accused ‑ ‑ ‑
EDELMAN J: Was there a finding here ‑ ‑ ‑
MS BASHIR: I am sorry, your Honour.
EDELMAN J: Was there a finding here ‑ ‑ ‑
MS BASHIR: Yes. Yes, it is ‑ ‑ ‑
EDELMAN J: ‑ ‑ ‑ that there was such a prohibited purpose?
MS BASHIR: ‑ ‑ ‑ at 309 of the core appeal book and it could not be clearer. This is where I was about to come, and I will take your Honours to how it unfolded, but it starts at 308, section 53 is set out, (2)(a) specifically making reference to 68C, and that is of course an example. 68C is set out and at 309:
It was my view that juror . . . did make an inquiry for the purposes of obtaining information about a matter relevant to the trial. That inquiry was specifically prohibited. Therefore the provisions of s 53A . . . were enlivened and I had no option but to discharge that juror.
While we are here, relevantly to ground 2:
Prior to making specific inquiries in relation to the jury note, MFI 99, I heard submissions from both counsel.
And her Honour:
declined to conduct the inquiry with the juror before taking the verdicts as I was of the opinion that I had sufficient information in jury note MFI 99 that a breach had occurred. It was therefore mandatory that that juror had to be dismissed.
That was before taking the verdict. So, in our submission, Justice Campbell was absolutely correct in relation to this part of his Honour’s holdings. Could I just take the Court back to page 265 of the book, because that is where your Honours will see juror note MFI 99, and this is relevant to one of the respondent’s submissions and to the search itself. The very first line:
they google looked up on the . . . the requirements for Working with Children check.
So, the search is broader than the reason why I did not have to have it in 2013. So, the legislation is discovered in that search, and we do not know what else was there, in terms of Working with Children checks. But what the foreperson recognised straight away was that this discovery of a juror making their own inquiry that she understood her duty was to report it, as per the written instructions, and that can only relate to those written directions that I have taken the Court to and her recognising that it was in breach of the trial judge’s directions.
Now, straight away after that is read out at page 266, around line 25, the prosecutor says:
The status of the note is from one juror reporting misconduct on the part of another one.
That is a clear reference to section 75C of the Act. Then down at about line 45 he straight away recognises:
the Crown led the evidence, which it did through the witness Detective Paul.
That it goes to that issue in the trial, and that it was relevant to the trial for that reason. Then at 269, following some discussion and setting out of the evidence of Detective Paul, her Honour says this at line 11:
And they know that the legislation exists but the fact is they Google searched something to do with the case.
Her Honour is clearly saying, relevant to the trial. Then:
Well one is said to have done that –
That is one juror, her Honour says:
but it did have something to do with the case and it was Google searched.
Then the prosecutor turns to the fundamentals, her Honour talks about:
there’s only a mandatory discharge pursuant to s 53A if, for the purposes of this trial –
So she is clearly alive to that very issue:
the juror has engaged in misconduct in relation to the trial.
Then they go through the sections, and after going through the terms of the section the prosecutor concedes at line 11 on 270:
It is a breach.
Straight away, he says that, her Honour confirms it:
It’s a breach.
The prosecutor:
it is a breach [which] triggers the mechanism under the Act.
The trigger is mandatory, and her Honour:
I don’t think it’s provided by law to Google a particular legislation named in the trial.
That is the purpose, that is a finding in relation to the purpose. Then the ‑ ‑ ‑
KIEFEL CJ: In relation to the ‑ this particular aspect of the evidence related, or became relevant in the way the trial was conducted in relation to the accused’s credit, is that how it ‑ ‑ ‑
MS BASHIR: Well, your Honour, it is our ‑ ‑ ‑
KIEFEL CJ: It seems rather peripheral, but that is how it was run.
MS BASHIR: It was developed like this by the Crown Prosecutor, and it was one arrow in a quiver, the quiver being an argument as to a system, a system to avoid risk detection, so he could get close to the children, and to argue that system – and this is outside of the tendency evidence, but the tendency evidence actually pulled in a system as well in relation to getting the trust of the parents, so it was quite prejudicial and linked in a way.
But what happened in the Crown Prosecutor’s address was he used his best example, which was what he said were the fraudulent acts, but clearly it was a reference also to this arrow, and defence counsel recognised it. And he addressed it, and he addressed it in that context of rebutting the argument about the system, and the ruse to get closer to the children, and he even said, to give us an idea of when that evidence was given:
It sounded bad at the time.
He referred to Detective Paul’s evidence and he said “It sounded bad at the time”, and there was an issue because Mr Nguyen gave evidence that, well, we were all tutors and none of us had those checks. But Detective Paul’s evidence is important, and it is important because it is broader than it is cast by the respondent. In fact, the evidence is – I just need to find where it is, I think it is in the further materials book – yes, page 10 of the book of further material, and it starts at line 38, he made the inquiry and it is broadly expressed, people who work with children, and he says this:
I did that because I’m familiar with that system that if one is to work in any capacity with children, they must have this clearance.
So it is not just if you are a teacher or a swimming coach or anything like that, it is working in any capacity with children. So it did directly purport to pick up the applicant who was working as a tutor in the private homes.
Now, could I take the Court now to 273, because I am just going to all of the prosecutor’s concessions at trial which were all ‑ ‑ ‑
GORDON J: Just before you leave that answer to the Chief Justice, can I just understand what are the elements to making it a matter relevant to the trial.
MS BASHIR: Yes.
GORDON J: You have taken us to the detective’s evidence – which is at the foot of page 10 – is it right that you then got the character evidence given by Mr Nguyen?
MS BASHIR: Mr Nguyen. Your Honour, just in relation to that, I can take your Honour to the – it is the bottom of page 12 – he worked as a private tutor as well. Then, bottom of page 14, at about line 38:
in terms of the private tutoring work you do?
Do you have the check? No, 90 per cent of people do not have the check.
GORDON J: Yes.
MS BASHIR: So there is an issue between the prosecution and defence as to whether one is required, so it is not correct to say that it was resolved that you did not need one when it is challenged through the evidence of Nguyen but there is not the cross‑examination of the police officer who has asserted that he did need one.
GORDON J: Then, it is the third step – the Crown’s closing address ‑ ‑ ‑
MS BASHIR: The Crown’s closing.
GORDON J: ‑ ‑ ‑ and you say that is a system argument.
MS BASHIR: Yes, so it starts at page 24, about line 35:
He build a system around himself so he didn’t even need to really think about anything that might be a barrier between him and his sexual gratification.
GORDON J: Then it is counsel for Mr Hoang who delivers his closing address.
MS BASHIR: Then the closing address. Could I just take you to another reference in the prosecutor’s address, at 81, at about line 19 – he starts off at the top of the page:
he instituted his own risk plan ‑
Then at line 19:
As to the pretense, the best evidence –
This is where the ads are – he talks about the ads:
purported to be . . . respectable ‑
Then at the bottom of that paragraph:
Everything has an obstacle between him ‑
At about line 38:
That’s risk adverse, it’s a risk minimisation plan ‑
That is where that evidence feeds in. Then to go to page 90, which is now defence counsel’s address, he is talking about the evidence and:
the suggestion he is attempting to create an environment within which he could commit these acts without detection ‑
Then at page 92, paragraph 25:
the hand drafted ads –
He is talking about what the prosecutor had referred to, as the “best evidence” – it is not some dark mystery fraud or ruse so he can get into houses where he can tutor, he goes straight on to the evidence of Mr Nguyen. He clearly relates the two in terms of this suggestion of a ruse to get closer to children. At page 93 is where he tries to deal directly with the evidence of Detective Paul. In the middle of that paragraph:
It sounded bad at the time.
The jury did ask for the transcript during their deliberations. That is back at appeal book 167. Of course, the inquiry ‑ ‑ ‑
GORDON J: Sorry, just before you get to the jury’s questions, am I right that we then have to go to the trial judge’s summing‑up to the jury about both of those matters?
MS BASHIR: Yes. Her Honour did sum up to the jury in relation to the system, and in relation to the evidence of Nguyen.
GORDON J: In relation to the Working with Children certificate?
MS BASHIR: I will just see, your Honour, if that is directly referred to. I just need to get to my summing‑up. Yes, it is at 107. I will just take the relevant passages, 98 in the core appeal book, line 10, the argument about building a system so there is no:
barrier between him and his sexual gratification.
104, from the top of the page:
purporting to be respectable . . . trying to minimise his risk . . . a pattern, a system ‑
GORDON J: Did you say 104?
MS BASHIR: Of the core appeal book.
