Mathews v The State of Western Australia
[2015] WASCA 134
•29/06/15
MATHEWS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 134 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:135/2013 | 11 JUNE & 10 NOVEMBER 2014, 20 JANUARY, 24 & 30 APRIL 2015 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 29/06/15 | |
| 54 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed in part Appellant's conviction of murder set aside Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | DAMIEN PHILIP MATHEWS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) Whether jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence adduced at trial Open to jury to convict on evidence adduced at trial Criminal law Appeal against conviction Juror misconduct Apprehended lack of impartiality Substantial procedural irregularity Juror conducted own inquiries at a motorcycle racing event weekend prior to jury retiring to deliberate Juror's inquiries related to matter in direct issue at trial Whether courtsupervised inquiry into juror's actions should be ordered Juror's actions called into question integrity of verdict Juror's actions gave rise to apprehension of lack of impartiality Retrial ordered |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4), s 40(1)(c), s 40(1)(l) Criminal Code (WA), s 279 Evidence Act 1906 (WA), s 11 Juries Act 1957 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Barker v The Queen [1994] FCA 1577; (1994) 127 ALR 280 Domican v The Queen (No 3) (1990) 46 A Crim R 428 Hansen v The State of Western Australia [2010] WASCA 180 Hayes v The Queen (1973) 47 ALJR 603 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454 R v Bates [1984] NZCA 110; [1985] 1 NZLR 326 R v Emmett (1988) 14 NSWLR 327 R v Gillespie (Unreported, NZCA, 7 February 1989) R v Glastonbury [2012] SASCFC 141; (2012) 115 SASR 37 R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 R v Marsland (Unreported, NSWCCA, 17 July 1991) R v Myles [1997] 1 Qd R 199 R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 R v Wilton [2013] SASCFC 60; (2013) 116 SASR 392 Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473 Webb v The Queen (1994) 181 CLR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MATHEWS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 134 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 110 of 2012
Catchwords:
Criminal law - Appeal against conviction - Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) - Whether jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence adduced at trial - Open to jury to convict on evidence adduced at trial
Criminal law - Appeal against conviction - Juror misconduct - Apprehended lack of impartiality - Substantial procedural irregularity - Juror conducted own inquiries at a motorcycle racing event weekend prior to jury retiring to deliberate - Juror's inquiries related to matter in direct issue at trial - Whether courtsupervised inquiry into juror's actions should be ordered - Juror's actions called into question integrity of verdict - Juror's actions gave rise to apprehension of lack of impartiality - Retrial ordered
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4), s 40(1)(c), s 40(1)(l)
Criminal Code (WA), s 279
Evidence Act 1906 (WA), s 11
Juries Act 1957 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Leave to appeal granted
Appeal allowed in part
Appellant's conviction of murder set aside
Retrial ordered
Category: B
Representation:
Counsel:
Appellant : Mr D Grace QC
Respondent : Mr B Fiannaca SC & Ms A L Forrester
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barker v The Queen [1994] FCA 1577; (1994) 127 ALR 280
Domican v The Queen (No 3) (1990) 46 A Crim R 428
Hansen v The State of Western Australia [2010] WASCA 180
Hayes v The Queen (1973) 47 ALJR 603
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 163 CLR 454
R v Bates [1984] NZCA 110; [1985] 1 NZLR 326
R v Emmett (1988) 14 NSWLR 327
R v Gillespie (Unreported, NZCA, 7 February 1989)
R v Glastonbury [2012] SASCFC 141; (2012) 115 SASR 37
R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431
R v Marsland (Unreported, NSWCCA, 17 July 1991)
R v Myles [1997] 1 Qd R 199
R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86
R v Wilton [2013] SASCFC 60; (2013) 116 SASR 392
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Webb v The Queen (1994) 181 CLR 41
- MARTIN CJ:
Summary
1 The appellant, Damien Philip Mathews, was convicted by the verdict of a jury after trial in the Supreme Court on an indictment which alleged that on 2 December 2011 he and Hayden Shane Wayne Joseph murdered Jeremia Daniel Iskander. Mr Mathews appeals against that conviction.
2 There are three grounds of appeal. The first ground of appeal asserts that the jury's verdict was unreasonable and cannot be supported having regard to the evidence adduced at trial. The essence of that ground is the assertion that the jury must have entertained a doubt with respect to the credibility of a witness whose evidence as to the events which took place at the time Mr Iskander met his death had to be accepted by the jury if they were to be satisfied of Mr Mathews' guilt. For the reasons which follow, although leave should be granted in respect of that ground, it should be dismissed.
3 The third ground of appeal asserts that a fundamental irregularity occurred in the course of the trial, when a juror attended a motorcycle racing event over a weekend shortly before the jury retired to deliberate where he discussed the case with people at the event, and received information relevant to the issues in the case. For the reasons which follow, leave to appeal should be granted in respect of that ground, the ground upheld, Mr Mathews' conviction quashed and a retrial ordered.
4 The remaining ground of appeal alleges that the trial judge misdirected the jury with respect to the need for evidence corroborating the evidence of a prison informer to the effect that Mr Mathews made statements to the informer while in prison which were said to constitute admissions. As the success of that ground could only result in an order for a retrial and not an acquittal, and as a retrial must in any event be ordered by reason of the irregularity arising from the juror's actions, it is unnecessary to consider this ground.1
Ground 1 - legal principles
5 The first ground of appeal is cast in the terms of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) which provides:
30. Appeal against conviction, decision on
(1) This section applies in the case of an appeal against a conviction by an offender.
(2) Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.
(3) The Court of Appeal must allow the appeal if in its opinion -
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported …
[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.4
7 More recently the High Court has expressed the issue in these terms:5
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. (footnotes omitted)
Ground 1 - the evidence
8 Evidence was led from 49 witnesses over several weeks of trial, during which a number of exhibits were tendered. As required by the principles just enunciated, I have undertaken an independent assessment of the evidence as a whole. It is unnecessary to recount the entirety of the evidence in these reasons. During the course of argument, senior counsel for Mr Mathews conceded, quite properly, that in the particular circumstances of this case, if this court concluded that it was not dangerous for the jury to have accepted the evidence of one critical witness, Mr Scott Paine, relating to the circumstances in which Mr Iskander was shot, the ground must be dismissed.
9 My reasons in relation to this ground will therefore focus upon a critical evaluation of Mr Paine's evidence. It will be sufficient to set the context for that evaluation by referring to events which took place before and after Mr Iskander was shot, which would have been safe for the jury to have found on the evidence adduced at trial.
Events prior the shooting
10 The two accused, Mr Joseph and Mr Mathews, were good friends. They had shared accommodation in the past and were living with Mr Mathews' parents at the time of the alleged offence. Mr Joseph had met Mr Iskander when they were both at high school, and after leaving school they had remained in contact.
11 Mr Iskander kept company with his cousin, Mr Geoffrey Samardali. All four men were regular consumers of illegal drugs, as were many of the witnesses called at trial. Many were also involved in the sale and supply of illegal drugs, including Mr Joseph and Mr Iskander.
12 Mr Joseph and Mr Iskander were hostile towards each other. Part of the reason for their hostility was events connected with Mr Joseph's failure to pay in full money which was due to Mr Iskander, or perhaps Mr Samardali.
13 About three weeks before Mr Iskander was shot, Mr Iskander, Mr Samardali and a third associate took possession of a Holden Commodore vehicle owned by Mr Joseph as security for the moneys he owed. Mr Joseph had spent about $20,000 restoring the Commodore and was angry that the car had been taken. His ire was exacerbated by information which he received to the effect that Mr Iskander or Mr Samardali had been seen doing burnouts in the car.
14 On 18 November 2011, Mr Joseph sent Mr Iskander a text message in these terms:
Just to let you know fuckwit, we have a video and a clear photo of you in my car that you stole. I think it would be in your best interest to give the fuckin car back in one piece today
- At about the time this text was sent, the car in question ran out of fuel while Mr Iskander was driving it along Wanneroo Road. He left it by the side of the road. Mr Joseph became aware of this and recovered possession of the vehicle before Mr Iskander returned to retrieve it.
15 About two days before Mr Iskander was shot, Mr Joseph became aware that Mr Samardali and Mr Iskander were planning to take another vehicle he owned, a Nissan Silvia, as security for the remaining debt which they claimed was outstanding. Mr Joseph had left the car with a friend, Mr Richard Shabani, who was doing work on the vehicle. Although Mr Joseph sent somebody to collect the vehicle from Mr Shabani for safe-keeping, Mr Samardali and Mr Iskander got there first, and took the car away.
16 Mr Shabani sent Mr Joseph a text:
They got your car bro sorry there wasn't much i cud do ay jef came with a fuw boys not fukn happy ay
- Mr Joseph responded:
Fuckin dogs. Ready for war???
[T]he cunt is cookt
Paranoid negro = bad news
Nah tried to be nice until the end then got lippy. He knows i would bash him
18 Mr Iskander and Mr Samardali each had dark skin. The evidence suggested that Mr Joseph and others in the group often referred to Mr Iskander and Mr Samardali as 'negros' or 'niggahs' in a manner which suggested that they may be terms of endearment rather than offence.6
19 On the same evening Mr Joseph sent a text message to Mr Zak Bond in these terms:
Wtf? War starts now. In or out?
- 'Wtf' is a texting acronym for 'what the fuck'.
20 Mr Iskander was shot a little after 9 pm on the evening of 2 December 2011 while he was standing in the driveway of a house at Lalina Way, Wanneroo. The house was occupied by Mr Zak Bond and others. Evidence was led from a number of witnesses with respect to the precise movements and activities of Mr Joseph and Mr Mathews in the preceding hours. It is unnecessary to delve into the detail of that evidence and sufficient to record that the evidence established that Mr Joseph and Mr Mathews were using Mr Joseph's Ford Explorer motor vehicle to visit acquaintances in different parts of the northern suburbs, in company with a woman named Liza (who did not give evidence). It seems that Mr Joseph became aware that Mr Iskander was going to the house at Lalina Way occupied by Mr Bond and others. At 8.51 pm he sent a text message to Mr Bond saying that he would be at Mr Bond's house soon. Mr Iskander arrived at that house before Mr Joseph and Mr Mathews, in company with Mr Paine.
