Hoang v The Queen

[2021] HCATrans 148

[2021] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S6 of 2021

No S7 of 2021
  No S8 of 2021
  No S9 of 2021

B e t w e e n -

QUY HUY HOANG

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 SEPTEMBER 2021, AT 12.30 PM

Copyright in the High Court of Australia

KIEFEL CJ:   I will announce the appearances.

MS G.A. BASHIR, SC appears with MR D.L. CARROLL for the applicant in each matter.  (instructed by AA Criminal Lawyers)

MR D.T. KELL, SC appears with MS B.K. BAKER for the respondent in each matter.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Ms Bashir.  Ms Bashir, given the extent of the delay I take it that you will be addressing that question as part of your argument.

MS BASHIR:   Your Honours, in terms of that application which we make for a significant extension of time in all four matters, it really runs with the merit of the application itself and ‑ ‑ ‑

KIEFEL CJ:   We will consider the application when we consider the substantive matter.

MS BASHIR:   Thank you, your Honour.  Should I proceed, your Honours?

KIEFEL CJ:   Yes, please.

MS BASHIR:   Thank you, your Honours.  Your Honours, this is a case that concerns juror searches on the internet in breach of a commonly given judicial direction and, as such, it is a matter of significance for all criminal trials.  The majority of the intermediate Court of Appeal in the application book at 395, paragraph 92, recognised that the case raises an “important question” about impermissible and permissible juror – they said, “access to”, but we would say searches, on the internet during criminal trials.

The correct interpretation of the Jury Act 1977 (NSW) and the constitution of the jury as it relates to our provisions for mandatory discharge of a juror if, in the course of a trial the juror has engaged in misconduct, is raised on this application. There is a further question, your Honours, of the consequences that flow for verdicts where a trial judge is satisfied that a juror has engaged in a breach of the mandatory provisions but delays the discharging of the juror until after the taking of the verdicts.

Your Honours, the directions given in this trial, both orally and in writing at the outset of the trial, are set out in the application book at 379.  That is at paragraphs 29 to 31.  They reflect directions given in many – the majority, if not all, criminal trials in the country, and they are critical for the integrity of verdicts in criminal trials.

Contrary to the respondent’s submission at paragraphs 35 and 38, they were not directions in relation to the purposes – the purpose of jurors conducting searches.  They were in relation to jurors’ conduct in making inquiries or searches on the internet.

Your Honours, if I could take the Court to sections 53A and 68C, which appear in the application book at 426 and 427 – they are also found in the application book at 382 and 383 with another section that I will mention.  It is our contention that section 53A(1)(c), which refers to juror engaging in misconduct in relation to the trial, and the definition in 53A(2)(a) as to conduct that constitutes an offence against the Act, specifically directs attention to conduct, as does 53A(2)(b), “any other conduct”.

Your Honours, in response to one of the respondent’s contentions, 53A(2)(b) does not relate to another purpose of a juror.  It focuses attention on conduct.  So, too, does section 55DA, which is found at application book 383 and this is what a judge could inquire into.  A juror on oath can be examined to determine whether they have engaged in any conduct that may constitute a contravention of the section.  The purpose, in our submission, is not there picked up.

Your Honours, this accords, in our submission, also with section 72A, which is a juror must return an oath on the evidence.  Of course, section 53A and section 68C, which is about inquiries in relation to trial matters, the mischief that is addressed to is to prohibit jurors from gaining information extraneous to the matters that are dealt with in the trial, that is, as relevant to the trial.  Your Honours, Justice Campbell at application book ‑ ‑ ‑

KIEFEL CJ:   Ms Bashir, it seems to have been accepted at trial that the inquiry made by Juror A was in some way relevant to the trial, although some doubt was cast upon that by one of ‑ ‑ ‑

MS BASHIR:   Yes, your Honour.

KIEFEL CJ:   Is that a live issue?  Would that be a live issue on special leave?  I suppose it would be a matter for Mr Kell as to whether or not you raise it by way of notice of contention.