GORDON J: Thank you.
MS BASHIR: At the very top of that page, your Honour. Your Honour will see that argument about:
purporting to be respectable and regarded as a successful teacher . . . risk averse and was trying to minimise his risk . . . it is a pattern, a system –
Then at 107 is reference to the evidence of Mr Nguyen and reference to Working with Children certificate not being unusual.
GORDON J: Thank you. I apologise.
MS BASHIR: No, that is fine, thank you, your Honour. So I was just going then to the concessions about breach and I think I was up to 273. So there is the immediate concession of a breach and then at 273 about line 15 the Crown Prosecutor agrees that the:
verdicts will be taken from –
one who:
if the evidence is made out, guilty of an offence under the Act –
But whether guilty or not is:
subject to the mandatory provisions of the Act for discharge.
Then at about line 38 talks about the “unanimity” of the verdicts where:
one of them is presently subject to the mandatory provisions of the Jury Act when those are taken.
Her Honour says:
But they don’t know that.
Meaning the jury does not know that, and the Crown Prosecutor properly responds:
It doesn’t matter what they know. I’m discussing what amounts to an issue going to the foundation of the trial and that is taking of verdicts from a lawfully constituted jury.
He is, with respect, spot on. There are further concessions and discussions at 276 where the prosecutor talks about the jury “in the constitutional sense” at about line 23 down to 25, that if it all ends up on appeal it could:
be fundamental and no proviso is going to save it.
Then over at 277, about line 15:
one difficulty with that process –
That is what her Honour is proposing:
is that it doesn’t have regard to the technical nature of the constitution of the jury and how a proviso –
will apply, and that goes down to about line 21. At 31 about resulting:
in discharge because the legislation doesn’t make any distinction between a technical breach and one that is material –
That is correct in terms of 53A. So, your Honours, it is clear that at trial the prosecutor, who had led the very evidence – he had just led it, he had just summed‑up ‑ he had just addressed the jury who had heard the summing‑up, and he straight away concedes the breach.
Then I have taken the Court to the judge’s reasons and findings at 309, and so if I could take the court now to page 374, and at paragraph 3 he finds “there was no error” in the judge’s finding. Then at paragraph 4 ‑ I have already taken the Court to the first part, but his Honour there analyses the relevance, that is, it is relevant within section 68C and 53A. At paragraph 5 it is clear that:
the evidence was obviously on the mind of Juror A when the juror decided to make internet inquiries about the topic . . . and to share the results of that inquiry –
with the jury. At 6, the dual-purpose point that:
A person’s motivation may well be complex. That one motive is dominant does not necessarily exclude another.
Further, does not, in the first sentence, establish that it:
was not made for the purpose of obtaining information about a matter relevant to the trial.
So his Honour is clearly satisfied of that. Then, relevant to ground 2, which I will come to, his Honour, with respect, is correct at paragraph 8 in holding, based on that passage that I have taken your Honours to at 309, that “it was clear” the judge was satisfied of that “upon reading that note”, MFI 99. At paragraph 7, “the combined effect” meant she had to “discharge the juror”.
At paragraph 10, his Honour deals with the suggestion that the note had said we had already reached a decision. Of course, it had also asked for redirection on matters and matters going to the elements of the offence, some of which were relevant to the counts. So, you could not take – until the verdict is entered, you cannot take it that the verdict has been reached. So, at 11, there was error in taking those 10 verdicts. At paragraph 12, of course, the proviso cannot apply.
Your Honours, of course, in this case, the Crown conceded in the Court of Criminal Appeal that, if this is right, the proviso simply could not apply. I will just give your Honours the references – paragraphs 71, 80 and 93 contain the appellate respondent’s concessions that the proviso could not apply. Of course, they said there was no misconduct and so they tried to say that you would not get to that point.
Could I just come back to – so could we take the Court then to the errors in the majority judgment? First of all, at paragraphs 77 – sorry, it is not paragraph 77, paragraph 97, so page 395 – having, at 92, accepted that the appeal:
raises an important question about the extent to which jurors should be permitted to access the internet during a criminal trial.
At 93, noted the concession on the proviso. Misconduct is looked at at 97, and that first line – given the heading above, the reference to 53A(2)(b), which is not what this was concerned with, must be typographical error. Her Honour must be referring – we accept, must be referring to (2)(a) there, particularly because her Honour then refers to the offence in 68C(1). Then, her Honour refers to that and holds that:
There was no evidence to suggest that the purpose of the juror’s inquiry was other than to satisfy her own curiosity –
It is our submission that there is a clear error in that and there is a clear error that no other purpose was ever suggested. Indeed, it was conceded at trial and relied on by defence counsel also.
Then, your Honours at 102 to 103, your Honours can see here that her Honour does appear to accept a strict construction of section 68C. Then, her Honour goes on to consider these hypotheticals – and we have dealt with the hypotheticals and why they do not work in our written submission. Then, at 123, her Honour goes through the cases. Curiously, at 120, her Honour accepts the purposes of section 68C(1) without drawing them in to 53A but accepts:
that the Jury Act now provides that any juror who makes such an inquiry, after being directed not to do so, is to be discharged –
GORDON J: Where is that reading coming from, sorry?
MS BASHIR: At 120 – sorry, page 401, paragraph 120 – the purpose of 68C is in the first couple of sentences. Then, at about line 18:
It is in these circumstances that the Jury Act now provides that any juror who makes such an inquiry, after being directed not to do so, is to be discharged –
That is clearly what happened in this case but her Honour simply does not apply it and then refers to the “remaining discretion” about the whole jury and, in our submission, there is error in paragraph 121 – that by saying that:
the trial judge failed to take into account the need for the purpose of the inquiry to be the obtaining of information relevant to the trial –
Her Honour holds here “rather than for personal reasons” and there simply is not a dichotomy. But certainly her Honour did take it into account and held that that purpose was satisfied. It is not, in our submission, correct to say that that was why – that was the only information obtained. Clearly the search was in relation to the requirements, and it is not correct to say that the search was for that express purpose. MFI 99 simply did not allow for that finding.
GORDON J: Can I just raise what is the fourth last line of 121 where, as I read her Honour’s construction of the statute, she is looking – she says that the matter, which was relevant to the trial was, as I understand it, whether or not:
Juror A was not required to have a Working with Children Check.
MS BASHIR: Yes.
GORDON J: Not, in effect, the matters which had been discussed, which you have now taken the Court through.
MS BASHIR: Her Honour was saying that the purpose of the search was something that was relevant to the juror alone. It was not relevant to the purposes of the trial. But we do say that that cannot hold, particularly when there was an acceptance of relevance. So even at 135 there is a reference to the evidence of Working with Children check being – her Honour says:
of very limited relevance in the Crown case.
But clearly it is relevant in the Crown case. It is our submission that in 121 ‑ and this is at point 7 of our oral argument ‑ that the trial judge failed to take into account – sorry, that there was an error in that conclusion.
EDELMAN J: Ms Bashir, I am not sure that is what is being said at paragraph 121. As I read 121, the reference to that not being:
a matter relevant to the trial.
Is a reference, in its context, to the purpose of the inquiry. In other words, what is being said is that the purpose of the inquiry was to inquire into something which was not a matter relevant to the trial. I understand your submission that there are other purposes for which the inquiry was made, but is not what is being said there that the sole purpose of the inquiry was for something that was not relevant to the trial?
MS BASHIR: Yes, that is what is being said, and it is our submission that that is erroneous and not available on the evidence. So it is our submission that, first of all, the majority erred in concluding that the trial judge failed to take into account the need for the purpose of the inquiry to be the obtaining of information relevant to the trial rather than for personal reasons, and the error is in 121 and in 139.
But we also say that the majority erred in concluding that there was no evidence of any other purpose, and they clearly hold that at 98, 99 and 121, and we have already addressed the hypothetical. So we do rely on Justice Campbell’s reasoning. We say that section 53A(1)(c) was engaged, and so we challenge the conclusion at paragraph 123. The trial judge was correct to discharge the juror, the section applied, and we rely on all of the prosecutor’s concessions at trial and the trial judge was correct. The matter was relevant to the trial.
Then, coming very quickly to ground 2, I have already taken your Honours to that express holding at the book at 309 that she was satisfied of the breach; I am reading MFI 99. And certainly she was satisfied by the time both the prosecutor and the judge exclaim it is a breach after they have gone through both of the relevant sections. It is at that time that the trial judge should have discharged the juror, and we rely on Justice Campbell’s findings, which I have already taken the Court to.