Mr Paine's evidence
21 Mr Paine gave evidence by video link from a secure location outside the courtroom. He stated that he had known Mr Iskander since they met at school when they were each 13 and that they had become almost like brothers. Mr Paine met Mr Iskander's cousin, Mr Samardali, through Mr Iskander. He stated that he had stopped seeing Mr Samardali about a year before giving evidence.7
22 Mr Paine confirmed that he knew Mr Joseph and Mr Mathews, and that all were users of amphetamines, although he denied that he, or Mr Joseph or Mr Mathews, were involved in the sale or supply of the drug.
23 Mr Paine stated that he had seen Mr Iskander lend Mr Joseph $7,000.8 He later heard that half of it had been paid back.9 He was aware that the relationship between the two men had deteriorated and he had seen Mr Joseph punch Mr Iskander in the face at the front of the house at Lalina Way, Wanneroo about two weeks before Mr Iskander died. After Mr Joseph punched Mr Iskander, Mr Iskander tried to retaliate using a taser stun gun, but he missed him.10
24 Mr Paine stated that he believed Mr Iskander had taken Mr Joseph's Commodore motor vehicle because he drove to Mr Paine's house in it. Mr Iskander did some work on the vehicle at Mr Paine's house and left it there overnight.11 Mr Paine confirmed that he was a passenger in Mr Joseph's vehicle when Mr Iskander did burnouts in it.12 Mr Paine was in the vehicle with Mr Iskander when it ran out of fuel on Wanneroo Road. They left it on the side of the road.13 However, when they returned to retrieve the vehicle it was not there.
25 Some time later Mr Iskander came to Mr Paine's house and told him that he had taken Mr Joseph's Silvia motor vehicle. This was on the day Mr Iskander was shot.14 Mr Iskander drove to Mr Paine's house in Mr Iskander's mother's Commodore motor vehicle. After spending some time at the house they went to a Bunnings store. Mr Paine stated that he thought Mr Iskander wanted to get primer paint to spray the Silvia.15
26 Mr Iskander told Mr Paine that he wanted to go to Mr Bond's house, but Mr Paine told him that he did not want to go there. Mr Iskander wanted to go there to get the bonnet and parts for the Silvia. The two men went to Bunnings, purchased the primer, and then went to Mr Bond's house.16 Mr Paine believed that people at Mr Bond's house were expecting them.
27 They got to Mr Bond's house at about 9 pm. They were in Mr Iskander's mother's car. Mr Iskander was driving and Mr Paine sat in the front passenger seat.17
28 Mr Paine stated that he had taken about $300 worth of amphetamines before going to the Bunnings store. He had used amphetamines every day in the preceding six months.18 When the prosecutor asked him what effect amphetamines had on him, he replied:19
It probably made me uneasy, I don't know. I couldn't think properly, stuff like that.
- However, he denied that it affected his memory.20
29 When they arrived at Mr Bond's house, Mr Iskander parked the vehicle on the right side of the driveway facing towards the house.
30 After they arrived at the house, Mr Iskander knocked on the door of the house, Mr Bond answered and Mr Bond opened the garage door to enable Mr Iskander to get the car parts. Initially Mr Paine remained in the car. While he was there he heard Mr Bond say to Mr Iskander that Mr Joseph was coming to the house. Mr Paine then got out of the car to assist Mr Iskander to get the car parts, so that they could leave before Mr Joseph got there.21
31 Mr Paine was not aware of Mr Iskander having anything in his hands or anywhere on his person when he got out of the car. Mr Iskander took car parts from the back shed to the car that he had driven to the house. Mr Iskander tried to put the bonnet of the Silvia in the back seat of the Commodore but it would not fit.22
32 According to Mr Paine, while Mr Iskander was at the back of the property looking for car parts, he was on the driveway talking to Mr Jared Reed, when Mr Joseph and Mr Mathews drove up the driveway in Mr Joseph's Ford Explorer. Mr Mathews was driving and Mr Joseph was in the front passenger seat. The vehicle was parked parallel with and alongside the Commodore which Mr Iskander had driven to the property. There was a woman in the back seat. Mr Paine did not know her name. The window adjacent to the driver was down.23 Mr Paine exchanged pleasantries with Mr Mathews and Mr Joseph before Mr Iskander came to the vehicle from the garage. Mr Paine suggested they should leave, but Mr Iskander started arguing with Mr Joseph. Mr Iskander was standing on the driveway towards the front of his mother's car when the argument started. Mr Joseph said, 'Where's my Silvia?'24 Mr Iskander told Mr Joseph that he had the Silvia at his house. According to Mr Paine, Mr Joseph then invited Mr Iskander to fight him. Mr Iskander replied by asking Mr Joseph why he would not fight him when they were at the casino by themselves.25
33 According to Mr Paine, the woman in the back seat of the Ford Explorer was yelling abuse. Then Mr Mathews started yelling. By this time Mr Reed had left and Mr Paine was sitting in the front passenger seat of the Commodore vehicle which Mr Iskander had driven to the house. The window adjacent to the front passenger seat of that vehicle was down.26 After Mr Mathews had been yelling at Mr Iskander, he pulled a gun out. Mr Paine saw the gun come out of the window of the Ford Explorer. He described it as 'a sawn-off 22 with the butt sawn off and the barrel'.27 'It was pretty shabby and old. It was a bolt action rifle.'28
34 According to Mr Paine, Mr Mathews was holding the gun with his right hand on the trigger and his left hand toward the front of the gun.29 His left hand was holding the forearm grip of the rifle. At the time Mr Mathews produced the gun, Mr Iskander was standing between the two vehicles, close to the front left tyre of his mother's car. He was about a metre and a half from the driver's side window of the Ford Explorer.30 He was about in line with the front tyre on the driver's side of the Explorer.31 Mr Iskander was not between Mr Paine and Mr Mathews. According to Mr Paine, when the gun came out, Mr Iskander 'kind of flinched and jumped back a little bit'.32 By then he was right at the front of his mother's car. He did not say anything.33 Then Mr Mathews shot Mr Iskander, but just before doing so he said, 'I've got one in here for Geoff, too'. He shot Mr Iskander in the left side of his chest. Mr Iskander grabbed his chest and dropped to the ground.34 At the time he said something like, 'You're fucked', directed to Mr Joseph and Mr Mathews. Mr Joseph and Mr Mathews then drove off. By then the gun had been put away. The car reversed down the driveway and left.
35 Mr Iskander was on the driveway with his head towards the garage and house and his feet facing the road. Mr Paine tried to call an ambulance and asked for clean towels. Towels were brought out of the house but he was panicking and talking too fast to communicate properly during his call for the ambulance.35 He gave the phone to Mr Shannon Edwards, who completed the call. He did not see anything lying on the driveway other than Mr Iskander. Nor did he see anybody pick anything up off the driveway.36 Mr Edwards and Mr Paine each used their shirts to try to quench Mr Iskander's bleeding. They also used towels. The police arrived before the paramedics. The paramedics took Mr Iskander away.
36 Mr Paine had not seen Mr Iskander with a gun of any kind during the evening, nor had Mr Iskander told him that he had a gun.37 Nor did Mr Paine see anybody else with a gun around Mr Bond's house.
37 During cross-examination it was put to Mr Paine that his evidence that he had stopped seeing Mr Samardali about a year ago was inconsistent with a statement he made to the prosecutor during a proofing session prior to trial that Mr Samardali was now his best friend. Mr Paine admitted making the statement to the prosecutor, but suggested that Mr Samardali could remain a good friend even though he had not seen him for a year. That explanation is unconvincing.
38 Mr Paine conceded in cross-examination that $300 of methylamphetamine was a lot to use in one hit, but denied that he was on a bit of a bender.38 He repeated his denial that it had affected his memory.39
39 During cross-examination, Mr Paine admitted that in his statement to police he had asserted that Mr Iskander had loaned Mr Joseph $3,500 and had not paid it back, which was different to the evidence he had given about a loan of $7,000, half of which had been paid back.
40 Mr Paine was cross-examined about a conversation he had with police at about 3 am in the morning following the shooting. He was either unsure about, or denied making, the statements that were put to him. He confirmed that he had been placed under arrest by police on suspicion of the murder of Mr Iskander. He accepted that he was under a bit of pressure that morning.40
41 More specifically, it was put to Mr Paine that in his first account of the events of the evening given to police in the early hours of the following morning, he gave no account of having witnessed the shooting but instead asserted that he was walking from the rear to the front of the house when he heard a noise and a vehicle drive off. In response to that assertion Mr Paine stated that he could not remember what he said and was not sure, although eventually he denied making that statement to police.41 However, the police officer concerned later gave evidence confirming that the statements that had been put to Mr Paine were made to him by Mr Paine, and recorded in his notes.42 Obviously the fact that Mr Paine gave a quite different version of events to police in the early hours of the morning following the incident is a matter of considerable significance in the assessment of the credibility of the version of events which he gave on oath.
42 In the same segment of cross-examination, Mr Paine could not recall stating to police the morning after the shooting that he did not know who had killed Mr Iskander, although the making of such a statement was later confirmed by the relevant police officer.43 Again, this is obviously a matter of considerable significance to the assessment of Mr Paine's credibility.
43 Mr Paine also could not remember telling police the morning after the shooting that he had seen a couple of holes in Mr Iskander's back, although again the making of that statement was confirmed later in evidence by police. A statement to police to that effect was not consistent with the medical evidence adduced at trial which established that the bullet lodged in Mr Iskander's body, with the consequence that there were no exit wounds.
44 Mr Paine also stated that he did not remember saying to police on the morning following the shooting that Mr Edwards had run, and that he had walked, towards the Ford Explorer - another statement later confirmed by police which was inconsistent with the version of events given by Mr Paine to the jury.
45 Mr Paine was also cross-examined as to the source of funds used to sustain his drug habit. He asserted that the funds came from his employment for which he received $700 a week and his accumulated savings. It was put to him that those assertions were lies and that he would have had to get funds from some other source if he was consuming methylamphetamine in $300 hits.44
46 Mr Paine denied that he had ever sold methylamphetamine in order to finance his habit.45 However, he accepted that he had been convicted of the offence of possession of a prohibited drug with intent to sell or supply in February 2012.
47 Later in cross-examination Mr Paine admitted having told the prosecutor in the course of a proofing session that Mr Iskander and Mr Joseph had made a deal involving Mr Joseph's car. He asserted that the statement was true.46 However, he accepted that it had not been included in his written statement to police made five days after the shooting. He also accepted that he had not mentioned any deal during his evidence-in-chief.