MS BASHIR:   Your Honour, in relation to that, certainly Justice Campbell at paragraph 4, application book 375, accepted that it was a matter relevant to the trial.  The way that the Crown argued this on the appeal was that section 68C turns on the purpose and there being a specific purpose of the juror.  Because she was looking at the legislation to see whether it applied to her, that is what she said, rather than because of the trial, that was what the hair‑splitting was about.  We do say, your Honours, that in relation to that argument about purpose, that it turns on a juror’s purpose in the offence itself as effective purpose that it would make the section unworkable.

In the cases of Wood, Sio and JP, all discussed by the majority, there was no such suggestion in relation to purpose.  It was simply the conduct and the not following of the directions of the trial judge to not search that was sufficient for the discharge of the juror under section 53A.  In terms of section 53A ‑ ‑ ‑

KEANE J:   Ms Bashir.

MS BASHIR:   Yes, your Honour.

KEANE J:   Sorry to interrupt, but can I follow that up.  How was the existence of a clearance relevant?  Ignoring purpose and intention, how was it a matter relevant to the trial?

MS BASHIR:   Your Honour, the prosecutor called the officer in charge to say that the accused did not have a Working with Children clearance under the legislation and then the defence had to counter that by calling a witness to say that tutors actually normally did not have one, despite ‑ ‑ ‑

KEANE J:   Can I ask, was Detective Paul’s credibility in issue?

MS BASHIR:   Your Honour, it was the credibility of the accused.  It was run to suggest that there was some devious avoidance of scrutiny by the accused in relation to his teaching of these complainants, in the trial.  There was no doubt, your Honour, that it was relevant – it was held to be relevant by the trial judge.  If I can take the Court to application book 309, the finding is there at line 12, that the view that was taken:

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 her Honour had no option but to discharge.  Relevantly, at the bottom of the next paragraph, as her Honour was of the opinion that she had sufficient information in the jury note that a breach had occurred:

It was therefore mandatory that that juror had to be dismissed.

Relevantly, that was prior to the taking of the verdicts, which is raised by our second ground, and it is our submission that in accordance with Smith v The Queen that that should have happened there and then.  Indeed, there was a concession in the appeal itself, and that concession was linked to section 68C.  It can be seen in the application book, first, 390 at paragraph 71, that:

her Honour was required to immediately discharge Juror A upon being satisfied that there had been misconduct.

The manner in which the court dealt with this is at 406, paragraph 137, about line 5 of that paragraph:

There is no decision at the earlier point in time that the juror was guilty of misconduct.

In our submission, that is an error by the court because, of course, there does not need to be a finding of guilt.  That is for the offence.  There needs only be satisfaction, potentially on balance that misconduct in accordance with section 53A “has been occasioned”.

Your Honours, just going back to some of the other paragraphs that we would seek to challenge – paragraph 100 in relation to the purpose – that is, if the purpose does come into it, if the court was correct about the purpose it is not, in our submission, any subjective purpose of the juror as expressed.  We have raised the difficulties with that, in our submission, in challenging the hypotheticals.

If I could give an example in relation to the well‑known case of Wood v The Queen where the accused was said to have thrown his girlfriend off the cliff at a place that was a notorious place for suicides in Sydney.  If, in that trial, the juror or jurors had given evidence that they simply wanted to go at night time to the clifftop to go rock fishing, in accordance with the judgment of the majority that would mean they were going, subjectively, for a different purpose and no offence would have been committed. 

But, in our submission, if purpose comes in it should be objective because what would occur is they would get all of the information extraneous that the direction of the trial judge had been directed to avoid.  There had been no night view on purpose.  There had only been a day view.  The jurors would be in direct breach and in misconduct within the meaning of section 53A, in our submission, even if purpose is drawn in.

So, our primary submission is that it is conduct alone, but even if purpose is drawn in, it is not the subjective purpose and if the court thinks about what direction could be given to jurors then to avoid the misconduct if one had to be passed around some subjective inquiry, the difficulties with the hypotheticals of the majority also is that they might only work if there was nothing contradictory to the evidence at trial gleaned from the inquiry.

