Lee v R; Tang v R

[2015] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lee v R; Tang v R [2015] NSWCCA 157

Hearing dates:

5 June 2015

Date of orders:

05 June 2015

Decision date:

23 June 2015

Before:

Basten JA at [1];
Garling J at [43];
Hamill J at [60]

Decision:

On 5 June 2015:
(1) Order that the convictions resulting from the acceptance of the jury verdict of guilty with respect to Man Fu Vico LEE and Hin Yiu TANG pursuant to an indictment dated 8 November 2013 be quashed.

On 9 June 2015:
(2) On the ground that it is necessary to prevent prejudice to the proper administration of justice, there be no publication of the names of the appellants or of any information which would allow the identification of the appellants, pursuant to s 9(1) and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010, until the completion of any further proceedings on the charges laid against them.

Catchwords:

APPEAL – conviction appeal – guilty verdicts returned in relation to appellants –jury continued deliberations in relation to co-accused – one juror discharged on grounds of illiteracy and ill-health – whether right to appeal – whether appellants were “convicted” – whether Court of Criminal Appeal has jurisdiction – Criminal Appeal Act 1912 (NSW), s 5(1)

 

CRIMINAL LAW – conviction – accused found guilty by jury – jury continued deliberations in relation to co-accused – significant evidence in writing – whether illiterate juror able to discharge his duty – whether failure or breach in the integrity of the trial – whether miscarriage of justice – Criminal Appeal Act 1912 (NSW), s 6(1) – Jury Act 1912 (NSW), s 73

 

JURY – illiterate juror – whether illiteracy ground for discharge of juror – questioning related to jury deliberations – Jury Act 1977 (NSW), s 53B

WORDS AND PHRASES – “conviction” – “sentence” – Criminal Appeal Act 1912 (NSW), ss 2 and 5(1)

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6
Criminal Code (Cth), ss 11, 307
Jury Act 1977 (NSW), ss 22, 53A, 53B, 73
Jury Amendment Act 2008 (NSW), Sch 1 [5], [6].
Jury Amendment Act 2010 (NSW), Sch 1 [22]
Proceeds of Crime Act 1987 (Cth), s 30

Cases Cited:

Brownlee v The Queen [2001] HCA 36; 207 CLR 278
Cesan v The Queen [2008] HCA 52; 236 CLR 358
Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1993) 38 NSWLR 257
Director of Public Prosecutions (Vic) v McCoid [1988] VR 982
Frodsham v O’Gorman [1979] 1 NSWLR 683
Griffiths v The Queen (1977) 137 CLR 293
R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134
Smith v Western Australia [2014] HCA 3; 250 CLR 473
Weiss v The Queen [2005] HCA 81 224; CLR 300

Category:

Principal judgment

Parties:

Man Fu Vico Lee (First Appellant)
Hin Yiu Tang (Second Appellant)
Director of Public Prosecutions (Cth)

Representation:

Counsel:
Mr M Thangaraj SC with Mr S Pararajasingham (First Appellant)
Mr RJ Webb (Second Appellant)
Mr RJ Bromwich SC with Ms E James (Respondent)

  Solicitors:
Kiki Kyriacou Lawyers (Appellant 1)
Sydney Criminal Lawyers (Appellant 2)
Solicitor for the Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

CCA 2012/237246

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 March 2015

Before:

Sweeney DCJ

File Number(s):

2012/00237243 - [R v Lee]
2012/00237229 - [R v Tang]

Case Name:

Lee v R; Tang v R

Medium Neutral Citation:

[2015] NSWCCA 157

Hearing Date(s):

5 June 2015

Date of Orders:

5 June 2015; 9 June 2015.

Date of Reasons:

23 June 2015

Jurisdiction:

Criminal

Before:

Basten JA at [1];

Garling J at [43];

Hamill J at [60]

Decision:

On 5 June 2015:

(1) Order that the convictions resulting from the acceptance of the jury verdict of guilty with respect to Man Fu Vico LEE and Hin Yiu TANG pursuant to an indictment dated 8 November 2013 be quashed.