Your Honour, having held that there was misconduct, it was mandatory for the judge to discharge the juror. The verdicts could not be saved by section 73. The failure to discharge the juror despite that satisfaction of misconduct prior to the verdicts meant the jury was not properly constituted when the verdicts were taken, and there was a fundamental failure to observe the requirements of the Jury Act. We rely on the case of Smith at paragraph 40, which his Honour Justice Campbell does refer to, and we rely on the prosecutor’s concessions as to the proviso in the
court below, that is, in the intermediate Court of Appeal and at trial level also.
Now, of course, there are the two left over verdicts after the juror was discharged of counts one and five, but it is our submission that those counts would be quashed also due to the tendency and coincidence directions given to the jury and we simply rely on our written submission at paragraph 66 in relation to why that is so. May it please the Court.
KIEFEL CJ: Thank you. The Court might take its morning break before we hear from you, Mr Kell. The Court will adjourn for 15 minutes.
AT 11.10 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.25 AM:
KIEFEL CJ: Yes, Mr Kell.
MR KELL: May it please the Court. Your Honours, if it is convenient, I am going to deal with the submissions ground by ground, which seems to be the logical way to do it. If I could just draw the Court’s attention to the notice of appeal, which is at appeal book – core appeal book page 417 through to 418, and the first way in which it is said that:
The Court of Criminal Appeal erred in holding that:
which is ground 1, or ground 1(a):
(a)in order for “misconduct” to be established pursuant to s 53A(1)(c) and s 53A(2) . . . the juror’s stated intention or purpose for “making an inquiry” (as defined in s 68C of the Jury Act) is relevant –
And your Honours are aware – just going to the legislation – that 53A(1)(c), provides that:
The Court . . . must discharge a juror if –
. . .
(c) the juror has engaged in misconduct in relation to the trial ‑
Then, 53A(2)(a) defines misconduct to mean:
conduct that constitutes an offence against this Act ‑
It is plain, including from the note to that subsection, that section 68C is a relevant offence for those purposes.
The appellant seemingly accepts that the offence in section 68C has a mental element, and I just want to take your Honours first to that aspect, which is section 68C. We respectfully submit that it is clear from the submissions that looking at section 68C, that for that provision to be engaged the juror must have the intention to obtain information with the character on the juror’s understanding of being relevant to the trial, i.e. being a matter:
information about the accused, or any matters relevant to the trial ‑
And that that requirement of an intention and understanding by the juror to those matters, i.e. matters relevant to the trial, is a key aspect of section 68C. There are clear reasons as to why such a mens rea requirement would be an element of that provision, including the nature of the provision ‑ ‑ ‑
EDELMAN J: Not least for reasons that imprisonment for two years is one of the consequences.
MR KELL: Yes, precisely. Similarly, if the construction were to the effect that section 68C simply required a juror to intend to obtain information that objectively considered, rather than the juror’s understanding, were relevant to matters in issue in the trial, that really does not give much work, if any, to the language of:
for the purpose of obtaining information ‑
which is a key part of the provision. The provision could simply have said must not make an inquiry about any matters relevant to the trial, for example ‑ ‑ ‑
KIEFEL CJ: Knowledge in that sense, that a matter is relevant to the trial, has arisen in the trial, is not equated with motive though, is it?
MR KELL: What I am looking at here is purpose, and it is the purpose – the juror’s purpose ‑ ‑ ‑
KIEFEL CJ: The majority in the Court of Criminal Appeal held that that purpose equals motive, do they not?
MR KELL: No. What the CCA majority were looking at is the question of purpose. Here, importantly, linked through section 68C in the statutory language, is the juror must not make any inquiry for the purpose – which is, obviously, the juror’s purpose – of obtaining information of that character. Similarly, on the construction issue – so section 68C – the risk of – and bringing in that construction – the risk of a miscarriage of justice arising when a juror inadvertently obtains extraneous information can, and is, readily dealt with by other provisions, for example, under section 53B(d), for discretionary discharge and, similarly, section 53A(2)(b), which I will come to:
any other conduct that, in the opinion of the court . . . gives rise to the risk of a substantial miscarriage of justice –
KIEFEL CJ: Mr Kell, how are you reading the words, “for the purpose”? Are you saying, with the intention of obtaining information? That is one aspect. That would have to be the case, in section 68C(1).
MR KELL: Yes, in order ‑ ‑ ‑
KIEFEL CJ: In order with the aim of – but you are not reading it as covering motive?
MR KELL: Not as being something diluted and different from purpose, so ‑ ‑ ‑
KIEFEL CJ: As in personal curiosity or some other reason of the juror?
MR KELL: No.
KIEFEL CJ: But is that not the approach of the majority?
MR KELL: No. The majority was looking at purpose, and questions about personal curiosity, in one sense, can be a distraction when one is looking at the statutory language here. The question here – and I will come to it, for example, in the ground 1(c) – and I accept that there is a question of characterisation as to what is the information that the juror sought to obtain? Then, what is the information which was the juror’s purpose in seeking to obtain? When I come to that, I will make the submission ‑ and I accept that there can be levels of abstraction, arguably. But, when I come to that, I will make the submission that we do – that, on the evidence, the information that the juror sought to obtain was whether, historically – as a former teacher – I would have been subject to the Working with Children clearance check. That was the information the jurors sought to obtain. That was the juror’s purpose.
KIEFEL CJ: The juror’s reason.
MR KELL: Yes, that is right.
GORDON J: Do you accept it was a matter relevant to the trial, the Working with Children certificate clearance status?
MR KELL: Again, that is ground 1(c), if I can touch on it now. The answer is – certainly, step 1 is whether it applied, historically, to juror A ‑ ‑ ‑
GORDON J: No, it is not historically. The question is whether or not, what is the matter? That is what I am asking about. Does the topic that was the subject of the five steps that Ms Bashir took us through, give rise to an issue about the Working with Children certificate status as an issue?
MR KELL: The answer to your Honour’s question is a number of steps. But, going directly to the second question, the answer is no. As at the time – and the temporal issue is important, your Honours, because what is important is the time at which the inquiry is made. If I can deal with that now since the question has arisen? The time at which the inquiry is made here is after the evidence has been taken, and I will deal with it sequentially.
So, there was evidence from Detective Paul, which your Honours have been taken to, about which there was not cross‑examination. Then there was the evidence from Mr Nguyen, which the Crown did not challenge – that is to say, the question of the Working With Children check having been referred to briefly in Detective Paul’s evidence, then Mr Nguyen was called by the defence, who said, in effect lots of people ‑ many tutors that I know do not – or almost all the tutors I know – do not have that clearance check requirement. That was not the subject of challenge by the Crown, or any cross‑examination.
In the Crown’s closing – and again this is preceding the time that the juror’s inquiry is made – there was no reference made to the Working With Children legislation at all – no reference to the legislation. In defence closing, there was the limited reference to Mr Nguyen’s evidence, to which your Honours have been taken. In the summing‑up by the judge, her Honour referred in one sentence – which was appeal book 107, about halfway down the page, to defence counsel having referred to, in effect, Mr Nguyen’s evidence:
most tutors in particular students do not have that ‑
Again, this is preceding the time in which an inquiry was made. So, following summing‑up, the jurors began their deliberations. Temporally, at the time at which the inquiry was made by the juror, any issue about the Working With Children check was not a live matter in the trial – it was not a live matter relevant to the trial.
KEANE J: But it had been made relevant by the evidence and the counterevidence. It was not relevant to any of the elements of the charged offence but it became relevant in extraordinary ways – asking police witnesses about what an Act means – but it became relevant as affecting questions of credit. It became relevant as suggesting – I am sorry, not credit – system on the part of the accused, and in a very prejudicial way. It was not properly relevant to any issues in the trial, but it was relevant to the trial because of the prejudicial content of what had been introduced by the Crown in the extraordinary way of asking a policeman what an Act meant.
MR KELL: Again, your Honour, the submission I am making is, it is important to look at the time at which the inquiry was made.
GORDON J: But I do not understand that submission, Mr Kell, for this reason. We know from the decision in Smith in this Court, the jury deliberations are fluid and not steady. We know that what happens in the jury room waxes and wanes – this jury had been out for two weeks. They obviously were thinking about it. Who knows what happened in the jury room. I do not understand why the temporal point of the inquiry makes any difference. How do you know what was going on in the juror’s mind, which is what exactly Justice Campbell was saying in paragraph 6 of his reasons for decision?