In our submission, your Honours, it was wrong to say there was no evidence, that it was other than to satisfy a juror’s curiosity and to say that if an inquiry was only to satisfy a juror’s curiosity – and that is what we find in the majority judgment at paragraphs 98 and 99 – then that would turn both the offence and the provision for mandatory discharge on its head because jurors could always say, “I was just curious”, or “I just wanted to find out for myself what the law was on, say, beyond reasonable doubt”.  Clearly, that would be a contravention of the directions and that is the very vice towards which these directions are directed and in relation to extraneous inquiries it is in contrast, in our submission, to the oath of the jurors.

Your Honours, there is another difficulty, in our submission.  If the Court turns to application book 396 at 99, in the second half of the paragraph, her Honour held that she was not:

satisfied that the fact that Juror A told her fellow jurors about her inquiry necessarily means that the inquiry was made for the purpose of obtaining material relevant to the trial. 

Then, at 121 is where, at about line 18:

The consideration of the conduct of Juror A by 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.

In our submission, when one is looking to section 53A and not an offence that needs to be proved beyond reasonable doubt, then Justice Campbell was, with respect, perfectly correct to say, as he did at paragraph 6, application book 375, that even the fact that the juror might have undertaken the inquiry for her own purposes did not establish that it:

was not made for the purpose of obtaining information about a matter relevant to the trial.

In the face of the findings of the trial judge that that had occurred – and, can I say, the concession of the trial prosecutor that it had occurred – and I will take the Court back to application book 269 at line 11 – this is about the inquiry – the jury:

HER HONOUR:   And they know that the legislation exists but the fact is they Google searched something to do with the case . . . 

it did have something to do with the case and it was Google searched.

Then, following some further discussion, over the page at 270, having considered the terms of section 68C, conclude:

It’s a breach.

CROWN PROSECUTOR:   It is a breach and that triggers the mechanism under the Act.

HER HONOUR:   That triggers mandatory.

Her Honour is of the view it is a direct prohibition and that is reflected in the finding in the judgment that I have taken the Court to already on application book 309.

If I could take the Court just briefly to the terms of section 68C and, again, that is found in the application book at 427.  The offence which must be proved beyond reasonable doubt draws in the intention or purpose, but, your Honours, it has to be read in the context of subsections (3), (4) and (5) and it has work to do in interpreting section 53A – subsection (4) draws in that:

Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.

“Making an inquiry”, under subsection (b), includes conducting a search of the internet, and subsection (c), a view of any place to draw in that example that I gave the Court in relation to Wood.  In subsection (3), the proper exercise of functions that are permitted is there set out.  This was no proper exercise of that juror’s function.  Your Honours, we would draw that in to our interpretation of section 53A. 

If I could just turn to ground 2 very quickly.  That is a question of general importance as to whether, upon a trial judge being satisfied that there is misconduct such as to invoke the mandatory discharge provisions in section 53A, it can be postponed to following the taking of verdicts.  We say the answer to that is clearly that that would turn the provision on its head and be contrary to Smith v The Queen, but, secondly, the nature of the test – is it that one must be satisfied of guilt of an offence – and I have taken the Court to that passage, or not.

Justice Campbell dealt with this in his judgment in the application book at 375.  First of all, at paragraph 7 is a summary of what Smith provides.  Then, at paragraph 8, his Honour sets out:

In the unusual circumstances of the present case . . . the learned trial judge was so satisfied –

and that is clear from that passage in the judgment which is at 309 of the application book that I have taken the Court to.  So, your Honours, that goes all the way through to paragraph 11 – the relevant findings.

Your Honours, if I could take the Court to paragraph 120 of the judgment also in relation to the purpose as found by the majority of the offence itself but, in our submission, section 53A also.  At the very bottom of the page – the reason for these insertions into the Jury Act is to prohibit jurors from making such inquires after being directed not to do so, that they are to be discharged.  Then there is, of course, the remaining discretion.