On 9 June 2015:

(2) On the ground that it is necessary to prevent prejudice to the proper administration of justice, there be no publication of the names of the appellants or of any information which would allow the identification of the appellants, pursuant to s 9(1) and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010, until the completion of any further proceedings on the charges laid against them.

Catchwords:

APPEAL – conviction appeal – guilty verdicts returned in relation to appellants –jury continued deliberations in relation to co-accused – one juror discharged on grounds of illiteracy and ill-health – whether right to appeal – whether appellants were “convicted” – whether Court of Criminal Appeal has jurisdiction – Criminal Appeal Act 1912 (NSW), s 5(1)

CRIMINAL LAW – conviction – accused found guilty by jury – jury continued deliberations in relation to co-accused – significant evidence in writing – whether illiterate juror able to discharge his duty – whether failure or breach in the integrity of the trial – whether miscarriage of justice – Criminal Appeal Act 1912 (NSW), s 6(1) – Jury Act 1912 (NSW), s 73

JURY – illiterate juror – whether illiteracy ground for discharge of juror – questioning related to jury deliberations – Jury Act 1977 (NSW), s 53B

WORDS AND PHRASES – “conviction” – “sentence” – Criminal Appeal Act 1912 (NSW), ss 2 and 5(1)

Legislation Cited:

Criminal Appeal Act1912 (NSW), ss 2, 5, 5D, 6

Criminal Code (Cth), ss 11, 307

JuryAct1977 (NSW), ss 22, 53A, 53B, 73

Jury Amendment Act 2008 (NSW), Sch 1 [5], [6].

Jury Amendment Act 2010 (NSW), Sch 1 [22]

Proceeds of Crime Act1987 (Cth), s 30

Cases Cited:

Brownlee v The Queen [2001] HCA 36; 207 CLR 278

Cesan v The Queen [2008] HCA 52; 236 CLR 358

Della Patrona v Director of Public Prosecutions(Cth) [No 2] (1993) 38 NSWLR 257

Director of Public Prosecutions (Vic) v McCoid [1988] VR 982

Frodsham v O’Gorman [1979] 1 NSWLR 683

Griffiths v The Queen (1977) 137 CLR 293

R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134

Smith v Western Australia [2014] HCA 3; 250 CLR 473

Weiss v The Queen [2005] HCA 81 224; CLR 300

Category:

Principal judgment

Parties:

Man Fu Vico Lee (First Appellant)

Hin Yiu Tang (Second Appellant)

Director of Public Prosecutions (Cth)

Representation:

Counsel:

Mr M Thangaraj SC with Mr S Pararajasingham (First Appellant)

Mr RJ Webb (Second Appellant)

Mr RJ Bromwich SC with Ms E James (Respondent)

Solicitors:

Kiki Kyriacou Lawyers (Appellant 1)

Sydney Criminal Lawyers (Appellant 2)

Solicitor for the Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

CCA 2012/237246

Court or Tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 March 2015

Before:

Sweeney DCJ

File Number(s):

2012/00237243 - [R v Lee]

2012/00237229 - [R v Tang]

Judgment

1. BASTEN JA: The appellants were two of four co-accused arraigned before Judge Sweeney in June 2014 on charges relating to a possession of a commercial quantity of unlawfully imported substances, being heroin and methamphetamine. The charges were laid pursuant to the provisions of the Criminal Code (Cth). The Court was therefore exercising federal jurisdiction, a factor to which reference will be made below.

2. The jury retired to consider its verdicts on 1 October 2014. On 17 October it returned verdicts of guilty with respect to the two appellants. The jury continued its deliberations with respect to two other co-accused, Hung Kai Lok and Tri Thanh Phan. Being unable to reach a unanimous verdict with respect to Mr Lok, on 22 October 2014 the jury were discharged in relation to the charges against him. They continued their deliberations with respect to Mr Phan.