48 In cross-examination, Mr Paine's attention was also drawn to an apparent discrepancy in the statement he gave to police when he said that he told Mr Iskander that he wanted to go to Bunnings, and the evidence he gave in court to the effect that they went to Bunnings so that Mr Iskander could buy primer paint for the Silvia car.
49 When Mr Paine was asked whether he had told police that he owed Mr Joseph $1,000, he replied that he was unsure. He stated that he was also unsure whether in fact he owed Mr Joseph $1,000 at that time.47 Those answers were characteristic of many given by Mr Paine during cross-examination with respect to the statements that he made to police.
50 Mr Paine accepted that the police allegations of murder against him had put him under pressure in the days following Mr Iskander's death.48 He confirmed that in his written statement to police made on 7 December 2011, he recorded that he had not told police everything when he first spoke to them because he was scared, confused and stressed because the police had arrested him.49
51 In cross-examination Mr Paine stated that he was pretty sure that the lights of the Ford Explorer vehicle were not illuminated at the time Mr Iskander was shot, although during his evidence-in-chief he had stated that he did not know whether the lights were on or off.50
52 Mr Paine was also cross-examined about a statement he made to the prosecutor during a proofing session to the effect that he got out of the car to talk to Mr Mathews and Mr Joseph when they arrived. Mr Paine gave confusing answers as to the precise sequence of events.51
53 Mr Paine's statement to police to the effect that Mr Iskander was right up against the driver's door of the Ford Explorer when Mr Mathews first pulled the gun out was put to him in cross-examination and he accepted that was true. He also accepted that a statement he had made to police to the effect that either Mr Mathews pushed Mr Iskander with the front of the gun or Mr Iskander stepped back a couple of steps when he saw the gun was true. He denied seeing any pushing or shoving as between the two men.52
54 In cross-examination, Mr Paine conceded that he never saw the butt of the gun, although he had given evidence that the butt piece had been sawn off.53
55 When Mr Paine was cross-examined with respect to the sequence of events immediately prior to Mr Iskander being shot, he consistently maintained the version of those events provided during his evidence-in-chief. However, it was put to Mr Paine that he said to Acting Detective Sergeant Daly on 4 December 2011 that he saw the two men pushing each other, and that Mr Iskander was pushed to the chest with two hands. Mr Paine denied saying that to Mr Daly, although Mr Daly later gave evidence to the effect that Mr Paine had told him just that.54
56 On a number of occasions when asked about his conversation with Mr Daly, Mr Paine advised that he could not remember what he had said. This prompted the trial judge to remind Mr Paine that he had taken an oath to tell the truth and that he had to make every reasonable effort to recollect what had occurred.55
57 It was also put to Mr Paine in cross-examination that he had said to Mr Daly that he was not concerned about Mr Joseph, but he was concerned 'about the guy he was with'. Mr Paine stated that he did not recall saying anything like that, although his use of words to that effect was confirmed by Mr Daly. Mr Paine also denied saying to Mr Daly that it was really Mr Mathews' father and whom his father knew that concerned him, but again Mr Daly confirmed that words to that effect were used by Mr Paine.
58 Mr Paine did, however, confirm in cross-examination that he was concerned about Mr Mathews' father because he was a member of a bikie club. In that context, Mr Paine stated that he could not recall saying to Mr Daly that he was surprised that the people that Mr Mathews' father knew had not been to his house already, and also could not recall speaking to police about ways in which they could ensure his safety,56 although Mr Daly confirmed both conversations. Mr Paine also gave evidence that he did not remember telling police that he did not want to give evidence because of concerns for his safety, or that he did not want to live life looking over his shoulder,57 but again, conversations to that effect were confirmed by Mr Daly.
59 Later in cross-examination Mr Paine was asked whether the shooting was deliberate.58 He replied that he was not sure, explaining that, 'It all happened so fast. I don't know what happened, like, you know, like, anything could've really happened that I didn't know about or see at the time.'59
60 Mr Paine denied that there was any struggle for possession of the gun and further denied that there was any pushing or shoving between the two men. He also denied that he did not have any idea as to the circumstances in which the gun came to be discharged.60
61 During cross-examination by counsel for Mr Joseph, Mr Paine accepted that he had told police that Mr Iskander had taken Mr Joseph's Silvia motor vehicle because Mr Joseph had been doing burnouts in front of Mr Iskander's house.61 The evidence Mr Paine had given as to the reason for Mr Iskander taking Mr Joseph's car was quite different.
62 During re-examination, Mr Paine reiterated the evidence he had given in chief with respect to the circumstances in which Mr Iskander was shot.
63 In re-examination, Mr Paine was also asked what he meant by the answer which he gave when asked whether the shooting was deliberate, and which I have set out above at [59]. His answer was, 'Well, I, I don't know what they, they were thinking, I don't know if they want, wanted to do that or, you know?'62 Mr Paine was also re-examined with respect to the alleged conversation with police in which he stated that he was concerned because of Mr Mathews' father's membership of a bikie club.63 When he was asked how his understanding that Mr Mathews' father was a member of a bikie club had affected his giving a statement to police, he replied, 'Well, I gave a statement, didn't I?'64
Events subsequent to the shooting
64 Evidence was led with respect to telephone and text communications made using Mr Joseph's mobile telephone in the hours subsequent to the shooting. However, that evidence was largely equivocal, although in the early hours of the morning of 3 December 2011 Mr Joseph sent a text to one of his friends saying, 'Going north.'
65 At 1.33 am the same morning, Mr Joseph's Ford Explorer was found aflame on a bush track near Chidlow, about 60 km from the scene of the shooting. Mr Joseph admitted that the vehicle had not been reported stolen at any time before it was found alight and that the fire was deliberately lit from within using accelerant from a fuel can later found within the vehicle. Evidence was led to the effect that the heat of the fire would have destroyed any cartridges within the vehicle. The gun used to shoot Mr Iskander was never found. None of the people present in the house at Lalina Way saw anybody remove a gun, or themselves removed a gun, from the driveway, although four unused cartridges were found on the driveway after the incident. The evidence did not establish any obvious explanation for the presence of those cartridges.
66 At 8.00 am the morning after the shooting, Mr Joseph and Mr Mathews attended upon Mr Mathews' employer and collected some pay owing to Mr Mathews. Mr Joseph then stopped answering his phone and sent no text messages, although he did call a friend from a blocked telephone number and told her, 'It wasn't me.'
67 Police were unable to locate Mr Joseph, Mr Mathews or the girl who had been in the car with them for the following nine days after the shooting. Mr Joseph and Mr Mathews gave evidence to the effect that they were in the Margaret River region during this time. They handed themselves in to police on 12 December 2011.
Other aspects of the evidence
68 There are other aspects of the evidence that are relevant to an assessment of Mr Paine's credibility. The persons who were present in the house at Lalina Way confirmed Mr Paine's evidence to the effect that he was at the front of the house when Mr Iskander was shot. None of those witnesses said that they had seen Mr Iskander carrying a gun or having a gun on his person immediately prior to the shooting. There was also evidence from a ballistics expert to the effect that there was no evidence of searing or any other indicator of contact or close contact firing on Mr Iskander's shirt. That evidence is consistent with Mr Paine's assertion that Mr Iskander was a metre and a half from the driver's window of the Ford Explorer when he was shot using a gun held by Mr Mathews who was in the vehicle, and inconsistent with the evidence given by Mr Mathews and Mr Joseph to the effect that the gun discharged accidentally during a struggle for control of the gun. It is, however, to be remembered that Mr Iskander's shirt had been soaked in blood which may have obscured or removed any evidence of the gun having discharged in very close proximity to the shirt.
69 The prosecution also relied upon evidence given by a prison informer of statements made to him by Mr Mathews. That evidence has its own difficulties and does not appear to me to be of any particular assistance in the evaluation of the credibility of Mr Paine.
The defence evidence
70 Each of Mr Joseph and Mr Mathews gave evidence in their defence. Their evidence was generally consistent, and was to the effect that Mr Iskander approached the vehicle in which they were sitting and pulled a gun from his trousers. When Mr Mathews tried to take the gun from him there was a scuffle in the course of which the gun discharged accidentally. The jury's verdict is only consistent with their rejection of this evidence. Evidence was also led from a witness who stated that he had seen guns under the seat in Mr Iskander's Commodore vehicle about six months before the shooting.
Evaluation of ground 1
71 I have set out the various unsatisfactory aspects of Mr Paine's evidence. The question posed by ground 1 is whether, having regard to the many unsatisfactory aspects of his evidence, the jury must have entertained a reasonable doubt as to whether his version of the critical events was true.65 In addressing that question, it must, of course, be remembered that it was open to the jury to reject parts of Mr Paine's evidence without necessarily rejecting his evidence in relation to the critical events immediately prior to Mr Iskander's death.
72 There are undoubtedly aspects of Mr Paine's evidence which any reasonable jury must have rejected. An obvious example is his assertion that he never sold illegal drugs to anybody, when in fact he has been convicted of that offence. However, while evidence of that character undermines Mr Paine's credibility generally, it does not bear directly upon the credibility of the critical evidence he gave with respect to the events preceding the shooting. It is that evidence which must be the focus of attention in relation to this ground of appeal.
73 It is a significant feature of Mr Paine's evidence that his recitation of the events immediately preceding the shooting of Mr Iskander was generally consistent during his evidence-in-chief and very lengthy cross-examination. The evidence of other witnesses at the house was consistent with his evidence that he was in close proximity to the critical events, with the capacity to see them at close hand, assisted by the light above the front door of the house which was illuminated and which cast light upon the area in which the critical events took place. It is significant that none of the unsatisfactory aspects of Mr Paine's evidence bear directly upon his testimony with respect to those critical events which was given consistently and without contradiction. Although there is no doubt that Mr Paine had consumed a substantial quantity of methylamphetamine earlier that evening, he did not accept that the drug had impaired either his vision or his memory, and there was no evidence to the effect that the drug would have had either of those effects.