MR KELL: Because when one looks at whether there has been jury misconduct – and going back to ground 1 and 1(a) – one is looking at section 53 – one is looking at whether the juror has engaged in misconduct in relation to trial, a conduct that constitutes an offence. Then, picking up section 68C, why it is important for the timing is because it is the time at which the juror makes the inquiry for the purpose of obtaining information.
As we respectfully submit, at that time, which is after the matters that I have drawn attention to, the question of any reference to the Working with Children legislation – it was not submitted by the Crown in closing that, for example, the appellant had evaded any obligation to register under the legislation or that if he had sought to be registered that he would not have been. There was simply no submission made about that at all. Going through those steps, at the time that this inquiry was made, in our respectful submission, the question of the Working with Children legislation and at a different level of abstraction whether it applied to juror A historically, was just simply not – was not a matter relevant to the trial.
GAGELER J: Mr Kell, could I break your submission down a little. Are you saying that as a matter of construction a matter is relevant to the trial if, but only if, that matter could rationally affect the determination of an issue in the trial?
MR KELL: That is a guiding criterion as to whether a matter would be relevant to the trial, yes, your Honour, and ‑ ‑ ‑
GAGELER J: Then are you saying that the purpose of this juror has to be – or the intention of the juror has to be to obtain information of that character, that is, that would rationally affect the juror’s determination of an issue in the trial?
MR KELL: Within section 68C and known and understood by the juror, and that – yes, your Honour, there is a mental element to section 68C(1) and that that would not be satisfied here. Can I perhaps go back to ground 1(a), because I have dipped into some of the other areas in response to questions. The temporal issue is important. There are matters, as happened here, where they are touched on in a trial, e.g. the evidence of Detective Paul, and by the time one gets to the summing‑up they just simply have lost any particular relevance, if they ever did have it, and here there are references your Honours have seen in the CCA’s judgment to the topic even at the beginning being of dubious relevance or marginal relevance and questionable relevance, and so on. So even with that category, by the time one gets to the summing‑up and at the time at which the inquiry was made, it ceases to have that character.
Just going back to ground 1(a), which is the incorporation of a purpose aspect to section 53A(1)(c) and (2)(a), we say that necessarily the mental element in section 68C is picked up by 53A(2)(a) and that the appellant’s argument or contention to the effect that it encompasses only physical acts or a barely described actus reus is not persuasive. That construction of the appellant is to focus on the words “conduct” in isolation from the surrounding words and here in 53A(2)(a) the language is “conduct that constitutes an offence”, and relevantly for present purposes an offence is clearly not constituted by physical acts alone and conduct will not amount to or be capable of giving rise to an offence in the absence of the requisite mens rea.
EDELMAN J: Mr Kell, I understand your submission about the mens rea having an intention to obtain the information that is relevant on the juror’s understanding to the trial. What do you say the actus reus of the section 68C offence is?
MR KELL: It seems to be – on a fair reading of it, it appears to be very limited. So, looking at section 68C(1) it is (a) that there must be a juror, clearly, in the trial of a criminal proceeding, and then that juror must not make any inquiry, and then the rest of that provision is directed at or connected to the purpose ‑ ‑ ‑
EDELMAN J: So whether or not there is a matter relevant to the trial actually is strictly irrelevant to the offence, the relevance is only whether the juror has an intention of, or a purpose of obtaining information relating to a matter to the trial. So it may be that the juror has the purpose, and it turns out, or even at the time the matter is not relevant to the trial, objectively, but if the juror has the forbidden purpose then both mens rea and actus reus will be satisfied.
MR KELL: Yes.
EDELMAN J: Thank you.
MR KELL: Yes. Subject to the ‑ except in the proper exercise, which is a different matter, but it is – that is right, your Honour. It is:
must not make the inquiry –
within the context of the criminal proceeding, the criminal trial, and then for the stated purpose, and the purpose is linked to:
information about the accused, or any matters relevant to the trial –
We say this elsewhere, too, that if separate from the offence provision as incorporated in 53A(2)(a):
conduct that constitutes an offence –
If there is not conduct that would be capable of constituting an offence, which is really the language that we are talking about here, because there is no criminal prosecution of a juror in fact on foot, but within that category, if a juror does not have that impermissible purpose, if one likes, that would be capable of constituting the offence under section 68C, but nonetheless whether inadvertently or otherwise obtains information that could be problematic, or the product of the search might be, in broad terms, problematic or concerning, then that is readily picked up by other provisions, including 53A(2)(b). So that would be – the conduct would give:
rise to the risk of a substantial miscarriage of justice –
The juror, in those circumstances, could be mandatorily discharged when disclosing, in effect, on an examination by a judge, a trial judge, that well, this was my purpose, this was however I got all this information here, which would be potentially of concern. So that ‑ ‑ ‑
GORDON J: Also section 53B.
MR KELL: The discretionary discharge under 53B, yes, your Honour. Still within ground 1(a) of the notice of appeal, it is true that 53A(2)(a) by itself does not specify any particular intention or state of mind on the part of the juror who engages in the misconduct which is a matter relied upon by the appellant in its submissions, including its written submissions, but because 53A(2)(a) limits the conduct relevant to that provision by reference to the offence provisions of the Act, including section 68C, then that is readily understandable, we submit.
Can I just say something as well about legislative purpose, which is relevant to the construction of section 68C. So, the appellant’s contention is to the effect that it makes sense for 53A(2)(a) to be, as it were, over‑inclusive and to capture – in effect to capture jurors that may have a defence under – using that terminology loosely – defence under the criminal provision and that that construction which is advanced by the appellant would be protective of the criminal process. We say that there are two main difficulties with that, one of which I have touched on, which is that the concerns arising are picked up by other provisions, including section 53A(2)(b):
any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice ‑
and the like. The second is that, to the extent that the appellant’s argument on construction relies upon a need to avoid factual inquiries into a juror’s conduct and the prospect of appeals and the like, we respectfully submit, that any such perceived difficulty is overstated. In the vast majority of cases there will likely be no issue, or no real issue about a juror’s state of mind.
EDELMAN J: That is because it can be inferred from the mere fact of the search.
MR KELL: Yes, that is right. If a juror has looked up the elements of the offence with which the accused person is charged then, in the vast majority of cases no real issue would likely to be raised, for example, that the juror was doing that for his or her own personal reasons.
In cases that are perhaps more unusual like the present case where a juror undertakes some personal research where a curiosity was sparked by something that in passing is referred to in a trial, then the trial judge is readily able to promptly examine the juror, pursuant to section 55DA, which my friend took your Honours to, including subsection (1):
A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention of section 68C.
The trial judge is readily and promptly able to make a determination as to whether the juror has engaged in conduct that may constitute. That examination by a trial judge ‑ and your Honours have seen that in the appeal book here, that was promptly done, it was one to two pages of transcript, and that examination by the trial judge can include questions as to the juror’s state of mind, particularly given that section 55DA uses similar language to 53A(2), which invites such an approach. I have similarly referred to – and I will not repeat what I said about section 53A(2)(b), which deals with circumstances giving rise to risk of a substantial miscarriage of justice.
So, 53A(2)(a) is, we say, including when regard is had to the legislative history, concerned with what may be regarded as delinquent jurors. It does not contain a qualitative threshold like 53A(2)(b):
substantial miscarriage of justice –
because it is limited by reference to offences that are already included in the Act. But there is no – consistent with that history and that philosophy, there is no need, we submit, to discharge a juror who has not committed an offence – within the context of what we are looking at – who has not engaged in conduct capable of constituting an offence unless section 53A(2)(b) is engaged where there is a risk of a substantial miscarriage of justice, or there is a discretionary discharge under section 53B. It is a combination of 53A(2)(a) and (b) which operate together to ensure the fairness of a trial is not prejudiced. Can I turn to ground 1(b), which is the argument that:
The Court of Criminal Appeal erred in holding that:
. . .
(b)to satisfy s 53A(2)(a) the inquiry must have been made by the juror [effectively] with the sole . . . purpose of obtaining information relevant to the trial –
We way that that ground of appeal and the submissions underpinning it should not be accepted and that is for this reason. The argument is, if there is dual purpose, then some non‑impermissible purpose would somehow negate or neutralise the accompanied problematic purpose. But, if one looks at the CCA judgment, particularly at 98 – which is at appeal book 395 – the majority did not endorse or hold that there should be sole purpose test. It was rather – what was held – so just looking at appeal book 395, at about point 3 of the page, it was simply a reasoning that:
There was no evidence to suggest that the purpose of the juror’s inquiry was other than to satisfy her own curiosity as to why she herself, a retired teacher, had never obtained a Working with Children Check. No other purpose was ever suggested.