But, your Honours, in relation to this case, in our submission, it was quite wrong for the majority to say that if the juror had some other purpose, as they held the juror did in this case, that that could be picked up by subsection (2)(b), which is directed to other conduct, not other purpose of a juror.  What that is directed to is cases such as the jurors playing Sudoku or the jurors playing some other game, or something like that in a trial.  May it please the Court.

KIEFEL CJ:   Ms Bashir, in relation to the rather extensive delay in this matter, do I take it from the material that it was largely delay on the part of counsel not attending to the brief that accounts for it?

MS BASHIR:   Yes, your Honour, solely.  Your Honour, it is certainly through no fault of the applicant or his wish to prosecute it.  Your Honour, I accept it lays solely at the feet of counsel and unfortunately so.

KIEFEL CJ:   Thank you, Ms Bashir.  Mr Kell, in relation to the application for extension, what is the attitude of the Crown?

MR KELL:   Thank you.  It is regrettable.  It is a child sexual assault matter, but your Honours could deal with it in terms of the merits of the matter generally, I think.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Kell.

MR KELL:   Thank you, your Honours.  Your Honours, the respondent says that special leave should be refused on two main bases:  firstly, neither of the two proposed grounds of appeal have sufficient prospects of success; and, secondly, neither ground raises a question of general principle.

The first ground, which concerns the construction of sections 53A and 68C, is relevantly peculiar to New South Wales.  There appears to be no other Australian State or Territory that features both such provisions.  In this case the applicant’s argument is dependent upon the interaction between those two provisions.

In the CCA proceedings below, there was no dispute between the majority and the dissenting judgment about the construction of those provisions.  The dispute was simply between the inferences to be drawn about the juror’s conduct and not the test to be applied.  That is apparent from the paragraphs that we have provided in the written submissions.

What the applicant does here is raise two alternative submissions about constructions which were not raised below, but we say that neither have sufficient merit.  The first contention is about purpose, that is that a juror’s purpose in making an inquiry is irrelevant to a determination of whether misconduct has occurred, and we submit that that construction would not be accepted by the court, that section 53A clearly defines “misconduct” as meaning:

conduct that constitutes an offence against this Act –

That is in section 53A(2)(a) and then, in turn, section 68C brings in the element or notion of “purpose” so that by 68C(1):

A juror . . . must not make an inquiry for the purpose of obtaining information about . . . any matters relevant to the trial –

So, there is no misconduct under section 68C unless the inquiry is made with the impugned purpose.  A juror cannot be guilty of misconduct unless that purpose exists and, therefore, section 53A(1)(c), and (2)(a) - “conduct that constitutes an offence against this Act”, cannot be triggered.

The applicant raises questions about, well, if there is a requirement of purpose then there are other particular difficulties said to arise and we say that is not the case, that there is no textual or purposive reasoning for excising, in effect, the mental element in section 68C from the word “conduct” in section 53A.  There is no need to strain the text of section…..because conduct that does not have that purpose, so, for example, a search is undertaken for personal reasons and notwithstanding the subjective intent or purpose of the juror, something is discovered, that is readily accommodated by section 53A(2)(b), which is:

any other conduct that, in the opinion of the court . . . gives rise to the risk of a substantial miscarriage of justice –

which is a provision that is not dependent on “purpose” and is, in effect, picking up the results of a search.

KEANE J:   Mr Kell, if the purpose of the juror was to obtain information about the need for a clearance, and the need for a clearance was a matter relevant to the trial, why would not section 68C(1) be satisfied?

MR KELL:   In this case part of what your Honour raises as a premise is – and that is a matter that is relevant to the trial.

KEANE J:   Yes.

MR KELL:   We say that properly viewed here it was not.  Your Honours have seen the references to, for example, in the Court of Criminal Appeal at paragraph 36, application book 381, the matter was described:

The evidence was thus of dubious relevance and did not appear to remain as a live issue in the trial by the time of counsel’s closing addresses.