74 Perhaps the most unsatisfactory feature of Mr Paine's evidence was his vague and at times evasive evidence in relation to the various statements which he made to police over the days following the shooting. His inability to recall precisely what he said to police during those conversations is not entirely surprising, given the events which had taken place and the lapse of time between December 2011 when those conversations took place, and March/April 2013 when Mr Paine gave his evidence. More significant is the evidence by police officers which the jury had no reason to reject and which, if accepted, establishes that the initial version of events given to police by Mr Paine was fundamentally inconsistent with the evidence he gave at trial. In that version of events Mr Paine asserted to police that he had not seen the critical events and did not know who had killed Mr Iskander. In evaluating that evidence it is, of course, necessary to take into account the circumstances in which Mr Paine's conversations with police took place. During the initial conversation in the early hours of the morning following the shooting, Mr Paine had been arrested by police on suspicion of murder, and evidence was given to the effect that he feared for his safety, in part because of Mr Mathews' father's membership of a bikie club. In my view, it is open to conclude that the circumstances in which the various conversations with police took place provide an explanation for the fundamentally different version of events which he gave to police as compared to the version of events contained in the written statement which he gave to police five days after the shooting and which was consistent with the evidence he gave at trial.
75 There is, however, one aspect of the evidence given by Mr Paine with respect to the critical events preceding the shooting which raises a significant issue as to the credibility of that evidence, that being the answer he gave in cross-examination when asked whether the shooting was deliberate, and which I have set out above at [59]. In particular, his assertion that it all happened so fast that he did not know what happened, and that anything could have really happened that he did not know about, obviously casts a shadow over his evidence as to what he saw. However, it seems clear from the answers he gave when re-examined on this topic that he understood the question in cross-examination to be directed at the states of mind of Mr Mathews and Mr Joseph, which is understandable, given that the question was whether their actions were deliberate. If he construed the question in that way, his vague answer is understandable and does not irretrievably impugn the credibility of his evidence as to the critical events.
76 As I have already noted, counsel for Mr Mathews conceded that if this court concluded that it was not dangerous for the jury to have accepted Mr Paine's evidence with respect to the critical events preceding the shooting of Mr Iskander, this ground of appeal must fail. In my view, the consistency with which Mr Paine gave his evidence with respect to those events was such that the credibility of his evidence with respect to those matters was not irretrievably and inevitably undermined by the unsatisfactory aspects of his evidence in general, nor by the prior inconsistent statements which he made to police in the immediate aftermath of the incident, nor by the answer which he gave to the question of whether the acts of the accused were deliberate. In my view, it was not unsafe for the jury to act upon Mr Paine's evidence with respect to the critical events, as they must have done, in order to arrive at their verdict of guilt. That evidence was supported by other aspects of the prosecution case to which I have referred, including the evidence of motive arising from the hostilities prior to the event; the lack of any explanation for the failure to find any weapon at the scene; the actions of the accused after the event in destroying any potential evidence from the motor vehicle by setting it alight; and by taking flight and concealing themselves from police for more than a week after the incident. Although I would grant leave to appeal in respect of ground 1, it should be dismissed.
Ground 3
77 Ground 3 asserts that a fundamental irregularity occurred in the course of the trial, which was only discovered by solicitors acting on behalf of Mr Mathews and Mr Joseph after he had been convicted and sentenced. Although particulars of the ground have been provided, those particulars go essentially to the circumstances in which the alleged irregularity was discovered, rather than the irregularity itself. Details of the alleged irregularity are to be derived from affidavits filed in support of the ground, to which detailed reference will be made in due course. The essence of the alleged irregularity is the assertion that during the weekend break after the trial judge had commenced her charge to the jury, but before she completed that charge and sent the jury out to commence their deliberations on the following Monday, one of the jurors attended a motorcycle dirt drag racing event known as the 'Bindoon Dirt Drags'. It is asserted that while he was at the event, the juror had conversations about the case with Mr Philip Uchtman, who is an associate of members of the Gypsy Jokers Motorcycle Club, and Mr Robert Taylor, who was and is the President of that club.
78 In order to provide the context for the consideration of ground 3, it is necessary to identify the significance of the evidence relating to Mr Paine's knowledge that Mr Mathews' father was a member of a bikie club, and its relationship to the issues which the jury had to determine. In his evidence Mr Paine recounted a version of the critical events which was fundamentally different to that recounted by each of Mr Mathews and Mr Joseph. The central issue which the jury had to determine was whether they were satisfied beyond reasonable doubt that the sequence of events depicted by Mr Paine was true. In the circumstances of this case, verdicts of guilty of murder could only be returned if the jury was so satisfied.
79 Assessment of the credibility of Mr Paine's evidence with respect to the critical events was not a straightforward task - its complexities are revealed by the reasons I have given in relation to the first ground of appeal. As I observed in that context, evaluation of Mr Paine's prior inconsistent statements to police was probably the most significant part of the necessary process of evaluation. Although Mr Paine made many prior inconsistent statements to police, the most significant were his statements in the early hours of the morning following Mr Iskander's shooting to the effect that he had not seen what had occurred and did not know who had killed Mr Iskander. In their assessment of that evidence, it was necessary for the jury to consider whether there were plausible reasons why Mr Paine may have given a false account of events to police, particularly in the early hours of the morning following the incident but also on subsequent occasions until he provided police with a written statement on 7 December 2011, the terms of which coincided largely with the evidence he gave at trial.
80 In the context of ground 1 I have referred to the evidence given by Mr Paine on this topic. He stated that when interviewed by police in the early hours of the morning following the incident, he was stressed and confused. The objective circumstances of his discussions with police lend some weight to that evidence given that, on any view, he had been present at the time his good friend was shot (albeit that his precise location was contested), and he had been arrested on suspicion of murder. He also stated that his concern was increased by his knowledge that Mr Mathews' father was a member of a bikie club.
81 Mr Paine's evidence on this topic was corroborated by the evidence given by relevant police officers. It is sufficient to refer to the evidence given by Detective Senior Constable Daly. Mr Daly gave evidence of a conversation with Mr Paine during the evening of 4 December 2011. He accepted that the purpose of the conversation was to try to convince Mr Paine to help police and make a statement.66 Mr Paine stated to Mr Daly that he was not concerned about Mr Joseph but he was concerned 'about the guy he was with' (obviously Mr Mathews).67 When Mr Daly asked Mr Paine what he meant by that, he replied that it was not even the guy Mr Joseph was with; it was that guy's father and those whom his father knew. Mr Paine stated that he was surprised that those people had not been to his house already.68 Mr Paine and Mr Daly then spoke about ways in which the Western Australian police could ensure his safety.69
82 Mr Daly then asked Mr Paine if police were looking at the right guy as the shooter. Mr Paine replied that they were not. At that stage Mr Joseph's image had been circulated in the media. Mr Paine told Mr Daly that he would not give the other guy's name before he had spoken to a lawyer. He told Mr Daly that he did not want to give evidence against the people involved because he was concerned for his safety and that 'he didn't want to live life looking over his shoulder'.70 Mr Daly made notes of the conversation and signed them upon his return to the police station.
83 Mr Daly had another conversation with Mr Paine during the afternoon of 5 December 2011. Mr Paine told Mr Daly that he had spoken to his lawyer, and still did not wish to provide police with a statement. Mr Paine told Mr Daly, 'that if it came down to being killed or going to gaol, he would choose gaol'.71 Mr Daly replied by attempting to reassure him that police could ensure his safety. However, Mr Paine replied to the effect that 'police couldn't watch him all the time'.72 Later in the conversation, Mr Paine told Mr Daly that, 'everyone wanted him to talk but he was still scared for his safety'.73 Mr Paine then gave to Mr Daly a version of the critical events which was generally consistent with the evidence which he gave at trial, except for his assertion that there was pushing involved between Mr Mathews and Mr Iskander, although Mr Paine declined to provide a written statement until he had received further legal advice. Mr Daly also made notes of this conversation which he signed immediately upon his return to the police station.
84 It seems likely that the jury would have accepted the evidence of Mr Daly on this topic, as it was led from him in cross-examination by counsel for Mr Mathews and not contested. The consistent evidence to the effect that Mr Paine was concerned for his safety because of Mr Mathews' father's membership of a bikie club was obviously of considerable significance in assessing whether Mr Paine had a plausible reason for making false statements to police at the time he told them things which were fundamentally inconsistent with the evidence which he gave at trial.
85 Predictably enough, the evidence with respect to Mr Paine's concerns arising from his belief that Mr Mathews' father was a member of a bikie club was addressed by counsel in their closing addresses, and by the trial judge in her charge to the jury.
86 The prosecutor spent some time addressing the significance which the jury should attach to Mr Paine's prior inconsistent statements to police. In that context, she submitted:74
Clearly Mr Paine at least said things that were interpreted by respective officers as being inconsistent with his evidence on occasion. Some of it, particularly that 3 am conversation, was undoubtedly different. He explained that he didn't tell the police everything at the start because he was scared and confused and he told you why, but when he gave evidence directly before you, you the judges of the facts, on affirmation, that is the first time, the only time, that you got his own words first-hand, not filtered through someone else's hands, subject to their note-taking skills and ability to write and watch at the same time. So that's, I would suggest to you, members of the jury, what you really need to focus on.
All of the cross-examination on the notes predicated the suggestion that each defence counsel made to Scott Paine that he made up his account, he wasn't even in the front of the property, at least - I perhaps should correct myself. That might be Ms Amidzic's suggestion to him. Mr Lovitt's position was simply that Scott Paine was a liar who couldn't be believed and had fantasised his account.
At the end of the day what the defence is suggesting is that that young man, a man who believed that Damien Mathews' father was a bikie, a man of whom he was frightened, decided to make up a story that said that Damien Mathews was the shooter in the circumstances that he described. He told Daly that he would rather go to gaol than spend the rest of his life looking over his shoulder, and he didn't have to give a statement - you heard that he was told that - but he decided to.
What the defence is suggesting is that he willingly made up a false statement implicating Damien Mathews, the very last person you would think that he might dare to falsely implicate. The one thing worse than telling the truth about him would be making up a false story about him, you might think.
87 Later in her address, the prosecutor submitted:75
Scott Paine did see what happened and he told you the truth. He agreed he didn't tell the police that truth on the night but my learned friend himself, Mr Lovitt, led the reasons for that. Paine was frightened of Damien Mathews' father, who he knew. Not for one moment [am] I asking you to hold Damien Mathews' father against him. By that I mean against Damien Mathews. In fact it makes absolutely no difference who Damien Mathews' father is or what he is. The fact is that Scott Paine believed that he was a bikie and it scared him enough that even when he was arrested for murder, he wouldn't make a statement about what he had seen.