GORDON J: It was put against you, I think, Mr Kell, by Ms Bashir, that that was a clear error which had been considered at trial and was in respect of a finding, which I think we were taken to at page 309 of the core appeal book.
MR KELL: Sorry, 300 and ‑ ‑ ‑
GORDON J: My reference is that it was at 309, where the trial judge said, in my view that the juror”
did make an inquiry for the purposes of obtaining information about a matter relevant ‑
MR KELL: Yes.
GORDON J: Yes.
MR KELL: Yes. Can I deal with a couple of things that are raised by your Honour’s question. First is the finding at the trial – the trial judge’s approach, and then also the Crown approaches, and then come back to the dual purpose, or sole purpose.
GORDON J: So, just so I am clear, as I understand your argument on these grounds is, first, there was no sole purpose test adopted by the majority, but my question is, if that is right, then what is your answer to paragraph 98 and the criticism made of it? In effect, 98 is inaccurate.
MR KELL: Yes. And the criticism was, I think – as I understand – linked to appeal book 309 which your Honour has just taken me to.
GORDON J: I think so, that is my note.
MR KELL: Yes. We submit that, if one looks at appeal book 309 and the trial judge’s approach, so there is a conclusion:
It was my view that [the] juror . . . did make an inquiry for the purposes of obtaining information about a matter relevant to the trial. That inquiry was specifically prohibited.
We submit that the trial judge took an unduly narrow approach to the question by – and this is relevant to what I have submitted about ground 1(a) – unduly narrow approach having regard to section 68C when read with 53A(2)(a), and failed to appreciate the need for the relevance of the information to the trial to be known and intended by the juror A who was seeking to obtain the information.
EDELMAN J: Why could not, given that you accept that inferences can be drawn from the fact of searches being done, it be inferred here that one purpose – maybe not the only purpose – but one purpose for the juror’s search was an intended purpose of obtaining information which was believed to be relevant to the trial?
MR KELL: Yes, that is really a ground 1(c) point that I will come to in a minute to do with the characterisation. So perhaps could I just do it stages, but I obviously accept your Honour’s question. We say that when one reads the trial judge’s judgment and reasons that it is apparent that her Honour took an unduly narrow approach to the provision and did not appreciate the need for the relevance of the information to the trial to be known and intended by the juror, and that is a point also made by the Court of Criminal Appeal at paragraph 121 at appeal book 401 at about point 5 of the page.
Looking in respect of both your Honours Justices Gordon and Edelman’s questions, when one looks at her Honour’s reasons – the trial judge’s reasons, the trial judge did not reach a conclusion for the purposes of section 68C read with 53A(2)(a). Her Honour did not reach a conclusion as to juror A’s state of mind or her purpose.
GORDON J: I am so sorry, I do not quite understand that. If we go to the page that we were taken to at 309 and the first, in effect, paragraph, I am of the “view that juror . . . did make an inquiry for the purposes of”, read with the jury note which is MFI 99 where what the juror did was set out, “that a breach had occurred” and “therefore mandatory . . . to be dismissed”. Is your submission that we are to ignore that finding of purpose, or it is wrong?
MR KELL: The submission at 309 is that – sorry, we do submit that it is wrong because of the arguments we addressed to do with ground 1(c), but where in ‑ ‑ ‑
GORDON J: Can I just test that because I am bit confused. If you are wrong about ground 1(c), i.e it is a matter relevant to the trial, then you do not take issue with that conclusion of purpose?
MR KELL: What the trial judge does not deal with is, we say, a consideration of section 68C when read with 53A(2)(a). Where her Honour does move to talk about the personal things done for the juror’s own personal circumstances are later in the judgment when her Honour is dealing with section 53C which is at appeal book 314 and following.
So at appeal book 309 her Honour is reciting the statutory language at the second paragraph, but without any supporting analysis in the reasons which do not up until that subheading which I have given your Honours at page 314 of any analysis or proper analysis as to the juror’s purpose, it is just simply a recitation of part of the statutory provision. Section 53C at appeal book 315 and so on is dealing with the subsequent question arising in a different context of whether a juror, having been discharged, the trial should continue with 10 jurors.
So, just on ground 1(b) – there was no question on the majority’s reasoning in Justice Adams of a dual purpose. So, her Honour did not reason that juror A had, for example, a personal purpose that negated some other purpose. We say that the question of construction raised by ground 1(b) does not arise because the CCA majority simply did not proceed on the basis of a construction which is now said to be in error. Can I turn to ground 1(c), which is the contention that:
The Court of Criminal Appeal erred in holding that:
. . .
(c)the trial judge was in error in determining that there was juror misconduct warranting mandatory discharge pursuant to s 53A(1)(c) –
and touch on some of the matters that had been raised. So, the first step, considering this ground which, in some respects, might be thought to be the principal ground – or the broader ground – is, it is first necessary and appropriate to characterise what is the information that juror A sought to obtain, and that is, again, looking at section 68C(1) and, as I have submitted – so I will do this quickly – the information that juror A sought to obtain was whether, historically, a Working With Children check applied to her – whether as a former teacher she was required to be subject to a Working with Children check. That is the information, that it was her purpose in seeking to obtain. One needs to sort of track the language of section 68C(1) carefully because that is linked to misconduct under section 53A(1) and (2)(a).
We say, first, consider that that level of characterisation – that is the information which is sought to be obtained – that, historically, the applicability of a Working With Children check requirement to juror A had no relevance – properly viewed – has no relevance to any matters in the trial.
KIEFEL CJ: Is that not to belie both the information sought and the purpose of the seeking the information? The inquiry was as to information concerning the application of the Work With Children Check so that it takes you to provisions about the requirements and the purpose of the juror was to see whether it actually applied to her.
MR KELL: Yes.
KIEFEL CJ: They are two different things.
MR KELL: Going, firstly, to purpose, and if one looks at ‑ ‑ ‑
KIEFEL CJ: That is purpose in the sense of motive or reason.
MR KELL: If one looks at MFI 99, which is at appeal book 265, which is the jury note, and reading the jury note as a whole, it – sorry, I withdraw that. Looking at MFI 99, the juror ‑ ‑ ‑
KIEFEL CJ: Went to the legislation.
MR KELL: ‑ ‑ ‑ went to the legislation and had been curious as to why they themselves did not have a check. They discovered the legislation, which was only introduced in 2013, so that is what is told there. And then looking at section 68C, so the purpose ‑ ‑ ‑
GORDON J: Before we get to the purpose, let us just deal with the information. That is the relevant inquiry, the legislation in relation to the Working with Children requirements in 2013 in a broad manner.
MR KELL: Yes, but the two – what we know from MFI 99 is that the two are necessarily closely linked.
GORDON J: But that is where I find difficulty, because we know from, in a sense, some of the cases that Ms Bashir took us to, which led to these provisions being introduced, we do not know what else is there. We do not know what, in effect, they looked at. We do not know the extent of the search other than to say this is how – the topic of the discussion. That is the purpose, is it not, it is to prohibit this very sort of inquiry?
MR KELL: What we know is that the – sorry, we know the purpose, which is whether – I am putting myself in the position of juror A ‑ whether I as a former teacher historically was subject to the Working with Children clearance, obviously, seemingly, did not have it, and was wondering why. The information – and so that is within section 68C(1), and again, within section 68C(1) what one is looking at for the offence provision is obtaining information – something is done by the juror for the purpose of obtaining information, so that the information which is sought to be obtained is that information. The answer, the dispelling of that inquiry by the juror. It is no broader than that. And that is consistent with the limiting terms of MFI 99.
GAGELER J: Why should we not read the reference to:
matters relevant to the trial –
as encompassing any matters that have been the subject of evidence in the trial ‑ ‑ ‑
MR KELL: As distinct – sorry, your Honour?
GAGELER J: ‑ ‑ ‑ as distinct from matters in issue to be determined by the jury in the trial? I mean, a juror looking up the internet to gain more information about, say, a murder weapon, the fact of it being a murder weapon is not in issue, but does it not give rise to a risk of miscarriage of justice?
MR KELL: Again, I think I have in part submitted on this previously, if the product of the search is concerning, then that is a matter that can be dealt with by discharge under section 53A(2)(b) as mandatory discharge. But that is not this case, and it is not what the evidence was in this case.
GORDON J: Could I ask one question about that, just to complete that analysis, please. How does that sit with subsection (4) of 68C? I asked the same thing of Ms Bashir.
MR KELL: Yes.