KEANE J:   The evidence was adduced from the Crown and Ms Bashir says it was relevant because the absence of a clearance suggested a devious avoidance of scrutiny by the accused.  What do you say to that?

MR KELL:   That submission was never made by the Crown.  There was never a submission that there was any relevance from the absence of a clearance check.  So that simply was not part of the Crown case.

KEANE J:   That begs the question – sorry, invites the question, why was this evidence given by Detective Paul?  What did it have to do with the case?

MR KELL:   The answer to that question, I think, is in the references in the case that it is properly regarded as of dubious relevance, and certainly by – that is at paragraph 36.  Even Justice Campbell in his dissenting judgment at paragraph 4, application book 375, about the fifth line down:

the relevance of that matter was in truth at best obscure.

The majority, similarly, at paragraph 139 refers to it as remaining obscure.  It was at best peripheral, but seemingly of dubious or no relevance, or limited relevance, your Honour.

KIEFEL CJ:   Mr Kell, if special leave was granted would you then be seeking to uphold the decision of the majority on this ground?

MR KELL:   Yes, your Honour.

KIEFEL CJ:   There might be arguments about whether or not it was clearly in issue.  Do you say it was in issue before the Court of Criminal Appeal?

MR KELL:   It being in issue, the relevance of the Working with Children clearance check?

KIEFEL CJ:   Yes.

MR KELL:   Yes, your Honour. 

KIEFEL CJ:   While I have you interrupted, will you be raising any question relating to the proviso if the appeal were successful – if miscarriage was made out?

MR KELL:   Your Honours, I think I would need instructions on that.  It would depend on the ‑ ‑ ‑

KIEFEL CJ:   I see the question was raised with the trial judge about the discharge of the juror.

MR KELL:   Yes.

KIEFEL CJ:   There was some discussion about the proviso operating.

MR KELL:   Yes.  I think it would depend on the particular scenario. 

KIEFEL CJ:   I will leave it there for the time being.  I will not interrupt you further.

MR KELL:   Yes, I can sort of say that we would not be taking a different position from what was taken at the Court of Criminal Appeal in terms of the statements there about the proviso.

KIEFEL CJ:   Yes.

MR KELL:   But there may be an additional scenario that potentially could arise, and that may be a matter for instructions.  Hopefully your Honours will not need to be troubled by those issues.  We say that there is no basis - your Honours understand the argument about construction.  There is no basis to discharge a juror where the purpose element is missing and that here, we say, consistent with the finding of the Court of Criminal Appeal, the purpose here was a purpose – an inquiry made for the juror’s own personal circumstances.

The applicant raises an alternative submission based upon multi purposes and we say that - so, contending that even if purpose was relevant, the Court of Criminal Appeal majority incorrectly held that the purpose had to be a sole or specific purpose.  We say that the majority did not hold that there had to be a sole or specific purpose and did not apply such a sole purpose test, but rather found that the evidence was only of one purpose.  There was no evidence of any additional purpose.  That is at application book 396, for example, at paragraph 98, the fifth line down, where there is reference to the Juror A having made the inquiry 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.

Again, if one sits back and looks at that, it is difficult to see how – the juror makes an inquiry, an internet search that is to do with her own personal circumstances, having been a teacher, and whether I, as a teacher, was affected by the Working with Children check.  It is hard to compare that with cases of people visiting crime scenes at night and looking at lighting.  It is difficult to see how that could be a matter that is properly said to be relevant to the trial.  We say the CCA majority was correct in its approach.

Could I just quickly deal with ground 2 – just to make sure I have time.  That relates to the timing of the way in which the verdicts were returned, and we say that that does not raise a question of general principle here.  Ground 2 proceeds on a false premise which is – just looking at the ground – that the trial judge was satisfied that misconduct had occurred prior to taking the verdicts.

The majority in the CCA did not accept that premise.  That is at page 406 of the application book at paragraph 137 where the view taken that the trial judge had simply tentatively formed a view about the particular matter prior to taking the verdicts and had not actually made a decision on that and we say it was open for the CCA majority to conclude that. 