3. On 24 October 2014 the trial judge received a note from the foreperson of the jury. The note covered in some detail concerns held by the foreperson with respect to a juror referred to as juror X. (The juror’s identity was carefully not revealed in the note.)

4. The note identified two bases of concern. One was that the juror had a chronic illness which had been disclosed to the foreperson early in the proceedings. The foreperson noted that the juror said to her that he had been advised by a doctor to have an operation. The advice had not been taken, as the person was anxious to undertake the jury duty, although, as the foreperson noted, neither the likely length of the trial, nor the stress which would be involved, were probably appreciated at the time. The foreperson noted that the juror had expressed a desire to drop out due to ill health just prior to a ballot being taken to reduce the number of jurors from 15 to 12. The foreperson did not express an opinion (and probably was not competent to do so), as to whether the juror’s participation was actually affected adversely by ill health.

5. The second matter raised by the foreperson was an opinion that the juror was illiterate, based on the fact that at no stage was the juror observed to make reference to the extensive transcripts and documents that had been provided to the jury. The foreperson said that the juror had in fact disclosed to her his inability to read in the course of conversation.

6. After discussion with counsel, the trial judge invited the foreperson to confirm on oath particular matters raised in the note. [1] The judge then had juror X return to court and asked him some questions concerning his ability to read and his state of health. He was asked first as to whether he had “some difficulty reading”. He replied: [2]

“I can read, but its just it doesn’t absorb into my brain as well as it could and I can read a book and sort of only get the main points of it.”

1.    Transcript, 24/10/14, pp 3-4.

2.    Transcript, p 5.

7. When asked whether he thought that his level of reading affected his ability to absorb the evidence in the trial he replied:

“No. I have a good comprehension of absorbing from what you hear.”

8. The judge also asked him whether he thought it had affected his ability to participate in deliberations to which he replied:

“I don’t think so, because I can remember most of the court case.”

9. With respect to his ill health he indicated that his blood pressure had “gone through the roof and its like 190/140, I’ve been told to go to have it checked it out before I have a heart attack”.

10. After hearing further from counsel, the trial judge stated: [3]

“I think because of the juror’s ill health which, even on what he says, [he] is quite at risk of some serious consequences if he doesn’t get some attention, so under s 53B(a), and also on the basis that the foreperson has said that his illiteracy has affected the jury’s deliberations, even though he was not prepared to concede that, and I can understand he may not be prepared to, he may be embarrassed by that, so I think on those bases I do discharge that juror.”

3.    Transcript, p 6(10).

11. Juror X was then brought back to Court, his conscientiousness duly noted, but discharged with firm advice to go and see a doctor.

12. The reference to s 53B(a) was a reference to a provision in the JuryAct1977 (NSW) providing for discretionary discharge of an individual juror. The section reads:

“53B Discretionary discharge of individual juror

The court … may, in the course of any trial …, discharge a juror if:

(a)   the juror (though able to discharge the duties of a juror) has, in the judge’s … opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or

(b)   it appears to the court … (from the juror’s own statements or from evidence before the court …) that the juror may not be able to give impartial consideration to the case …, or

(c)   a juror refuses to take part in the jury’s deliberations, or

(d)   it appears to the court … that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror.

Note. Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.”

13. .

14. It is perhaps curious that the section does not expressly extend to a person whose continued service on the jury may be a significant risk to his or her own health. However, that circumstance could fall within par (d).

15. The Court is under an obligation to discharge a juror if it is found in the course of the trial that the juror “was mistakenly or irregularly empanelled, … because the juror was excluded from jury service” or “has become excluded from jury service”. [4] Prior to amendments which commenced on 31 January 2014,[5] Schedule 2 of the Jury Act provided that persons were “ineligible to serve as jurors” if “unable to read or understand English” (item 11) or “unable, because of sickness, infirmity or disability, to discharge the duties of a juror” (item 12). There are no equivalent provisions in the current Act.

