Knight and Ors v The Queen

[2014] HCATrans 19

[2014] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B32 of 2013

B e t w e e n -

MARK DEMPSEY KNIGHT

First Applicant

WESLEY ROBERT WILLIAMS

Second Applicant

WAYNE THOMAS ROBERTSON

Third Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 11.36 AM

Copyright in the High Court of Australia

____________________

MR P.J. DAVIS, QC:  May it please the Court, I appear with my learned friend, MR D.R. LYNCH, for the second applicant. (instructed by Legal Aid Queensland)

MR J.A. FRASER:  May it please the Court, I appear for the first and third applicants.  (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC:  May it please the Court, I appear with my learned friend, MR D.C. BOYLE, for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Thank you, Mr Davis.

MR DAVIS:   Your Honour, it was agreed at the Bar table that I should address first on behalf of all applicants but that is, of course, subject to your Honour’s direction.

FRENCH CJ:   Yes.

MR DAVIS:   Your Honours, two days ago the Court handed down judgment in Smith v Western Australia [2014] HCA 3. That case is, in some respects, relevant to the present application and we may refer to it. It is obviously, though, not a case on the list and we have telephoned your Honours’ associates this morning in the hope that copies could be provided to your Honours. We hope that has been attended to.

FRENCH CJ:   Thank you.

MR DAVIS:   This case, the present one, concerns a refusal by a judge at first instance and then by the Court of Appeal of Queensland to order an inquiry under section 70(7) of the Jury Act to either bias of a juror who sat on our client’s trial or an offence committed by a juror in that trial. Section 70 of the Jury Act is set out at page 44 of the application book.  Could the Court go to that for me please?

FRENCH CJ:   Yes.

MR DAVIS:   Section 69 is also important because section 69 creates an offence which is relevant for the purposes of section 70(7). I will return back to the sections in just a moment, but the facts of the case are that after the verdict was delivered and the jury disbanded a man entered a barber shop and told the barber that he had sat on a jury, and then of the conviction he said, it would not make any difference as they were already serving life or terms of long imprisonment. The evidence in relation ‑ ‑ ‑

FRENCH CJ:   The conviction – the verdicts of guilty were returned, I think, on 2 April, were they not, and this conversation occurred, was it, on the 21st?

MR DAVIS:   Yes, your Honour.

FRENCH CJ:   So, nearly three weeks.

MR DAVIS:   Yes, your Honour, that is so.  Your Honours, it seems common ground that the evidence points to the customer of the barber being a juror who sat on the murder trial.  The other important facts appear at page 25 of the application book in the judgment of the Court of Appeal.  At paragraphs [7] through to [11] what appears is that there was publicity after the first trial – this was a retrial – which identified that some of the applicants – all of the applicants had significant criminal histories for violence and, indeed, at least one of them had a conviction for murder.  There was extensive media coverage of the first trial and it was ‑ ‑ ‑

FRENCH CJ:   Can I just accelerate things a little bit? The Court of Appeal has given a fairly substantial analysis, and the primary judge, of the evidence in the matter. To what extent can you escape the observation that your complaint is really about the court’s judgment concerning the sufficiency of the evidence to give rise to the kinds of grounds for suspicion of our requisite for the purposes of an investigation under section 70?

MR DAVIS:   We hopefully escape that two ways, your Honour.  Our first complaint is that the factual examination which the court did was beyond that which was authorised by the statute.  So instead of ascertaining whether there were grounds to suspect that there may have been bias or an offence, et cetera, the court has identified different ultimate facts that might be suspected and then engaged in an exercise of assessing the likelihood, which was the more likely.  That, in our submission, is not the exercise which ought to have been undertaken.  If I can take your Honours to page 45 of the application book.

FRENCH CJ:   If you can point us to something perhaps which encapsulates what you say is an error of principle in the approach of the Court of Appeal, that would be helpful.

