Leif Douglas Hughes v The Queen
[2014] VSCA 4
•6 February 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0040
| LEIF DOUGLAS HUGHES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG, PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 February 2014 |
| DATE OF JUDGMENT | 6 February 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 4 |
| JUDGMENT APPEALED FROM | R v Hughes (Unreported, County Court of Victoria, Judge Parsons, 6 September 2012 (Conviction)) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one charge each of aggravated burglary, intentionally causing serious injury, making a threat to kill and reckless conduct endangering life – Charges relate to two separate incidents in Benalla – Trial judge provided a map to the jury following a request through the tipstaff – Counsel were advised subsequently of the request and the provision of the map – No objection immediately taken – Later a request to discharge the jury – Application for discharge refused – Whether the trial judge erred in providing the map without first communicating that fact to counsel and inviting submissions – Whether providing the map to the jury was a serious departure from the prescribed processes for trial – Application for leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich | Turnbull Lawyers |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I invite Priest JA to deliver the first judgment.
PRIEST JA:
Introduction
Following a nine day trial, on 6 September 2012 a jury in the County Court at Shepparton convicted the applicant of aggravated burglary (charge 1), intentionally causing serious injury (charge 2),[1] making a threat to kill (charge 4) and reckless conduct endangering life (charge 5). On 22 February 2013 the trial judge sentenced him to a total effective sentence of eight (8) years and six (6) months, upon which a non-parole period of six (6) years and six (6) months’ imprisonment was fixed.
[1]The applicant was acquitted of recklessly causing serious injury, charge 3, which was an alternative to the second charge.
The applicant now seeks leave to appeal against his convictions on two complementary grounds:
1. The learned trial judge erred in failing to disclose the fact and content of a jury question (relating to a map) received during the jury’s deliberations.
2.The learned trial judge erred in answering the jury’s question (i.e. providing a map) without giving the applicant’s counsel an opportunity to make submissions.
For reasons that follow, I would grant the application for leave to appeal, but dismiss the appeal.
The offences
The applicant was tried with co-offender, Joel Beresford. Beresford was charged with aggravated burglary (charge 1), intentionally causing serious injury (charge 2) and recklessly causing serious injury (charge 3). (The jury were directed to acquit him on charges 2 and 3. Beresford, who was found guilty on charge 1, has not sought leave to appeal.)
Two separate incidents occurring in Benalla on 9 June 2011 led to the applicant’s convictions. The first incident (the ‘Mathieson Court incident’) involved the applicant, Beresford, David Hughes (the applicant’s brother) and Kelly Aitken forcing their way into the home of victims Troy Evans and Diane Tingate, at 5 Mathieson Court, Benalla, whilst armed with iron bars. Mr Evans was struck several times with the weapons and was kicked several times to his head and body by the applicant and his brother (charge 1), resulting in him suffering various injuries (charges 2 and 3).
The second incident (the ‘Russell Street incident’) occurred later that evening when the applicant attended at 7 Russell Street, Benalla, and pointed a shotgun at the head of Diane Tingate. David Hughes, who was also present, told the applicant to leave Ms Tingate alone and pushed the barrel of the shotgun away. In the process, the shotgun discharged close to her head (charges 4 and 5).
The defence case at trial
So far as the Mathieson Court incident was concerned, the defence case was that the applicant was not present and that it was the applicant’s brother, David Hughes, who was responsible for the assault on Troy Evans. As to the Russell Street incident, the defence case was that the applicant was not present.
Thus the issue for the jury with respect to each incident was whether the applicant was in fact present, and, if so, whether he committed the offences alleged.
A map was given to the jury
The jury retired at about midday on 5 September 2012, and, not having reached verdicts by the afternoon of that day, were allowed to separate (following the taking of a ‘separation oath’).
It appears that the jury returned to the jury room to continue deliberations on the morning of 6 September 2012, and sent a request to the judge for the provision of a map. Through his Tipstaff, but without consulting counsel, the judge provided the map. He later informed counsel of what he had done at a time when the applicant and co-accused were not yet present at court:
I know your clients aren’t here at the moment but I just wanted to let you know that I had a question earlier for those of us who have been here since 8.30, the jury apparently arrived at 9 and sent through a note asking for a copy of whatever the Benalla equivalent of Melways is so they could work out Matheson Court [sic]presumably and Russell Street and note that vicinity. I asked Phillip [the Tipstaff] to provide them with that and I obviously took that on my own initiative without consulting you but I just wanted to let you know if there’s anything you’d like to say, feel free to say it, but we ought to get your clients in so that they can hear that as well.
Later, when the applicant and his co-accused were present, the judge said:
First of all, this morning at about, I don’t know, 8.30-ish I think, or quarter to nine, thereabouts, I received – weren’t the jury – no, the jury were here at nine I think so it was after then I received a question, ‘Can we have map of streets of Benalla area so we can see the area?’. So I asked Phillip to photocopy whatever the local street directory is of Benalla and provide that to them. Have you got a copy of what you provided to the jury please Phillip? Thank you. Would you show that to counsel? So have a look at that and if you've got anything to say about that let me know.[2]
[2]In a report to the Court made pursuant to s 316 of the Criminal Procedure Act 2009, the trial judge reported: ‘To the best of my recollection, I asked for a map of the streets and was provided with a “Google map” on the basis a “melways equivalent” was not available’.
No application to discharge the jury was immediately forthcoming, but in the early afternoon of that day the applicant’s counsel made an application to discharge the jury based on the trial judge having provided a map of Benalla to the jury without first consulting the parties. In essence the submission was that providing the map to the jury in the circumstances was ‘akin to them making their own enquiries’; and ‘that it leads to a situation of a non-exhibit in the jury room … and arguably it’s material relating to their deliberations in this matter and assisting them in relation to that and not in evidence, and therefore that would constitute an irregularity, which similarly also causes concern for this matter’.