GORDON J: Where you have got directions from the judge here, I think both oral and written – I think there are, in effect, three separate occasions, two oral and one written, saying do not do this. There is a temporal limit, just do not do it, and then they go on and do it. Does that affect the analysis of 68C(1) at all, either generally as to construction or in this case?
MR KELL: Well, the premise of your Honour’s question is that they go on and do it, and in our submission, it – so what the directions were is to state the offence provision. So that is what the language of the direction is. It does not go any further than that. Firstly, there is no suggestion in the materials, or there is no evidence or finding to the effect that juror A knowingly disregarded the written directions given by the judge.
But putting that to one side just in terms of the construction point that your Honour has raised, if one looks at section 68C(1) and then (4), so subsection (4) is – it is not an offence provision of itself. Subsection (1) is the offence provision. So subsection (4) is seemingly akin to a deeming provision, but contrary to my friend’s submission, it does not have the effect of deeming something to be a prohibited inquiry. What it does is to remove – so it does not remove the purpose element in section 68C(1). What it does is, it is directed at the ‑ ‑ ‑
EDELMAN J: It removes an exception.
MR KELL: Yes, that is right. It is directed at the – the last words:
except in the proper exercise of his or her functions as a juror.
So that exception will not have relevant – will not have application for the offence provision if subsection (4) ‑ the deeming provision in subsection (4) operates. But it does not remove the purpose requirement in section 68C(1).
What I have submitted about the proper characterisation of the purpose and the information sought by juror A is consistent with – and I will not need to take your Honours to the full text of the passages, but consistent with what the majority reasoned in – Justice Adams at paragraph 98 at appeal book 395, paragraph 121 at appeal book 401, and her Honour understood the trial judge to have not addressed the relevant point because of the trial judge’s narrower construction of section 68C. That is at paragraphs 101 and 121, again, of the judgment.
If ‑ and this is picking up questions that have been asked and partly answered previously ‑ but if the information sought to be obtained by juror A is understood at a higher ‑ what I am referring to as a higher level of abstraction, which we say it should not be, because of MFI 99 and what we know about the juror’s purpose ‑ but if the information is characterised more broadly as being the requirements for a Working with Children check generally as, say, information about the legislation, our submission remains that, in the particular circumstances, that that was not relevant to the trial, and I have developed that previously where information that would be relevant to the trial, if the information sought has the capacity to rationally affect the assessment of fact in issue in the trial, and that the time ‑ this should be assessed at the time the impugned inquiry is made.
I have taken your Honours through the chronological steps in the sequence, from Detective Paul to David Nguyen, who is then not challenged by the Crown, and the Crown making no submission based on the Working with Children check. Just pausing there, there was a submission made by my friend and references to the Crown closing in the context of an argument about – I am using the language of pretence. It was part of the Crown case that the appellant used his role as a tutor as a pretence to commit offences and that is clear in the book of further materials, the Crown closing at page 80, but the Working with Children check was not drawn into or made part of this argument.
As I have said previously, it was not submitted by the Crown that he had circumvented requirements for Working with Children legislation or would not have been granted a check if he had applied. At the time that inquiry was made by the juror, the issue of the WWC check was no longer, we say, a live issue in the trial and information about it could not rationally affect the assessment of fact in issue.
EDELMAN J: If you are wrong about that, Mr Kell, do you accept then that an inference could be drawn – or be easily drawn, perhaps – that juror A made the inquiry for the purposes of obtaining information about a matter relevant to the trial?
MR KELL: We say that the inference should not be made here having regard what we know from MFI 99 about the juror’s – this is going back to questions of level of abstruction clearly – but what we know about what the juror – what her true purpose for this – and, just pausing there for a step – this case is far removed from cases where the juror misconduct is jurors attending a park in the middle of the night to check lighting and so on, but there is no question other than that juror A’s explanation as to why she did what she did – made the inquiry – the explanation conveyed by the jury foreperson – it should be accepted, there is no - - -
EDELMAN J: Except if – my question is really asking, if the juror is found to have by inference known that the search concerns a matter relevant to the trial, would one not then conclude that, with that knowledge, conducting the search was for the purpose of obtaining information on a matter relevant to the trial?
MR KELL: It may be more readily able to make that inference, yes, but we say that the inference should not be drawn for the reasons stated, and that one still is looking at the juror’s purpose for obtaining that information.
EDELMAN J: But that is not purpose in the sense of motive. I mean, Lord Bridge once described a villain fleeing from pursuit to Manchester as intending to go to Manchester even though that was the last place that he might have wanted to be.
MR KELL: Yes. Just going back to ‑ ‑ ‑
EDELMAN J: This is – it is simply a question of whether the juror intends, in the sense of knows that the information will relate to a matter relevant to the trial and the means used are to obtain that information.
MR KELL: Yes, and we have made our submissions as to the characterisation of that information. But also, as to purpose, it has to be – and perhaps this sort of ties up with “inadvertent” or “accidental” obtaining of product which can be dealt with under other sub‑provisions but is not relevant to the subject of this appeal. So, it has to be the purpose of the juror to obtain information about any matters relevant to the trial, and if – anyway, I will not repeat myself – but if it still is that purpose to obtain information about how that legislation applied to me as the juror, and if further information is obtained, then that does not mean that section 68C(1) is engaged.
Can I deal more quickly with ground 2. The Crown accepts that if ground 1 is made out, then the verdicts of the first eight guilty counts would be set aside and there would be new trials ordered. If ground 1 is not made out – so, if this Court would find like the CCA did that juror A did not engage in misconduct, properly viewed, then, logically, mandatory discharge of juror A was not required prior to taking the verdicts of the eight counts or at all, and therefore it is a circumstance where the mandatory operation of 53A(1)(c) did not bite, as it were.
It is important to note, perhaps in this context too, that the language is not conditioned expressly on a state of satisfaction of the trial judge, and that can be contrasted, for example, with section 53A(2)(b), which talks about:
any other conduct that, in the opinion of the court –
So, the provision that we are dealing with does not – at least expressly ‑ refer to state of satisfaction or finding or opinion on the part of the trial judge. So we make those submissions on ground 2.
If, contrary to our principal contention, the trial judge’s view at the time – the time of discharge – was determinative as to whether there was misconduct, as opposed to the view of the CCA or this Court on further appeal, we say that the Court of Criminal Appeal was right to conclude that no conclusion had been reached by the trial judge prior to taking those eight verdicts and I can deal with that fairly quickly and give your Honours some references.
It was clear that the trial judge had formed at least – or we say had formed – a tentative view that there had been a breach of section 68C, but her Honour accepted that there would need to be an inquiry before a decision could be made, and perhaps I will go to it quickly as we go along. So, at appeal book 270 – so this is Friday, 6 November 2015, which is the day that most of these events happened. There is a reference up the top to:
It is a breach.
Just pausing there, perhaps I should say something quickly about the submissions that were made about concessions at trial and the like, and the reference to “It is a breach” is at line 11 where the Crown Prosecutor refers to “It is a breach” and her Honour refers to:
It’s a breach.
We say that the view of those involved in the trial is of no particular significance in this case and in this Court, once it is understood that we say, in our submission, that there was a misunderstanding at the time as to what would constitute misconduct for the statutory purposes. And that ‑ ‑ ‑
GORDON J: Do you think it is fair to infer, though, from those concessions that, at least at that point, the Crown were not saying, this matter was not relevant to the issues – this information or material was not relevant at the trial? That is never put, is it?
MR KELL: No, it is more broader than that, and it is linked we say to – and this is no criticism because this is happening instantaneous and people do not have the – including your Honour – does not have the opportunity to consider these matters in the way that counsel in the CCA and this Court do. But there is no consideration given to the proper construction of section 68C read with 53A(2)(a).
So that misunderstanding, we say, by those involved, means that the question of concession just does not arise in this case in a way that it might arise in other contexts in different cases. The other point to note just while it was here, too, is just an evidentiary reference – at page – and then I will come back to 270. At page 268, at line 50 through to 52, there is a discussion that:
the date of the legislation would be immaterial –
The Crown Prosecutor and, also, this is the Working with Children legislation and her Honour indicating that, too, was immaterial, i.e. the date the legislation came into force which was juror A’s inquiry.
Just going back to 270 – and this is the issue of whether the trial judge had made a concluded determination before discharge. So, there is discussion to matters being a breach in exchanges but then when one goes down the same page 270 to lines 39 and onwards, her Honour says:
Well we can proceed with ten.
Then the Crown Prosecutor:
Well we can’t discharge anyone till there’s an enquiry.
And her Honour saying:
No, that’s right.