The trial judge recognised that in the circumstances of this case, there had to be an inquiry of the foreperson and Juror A, which included asking questions of Juror A.  That inquiry did not occur until after the verdicts were taken and logically one can see that, depending on what would come out of the inquiry – sorry, what would come out of the inquiry would not be known until obviously the inquiry was undertaken and evidence could impact on the decision to be made.  The decision that was made was not – to discharge did not happen obviously until after that was undertaken.

We say that because the second ground is premised on the trial judge having been satisfied that misconduct had occurred, and the CCA majority is not shown to be wrong with that approach, that there is insufficient merit for that ground of appeal to succeed and that your Honours would be justified in refusing the application for special leave.  Unless your Honours have any questions, those are the submissions.

KIEFEL CJ:   Yes, thank you, Mr Kell.  Anything in reply, Ms Bashir?

MS BASHIR:   Yes, your Honour, just briefly.  Addressing ground 2 first, the findings of the trial judge herself at application book 309 that I have taken the Court to, and of Justice Campbell put paid to the suggestion that there was no finding of misconduct prior to the taking of the verdicts.  At 309 her Honour specifically says that she was of that opinion prior to taking the verdicts.  Justice Campbell accepts that.

Further to that, when the jury was brought back it was not in fact for the purposes of an inquiry.  Although it is called that, actually it was to explain to the juror why the juror was being discharged and that is plain from the transcript itself. 

Your Honours, just dealing with the special leave prospects in terms of this mandatory provision, this case would also give guidance to Victoria in relation to the construction of the offence, which is the equivalent of section 68C and as it feeds into the discretionary discharge provisions in Victoria, and discretionary discharge provisions for misconduct around the country.  So, with respect, it is not simply confined to the mandatory construction question.

In relation to the concession on the appeal by the Crown as to the proviso, that can be found at application book 395 at paragraph 93 and there are various other concessions but that is where it is most clearly stated.  It is our submission that the proviso could not apply if we are correct in relation to either ground. 

In relation to the suggestion that she was conducting it for her own purposes, this legislation simply does not provide for jurors circumventing clear directions not to search anything to do with the trial by internet searches.  So, for a jury to subjectively say that they were searching the law to see if it applied to themselves, which is effectively what the court upheld here as falling outside of the provision, in our submission would really turn the legislation on its head, particularly in terms of the prohibition in section 68C(4).  A juror could say that in any circumstances, and the law would become meaningless, including in relation to mandatory discharge.

Your Honours, in relation to relevance, could I just take the Court very briefly back to Justice Campbell’s judgment, 375, paragraph 4.  The evidence was led by the Crown.  Then the defence:

felt constrained to counter it with other evidence.

Then that formed part of the summing‑up.  So, it cannot be said that the Working with Children check was not relevant for the trial.  May it please the Court.

KIEFEL CJ:   Thank you, Ms Bashir.  The Court will adjourn to consider the course that it will take.

AT 1.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.11 PM:

KIEFEL CJ:   The application for extension of time is granted.  Special leave to appeal is granted in these matters.

Ms Bashir, in relation to ground 1, you might like to turn your mind to clarifying it a little.  For example, it might read a little better if the third line said, “a juror’s intention”.  Although “relevance” may assume some importance in this case, there are too many “relevants” in there, but I will leave the drafting to you.

MS BASHIR:   Thank you, your Honour.

KIEFEL CJ:   What is your estimate of time?

MS BASHIR:   Your Honours, it may depend on the notice of contention, if there is to be one.  I would have said only half a day, your Honour, but if there are further issues then it may take the day.  It is quite short order ‑ ‑ ‑

KIEFEL CJ:   Mr Kell?

MR KELL:   We think it could be done by lunchtime as well.

KIEFEL CJ:   So, half a day?

MR KELL:   Yes.

KIEFEL CJ:   Yes, all right.  Thank you very much.  The Court will now adjourn.

AT 1.12 PM THE MATTERS WERE CONCLUDED