    4. Jury Act, s 53A(1)(a) and (b)

    5. Jury Amendment Act 2010 (NSW), Sch 1 [22].

16. There will be a degree of flexibility inherent in the element of illiteracy, depending on the nature of a trial. No doubt someone who is quite unable to read English should be excluded in most cases. But where, as is more usual and as appeared to be the case with juror X, there is a limited ability to read English, it will be necessary to consider whether the trial is one in which, in practical terms, a difficulty is not likely to arise. (That may be rare these days, when, in cases of any complexity, it is usual to provide jurors with written instructions as to the law and when documentary exhibits are commonplace.)

17. Section 53A speaks of the power of the court to discharge a jury if in the course of the trial “it is found” that the juror was excluded or if the juror has become excluded. The first limb no doubt intends that the judge form an opinion based on available material; the second limb should be approached on the same basis, as it was in this case. As the passages set out above indicate, the juror’s own statement as to his blood pressure was seen as a critical factor, which understandably gave rise to serious concern. Although the evidence as to literacy was imprecise and somewhat qualified, the judge clearly gave weight to the opinions of the foreperson who, as a practical matter, had observed the conduct of the juror over many weeks. To the extent that the judge relied upon the lack of literacy, she was correct to discharge the juror.

18. Although there is no challenge to the decision to discharge the juror, the basis of discharge was not irrelevant to the next question faced by the trial judge, namely whether the trial should be allowed to proceed with the remaining jurors or whether the whole of the jury should be discharged. It also has a consequence for the verdicts already given, prior to the problem being identified, with respect to Messrs Lee and Tang.

19. There is no dispute between the parties in this case: the Commonwealth Director of Public Prosecutions has accepted that the verdicts with respect to Messrs Lee and Tang should be quashed so that all four accused may be the subject of a retrial, which is set down to commence in mid July 2015. To allow that course to be taken, Mr Tang applied on 2 June 2015 to be “granted leave to join the conviction appeal” of Mr Lee. On the same day he filed a notice of appeal “against conviction”: the notice of motion should be taken to seek to have his appeal heard together with Mr Lee’s appeal, which has now happened.

20. The position of the director allows this Court to more readily accept that the circumstances recounted above require the quashing of the verdicts. Nevertheless, the Court should be affirmatively satisfied that that is the proper course, it being a serious matter to quash a verdict unless attended by a fatal irregularity.

Jurisdiction

21. It is necessary first to be satisfied that this Court has jurisdiction to make the orders sought. The Criminal Appeal Act1912 (NSW) provides a right of an appeal for a person “convicted on an indictment” to appeal “against the person’s conviction”, either with or without leave of the Court, the circumstances in which leave is required being presently irrelevant. [6]

    6. Criminal Appeal Act, s 5(1).

22. The first question is whether Mr Lee and Mr Tang have been “convicted”. Procedurally, there is an important distinction between the announcement of the jury’s verdict and the formal step taken by the judge, on behalf of the court, in convicting the accused. The term “Conviction” is defined, but only by way of inclusion of “a finding or verdict under or in accordance with [identified sections] of the Mental Health (Criminal Procedure) Act 1990”. [7]

    7. Criminal Appeal Act, s 2(1).

23. The meaning of conviction for the purposes of criminal appeals (although not particularly with respect to s 5(1)) was considered by the High Court in Griffiths v The Queen. [8] That was a case in which the trial judge, having accepted a plea of guilty to a number of charges declined to proceed to sentence the offender on condition that he entered into a recognisance in the sum of $200.00 conditioned on his being of good behaviour for 12 months. The Attorney General sought to appeal from that order pursuant to s 5D of the Criminal Appeal Act, which permitted an appeal by the Attorney or the Director of Public Prosecutions “against any sentence” pronounced by a trial court. The applicant objected (unsuccessfully) that he had not been convicted, nor sentenced, and accordingly the Attorney had no right of appeal. The Court of Criminal Appeal imposed a sentence of imprisonment.