The trial judge refused the application.
An irregularity in the trial
In my opinion, it was an irregularity for the judge to provide the map to the jury without first consulting counsel. But it was an irregularity which, in my view, has not resulted in a substantial miscarriage of justice.
In Black,[3] communication between the jury and trial judge which had not been disclosed to the parties, led to convictions being quashed. The three appellants were charged with offences arising from a ‘home invasion’, and were convicted of aggravated burglary and associated offences. The judge had received written questions from the jury relating to joint enterprise and included a request for clarification of the difference between charges. Although the questions ‘did not reveal information which the jury should not have imparted’,[4] nonetheless they were answered by the judge without the appellants’ knowledge. This Court set aside the convictions. Buchanan AP (with whom Eames JA and Kellam AJA agreed) expressed the fundamental rule:[5]
There is no place in a trial for secret communications between the arbiters of fact and law. It is a fundamental requirement of the administration of the criminal law that the trial and every aspect of the trial take place in open court.
[3]R v Black (2007) 15 VR 551.
[4]Ibid 555 [17].
[5]Ibid.
Hart[6] was a similar case. The NSW Court of Criminal Appeal held there to be a miscarriage of justice in a situation where a juror handed a note to the trial judge which was not shown to counsel.
[6]R v Hart (2002) 131 A Crim R 609. See also R v Pearson (2000) 114 A Crim R 80.
The kinds of communications between judge and jury which need not be disclosed in open court and those that should were discussed by Lord Lane CJ in Gorman.[7] He observed:[8]
First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. …
Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.
Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.
[7]R v Gorman[1987] 1 WLR 545; [1987] 2 All ER 435; (1987) 85 Cr App R 121.
[8]Ibid 550–1 (WLR).
In Yuill,[9] the NSW Court of Appeal (Hunt CJ at CL; Abadee and Simpson JJ) expressed the ‘basic rule’, and exceptions to it, to be:[10]
It has always been the basic rule that the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript …
There are two exceptions to that basic rule. The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine — for example, a request by a juror to pass on a message to a relative about staying back late ... The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge — the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement …
[9]R v Yuill (1994) 34 NSWLR 179.
[10]Ibid 190.
The fundamental rule was again emphasised by this Court in Sonnet.[11] In that case the jury requested a view, but the trial judge refused to disclose in detail what the jury wished to see because it might reveal their thinking. The Court (Nettle and Harper JJA, and T Forrest AJA) said:[12]
The principles which apply to communications between the jury and the judge are tolerably clear. The judge should in almost all cases state in open court the fact and content of any communication which the judge has received from the jury. Exceptionally, if the communication discloses information which the jury need not and perhaps should not have disclosed, the communication should be dealt with by announcing the fact of the communication and so much of the communication as is unexceptionable, keeping back however any information which ought not to have been revealed. But such cases will be rare. If a communication is to do with the matters in issue, the parties are entitled to know what it is and, if appropriate, to make submissions as to the way in which it should be responded to. It is also of assistance to the judge that they are able to do so.
In this case, we see no justification for the judge’s refusal to disclose the full terms of the jury’s communication. Assuming as we do that it was confined to the matters at which they wished to look, the parties were entitled to know what they were. With respect, the judge was in error. But the suggestion that the error resulted in a miscarriage of justice cannot be accepted. As was in effect conceded in oral argument, although the judge’s refusal to disclose the details of the jury’s request was unwarranted, and no doubt irritating, it did not make the slightest difference to the outcome of the trial.
[11]Sonnet v The Queen (2010) 30 VR 519. See also HM v The Queen [2013] VSCA 100, [1]-[4] (Redlich JA and Kaye AJA), [53]-[55] (Whelan JA).
[12]Ibid 518–9 [110]–[111].
From this review of authority in my opinion it is plain that the trial judge erred in providing the map sought by the jury without first communicating that fact to counsel and inviting submissions. Indeed, the respondent fairly conceded that to provide the map to the jury during their deliberations without reference to counsel was an error or irregularity in relation to the trial.[13] The respondent submitted, however, that the error or irregularity did not result in a substantial miscarriage of justice. That submission should be accepted.
[13]Criminal Procedure Act 2009, s 276(1)(b).
In my opinion the provision of the map to the jury was ‘wholly innocuous’.[14] I cannot see that it could have affected the verdict, which on the evidence in the case was, in my view, inevitable.[15] Nor, in my view, can it properly be characterised as a serious departure from the prescribed processes for trial.[16] Had the judge discussed the jury’s request with counsel in open court, there could have been no good reason to refuse to provide a map[17] (a course which, in my experience, is routinely followed). The judge’s failure to take the necessary intermediate step of discussing the jury’s request with counsel cannot, however, have affected the outcome of
the trial.
[14]Andelman v The Queen [2013] VSCA 25, [105].
[15]Baini v The Queen (2012) 246 CLR 469, 481–2 [33].
[16]Baini v The Queen (2012) 246 CLR 469, 479 [26].
[17]Criminal Procedure Act 2009, s 223. See also Evidence Act 2008, s 144.
Conclusion
Given that an irregularity occurred in the applicant’s trial I would grant leave to appeal; but for the reasons earlier set out, I would dismiss the appeal.
WEINBERG JA:
Notwithstanding the irregularity which it is agreed occurred in this case, I would not grant leave to appeal. The issue raised regarding that irregularity is so completely devoid of merit that it ought never to have been raised as a ground of appeal.
COGHLAN JA:
I agree that leave to appeal should be refused for the reasons stated in combination by Weinberg and Priest JJA.
WEINBERG JA:
The Court orders that the application for leave to appeal be dismissed.
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