Metius v The Queen

[2009] HCATrans 241

[2009] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B16 of 2009

B e t w e e n -

CANDANEACE LEA METIUS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 2 OCTOBER 2009, AT 9.59 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear with my friend, MR C.W. HEATON, for the applicant.  (instructed by Legal Aid Queensland.)

MR M.J. COPLEY, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, the submissions on behalf of the applicant are that the circumstances surrounding the conviction of the applicant are such as to give rise to a miscarriage of justice.  Could we focus upon one paragraph of the reasoning of the Court of Appeal and that appears at page 48 of the application book in paragraph [27].  In the judgment of the President, with whom the other members of the court agreed, it was said – and I am reading from the second sentence in that paragraph:

It was not suggested at trial or on appeal that this was a case where juror number 12 was the sole dissenter so that there was a risk of giving rise to a public perception that a subsequent verdict from the remaining 11 jurors may be an impermissible majority verdict . . . Although the judge did not clearly identify and articulate her reasons for discharging juror number 12, a reading of the transcript makes abundantly clear that it was because juror number 12’s statement to the bailiff (that she felt uneasy and threatened by the other 11 jurors and felt unsafe with them) made it appear that the juror may be overborne by the other jurors and not be able to impartially decide the case.

We, on materials, challenge both of those pieces of reasoning and the conclusions therein.  To do so, could we take your Honours directly to the transcript of proceedings which was filed in the Court earlier this week.  That is in addition to the application book.  In respect to whether this was an impermissible majority verdict, can we take your Honours to, firstly, page 417 of that transcript at about line 5 where the bailiff in the trial stated that juror number 12:

felt as though she’d been bullied throughout her time serving on this particular jury; that – basically that her opinion didn’t count.

That we say is a strong indication that she was a dissenter and was indeed of a different mind to at least some of the other jurors in the case.  We then go to about line 30 on the same page where the bailiff reported hearing raised voices, swearing, yelling before a buzz from the juror and on opening the door he said that juror number 12 said:

that she wanted to leave, that she wanted to go to a doctor, she didn’t want to serve on the jury anymore. 

She was agitated.  Again, clear evidence or material, we would say, that indicates that she was of a different mind and indeed was, contrary to what the Court of Appeal has said, a dissenting voice.  At page 418 at about lines 10 to 18 in response to questions by counsel then appearing for the applicant, it was said:

that particular juror’s actions have been at odds with the other 11 jurors . . . she’s very quiet ‑

The next reference we would take your Honours to is at page 419 at about line 18.  This is an important question in the ultimate decision by the trial judge and then the Court of Appeal.  At line 19:

Has the juror expressed to you in any statement that she cannot be impartial?- - No.

The final reference on this aspect we would seek to take your Honours to is at page 424 at about line 15.  This is after it had been decided to confine the jury for the evening and that a doctor be called in respect to juror number 12 to see how she was progressing.  It is said there, reported by the bailiff:

she said that she felt uneasy and threatened by the other 11 jurors.  She felt unsafe with them.

What follows immediately from that last report is what appears at about line 24 on the same page where the learned trial judge said:

And everyone accepts that it is appropriate to discharge that juror?

So there was that evidence, essentially, to which we have taken your Honours and we step immediately to the decision to discharge.  The discharge occurs and the remaining 11 jurors are taken to accommodation for the evening.  Just pausing there, if we may, we say that those extracts from the transcript demonstrate, in our submission, two things.  One is that there was this tension, this difference of opinion at least between juror number 12 and the other members of the jury.  That is contrary to the finding by the Court of Appeal.  There do not appear to be reasons given by the trial judge, but in the passage we took you to in the reasons of the President there seemed to be a finding that there was no risk or public perception of a majority verdict.  That, in our respectful submission, is contrary to the material to which we have taken the Court

FRENCH CJ:   In your proposed grounds of appeal at 56, the first of those is:

That the Court of Appeal erred in concluding, on a trial of murder, that it was proper to discharge a juror where it appeared that she may be overborne by the other jurors and was thereby not able to impartially decide the case.

Where does that finding appear in the judgment of the Court of Appeal?

MR BYRNE:   That seems to be the passage at page 48 commencing at about line 50, beginning, “Although the judge did not clearly identify and articulate her reasons”.

HAYNE J:   The course of events at trial as revealed in the transcript, are they consistent with identifying the particular juror’s behaviour as unusual and unconnected with the issues in the case, rather, as connected with her state of mind?