    8. (1977) 137 CLR 293.

24. Four members of the High Court (Barwick CJ, Steven, Jacobs and Aickin JJ) found that the accused had indeed been “convicted”, for the purposes of the definition of “sentence” in s 2 of the Criminal Appeal Act. However, the term “sentence” as defined at the time of Griffiths, included “any order made by the court of trial on conviction with reference to the person convicted”. (The present definition is much amended.) Unlike s 5, s 5D was not conditioned upon the person being “[a] person convicted on indictment”.

25. Ultimately, the error on the part of the Court of Criminal Appeal was in finding that Mr Griffiths had been sentenced by an order for remand. However the Court (other than Murphy J) rejected his argument that he had not been convicted. Although the issue was whether he had been convicted in circumstances where he had entered a plea of guilty in the Local Court and had been committed for sentence, the leading judgments of Barwick CJ and Jacobs J also considered when a person was convicted following a jury trial. Barwick CJ held that “the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction.” [9]

    9.    Griffiths at 301.

26. Jacobs J stated: [10]

“I therefore take it that a conviction precedes judgment. It seems to me that the verdict of a jury is a conviction when it has been recorded and that a confession of guilt after arraignment is also a conviction when it is recorded.”

10.    Griffiths at 313.

27. Justice Stephen spoke in somewhat more oblique terms. After referring to the judgments of Jacobs J and Aickin J, he concluded that when the primary judge “dealt with the applicant as he did the applicant was then a person ‘convicted’ for the purposes of the definition of ‘sentence’ in s 2 of the Criminal Appeal Act but was not one in respect of whom any ‘sentence’, in the ordinary meaning of that word, had been pronounced.” [11]

    11.    Griffiths at 311.

28. The reasoning of Aickin J was consistent with the view that no further step was required to convict an accused after a finding of guilt by a jury, although he concluded that some further step was necessary after a plea of guilty. [12]

    12.    Griffiths at 335-336.

29. The issue was again indirectly considered by this Court in Della Patrona v Director of Public Prosecutions(Cth) [No 2]. [13] The issue arose indirectly because the Court was concerned with the meaning of “convicted” in s 30(1) of the Proceeds of Crime Act1987 (Cth). Expressing some caution as to the value of the exercise, Kirby P dealt with the meaning of “convicted” in other contexts, including under the general law. Referring to Griffiths, he stated that the reasons of Barwick CJ “clearly support the proposition that the prisoner is convicted at the moment when, by express words or by necessary implication, the trial judge accepts the jury’s verdict of guilty.” [14] Kirby P also referred to the reasons of Jacobs J, stating that Jacobs J had “accepted the conceptual distinction between the act of the jury in finding the guilt of the accused and the act of the judge in convicting and sentencing the prisoner, once found guilty.”

    13. (1993) 38 NSWLR 257.

    14.    At 265C.

27. He understood Jacobs J as finding that a conviction did not occur until the jury verdict was “formally recorded.” [15] Noting that the need for any formal recording of the verdict had not found favour in other decisions,[16] Kirby P accepted that all that was necessary was for the judge to accept and proceed to act upon the jury’s verdict. [17]

    15.    At 265C-D.

    16. Frodsham v O’Gorman [1979] 1 NSWLR 683 at 688, 690; Director of Public Prosecutions (Vic) v McCoid [1988] VR 982.

    17.    Della Patrona at 266E and G.

28. It may be accepted that, in the present case, the trial judge did take the necessary steps in accepting the verdict with respect to the present appellants and inviting the jury to proceed only with respect to the other two accused. In the course of submissions this Court was advised that both the appellants had now been sentenced.

29. There is no issue as to whether Mr Lok should be separately tried, no verdict having been returned. There is also no issue with respect to Mr Phan, the jury having been discharged prior to reaching a verdict with respect to him. Nor is this Court required to consider whether the discharge of the jury was the proper course. The jury has been discharged and Mr Phan is to be put on trial again.