In the days that followed, his safety was a constant theme, so too, as I have gone through, was the pressure on him to tell his account, to tell what really happened and he did on 6 December 2011 and he signed it on 7 December 2011 after consulting with his lawyer, which you might think that anyone who had been arrested for murder would do. Indeed it is a right, as you have heard that all people have. Add to that the fact that he is dyslexic and you might understand why he would want to take legal advice.
88 Counsel for Mr Mathews also addressed the topic. In the course of his submissions he summarised this aspect of the prosecution case in these terms:76
Then the prosecution referred to my client's father and trotted out all sorts of excuses why he, Paine, didn't from the outset tell the truth according to the prosecution. He was supposed to have been, and he said to police, one of the excuses that he trotted out for them in the days following 2 December, that he was frightened of the accused's father, he was a bikie.
89 Counsel read portions of the transcript of Mr Paine's evidence on the topic to the jury in support of his submission that the issue of Mr Mathews' father being a bikie was not of great significance to Mr Paine. He pointed out that in re-examination by the prosecutor, when Mr Paine was asked how his belief that Mr Mathews' father was a bikie had affected how he felt about giving a statement to police, he responded by saying, 'I gave a statement, didn't I?', rather than asserting in evidence that he was terrified.77
90 Counsel then referred again to this aspect of the prosecution case in the following terms:78
The prosecution of course seize upon that as being one of the - they [seize] upon it being the best excuse, but he trotted out a number of them in the history of this case. He didn't even mention that in his statement that he ultimately made on 7 December. Right at the end in an answer that you might think was more prepared by the police than uttered off the top of his head by him, he said, paragraph 118:
When I first spoke to police on the night Jerry was murdered I didn't tell them everything. I was very stressed because the police arrested me and I was scared and confused.
Nothing about Damo's father was a bikie and I was frightened of him, not a whit, but it's seized upon and the Crown made a bit of [a] meal about it in its final address to you.
91 The trial judge referred to this aspect of the case on two occasions during her charge to the jury. In the course of her general remarks relating to the need for the jury to assess the evidence dispassionately and to exclude prejudice or sympathy she observed:79
For example, you must not be prejudiced against Mr Mathews because Mr Paine believed his father was a bikie. That's not a matter which should come into your consideration at all.
92 The trial judge gave the jury directions in conventional terms with respect to the use which could be made of prior inconsistent statements. In that context she told the jury:80
Now, in the case of Mr Paine, it's not suggested by the state that Mr Paine's inconsistencies or some of them were not important, but the state says that there were good reasons why Mr Paine gave false accounts to the police in the days following the shooting before he made his written statement on 7 December.
The state relies on his evidence in this respect, that he was upset at having just seen his best friend murdered, that he was very stressed and confused because the police had arrested him over the shooting, and that he was scared of Mr Mathews' father because he believed him to be a member of a bikie club.
The state says that these matters explain why he gave false and inconsistent statements to the police about his involvement in the shooting. The state also asks you to accept that he told that Bond, or people in the house immediately after the shooting, that they or Damo had shot Jerry or words to that effect, as evidence that is consistent with his testimony.
…
On the other hand, the accused say that Mr Paine did not have a good excuse for not telling the police what happened on the driveway. The accused say you should not accept that Mr Paine told the truth in his evidence. Rather, you should conclude that there were no good reasons for his inconsistencies. The accused say you should be satisfied that he is a biased witness who has been, since he made his written statement, under pressure from Mr Iskander's family, Mr Samardali and the police to give a version of events of the night that would support a case of murder against the accused.
The accused say Mr Paine has falsely implicated the accused in order to satisfy those people and also to obtain some revenge or justice for his friend, Mr Iskander. The accused say because of the inconsistencies in Mr Paine's evidence and other matters affecting his credibility you should not rely on his evidence.
Ground 3 - legal principles
93 The almost infinite range and variety of circumstances in which the conduct of a juror or jurors can give rise to the question of whether the verdict of the jury should be set aside in the interests of justice is such that there will be cases which defy precise categorisation. For reasons which will appear, this is such a case.
94 However, the legal principles which have developed in relation to the general class of cases of this kind identify at least two categories of case. One category is that in which the circumstances give rise to a question as to lack of impartiality on the part of a juror or jurors. Another class concerns cases in which there has been a procedural irregularity - most commonly because a juror or jurors have conducted their own inquiries into the facts or circumstances of the case before them.
95 An example of a case falling within the former category is Webb v The Queen.81 In that case, two accused were jointly tried on a charge of murder. On the morning of the day upon which the judge commenced his summing up to the jury, one of the jurors gave a bunch of flowers to a person at the courthouse with the request that the flowers be given to the mother of the deceased. The juror was identified and apologised for her conduct. Counsel for each of the accused applied for orders that the jury be discharged and the trial aborted. The trial judge dismissed the application. That decision was upheld both on appeal to the Court of Criminal Appeal of South Australia and on appeal to the High Court.
96 The High Court considered the question of whether it was appropriate to apply, by analogy, the test which had been developed in the Australian cases dealing with an apprehension of lack of impartiality on the part of a judge, which is posed in terms of whether a fair-minded lay observer cognisant of all the facts might reasonably apprehend that the judge has prejudged or might prejudge the case, or whether the principles developed in the English cases should be applied, in which the question posed was whether there was a real danger of bias on the part of the juror or jurors in question. All members of the High Court agreed that the principles developed in Australia with respect to apprehension of bias on the part of a judge should be applied to a juror or to the jury as the case may be. Mason CJ and McHugh J enunciated the test in these terms:82
The test to be applied … for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.
97 Although Webb was decided by applying the principles relating to reasonable apprehension of bias, there are a number of observations in the judgments which point to the lack of a clear demarcation between cases of that kind, and cases of procedural irregularity. For example, Brennan J observed:83
[A]n apprehension that a juror or the jury might not deal with the case impartially may be derived from the occurrence of an irregularity where the irregularity infringes a practice designed to ensure both the appearance and the reality of a fair trial.
98 In Webb the irregularity was discovered during the course of the trial, and caused the trial judge to give a number of specific directions to the jury in which he strongly emphasised the need to put aside considerations of emotion or sympathy. Having regard to those directions, a majority of the High Court84 concluded that a fair-minded and informed member of the public would not entertain a reasonable apprehension or suspicion that the juror would not discharge her task impartially.
99 A more recent case of suspected lack of impartiality on the part of a juror is Smith v The State of Western Australia.85 In that case, the High Court considered that the evidence was capable of giving rise to a reasonable suspicion that criminal coercion or intimidation had caused a juror to support a verdict with which he did not agree. The court held that the 'exclusionary rule', which excludes evidence of a juror as to the deliberations of the jury, did not apply where the evidence gave rise to a reasonable suspicion of illegal coercion of a juror. The High Court directed this court to conduct an inquiry into the matter including, if necessary, an inquiry into the deliberations of the jury. That inquiry is continuing.86
100 The other category of case which has been recognised concerns those cases in which there has been a procedural irregularity of some kind involving a juror or the jury. Cases falling within this category appear to be significantly more numerous than those falling within the category of apprehended bias and commonly involve the conduct of inquiries or the gathering of information by a juror or the jury which results in the receipt and consideration of material which is not in evidence. An example of this type of case is Hansen v The State of Western Australia.87 In that case, despite an explicit instruction from the trial judge directing jurors not to make their own inquiries on the internet, a juror conducted such inquiries and found and printed two maps of areas relevant to issues in the trial, and provided them to the Sheriff's officer with a request that they be reproduced. It was not clear whether the juror in question had gleaned any relevant information from the maps or whether any such information had been disseminated to other jurors. Because the irregularity came to light during the course of the trial, the trial judge was able to reiterate the directions he had previously given with respect to the importance of the jury taking into account only material which had been produced in evidence. A majority of this court88 concluded that the irregularity did not affect the reliability or integrity of the verdict, or give rise to a substantial miscarriage of justice.
101 The differing tests which have been applied in cases in which a juror or the jury have been exposed to material which is not in evidence were reviewed by this court in Hansen. As Buss JA noted, in Domican v The Queen (No 3),89 Kirby ACJ expressed the view that the extra-curial information received by the jury must be on a 'vital' or at least important issue before the court is required to discharge the jury.90 On the other hand, as Buss JA also noted in Hansen, in R v Myles,91 Fitzgerald P (Pincus JA substantially agreeing) posed the test in terms of whether the integrity of the verdict was called into question by the procedural irregularity.92 In that case, it was suggested that if the jury had received extra-curial information, its integrity would be called into question 'unless the court is satisfied that the jury would have returned that same verdict if the irregularity had not occurred',93 applying the test enunciated in R v Marsland.94
102 R v K95 is another case in which it was established that jurors had acquired knowledge of matters relevant to the case before them which were not in evidence as a result of conducting internet searches. The Court of Criminal Appeal of New South Wales held that the relevant test to be applied was not that enunciated in Webb, but rather, the test enunciated in Marsland and which had been applied in Myles.96 To the extent that the observations of Kirby ACJ in Domican (No 3) suggest a test other than that in Marsland, those observations should be taken to have been overridden by the subsequent decision of the Court of Criminal Appeal of New South Wales in R v K, applying what had been said earlier by the same court in Marsland, and which corresponds with the approach evident in the Queensland decision of Myles. So, in cases falling within the category of procedural irregularity because, for example, a juror or the jury received extra-curial information, a substantial miscarriage of justice will be established and the verdict of the jury quashed if the irregularity calls into question the integrity of the jury's verdict. The irregularity will be taken to have that consequence unless the court is satisfied that the irregularity did not affect the verdict, and that the jury would have returned the same verdict if the irregularity had not occurred.
103 The cases suggest that in applying this test, the court will take into account the extent to which the circumstances reveal that a juror, or the jury, have disregarded a specific direction given by the trial judge. That fact is relevant because it undermines the assumption that the jury will follow and conform to the directions of the trial judge. However, although Pullin JA (dissenting) considered this factor to be decisive in Hansen, I am not aware of any case in which this factor alone has been sufficient to impugn the integrity of the verdict of the jury. In those cases in which verdicts have been set aside as a consequence of juror misconduct, attention has been directed to the consequences of the misconduct. So, in cases in which jurors have gathered information or conducted inquiries relevant to the case contrary to a specific direction given by the trial judge, it is the nature of the inquiries conducted or the information gathered which has been of the greatest significance in deciding whether the integrity of the verdict has been put in question.