MR BYRNE:   We would say no to that question, your Honour.  The early passages that we took you to seem to indicate, we would say, that she did have an opinion, that she was made to feel that her opinion did not count and that there was, at least in her perception, some undue pressure being placed upon her.  One can only assume that pressure is to agree with the other members of the jury rather than to some subordinate or extraneous purpose.  The highest it got, so far as unusual behaviour, was her not wishing to sit with the other jurors at a meal, being quiet and not interacting such as the other jurors and then it would seem, on the bailiff’s report, that the raised voice in the jury room was that of her.

HAYNE J:   What had struck me particularly was at page 416 of the transcript in the first paragraph.  What triggers this is the judge being told by the bailiff, “it seems to me that I might well form the opinion that she”, that is the juror, is, “incapable of continuing to act”.  I read what thereafter followed as people being sensitive to the desirability of not saying in open court that the behaviours exhibited were so unusual as to found the conclusion of incapacity and that the discharge occurred on grounds of incapacity rather than any other ground.

MR BYRNE:   I understand what your Honour is putting to us, but the bailiff, certainly as a court officer, seems to have given a verbatim, if you like, and firsthand account of what he observed and heard.  To that extent, there was, as we have said before, the tension between them.  There was no lack of impartiality, it would seem, on the material and that is the finding by the Court of Appeal.

HAYNE J:   Yes, but then what happens happens with the assent of trial counsel, trial counsel who has seen, heard and understood what is happening in the trial.  I read the transcript as assenting to the proposition this juror and only this juror should be discharged.  It is not a case to discharge the whole and begin afresh.  Is that understanding of what occurred wrong or debatable?

MR BYRNE:   No.  That is a correct perception.  It is correct that counsel appearing at trial for the applicant had initially opposed the discharge of juror number 12 in light of the transcript that we have taken the Court to.  He has changed his opinion and consented, if that is the correct term, along with the Crown Prosecutor, to the discharge of that juror and that juror alone.

HAYNE J:   But trial counsel on both sides, who are very much alive to the atmosphere of what is happening, formed the view discharge the one, go on with the remainder.  That is the premise from which I am beginning, Mr Byrne, and it is a premise which, if it is to be challenged, I need to understand (a) that it is challenged and (b) why.

MR BYRNE:   Certainly, your Honour.  Can we express our challenge in this sense.  This was a trial of a very serious offence, an offence which could give rise to certain opinions, strong opinions, in respect to the applicant.  The trial had gone for some time.  That is not disputed.  A number of witnesses had been called and again that is factual.  It got to a point where the judge had retired on a day and it was later in that same day that these events unfold.  There was, with respect, useful discussion between counsel and the learned trial judge as to the way to proceed.  What would seem to have been a sensible solution was at one point reached, namely, look, we will walk away from today.  We will put the jurors in accommodation and we will have juror 12 looked at by a doctor to see if there are issues, and she had raised that point herself.

What then seems to have happened is a single inquiry by the bailiff in respect to that and a further agitation on behalf of juror number 12.  It was getting on into the night.  It was about 9 o’clock, as I read the transcript.  Then, rather than counsel and the trial judge heeding the sage advice of Justice Callinan in Wu of sitting back, calmly assessing and not rushing into any decisions of this magnitude, there was a straight decision, without reasons, to discharge juror number 12 and come back, no verdict, before 9 am the next morning.  That is our second ground of appeal which I will move to shortly.

FRENCH CJ:   So far as the discharge of the particular juror is concerned, the reason for doing that, I acknowledge what you pointed to in paragraph [27] of the judgment of the Court of Appeal at page 48, but that does not reflect any actual finding made by the trial judge.

MR BYRNE:   That is correct.

FRENCH CJ:   I think Mr Chowdhury, counsel for the accused, said at page 424:

there seems to be external or undue pressur6e on the juror that – you know, justice needs to be seen to be done and if that is the case, then she can’t be considered to be impartial.

Now, there was actually no evidence, was there, of pressure on the juror from the evidence that the bailiff gave or that she could not be considered to be impartial, because – I think in fact the bailiff disclaimed that, that there was ‑ ‑ ‑

MR BYRNE:   Correct, your Honour.

FRENCH CJ:   She had not said anything to suggest she could not be impartial.  So I am just wondering where that finding of the Court of Appeal came from as to what motivated the trial judge to discharge the juror.

MR BYRNE:   It seems to have – and your Honour the Chief Justice has identified that passage at 424 by trial counsel – that is the only reference that we can find of the reasoning of lack of impartiality.