30. It should be accepted that the Court has jurisdiction to determine an appeal against the convictions. Accordingly, the only question is whether the Court should set aside the convictions of Messrs Tang and Lee.

Validity of verdicts

34. The validity of the verdicts must be considered in the context of the relevant statutory provisions and, in particular, s 73 of the Jury Act, which provides:

“73 Verdict not invalidated in certain cases

(1)   The verdict of a jury shall not be affected or invalidated by reason only:

(a)   that any juror was, after being required by summons to attend for jury service, mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or

Note. For example, this paragraph prevents the verdict of a jury from being invalid if, as in R v Brown & Tran [2004] NSWCCA 324, a juror who received a jury summons reported for service a day early and was mistakenly empanelled.

(a1)    that any juror became excluded from jury service in the course of the trial or coronial inquest, or

(b)    of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act, or

(c)    that any juror was misnamed or misdescribed (where there is no question as to the juror’s identity).

(2)    Subsection (1) does not apply:

(a)    in respect of a juror if the juror impersonated, or is suspected of impersonating, another person, or

(b)    if there is evidence of any other attempt to deliberately manipulate the composition of the jury.”

35. The operation of the Jury Act in a trial for Commonwealth offences was considered in R v Petroulias. [18] In that case, a juror having been discharged before a verdict was reached, the trial proceeded with eleven persons. By majority, the Court found that the jury as a whole should have been discharged. It may be noted that the reasoning of the majority (Simpson J, Hoeben J agreeing) turned on the language of s 22 of the Jury Act which has since been significantly amended. [19] Because the present case did not proceed with a reduced jury, there is no need to reconsider the inter-relationship of ss 19 and 22, on which that decision turned. However, Simpson J also considered the operation of s 73, which is directly relevant to the invalidity alleged with respect to the verdicts which were entered in the present case. Again, the language of s 73 has been amended since the decision in Petroulias. [20] Petroulias remains significant for one reason, however, namely the conclusion that, following Brownlee v The Queen, [21] s 22 (and by implication, s 73) will operate with respect to a trial in federal jurisdiction. [22]

    18. [2007] NSWCCA 134; 73 NSWLR 134.

    19. Jury Amendment Act 2008 (NSW), Sch 1 [5], [6].

    20. Ibid, Sch 1 [8], [9], [10].

    21. [2001] HCA 36; 207 CLR 278.

    22. Petroulias at [58].

36. Simpson J rejected the proposition that “s 73(a) [as it then stood] is to be read as including not merely the preservation of a verdict in which a disqualified person participated, but also the preservation of an unconcluded trial subject to the same defect.”[23] Thus the Court rejected the argument that an express preservation of a verdict could not extend to the preservation of the unconcluded trial on the basis of a narrow and literal reading of the section. Because the precise issue does not arise, and because the language of the section has changed, it is not necessary to consider the validity of that reasoning.

    23. Petroulias at [62].

37. Section 73 means that the verdicts against the appellants cannot be set aside by reason only that there was on the jury a person who should not have been empanelled to serve as a juror. In short, it is necessary to find some further reason. In seeking that further reason, it is not necessary to disregard the circumstances in which he was discharged: those circumstances may constitute a sound basis for determining that there has been a miscarriage of justice. In the present case, the relevant circumstance was the inability to read English. If the nature of the evidence in the trial was, as both accused and the Director agreed, such as to require that ability in order to participate fully in the decision making, then an objective assessment that the juror could not read English adequately to obtain a full understanding of the prosecution case could provide a sufficient reason, beyond the mere fact that he should have been excluded. Accordingly, s 73(a) would not prevent the verdicts being invalidated in the present circumstances.