104 In many of the cases falling within the category of procedural irregularity, the relevant irregularity has been extrinsic to the deliberations of the jury. In those cases the exclusionary rule, which precludes the admission of evidence with respect to the jury's deliberations, has not prevented the court from receiving evidence of irregularities which were extrinsic to the deliberations of the jury.97 Since the decision of the High Court in Smith, it may be doubted whether the exclusionary rule would apply to exclude evidence of jury deliberations if there is evidence capable of belief giving rise to a reasonable suspicion that there has been a serious breach of the presuppositions of a trial. That is not a question that has to be resolved in this case, as all the evidence adduced in this case concerned matters extrinsic to the deliberations of the jury and therefore falls outside the ambit of the exclusionary rule, on any view of that rule.
105 Prior to the decision of the High Court in Smith, there may have been some doubt as to whether cases of this kind were to be resolved on the basis of evidence tendered by the parties or whether the court itself was obliged to conduct an inquiry by direction to its officers, including the Sheriff, who is responsible for the supervision of jurors, in cases in which there is a credible basis for a reasonable suspicion that the trial process may have miscarried. Any doubt in that area has now been resolved by the decision in Smith, in which this court was directed to undertake an inquiry by the High Court. The High Court expressly contemplated that the inquiry might utilise the services of the Sheriff.98
Ground 3 - the procedure followed in this case
106 The appellant sought leave to adduce fresh evidence in his appeal in the form of three affidavits. Leave in that respect was granted at the hearing of the appeal. As two of those affidavits became the evidence-in-chief of their deponents, it will be necessary to refer to those affidavits in greater detail below. For present purposes, however, it is sufficient to refer to the three affidavits tendered on the appellant's behalf at a more general level.
Affidavit of Vesna Amidzic
107 Ms Amidzic is a legal practitioner who represented Mr Joseph at trial. Ms Amidzic deposes that prior to the trial she viewed her client's profile page on the social media platform 'Facebook' and observed that Mr Mathews was shown on that page as a friend of Mr Joseph. Mr Mathews' Facebook profile also depicted a photograph of Mr Mathews heavily tattooed and 'flipping the bird' to the camera. Under the 'activities and likes' section of Mr Mathews' profile on Facebook was a page concerning the Gypsy Jokers Motorcycle Club, which in turn linked to an article documenting in some detail various criminal activities in which members of that club had allegedly been implicated from time to time. The activities included drugs and firearms-related offences, including a reference to five members of the club having been involved in a drug-related shoot-out with another gang.
108 Ms Amidzic deposes that during the trial, she and other defence counsel had discussed their observation that one of the members of the jury bore a resemblance to members of bikie clubs. She described the juror as having short dark cropped hair with a moustache and goatee beard. During the trial the juror took to wearing a heavy silver 'Harley Davidson' embossed belt buckle and a black leather sleeveless jacket known amongst motorcycle riders as a 'cut-off'. According to Ms Amidzic, he also often wore chequered flannelette shirts, black t-shirts and black jeans in the style of what some describe as a 'bikie look'.
109 Mr Mathews and Mr Joseph were each convicted after the jury returned its verdicts on 23 April 2013. Each was remanded in custody for sentencing on 31 May 2013. In the interim, Ms Amidzic spoke to Mr Craig Mathews, the brother of Mr Mathews' father, on a number of occasions.
110 On 7 May 2013, Mr Craig Mathews told Ms Amidzic that he had received information about something that had happened during the trial and involving a juror, but that he could not provide her with further details until he had received permission from those who may or may not want their names revealed. His comments to Ms Amidzic were directed to whether those events might be relevant to the sentencing hearing which was then pending.
111 Ms Amidzic spoke to Mr Craig Mathews again on 22 May 2013. He advised her that the information he had received was to the effect that a juror had approached people at the 'Bindoon Dirt Drags' and sought out information with respect to the appellant in particular, and bikies in general. He advised Ms Amidzic that he believed the juror was the juror who had appeared to have some resemblance to members of bikie clubs during the trial. Ms Amidzic advised Mr Craig Mathews that it would be necessary for her to speak to the prospective witnesses and efforts were made to arrange for that to occur prior to the sentencing hearing, but to no avail.
112 After sentence was imposed, further efforts were made to contact prospective witnesses to the events which had taken place at the Bindoon Dirt Drags. Ms Amidzic was able to arrange to meet Mr Taylor in late June 2013, and with both Mr Taylor and Mr Uchtman in mid-July 2013. The solicitor acting on behalf of Mr Mathews was also present at the latter meeting.
113 Ms Amidzic also deposes that she contacted the Sheriff's office to ascertain whether there was any process for dealing with issues of the kind which had arisen, and also inquired whether the Sheriff's office was prepared to release details which would identify the juror in question so that further inquiries could be initiated with that juror. Ms Amidzic was informed that the Sheriff's office had no power to conduct any inquiry into matters of the kind she had mentioned, and that the Sheriff could not reveal any details which might identify the juror without an order of the court.
Affidavit of Mr Uchtman
114 Mr Uchtman deposes that he was present at the Bindoon Dirt Drags over the weekend of 20 - 21 April 2013, as he is involved in motorbike racing. However, he deposes that he is not, and has never been, a member of any motorcycle club.
115 Mr Uchtman deposes that at some stage during Saturday, 20 April 2013 he was in the racing area working on a bike when a man he did not know walked towards him and said that he was 'on that case for Damo'. Mr Uchtman thought he might be referring to the son of a man he knew to be a member of the Gypsy Jokers Motorcycle Club. Mr Uchtman suggested that the man should speak to a man he pointed out, Mr Robert Taylor, whom Mr Uchtman knew to be the President of the Gypsy Jokers Motorcycle Club.
Affidavit of Mr Taylor
116 Mr Taylor deposes that he is the President of the Gypsy Jokers Motorcycle Club, and that Mr Mathews' father and his father's brother are both members of the club. He further deposes that he was present at the Bindoon Dirt Drags in order to race his bike.
117 Mr Taylor deposes that around midday on the Saturday of the race weekend, he was working on his bike in the race area when a man he knew as 'Ucky' brought over a man whom he had not met before and who said that he wanted to talk to him. The man said he wanted to speak to Mr Taylor about the 'Damien Mathews case'. According to Mr Taylor, the man asked him how well he knew 'Damo' and what kind of a bloke he was. He also asked about 'Damo's dad'. Mr Taylor deposes that the man to whom he spoke had short cropped dark hair, a moustache and goatee beard, and was wearing a black leather sleeveless jacket, which he would describe as a 'cut-off', over a black t-shirt. This description matches the description of the juror given by Ms Amidzic in her affidavit.
118 It will be necessary to refer in greater detail to Mr Taylor's evidence as to the conversation which then took place. For present purposes it is sufficient to note that, according to Mr Taylor, the man did not use the word 'juror' at any point during the conversation but did say that he was 'on the case', being a reference to the case involving Mr Mathews.
119 Mr Taylor deposes that he was advised that Mr Mathews had been convicted on the day the jury returned its verdict - namely, 23 April 2013. Mr Taylor deposes that he did not say anything about the conversation he had at Bindoon until 25 April 2013, when he mentioned what had occurred to a number of people who were at the ANZAC Day dawn service.
The admissibility of the fresh evidence
120 The State objected to the tender of the three affidavits I have described on two grounds. First, it was submitted that the affidavits were inadmissible because the assertions that the person involved in the alleged conversations at Bindoon was a juror in the case are hearsay. Second, it was submitted that the affidavits should not be received in evidence because even if the facts asserted in the affidavits are accepted, they were incapable of making out the relevant ground of appeal.
121 The answer to both these submissions lies in the purpose for which the affidavits were tendered. Although not apparent in either the ground of appeal or the written submissions provided in support of the ground of appeal, in oral argument, counsel for Mr Mathews made clear that the affidavits were tendered not only in support of the ground of appeal, but also in support of an order that this court conduct an inquiry into the allegations contained in the affidavits.99 The reasons of the High Court in Smith suggest that the question to be addressed in order to determine whether the court should conduct an inquiry into a significant irregularity in the performance of the functions of the jury is whether there is evidence capable of belief which gives rise to reasonable ground for suspicion that there has been a serious breach of the presuppositions of the trial, thereby casting a shadow of injustice over the verdict.100 Applying that formulation of the question to the circumstances of this case on the issue of whether there should have been an inquiry, the question to be addressed was not whether the appellant had established, as a fact, that the man who attended the Bindoon Dirt Drags and spoke to Mr Uchtman and Mr Taylor was a juror in his trial, but rather whether there is evidence capable of belief which gave rise to a reasonable ground for suspicion that the man who spoke to Mr Uchtman and Mr Taylor was a juror in the trial.
122 The formulation of the question in these terms serves the interests of justice for an obvious practical reason. In Western Australia, elaborate precautions are taken to prevent the disclosure of the identity of jurors, consistently with the requirements of the Juries Act 1957 (WA). Ms Amidzic's attempts to obtain information from the Sheriff with respect to the identity of the juror in question, in order that she could attempt to obtain direct evidence of his actions, were appropriately rebuffed by the Sheriff in accordance with the provisions of the Juries Act. In the circumstances of this case, Mr Mathews and his advisers lacked any practical capacity to adduce direct evidence from the juror allegedly involved in the events at Bindoon without the intervention and assistance of the court.
123 The affidavits tendered in support of ground 3 could only be described as hearsay if the issue to be determined by the court was whether the man who spoke to Mr Uchtman and Mr Taylor was a juror in the trial. However, in the context of the appellant's application for the assistance and intervention of the court to facilitate the conduct of an inquiry into the assertions contained in the affidavits, the question to be addressed was whether the affidavits constituted credible evidence capable of giving rise to reasonable grounds for suspicion of a substantial procedural irregularity in the conduct of the trial. Viewed in that context, the respondent's objection to the tender of the affidavits on the ground of hearsay loses much, if not all, of its force.
124 A similar process of reasoning applies to the second ground of the respondent's objection to the affidavits - namely the assertion that they are incapable of establishing the facts necessary to sustain the ground of appeal. For the reasons I have given, in the context of an application for a court-directed inquiry, the question is not whether facts have been established to the requisite standard, but rather whether there is credible evidence capable of giving rise to reasonable grounds for suspicion that there has been a substantial irregularity in the conduct of the trial. The affidavits tendered meet that description.