FRENCH CJ:   Everything else points to what Justice Hayne put to you, that this is really a case of discharging the juror because of some kind of medical problem.

MR BYRNE:   We understand the force of what is said, but that we say is something which was not and should have been properly investigated, bearing in mind the considerations that this is a murder trial, bearing in mind the advantages of having such a trial with 12 people as the triers of fact and bearing in mind the other considerations which reflect on our second ground that should have been taken into account by the trial judge – although it is a two stage process – taken into account whether a jury should be discharged and then to proceed.  Can I move to that now?

HAYNE J:   Can I just say this, Mr Byrne?  The pressure on a trial judge when you have the jury out to make the decision and make it promptly is very large.

MR BYRNE:   We do not doubt that.

HAYNE J:   You have the jury out there and for all you know they are about to buzz.

MR BYRNE:   Here there was buzzing at regular intervals, it would appear.

FRENCH CJ:   That is, in a sense, a pressure buzzer.

MR BYRNE:   Yes.  Well, may we say, bearing that in mind, that this was a case which was closely monitored and controlled.  There was no need in the present circumstances for precipitous action to be taken.  There was a way forward which was consistent with principle and would have allowed all parties properly to reflect upon what the relevant considerations were.  Our complaint is that that unfortunately was not done and that leads to a perception, given the immediate effect of the return of the other 11 jurors with the verdict the following morning, of a miscarriage of justice.

Now, we take your Honours to page 427 of the transcript, and beginning at about line 9 the learned trial judge states that the fact that a juror has been discharged the previous evening, she had looked at the authorities and understood from Wu v The Queen that there were two separate orders required.  Her Honour says at about line 19:

we’ve canvassed all the considerations.  So, unless someone else wants to say something else about that, I will now make that – formally make the order that the trial continue with the remaining jurors.

Again, our complaint in respect to that is it is clear from that passage that what occurred the night before, albeit with the pressures of a trial of this length and this seriousness, that the relevant considerations do not appear to have been canvassed either the night before or, it would seem even, the morning after.  The relevant considerations – and this is correctly identified in the Court of Appeal and described as a paucity of reasons when in fact there were none, in our respectful submission, articulated – it was never taken into account or stated of the importance of having a jury of 12.  It was never stated as a factor the nature of this case being effectively infanticide. It was never taken into account the advantage of one juror, as his Honour Justice Kirby pointed out in Wu.  It was without, to repeat ourselves, the sage advice of Justice Callinan to calmly reflect upon this.

FRENCH CJ:   The people on the ground, of course, the counsel for the accused did not oppose the proposed order.  They had no submissions against that course of action.

MR BYRNE:   Correct, and that is a fact.  We cannot say anything about that, but what we can say and what we do take issue with is the way it was done and the apparent lack of principle consideration.  In Evans v The Queen 235 CLR 521, it is part of our friend’s list of authorities, in the joint judgment of Justice Gummow and your Honour Justice Hayne in paragraph 35 this is said:

It may be doubted that an application for discharge of the jury could properly be determined without the judge stating reasons for the decision either when announcing the decision or at some later time.

Here we have a woman on trial for murder.  We have a juror who seemingly is claiming impartiality, seemingly of a different mind to the other jurors on the case who convicted her after the discharge of juror number 12 and we have no reasons, no principles, no facts enunciated, either as to why the juror was discharged and, in respect to ground 2, why the trial should continue in those particular circumstances with 11 jurors.  It is those two matters which we say together, looked at objectively, would leave this Court with a concern that a miscarriage of justice has occurred, something which could, despite the pressures of a criminal trial and despite the pressures on a trial judge, have been dealt with in a timely and an appropriate fashion.  Unless we can assist further, those are our submissions.

FRENCH CJ:   Yes, thank you very much, Mr Byrne.  Mr Copley.

MR COPLEY:  Your Honours, the suggestion that what occurred here resulted in an impermissible majority verdict is really unsustainable when one has regard to page 419 of the transcript at about lines 35 to 40 where the bailiff gave this evidence, that:

Her Honour earlier in the evening had asked me to make inquiries as to whether they would be comfortable in being accommodated for the night, and, at that stage, most of the jurors, including, might I add, Juror No. 12, thought that another 30 minutes may possibly resolve the issue. 

The fact that the jury collectively, including the juror who was concerned about her position, thought that they might have a verdict within another 30 minutes, can hardly be construed as anything other than that on the issue of verdict the jury was achieving a point of unanimity, but that there was something else that was agitating this particular juror that was divorced from the issue of the applicant’s guilt or otherwise. 