38. Where the Court is satisfied that there has been a failure or breach in the integrity of the trial process, a verdict may be set aside as involving a miscarriage of justice within the terms of s 6(1) of the Criminal Appeal Act.[24] Unlike Smith, this was not a case of alleged intimidation or overbearing of a juror: it was a case in which it was shown that a particular juror who had participated in the verdicts was illiterate and in poor health. For present purposes it is sufficient to focus on the question of illiteracy, as the facts as to when juror X’s health deteriorated, and to what degree, are not shown on the material before this Court, nor in the findings of the trial judge. It is unfortunate that the trial judge was not asked to consider this issue.

    24. See Smith v Western Australia [2014] HCA 3; 250 CLR 473 at [52].

39. In the course of questioning both the foreperson and the possibly ineligible juror, the judge asked the foreperson whether juror X’s behavior “has disrupted the jury or he hasn’t perhaps fully participated in the jury’s deliberations?” [25] The juror was asked whether his difficulty in reading “affected your ability to participate in the jury’s deliberations?” [26]

    25.    Transcript, page 3(47).

    26.    Transcript, page 5 (5) and (20).

40. Whilst acknowledging that the issues raised involved matters of degree (particularly in relation to ill health) the questioning was approaching the limitation on admissible evidence, namely evidence of the deliberations of the jury. The need for some flexibility in the application of that rule, lest it subvert part of the rational for its existence, was recognized in Smith. [27] Nevertheless, the importance of maintaining the privacy of the jury room, so as to allow free and frank deliberation remains a critical consideration. None of that is to say that the trial judge overstepped the appropriate boundary in this case: no question was asked as to the nature or content of any part of the deliberations.

    27. Smith at [35].

41. A major part of the prosecution case turned on recorded intercepts of telephone conversations in Mandarin or Cantonese. The jury were supplied with voluminous material, including English translations of the recorded calls. Part of the foreperson’s concern arose from the fact that juror X was never seen to open his volumes of material, nor attempt to read the translations which were not read aloud in court.

42. The illiteracy of one juror in the circumstances of this trial would be a sufficient irregularity to call for a retrial, without inquiry as to the effect of the irregularity on the deliberations of the jury. As to the factual issue, although not expressed in the clearest of language, it would seem that the trial judge was satisfied that the juror was at the time of discharge unable adequately to read English. In the absence of a reason for rejecting the finding of the trial judge in this regard (such as the application of a wrong legal test) this Court should accept the finding of fact. It followed that the convictions of the appellants should be quashed. In the event that the Court took that step, the Director indicated that they will be rearraigned at the further trial due to commence in approximately one month. There was no need for any further order by the Court.

Order made

43. Accordingly, at the hearing of the appeals the Court ordered that the convictions resulting from the acceptance of the jury verdicts of guilty with respect to Man Fu Vico Lee and Hin Yiu Tang pursuant to an indictment dated 8 November 2013 be quashed.

44. GARLING J: On 5 June 2015, the Court made an order in each appeal which quashed the conviction of each of the appellants.

45. The Court reserved its reasons. These are my reasons for joining in with the Court’s order.

The District Court Trial

46. The appellants, Mr Lee and Mr Tang were convicted by a jury after a trial before Sweeney DCJ in the District Court. They have been sentenced to, and have been serving, a lengthy term of imprisonment.

47. The offence of which each appellant was convicted was that between about 17 January 2012 and 30 July 2012, they conspired with Hung Kai Lok and others to possess a commercial quantity of an unlawfully imported substance, being a border controlled drug, namely, heroin and methylamphetamine contrary to ss 11.5(1) and 307.5(1) of the Criminal Code (Cth).

48. The trial of the appellants, together with Mr Lok and Mr Phan, commenced on 17 June 2014. It continued for 72 hearing days until 1 October 2014, when the jury retired to consider its verdicts with respect to each of the four co‑accused.

49. On 17 October 2014, the jury returned verdicts of guilty with respect to the two appellants. The jury continued its deliberations with respect to the other two co‑accused, Mr Lok and Mr Phan.