125 There is another reason why the respondent's objection to the tender of the affidavits must be rejected. At the heart of that objection is the proposition that the evidence fails to establish that the man who spoke to Mr Uchtman and Mr Taylor at Bindoon was in fact a juror in Mr Mathews' trial because the evidence does not establish that the man told Mr Uchtman or Mr Taylor that he was a juror and, in any event, a statement to that effect would be inadmissible as hearsay. Although the standard of proof applicable to issues of the kind raised by this ground of appeal has not been the subject of specific attention in the previously decided cases, as a matter of principle, the standard applicable to the ascertainment of the facts relevant to a ground of appeal of this character is proof on the balance of probabilities. The evidence of Ms Amidzic, and in particular her description of the juror she believes to have been involved, combined with Mr Taylor's description of the man to whom he spoke and the subject matter of their conversation, is capable of sustaining a finding, on the balance of probabilities, that the man who spoke to Mr Uchtman and Mr Taylor was a juror in Mr Mathews' trial without infringing any rule against hearsay evidence.
126 There is no doubt that the evidence tendered in the form of the three affidavits to which I have referred was fresh, in the sense that it could not have been discovered by the exercise of reasonable diligence prior to the conclusion of the trial. As the evidence is relevant to the issues raised by ground 3 of the appeal for the reasons I have just given, it was properly admitted into evidence on the appeal.
171 Later in cross-examination, Mr Uchtman asserted that he thought the man who approached him thought he was speaking to Mr Uchtman as a member of the Gypsy Jokers Motorcycle Club. However, Mr Uchtman was unable to provide any satisfactory explanation for that belief.
172 When asked whether he had spoken to Mr Taylor about this matter later, Mr Uchtman initially denied that he had. However, he very quickly accepted that he had spoken to Mr Taylor, although he asserted that he had not spoken to him at any length.117
173 Mr Uchtman confirmed in cross-examination that he had spoken to Mr Mathews' uncle, Mr Craig Mathews, about the conversation at Bindoon some weeks later.
Mr Taylor's evidence
174 As with the other witnesses called, Mr Taylor's evidence-in-chief included the affirmation of his earlier affidavit. In that affidavit, Mr Taylor confirmed that he was a member of the Gypsy Jokers Motorcycle Club and was currently the President of the club. Mr Shaun Mathews (Mr Mathews' father) and his brother Craig are also members of the club.
175 In his affidavit, Mr Taylor deposes that he was at the Bindoon Dirt Drags over the weekend of 20 - 21 April 2013 in order to race his bike. Mr Taylor deposes that around midday on the Saturday of the event, he was working on his bike in the race area when a friend he knew as 'Ucky' brought over a man he had never met before who said he wanted to talk to Mr Taylor. Mr Taylor asked the man what he wanted to talk about and the man replied that it was about the 'Damien Mathews case'. According to Mr Taylor's affidavit, the man was with two other men. Mr Taylor was conscious of being on his own with three strangers whose intentions he did not know so he asked the man whether he was talking to just him or to all three of the men. The man replied that it was just him who wanted to talk to Mr Taylor, so they moved to a spot about 20 m away where it was not as noisy. Mr Taylor stated that the man wanted to know how well he knew 'Damo' and what kind of a bloke he was. According to Mr Taylor, he replied that he had known Damo since he was a child, 'and that like all kids he had his ratbag moments but [he was] basically a good kid who stood up for himself and his mates'. According to Mr Taylor, the man asked about Damo's father and stated that he knew that Damo's father had been banned from the courtroom.
176 According to Mr Taylor, the man wanted to know if Mr Mathews' father was a member of the Gypsy Jokers Motorcycle Club and also wanted to know whether the man who came to court with long hair and a beard every day after Mr Mathews' father had been banned from the court was also a member of the club. According to Mr Taylor, he replied that Mr Mathews' father was a member of the club, and that the other man was his brother, Craig, who was also a member of the club.
177 Mr Taylor deposed that the man said that he had seen something about the Gypsy Jokers Motorcycle Club on Damien Mathews' Facebook profile. According to Mr Taylor, the man also asked how old Mr Mathews' uncle was. After Mr Taylor advised the man that Mr Mathews' uncle was about 50, the man replied saying that he was only a few years younger and was surprised that he had not run into Mr Mathews' uncle or the family before because he was from 'the area' and in that context the man mentioned the suburb of Balga.
178 I have already mentioned Mr Taylor's description of the man in his affidavit, which corresponded with the description given by Ms Amidzic of the juror. Although by the time the juror gave evidence, he did not have any facial hair, as I have noted, he accepted that during the trial he had a moustache and goatee beard.
179 According to Mr Taylor's affidavit, the man did not use the word 'juror' in the course of the conversation but did advise Mr Taylor that he was 'on the case' which caused Mr Taylor to assume that he was on the jury.
180 Mr Taylor deposed that the man told him that he would do 'what he could to help Damo' and that 'things were looking good for Damo', and that the man would be saying 'not guilty all the way'.
181 Mr Taylor deposed that he asked the man how the trial was going, to which the man replied, '50/50' for 'getting off', and that no-one had much sympathy for 'the bloke lying on the concrete'. Mr Taylor assumed that this was a reference to the man who had been shot.
182 Mr Taylor also deposed that the man mentioned events of a few years ago when one of the members of the Gypsy Jokers Motorcycle Club had been arrested while overseas and contacts in another motorcycle club were used to arrange legal representation for that member. According to Mr Taylor, the man seemed to know all about it.
183 According to Mr Taylor, after the conversation concluded, he returned to his bike in the race area and did not see the man again or notice where he went.
184 According to Mr Taylor's affidavit, on Tuesday 23 April 2013 he received a telephone call from Mr Craig Mathews in which Mr Craig Mathews advised Mr Taylor that the trial had finished and Damien Mathews had been convicted. According to Mr Taylor's affidavit, nothing was said in the course of that conversation about the events at Bindoon. However, subsequent to that conversation the events at Bindoon started to weigh on his mind. Accordingly, at the ANZAC Day dawn service on 25 April 2013, he mentioned what had happened at Bindoon to a few people and they suggested that it was probably something which Craig and the Mathews family should know about. He telephoned Craig later that day, and they met. He told Craig what had happened at Bindoon.
185 In cross-examination, Mr Taylor accepted that he regarded membership of the motorcycle club as a total brotherhood. He also accepted that he would look after his brothers in the club '[a]s all families do', and that Mr Mathews was the son of a brother in his club. He accepted that he wanted to look after his interests.
186 Mr Taylor stated that Mr Mathews' father and uncle had been members of the Gypsy Jokers Motorcycle Club for over 25 years.
187 In cross-examination, Mr Taylor reiterated the version of the conversation at Bindoon which he had given in his affidavit. He accepted that although the information he had received from the man he assumed to be a juror was positive, he did not say anything about it to any member of the Mathews family until after the verdict, and that he said nothing about the conversation at Bindoon to Mr Craig Mathews when Mr Craig Mathews telephoned him to advise that Mr Mathews had been convicted. He stated that the reason he said nothing in the course of the telephone conversation was because he did not generally talk over telephones. However, he was unable to proffer any explanation as to why he did not tell either Mr Mathews' father or uncle immediately after the positive conversation with the juror.118
Ground 3 - evaluation of the evidence
188 There are unsatisfactory aspects of the evidence given by all witnesses called at the resumed hearing of the appeal. I will deal with each witness in turn, starting firstly with Mr Uchtman.
189 Mr Uchtman was an unconvincing and unsatisfactory witness in many respects. The assertion in his affidavit to the effect that a man whom he did not know approached him for no apparent reason and after exchanging a single pleasantry said to him that he was 'on that case for Damo' is inherently implausible, as the man would have had no way of knowing who Mr Uchtman was or whether he had any knowledge of who Mr Mathews was. As I have noted, Mr Uchtman gave a different version of that conversation in his oral evidence, in which he asserted that the man expressly stated that he was on the jury in the case, although at one point in cross-examination his answer suggested that he had drawn that implication from what the man had said. His evidence to the effect that he thought the man was speaking to him as a member of the Gypsy Jokers Motorcycle Club lacked any plausible explanation. Further, his description of the height of the man who spoke to him is inconsistent with the juror's height. Mr Uchtman's evidence that the man was accompanied by two friends is also inconsistent with the juror's evidence to the effect that the juror went to the races with only one friend, who was not with him at the time of the relevant conversations. There is no reason to reject the juror's evidence in that respect. For these reasons, I do not accept Mr Uchtman's evidence as to what was said, although for reasons which I will give, I do accept that he had a brief conversation with the juror about Mr Mathews' case.
190 Turning now to Mr Taylor, it is appropriate to assess his evidence in a context in which he candidly concedes that he feels under an obligation to do anything he can to assist Mr Mathews in his appeal. Nevertheless, it is clear that Mr Taylor had a conversation with the juror as he was able to describe him accurately, and the juror accepts that he had a conversation with somebody at the Bindoon event about Mr Mathews' father. However, there are a number of aspects of Mr Taylor's evidence with respect to the content of that conversation that I do not accept.
191 I do not accept that there was any conversation about Mr Mathews' father having been excluded from the courtroom. The juror's testimony that he was entirely unaware that Mr Mathews' father had ever been excluded from the courtroom was convincingly given, and I accept it.
192 Nor do I accept that there was any conversation about Mr Mathews' Facebook profile. The juror's evidence to the effect that he had not used his Facebook profile at any time prior to or during the trial was convincingly given, and I accept it. It is clear from Ms Amidzic's affidavit that there was concern during the trial with respect to Mr Mathews' Facebook profile and I think it likely that these concerns have infected Mr Taylor's evidence.
193 Nor do I accept that the juror stated to Mr Taylor that things were looking good for Mr Mathews, and that he would be saying 'not guilty all the way'. Given the strength of the allegiances within the motorcycle club of which Mr Taylor was President, in my view it is inherently implausible that Mr Taylor would not have communicated that information to a member of the Mathews family very soon after it was received. Similarly, while I accept that there may well have been good reasons for Mr Taylor not wishing to speak to Mr Craig Mathews about such matters in the course of their unplanned telephone conversation on 23 April 2013, if there had been a conversation at Bindoon in the terms asserted by Mr Taylor, it is: (1) highly likely that he would have taken steps to pass that information to a member of the Mathews family by means of a secure channel of communication very quickly - if not before, then certainly after learning the verdict of the jury; and (2) most unlikely that he would have left the matter for some days.