So, there is an understanding, quite rightly, that there had to be – sorry, rightly – as there was to be in the circumstance – an acceptance by the trial judge that there needed to be an inquiry before a decision could be made.
Jumping to page 273 of the appeal book, which is trial transcript page 9, this is again 6 November 2015, at about line 26, about halfway down the page, her Honour indicates that she has not made up her mind. So, there is reference:
CROWN PROSECUTOR: That’s right but the difficulty – those verdicts assuming that a juror is going to be discharged for misconduct –
HER HONOUR: Well I haven’t made up my mind. I might discharge the whole jury.
I accept that that is broader, but it is an indication of things moving and her Honour had not, at that stage, made up – the trial judge – her Honour’s mind to discharge juror A in accordance with section 53A. Then, at page 273, at line 48 – so the same page, towards the bottom – her Honour says:
So as it presently stands it’s a lawfully constituted jury.
That is given that her Honour is aware that the finding of misconduct triggers a mandatory mechanism under the Act, which her Honour has previously referred to at appeal book 270, at lines 11 to 19. So, that is consistent with her Honour not having reached a determination as to misconduct.
Then, at page 277, towards the bottom of the page, the last paragraph there, at about line 50. Her Honour indicates the course that she proposed to take was to receive the verdicts:
make an enquiry of the foreperson . . . make an enquiry as to –
effectively, who we know now is juror A – and then, importantly, her Honour says:
if the mandatory provisions apply discharge that juror.
So, again, properly there is an expectation of a process that is to be undertaken and we know that there was the examination of the foreperson and that starts at appeal book 285 through to 286. Then there was examination of juror A, which is at appeal book 288.
Then we say that when one looks at her Honour’s reasons that are delivered – this is some 17 days later, which is appeal book 305 ‑ at 309, it is a page we have looked at before and my friend has taken your Honours to – we say, that when her Honour says, in the written reasons, at about halfway down, that there was:
I was of the opinion that I had sufficient information in jury note MFI 99 that a breach had occurred.
I have taken your Honours to where that reference to a breach was – it was then followed by her Honour referring to the necessary process that had to be followed – and which was followed.
In the context your Honours have just seen, that should be read as being an indication that there was sufficient information to indicate that an inquiry had to be held – and was held – to determine whether mandatory discharge was required, and, in context, that should not be understood as being a reference to the trial judge having reached the decided view that mandatory discharge was actually required which is not apparent from the passages in the transcript that I have taken your Honours to.
If your Honours are against us on that point, i.e that the trial judge ‑ and your Honours take the view that the trial judge did form a concluded view about misconduct prior to taking the verdicts, then on ground 2 we say that – and if the view was taken by the trial judge that mandatory discharge was required and now because the trial judge had formed the view, albeit erroneous, that juror A had engaged in misconduct prior to receiving those verdicts, we say that is an error of a technical nature to which the proviso to section 61 of the Criminal Appeal Act can - - -
KIEFEL CJ: You have never raised ‑ this question of the application of provisos has never been raised in the Court of Criminal Appeal, has it?
MR KELL: Sorry, we have raised it, yes, in our written submissions here.
KIEFEL CJ: No, in the Court of Criminal Appeal below.
MR KELL: I think it has been, your Honour. I will just see if I can find it for your Honour.
KIEFEL CJ: The way in which you raised in your written submissions I think is quite different from the way in which you are arguing it now.
MR KELL: Let me deal first with – so the - - -
GORDON J: Can I just ask one question. At core appeal book 394, at paragraph 93, I thought it records a Crown concession contrary to that which you just put to us.
MR KELL: Sorry, 390 ‑ ‑ ‑
GORDON J: 394, at paragraph 93.
MR KELL: It is the first sentence:
It was conceded on behalf of the Crown that a failure by a trial judge to ‑
leaving no room for application. Sorry, can your Honour just give me that page number again?
GORDON J: Sorry, it is 394 – I apologise, Mr Kell.
MR KELL: 394.
GORDON J: Ms Bashir took us to it this morning.
MR KELL: Yes.
GORDON J: The first sentence of paragraph 93.
MR KELL: Yes, and that really is a ground 1 point. What I am submitting on now is the alternative ground. If this Court finds that juror A had engaged in misconduct within the meaning of section 53A, then consistent with what is said by the Crown in the Court of Criminal Appeal’s judgment – and that is really at paragraph 80, appeal book 391 – if the CCA or if this Court is satisfied that juror A’s conduct in constituting the internet search constituted misconduct then the Crown accepts that juror A should have been discharged prior to the entry of the 10 verdicts, with the consequence that the guilty verdicts on those counts will be set aside and an order for a retrial – or retrials – made.
Our submissions are dealing with the ground 2 universe, as it were, which is if this Court takes the view that the trial judge’s view about the matter – whatever this Court thinks about misconduct – but that the question is to be determined by the trial judge’s approach, even if wrong, at the time as to what constitutes misconduct, if that is regarded as determinative ‑ and we submit for the reasons we have given that it ought not ‑ but if it does, then we say that on that argument, the proviso would operate. And that is because ‑ ‑ ‑
KIEFEL CJ: Why would the proviso operate? Why would not section 53A(2)(b) operate in its own terms, which is analogous to but not itself the application of the proviso?
MR KELL: Section 53A(2)(b).
KIEFEL CJ: But, in any event, why should the proviso apply?
MR KELL: Because if mandatory ‑ we say, your Honour, if the trial judge had formed a view erroneously, that juror A had engaged in misconduct, then this Court, for example like the CCA majority, takes the view that, no, that view was wrong as a matter of law and characterisation and construction, then that is an error, we say, of a technical nature to which the proviso should apply because the failure to – and this links, as your Honour points out, to the language in 53A(2)(b) – that the failure to discharge juror A prior to taking those verdicts could not, we say, occasion a substantial miscarriage of justice if there was, in fact, as determined by the appellate court, no actual misconduct by juror A, and that the trial judge’s view that misconduct had occurred was erroneous. So that is the universe in which that arises. And, in those circumstances, it would be, we submit, appropriate that the proviso could operate, and we have referred to that in our written submissions.
GAGELER J: What analysis do we need to go through to determine that the proviso applies? Is Weiss in issue?
MR KELL: With respect, your Honour – sorry, we respectfully submit that it would relevantly and clearly apply.
GAGELER J: I hear you saying that as a conclusion, but what steps in analysis would we need to go through to reach that conclusion?
MR KELL: Your Honours would – I just want to check one reference, your Honour. Sorry, when I referred to the submission being made as being consistent with the position in the CCA, what I had in mind was at paragraph 140 of the judgment at appeal book 406, where the same sort of reasoning can be seen by the CCA.
GORDON J: What paragraph was that, sorry?
MR KELL: Paragraph 140 at appeal book 406, where the court was:
satisfied that, as a matter of general principle, if a trial judge errs in finding misconduct . . . the failure by the trial judge to comply with a procedure which is only mandatory if misconduct has in fact been found does not mean that the trial is flawed in a fundamental respect.
KIEFEL CJ: Well, that is looking at section 53A(2)(b), is it not?
GORDON J: The analysis of 53A(2)(b) starts at 124, at page 402. This is directed at all of that, including her Honour’s acceptance at 139 that the material that was obtained, she says is:
thus is presumed to have been relevant to the trial, (although for my part its relevance remains somewhat obscure) –
That then gives rise to 140 and 141.
MR KELL: Yes, but that is under the heading which is at 136, in relation to overall conclusion ‑ no juror misconduct and does this mean the appeal should be dismissed. I will just give your Honours the reference in the submissions.
GORDON J: Can I ask a different question?
MR KELL: Yes.
GORDON J: If we were to undertake this analysis, we do not have the material in front of us, do we?
MR KELL: We submit there is sufficient material.
GAGELER J: You have not actually told me what the analysis is yet.
MR KELL: Can I just give your Honours the reference, which is in the respondent’s submissions at paragraph 82?
KIEFEL CJ: That is where I cannot it seeing squaring with what you are putting now. Mr Kell, if you are not in a position to make submissions about the application of the proviso properly, I do not think you should pursue this argument.
MR KELL: Your Honour, that is where we raise it in paragraph 82.
KIEFEL CJ: You raise it – that is not an argument.
MR KELL: We say that because it is an error of a technical nature, that it is a matter to which the proviso can apply in that alternative argument – that there – I understand what your Honour says.
KEANE J: Mr Kell, it is not an argument – you are not putting an argument. You are asserting a conclusion.
MR KELL: Yes.