50. On 22 October 2014, the jury were discharged with respect to finding a verdict for Mr Lok because they were unable to agree on a unanimous verdict.

51. The jury continued deliberations with respect to Mr Phan until 24 October 2014, when it was discharged. The jury was discharged by Sweeney DCJ in circumstances where it was brought to her Honour’s attention that one of the jurors, Juror X, was in a practical sense, illiterate, and that he also had health problems which it was said, together impaired his capacity to engage fully in the deliberations of the jury. Neither the Crown, nor counsel for Mr Phan, opposed the discharge of Juror X. That juror was accordingly discharged.

52. An application was made by counsel for Mr Phan to discharge the whole jury. It was opposed by the Crown. The trial Judge, for the reasons she gave, discharged the whole jury.

Appeal

53. Each appellant appeals against their conviction and seeks an order that their convictions be quashed because they were affected by a miscarriage of justice. The Crown agrees that an order quashing the convictions should be made, but relies on a different pathway to that conclusion.

54. The appellants argue in this Court that a miscarriage of justice occurred in their trial because the jury, which returned the verdicts of guilty against them, included Juror X who was incapable of participating properly in the deliberations of the jury because of his practical illiteracy.

55. Of particular concern with respect to whether a miscarriage of justice occurred was that the evidence in the trial included a considerable quantity of written exhibits constituting English translations of intercepts of telephone conversations between or involving the appellant in a foreign language. English translations of the telephone intercepts were not read out orally before the jury, but were put before the jury in written form only.

56. The Crown submits that the question for this Court is whether Juror X was able to consider all of the evidence, including the telephone intercept material, in light of how that evidence was presented, namely, in writing, and if not, whether that incapacity deprived the appellants of a fair trial. The Crown accepts that the answer to that question ought be in the affirmative. That is, at base, that the appellants did not have a fair trial.

57. This is a more than sufficient basis for upholding the appeal, and quashing the convictions.

58. Whether or not there were further reasons why that particular juror ought have been discharged, or whether there were other ways in which the jury’s deliberations were less than ideal, is not a matter to which this Court should give its attention.

Discernment

59. I accept that in the particular circumstances here, the irregularity created by the practical illiteracy of Juror X was of such a nature that it is not possible to conclude that the irregularity did not affect the jury’s verdict, and in that respect there has been a miscarriage of justice. Accordingly, the proviso does not arise for consideration.

60. Thus, I was persuaded to join in with the orders which the Court pronounced on 5 June 2015.

61. HAMILL J: On 5 June I joined in orders quashing the convictions of both appellants. I have since had the opportunity to read in draft the judgments of Basten JA and Garling J.

62. I agree with Basten JA, for the reasons that his Honour gives, that the applicants were “convicted” and that the jurisdiction of this Court is enlivened. Once the primary Judge proceeded to sentence, there was an unequivocal step indicating acceptance of the verdicts.

63. I agree with both Basten JA and Garling J, for the reasons articulated by their Honours, that the illiteracy of one of the jurors, in the particular circumstances of this case, means that the convictions must be quashed. The joint position of the parties, which I accept, is that the trial involved a great deal of reading of translated transcripts of recordings which were otherwise played to the jury in a foreign language. This leads to a conclusion, to adopt the words of s 6(1) of the Criminal Appeal Act 1912 (NSW), that “on any other ground, there was a miscarriage of justice.”

64. The miscarriage identified in this case constituted “such a serious breach of the presuppositions of the trial” that I do not consider that there was “no substantial miscarriage of justice”: Weiss v The Queen; [28] Cesan v The Queen. [29] I accept the respondent’s concession that there is no room for the operation of the proviso in this case.

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28. [2005] HCA 81; 224 CLR 300 at 317 [46].

29. [2008] HCA 52; 236 CLR 358 at [126]-[127] (Hayne, Crennan and Kiefel JJ, Gummow J agreeing at [107]).

Endnotes

Decision last updated: 14 December 2016