194 For these reasons, while I accept Mr Taylor's evidence that he discussed at least some things which had a connection with the case with the juror, I do not consider his evidence to be sufficiently satisfactory to establish precisely what was said with any confidence.
195 There are also unsatisfactory aspects of the juror's evidence. His assertion that he went to the Bindoon races as a form of relief from the stress of the trial is implausible, given the concerns which he expressed on a number of occasions in relation to the activities of members of outlaw motorcycle gangs whom he expected to be present at those races.
196 Further, the juror's assertion that he thought he might have seen Mr Mathews' father is implausible, as he accepted in cross-examination that he did not know who Mr Mathews' father was.
197 Further, in the context of his repeated concerns about the activities of members of motorcycle gangs, his assertion that he approached one of a number of people at the event whom he took to be members of gangs, whom he did not know, and asked that person without any form of introduction whether there was a member called Mathews, is inherently implausible.
198 Further, on the juror's evidence, nothing was said to either Mr Uchtman or Mr Taylor which would lead them to believe that he was interested in the case involving Mr Damien Mathews in any way, or that he was a juror in the case. But if that is correct, it is most unlikely that these events would ever have come to light.
199 For these reasons I also entertain significant reservations with respect to the veracity of the evidence given by the juror.
Ground 3 - factual findings
200 Having regard to the evidence as a whole, I make the following findings of fact, on the balance of probabilities.
201 I find it more likely than not that the juror attended the Bindoon Dirt Drags in the expectation that he would be in the presence of members of outlaw motorcycle gangs, and might be able to gather information relevant to his assessment of the issues raised during the course of the trial, including the question of whether Mr Paine's prior inconsistent statements to police could be explained by the concerns which Mr Paine had arising from his belief that Mr Mathews' father was a member of such a gang.
202 I find that the juror made brief inquiries of Mr Uchtman in the course of which he revealed that he was interested in the case against Mr Mathews (for some reason or another) after which Mr Uchtman referred him to Mr Taylor. I make that finding because I consider it unlikely that the juror would have found the President of the Gypsy Jokers Motorcycle Club without being referred to Mr Taylor by some person who knew him to hold that position.
203 I accept the juror's evidence that he inquired of Mr Taylor whether there was a member at the club called Mathews and was advised that there was a long-standing member of the club of that name. However, I do not accept that that was the extent of the conversation, not least because the juror accepted on a number of occasions that the conversation continued after he received that information, even though he could not recall what was said because he was in a state of shock. It also seems to me to be inherently unlikely that the conversation would have been as terse as that recounted by the juror. In particular, I think it inherently likely that Mr Taylor would have satisfied himself of the reasons for the inquiries made before providing any information to a stranger with respect to membership of the club of which he was the President, and that, in that context, there was most likely discussion of the juror's role in the trial of Mr Mathews. As I have noted, unless the juror said things to Mr Taylor which caused Mr Taylor to believe that he was a juror in the case, it is most unlikely that these events would ever have come to light. I think it also inherently likely that there were other aspects of the case discussed between the two men, although for the reasons I have given, I do not accept a number of the assertions made by Mr Taylor with respect to the content of their conversation. Accordingly, while I am satisfied on the balance of probabilities that there were other matters discussed between the two that were pertinent to the trial, it is not possible to find, on the balance of probabilities, what those matters were.
204 I accept the juror's evidence that he was traumatised by his experience at the Bindoon races and became extremely concerned for his safety as a result of his discovery that Mr Mathews' father was in fact a long-standing member of an outlaw motorcycle gang. I find that those concerns endured not only through the course of the juror's participation in the deliberations of the jury, but also up to the time at which he gave his evidence at the resumed hearing of the appeal.
Ground 3 - analysis and conclusion
205 I suggested earlier that the circumstances of this case defy precise categorisation into either the category of substantial procedural irregularity or the category of apprehended lack of impartiality. That is because there are aspects of the case which fall into each of those categories. The juror's discussion of the case in which he was involved with persons who were not members of the jury at Bindoon, and his receipt of information bearing upon the case, constitute a substantial procedural irregularity. The concerns for his safety which very likely prompted his inquiries and which were significantly exacerbated by the information which he received, give rise to a question of apprehended lack of impartiality.
206 On the findings of fact which I have made, there is no doubt that the actions of the juror at Bindoon constitute a substantial procedural irregularity. He discussed the case and, on his own evidence, requested information bearing upon the case in contravention of express instructions repeatedly given to all members of the jury by the trial judge, most recently on the afternoon of the day before the juror travelled to Bindoon. In the circumstances of the case, the information which the juror received confirming that Mr Mathews' father was a long-standing member of the Gypsy Jokers Motorcycle Club could not be said to be immaterial or peripheral. To the contrary, for the reasons I have given, that information bore directly upon a vital issue in the case. There had been no direct evidence given to the effect that Mr Mathews' father was in fact a member of a bikie club. At Bindoon the juror received information which confirmed that fact. That confirmation bore directly upon the question which the juror had to address with respect to Mr Paine's credibility, and which was probably the most critical issue which he and the other members of the jury had to address in their deliberations. Assessment of whether there was a credible explanation for Mr Paine's prior inconsistent statements to police in relation to the events immediately preceding the shooting of Mr Iskander was a critical feature of the assessment of the credibility of that vital part of Mr Paine's evidence. The concerns which Mr Paine expressed to police as a consequence of his belief that Mr Mathews' father was a member of a bikie club bore directly upon that issue. The confirmation which the juror received to the effect that Mr Mathews' father was in fact a member of such a club therefore related directly to a most significant aspect of the case.
207 Because Mr Mathews faced a charge of murder, the verdict of the jury had to be unanimous. The juror's acquisition of information relevant to his consideration of the guilt or innocence of Mr Mathews calls into question the integrity of the jury's verdict. The materiality of the information gathered by the juror, on his own evidence, and my finding that he discussed other aspects of the case with Mr Taylor which it is not now possible to identify with any certainty, prevents the court from being satisfied that the procedural irregularity established by the evidence did not affect the verdict, in the sense that the jury would have returned the same verdict if the irregularity had not occurred.
208 There can be no doubt that the exacerbation of the juror's concerns for his own safety as a consequence of the information which he received, and which he described as causing him to go into an enduring state of shock so profound that he could not recall what was said after learning that Mr Mathews' father was a member of a bikie club, gives rise to a question of apprehended lack of impartiality. The question which must be addressed in relation to this aspect of the case is whether the facts which I have found give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror did not discharge his task impartially. In this case that question can only be answered in the affirmative.
209 The significant question which the jury had to address in the course of its deliberations was whether the concerns which Mr Paine expressed to police in relation to his personal safety as a consequence of his belief that Mr Mathews' father was a member of a bikie club provided a credible explanation for his prior inconsistent statements. As a result of his conversation at Bindoon, the juror himself experienced significant concerns for his own personal safety, only days before the jury commenced its deliberations. I have no doubt that a fair-minded lay observer would conclude that those personal concerns made it much more likely that the juror would conclude that similar concerns felt by Mr Paine explained his prior inconsistent statements to police, with the consequence that the credibility of his evidence with respect to the events immediately preceding the shooting of Mr Iskander was enhanced.
210 For these reasons, irrespective of whether the case is considered from the perspective of a substantial procedural irregularity, or from the perspective of an apprehended lack of impartiality, the conclusion is the same. The juror's conduct at Bindoon, and his reaction to the information which he received in response to his inquiries, cast a shadow of injustice over the integrity of the jury's verdict. Because the substantial procedural irregularity and the apprehended lack of impartiality breach the presuppositions of the trial process, no question of applying the proviso
contained in s 30(4) of the Criminal Appeals Act arises. The interests of justice require that the verdict be set aside and a retrial ordered.
Conclusion
211 Leave to appeal should be granted in respect of ground 1, but that ground should be dismissed. Leave to appeal should also be granted in respect of ground 3, that ground upheld, and a retrial ordered. In those circumstances it is unnecessary to deal with ground 2.
212 BUSS JA: I agree with Martin CJ.
213 MAZZA JA: I agree with Martin CJ.
1 Of course, it follows that these reasons should not be taken to express any view as to the adequacy or inadequacy of the directions given by the trial judge in relation to corroboration of the evidence of the prison informer.
2Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487, 492 - 493 (Mason CJ, Deane, Dawson & Toohey JJ).
3Hayes v The Queen (1973) 47 ALJR 603, 604; M v The Queen, 492 - 493.
4M v The Queen, 493 (citations omitted) (Mason CJ, Deane, Dawson & Toohey JJ).
5Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J, Gleeson CJ & Heydon J agreeing).
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81Webb v The Queen (1994) 181 CLR 41.
82Webb, 53.
83Webb,59.
84 Brennan & Deane JJ dissenting.
85Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473.
86 For reasons which need not be elaborated here.
87Hansen v The State of Western Australia [2010] WASCA 180.
88 Pullin JA dissenting.
89Domican v The Queen (No 3) (1990) 46 A Crim R 428.
90Domican (No 3), 448 (Campbell & Studdert JJ agreeing), following a line of decisions in New Zealand - R v Bates [1984] NZCA 110; [1985] 1 NZLR 326, 328 and R v Gillespie (Unreported, NZCA, 7 February 1989).
91R v Myles [1997] 1 Qd R 199.
92Myles, 203 - 204.
93Myles, 203 - 204, quoting Barker v The Queen [1994] FCA 1577; (1994) 127 ALR 280, 290 (Jenkinson & O'Loughlin JJ, Miles J agreeing).
94R v Marsland (Unreported, NSWCCA, 17 July 1991), 14 (Gleeson CJ, Lee CJ at CL & Hunt J agreeing).
95R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431.
96R v K [58], [68].
97 See, for example, R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86; R v Emmett (1988) 14 NSWLR 327; R v Glastonbury [2012] SASCFC 141; (2012) 115 SASR 37 and R v Wilton [2013] SASCFC 60; (2013) 116 SASR 392.
98Smith [62].
99 Appeal ts (11 June 2014) 16.
100Smith [54].
101 Consistently with the reasons of the High Court in Smith.
102 Appeal ts (24 April 2015) 28 - 29.
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118 Appeal ts (24 April 2015) 63.
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