GORDON J: I think that is reinforced because your footnote reference is to 156 of the Court of Appeal’s decision and that, again, is just, as I read it, a mere assertion by reference to distinguishing two former cases.
MR KELL: Yes. Your Honours, can I deal with one aspect which is counts 1 and 5? This is to do with orders.
KIEFEL CJ: Your argument is that the juror had been discharged at this point so, if any orders are made, that should not extend to these counts.
MR KELL: Yes, that is right, that juror A was correctly discharged by that time. The argument based upon tendency and coincidence reasoning should be rejected in that the fact of the verdicts had no necessary importance to the tendency and coincidence reasoning.
KIEFEL CJ: We are not running mini appeals ‑ ‑ ‑
MR KELL: No.
KIEFEL CJ: ‑ ‑ ‑ merely by reference to a fact that they could have depended upon that evidence. We are not running another little appeal within the question of what orders should be made.
MR KELL: Yes, but what is submitted is that – the defence that is made to counts 1 and 5 is that there was a real possibility that the verdicts of guilt on those first counts could be used in relation to counts 1 and 5 as part of tendency and coincidence reasoning. We say that argument should be rejected, that the conduct – the fact of the verdicts had no necessary importance to the tendency and coincidence reasoning and that that is ‑ all that was required relevantly was that the – so the conduct could have been uncharged – all that was required was that the jury accepted that the relevant conduct was subject to those counts, were proved beyond reasonable doubt, and that is how the jury was instructed and that can be seen at appeal book 86, lines 3 to 88, in the summing‑up.
We accept that the appellant would need to be resentenced, and that would be a matter for the District Court on counts 1 and 5, possibly after a retrial on counts 2 and 6 to 12, given that there was an aggregate sentence imposed. I will just make one check, your Honours. Thank you, your Honours, those are my submissions.
KIEFEL CJ: Yes, thank you. How long will you be in reply, Ms Bashir?
MS BASHIR: Your Honours, maybe 15 minutes.
KIEFEL CJ: We will hear you in reply.
MS BASHIR: Just very quickly ‑ ‑ ‑
KIEFEL CJ: What do you say about verdicts one and five?
MS BASHIR: I am sorry, about ‑ ‑ ‑
KIEFEL CJ: What do you say about the verdicts on counts 1 and 5?
MS BASHIR: Your Honours, we rely on our written submissions, we cannot take it any higher than that, your Honours.
KIEFEL CJ: Very well. And about resentencing, that would follow after new trials ‑ ‑ ‑
MS BASHIR: If there were a new trial. There would need to be a determination ‑ ‑ ‑
KIEFEL CJ: Yes.
MS BASHIR: - - - in relation to that by the Director. Could I just very quickly correct two things that my friend said? The first thing was that, on the evidence, the information search was as to whether historically I – that is the juror – would have been subject to a Working with Children check, but of course that is to be contrasted with MFI 99, which the trial judge relied on, which was that there was a google search of the requirements for a Working with Children check – and, of course, we do not know if it was limited to the discovery of the legislation from 2013, and that is one of the vices of making an inquiry.
Then, the second point was that, in the defence closing, there was only a reference to Mr Nguyen’s evidence. There was, of course, also the direct reference to Detective Paul’s evidence and the Working with Children check by the defence counsel and that is in the further materials book at 99. In terms of submissions as to temporality, the relevant temporality is in section 53A itself, and they are those words “in the course of any trial” – it simply needs to be “in the course of a trial”.
In relation to relevance and the respondent’s limited relevance construction, in our submission, it does not work and, when one looks at section 68C, it could not work, for example, in relation to making an inquiry in the form of a juror, or jurors, conducting their own experiments – so, for example, the Skaf experiments – because, of course, those experiments would not be relevant to the trial but it would be relevant to matters that had been the subject of evidence in the trial. Similarly, with private views, it could not work in relation to that, so it must be a more expansive definition of relevance.
That brings me to two further matters. One was the response in relation to what is the actus reus of section 68C and the respondent seemed to drop off from that section. The exception – so, the actus reus is not just the making of an inquiry, but it is for the juror in the criminal proceedings not making an inquiry:
except in the proper exercise of his or her functions as a juror.
That end part of it is important because that is what draws in subsection (4) because then the making of the inquiry in contravention of a direction is not in the proper exercise of the functions. So, it becomes – on an actus reus, it triggers 53A misconduct – if it is relevant to the trial.
Now, I did just then want to take the Court to the practical application of that in the cases of Sio (No 3), and that is in the authorities book number 2, tab 13. These were cases where – one can see at 183 of the book, there was a juror – the Sheriff – the jury had raised a concern about internet research on matters of law in connection with the trial, and then at paragraph 6 the oral directions that were given, including the warning about the offence, and at 7:
Accordingly, a juror . . . would be in breach of my directions and would therefore be in breach not only of s 68C(1) but also of s 68C(4) of the Act.
Then, at paragraph 9, there were:
private enquiries made about trial matters ‑
At 186, in the middle of paragraph 12:
[they] had conducted some research on the Internet . . . As far as he was aware she did not speak further about her research ‑
except to say that she had done it. And in the middle of 13:
the contents of the Internet research were not disclosed and that there was no further conversation ‑
At 14, there is a rejection of the juror’s evidence. So, one does not have to accept the motive, for example, of the juror in this case. Then there was satisfaction on the other evidence that there was:
research of legal matters relating to this trial on the Internet.
So, relevance is there very broadly construed relating to the trial.
Then, in JP (No 1), which is back at tab 11, again paragraph 1, it is in relation to undertaking:
legal research by way of an Internet search.
Then, at paragraph 9, a similar reasoning in relation to the inference that it is for the purpose of a matter relevant to the trial.
Now, of course, the other authority is Carr, which is back at tab 10 and the relevant section is at the bottom of 154, the very bottom of paragraph 19, in terms of :
the focus of the prohibition is upon obtaining, or attempting to obtain, extraneous information about the accused or some other matter relevant to the trial.
So, the purpose is the intention of, for example, conducting legal research on a matter relevant to the trial.
Then, your Honours, just in relation to this argument – my friend took the Court to pages 272, 273 to say, well, her Honour had not finally concluded that she would discharge the juror. Your Honours, that just cannot be borne out once the terms of the judgment are looked at, which is at 309 of the core appeal book, where her Honour specifically says – and contrary to what she might have been saying to counsel at times – but it was abundantly clear also, she specifically says, after that finding at lines 11 to 19:
Prior to making specific inquiries in relation to the jury note, MFI 99, I heard submissions from both counsel. Both counsel submitted that an inquiry . . . should take place before any steps were taken to take the eight verdicts. I declined to conduct the inquiry . . . before taking the verdicts as I was of the opinion that I had sufficient information in jury note MFI 99 that a breach had occurred. It was therefore mandatory that that juror had to be dismissed.
So, your Honours, that argument, in our submission, can be quickly disposed of. Certainly, that is what Justice Campbell held, and we do rely on his Honour’s reasoning. It is clear from MFI 99 that there was a googling of the Working with Children relevant legislation in the trial. I will just give your Honours the reference at 269 to 270, clearly there was recognition that the legislation was relevant to the case.
Of course, inference is often all that a trial judge will have because they may well have denials of the juror of even conducting the search – there may have to be inference – and here it is clear that it was inferred from that MFI 99. Indeed, in relation to the power to question a juror in 55DA, it is related to conduct, not as to deliberations, and here the jury were already in the course of their deliberations.
So that then brings me to the proviso and we have it in our oral submission note – the outline – but there are three relevant paragraphs in the Court of Criminal Appeal judgment – paragraph 12 in Justice Campbell’s judgment, which is on page 376, and then paragraph 71, which is at 389, which is the concession that her Honour was required to immediately discharge upon the satisfaction of misconduct, and it is very clear from 309 that that was upon reading MFI 91. Then, the next paragraph is paragraph 80, which the respondent has taken the Court to. Then, of course, there is paragraph 93, which I had already taken the Court to.
Just dealing with the submission in paragraph 140, at 406, of course this turns on the court’s satisfaction that no such misconduct could be established and that is on that very error that there was no evidence. That, in our submission, is an erroneous finding in any case. It is also on the
basis that the trial judge did not comply with the procedure where – and it was only mandatory, if misconduct has in fact been found – well, it is clear that misconduct was found in the trial, and it is, in our submission, a matter to which those concessions as to the proviso below apply and it is not an error to which the proviso could be applied. Thank you.
KIEFEL CJ: Thank you, Ms Bashir. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.
AT 1.02 PM THE MATTER WAS ADJOURNED
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