MR DAVIS:   Yes, your Honour.  In that case, your Honour, can we go to page 31 of the application book and paragraphs [24] to [27].  What the court is doing here at paragraphs 24 and following is engaging in a factual exercise of what is likely.  There were really two possibilities here.  One possibility was that the information came to the juror before verdict.  If that was so then the possibility is that the jury was acting on information it should not have had and the relevant purpose then was biased and, secondly, that there had been a breach of section 69A of the Act in that there had been investigations done by a juror prior to verdict.

The other possibility was that the information came to the juror after verdict.  We accept, of course, that if the information came to the juror after verdict, then that would have no effect upon the verdict.  So our submission is this:  when one looks at the facts, there were clearly two relevant suspicions that could arise.  Here, your Honours, the test is grounds to suspect.  It is not even, funnily enough, reasonable grounds to suspect.

The discretion under section 70(7) arises once there are grounds to suspect. Our submission is there are grounds to suspect at least two things here, the two that I have just stated. Once that point is reached, there are grounds to suspect bias, or the commission of an offence, for the purpose of section 70(7).

The factual inquiry by the court, both by her Honour at first instance in the Court of Appeal, should have ceased, but it does not.  Your Honours will see at page 31, paragraphs [24] through to [27], there is an examination of what is more or less “likely” to have occurred.  That is not the exercise that should have been undertaken, in our submission, and we should say this, your Honours, that this is not a case where there is any suggestion of an appeal against an exercise of discretion.

The judge at first instance did not say that had the discretion arisen her Honour would not have exercised it in favour of granting an inquiry.  So your Honours will see, in our submission, at page 9, paragraphs [24] and following, that there is this examination of which of these two suspicions is more likely.  That is effectively what the court has done.  Our second complaint is this:  if your Honours go to paragraph [28] of the judgment which is on page 32 of the application book, your Honours will see that the court identifies the principle that there is a:

“fundamental assumption” that a jury, in a criminal trial, “acted . . . on the evidence and in accordance with the trial judge’s directions”. 

Now, that fundamental assumption is a fundamental assumption which is adopted by the court on an appeal against conviction, though on an appeal against conviction the court obviously approaches the matter, the assessment, on the basis that the jury will have followed directions. That principle, in our submission, cannot possibly be applied consistently with section 70(7) in circumstances where that, the exercise of discretion under 70(7), is being contemplated. If your Honours go back to that section, it is replicated at page 30 of the appeal book:

If there are grounds to suspect that a person may have been guilty of bias . . . the court before which the trial was conducted may authorise –

FRENCH CJ:   Well, no, you said they do not even have to be reasonable grounds.  I do not quite understand what that imports.  Is an allegation sufficient?

MR DAVIS:   No, your Honour.  I should qualify that.  We do not say to the Court that unreasonable grounds would be sufficient.  All that we say about ‑ ‑ ‑

FRENCH CJ:   That exhausts the universe, does it not?

KEANE J:   Or flimsy grounds? 

MR DAVIS:   Well, your Honour, all that it has to be is ‑ ‑ ‑

KEANE J:   Unpersuasive grounds?

MR DAVIS:   Grounds to suspect, and we just point to the fact that the legislature does not even use the term “reasonable grounds” as an indicator that the bar is set very low, and it should be set very low.

KEANE J:   The bar is set very low, but if one looks at paragraph [34] at the end of the court’s analysis, or end of Justice Muir’s analysis, his Honour sums up:

there is the mere possibility that the juror obtained the relevant knowledge prior to the verdicts. On the other hand, there are cogent reasons for believing that the relevant knowledge was gained after the verdicts. There was no basis for concluding that this possibility amounted to “grounds to suspect” any of the matters referred to in s 70(7).

So that his Honour is addressing the relevant question and his Honour’s conclusion that there are not grounds to suspect is based on the view that there is a mere possibility, on the one hand, with cogent reasons to reach the alternative conclusion on the other.  What is wrong with that?