The position in this case was really this, that her Honour the trial judge with the concurrence of counsel concluded that for reasons that were not really clear, juror number 12 was incapable of discharging her duty because she was distracted by perceptions that she subjectively had about the attitude of the other jurors towards her on something the respondent says unrelated to the verdict.  It is very important to note in that regard the answers that were given by the bailiff on page 418 in response to defence counsel’s questions.  Question at line 10:

have you noticed any other actions towards that juror from any other juror?- - Nothing at all –

Then he says at line 21:

I haven’t noticed any animosity from the other 11 jurors towards this particular juror, and, up until today, I hadn’t noticed any particular animosity between her and them either. 

Then her Honour said:

Have you seen any of them, or heard any of the other 11 jurors, act in any way that might constitute bullying of that juror?- - Absolutely not –

Then further down the page between lines 38 and 50, the bailiff relates that for the evening meal, despite not wanting to be in the same room as them at lunchtime, for the evening meal she sat down and had dinner with the others and there did not appear to be any hostility or animosity.  So her behaviour was liable to be considered bizarre and it was so bizarre that the court concluded, with the concurrence of counsel, that the juror was distracted for some reason or other, perhaps related to concerns about her health, she wanted to see a doctor, from applying herself properly to the task of determining guilt or otherwise.  But the distraction, in fact, had nothing to do with any bullying or any nastiness or any standover tactics from the other members of the jury. 

So Justice McMurdo was quite correct to conclude at paragraph [27] that because the juror, as she put it, “was feeling” – and that is the important word – “feeling pressured by others, she could not be” – and an important word again – “seen to be impartial”.  The juror was distracted, therefore she could not be seen to be impartial but her distraction, her subjective feelings of being under pressure did not reflect upon the conduct of any of the other jurors, according to the evidence of the bailiff.  So, in those circumstances, it was proper to exercise the power conferred by section 56 of the Jury Act to discharge that juror and it was proper to continue the trial with the remaining jurors. 

In relation to the second ground which is that her Honour erred in continuing the trial with the 11 jurors, it must be borne in mind that at the beginning of this discussion at page 416, after quoting section 56 of the Jury Act, at line 20 her Honour said in reference to discharging the juror, “That is not a matter of course I would do lightly”.  So her Honour was aware of the importance of the applicant being entitled to, if possible, the verdict of 12 jurors.  It is impossible to maintain a contention that her Honour could not have been mindful of the seriousness of the charge the jury was considering, after all, she had summed‑up to the jury about the offence. 

The criticism that her Honour did not give reasons for her decision to continue the trial with 11 is an unfair criticism and an unwarranted criticism in these circumstances.  When her Honour was about to announce that she was going to make this order to continue with the 11, the prosecutor drew to her attention the possibility of something untoward being on a computer.  That was then investigated, nothing untoward was found, and then before her Honour could say any more, the bailiff said that the jury had a verdict.  So, in the circumstances where both parties were content for her Honour to continue the trial with the remaining 11 and in circumstances where the jury have got a verdict, it is hardly surprising that her Honour did not give reasons for a decision both parties were happy for her to make.  Accordingly, the application for special leave should be refused.

FRENCH CJ:   Yes.  Yes, Mr Byrne.

MR BYRNE:  Nothing in reply, thank you, your Honour.

FRENCH CJ:   The applicant was convicted on 28 November 2007 of the murder of her infant son on 21 October 2004.  The homicide was not disputed.  Defences of intoxication, diminished responsibility and of automatism were raised.  On the sixth day of the trial the jury retired just after midday to consider its verdict.  At 8.35 pm the court heard evidence from the bailiff that one of the jurors had refused to dine with the others.  Later the juror told the bailiff she wanted to see a doctor and not to serve on the jury any more.  She appeared to be distressed.  There was evidence that she had been swearing and yelling in the jury room.  The judge discharged the juror and directed that the trial continue with the remaining jurors deliberating to verdict. 

The premise upon which the first ground of appeal is based is that it appeared that the juror might be overborne by other jurors and was thereby not able impartially to decide the case.  There is no factual basis for that premise.  So far as the second ground is concerned, the trial judge did not state her reasons for directing, pursuant to the Jury Act, that the trial continue with the remaining jurors, however, the reason was apparent.  The trial was advanced to the point that the jurors were deliberating on their verdict.  There was no opposition from counsel.  Her Honour’s decision was a reasonable exercise of her discretion in the circumstances. 

Special leave will be refused.

AT 10.28 AM THE MATTER WAS CONCLUDED