MR DAVIS:   Well, one of the reasons his Honour uses is that there is a presumption that – a presumption of regularity, so to speak. So in a subsection which authorises an inquiry to ascertain whether there has been irregularity, the court starts from the presumption that there is regularity. In our submission, that presumption cannot apply to the course taken under section 70(7).

KEANE J:   But his Honour is not acting simply on a legal theoretical basis.  It is actually grounded in the hearsay statement that you rely on which shows a reason to think that this particular juror, and perhaps the other jurors, did indeed act in accordance with the instructions they were given.

MR DAVIS:   Well, can I take your Honours to – I accept what your Honour says.  Can I take your Honours to page 47, paragraph 22, where we have identified what we submit are grounds.  Now, in our submission, once there are grounds or once there is a factual basis for a suspicion – and a suspicion, of course, is a state of intellectual belief which is very low – once there are grounds for the suspicion, in our submission, identifying cogent reasons which might lead to the belief that the relevant knowledge was gained after the verdicts, which is what his Honour has done under paragraph [34] which your Honour just took me to, is not the appropriate exercise.

FRENCH CJ:   Can I just encapsulate – and I hope I am not, as it were, trivialising your argument here – but does it amount to more than this?  You have a juror who nearly three weeks after verdict in a conversation with a member of the public refers to material relating to the accused of which he could have become aware before trial or after trial.

MR DAVIS:   Yes, your Honour.

FRENCH CJ:   It is on that basis that you say there are grounds for suspicion?  That is sufficient?

MR DAVIS:   Yes, because firstly, there certainly was information in the media prior to verdict, so that is a fact.  The juror has said that he has had access to information and some of that information was obviously available before verdict.  The juror has then expressed an opinion about that.  He has said, “Well, it means the verdicts don’t matter”.  Now, in our submission, that gives rise to two suspicions:  one, a suspicion that that material came to the juror before verdict ‑ ‑ ‑

FRENCH CJ:   I am sorry; when you say “suspicion”, are you equating suspicion with logical possibility?  It is logically open that he could have found out before.  It is logically open that he could have found out afterwards.

MR DAVIS: Yes. But even with that concession, the question then is whether that is relevantly a suspicion and, in our submission, it would be. That is the information. He seems to have acted on, or at least formed a view, on some information. Is there a suspicion that he obtained it prior to verdict? Our submission is yes. Is there a suspicion that he obtained it after verdict? We concede yes. What section 70(7) does is enliven the court’s discretion to order an inquiry. An inquiry into what? An inquiry to ascertain which suspicion is factually correct.

That is why we submit, with respect, that at page 34 of the record book, at paragraph [34] as well, the passage that Justice Keane took me to, there may very well be cogent reasons for believing that the relevant knowledge was gained after the verdicts, but that does not mean there is not a suspicion that they may have been obtained or had access prior.  That is the whole point of the inquiry.  They are our submissions, your Honour.

FRENCH CJ:   Yes, thank you.  We will not need to trouble the respondent.

The applicants seek special leave to appeal from a decision of the Court of Appeal of Queensland dismissing an appeal from the primary judge’s decision to refuse their application for an investigation to be carried out pursuant to section 70(7) of the Jury Act 1995 (Qld). The investigation sought was into the conduct of a member of the jury which, on 2 April 2012, returned verdicts of guilty of murder against the applicants following a trial which had commenced on 1 February 2012.

The grounds for the suspicion to warrant the initiation of an investigation under section 70(7) were said to be based upon a conversation conducted between a person who claimed to have been a member of the jury and a member of the public nearly three weeks after the trial had concluded.

It is sufficient to say, as the primary judge and the Court of Appeal found, that on the facts no grounds for the requisite suspicion of bias or of an offence related to a juror’s membership of the jury or performance of functions as a member of the jury could be established.  The case turns on its facts.  There is no reason to doubt the correctness of the decision of the Court of Appeal.  Special leave will be refused.

AT 11.56 AM THE MATTER WAS CONCLUDED