Myles v The Queen

[1996] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B39 of 1995

B e t w e e n -

ROBERT ROY MYLES

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B40 of 1995

ANTHONY JAMES MYLES

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

DAWSON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 1996, AT 9.35 AM

Copyright in the High Court of Australia

________________

MR M.A. MacGREGOR, QC:   May it please your Honours, in these matters I appear with my learned friend, MR G.D. WENDLER, for the first applicant, Robert Roy Myles.  (instructed by John D. Weller & Associates)

MR J.D. WELLER:   I appear for the applicant, Anthony James Myles.  (of J.D. Weller & Associates)

MR M.J. BYRNE, QC:   If the Court pleases, I appear with my learned friend, MRS L.J. CLARE, for the respondent in each case.  (instructed by D. Field, Solicitor to the Director of Public Prosecutions (Queensland))

DAWSON J:   Are the matters to be heard together, Mr MacGregor?

MR MacGREGOR:   Yes, your Honour.

DAWSON J:   Mr MacGregor, I see there is a video screen there.  You had intimated that you may wish to play part of a video or a video as part of your case.  Is that right?

MR MacGREGOR:   Your Honour, I am in two minds about it.  An issue in the case requires a comparison as to the evidence which the jury had of the loading of a vehicle enlarged by what they may have observed ‑ ‑ ‑

DAWSON J:   It is a matter for you, if I can cut you short, but I think I intimated through the Deputy Registrar that the playing of the video should form part of the time

which you have.  Now, may I inquire how long the part that you wish to play, if you do play it ‑ ‑ ‑

MR MacGREGOR:   If that is so, your Honour, I am pleased that it is in very short compass.  It takes about 20 minutes.  It is substantially repetitive and, indeed, I did not subject myself to the whole of it; I fast-forwarded it at various times.  The total time taken is about 20 minutes.

DAWSON J:   The amount of time you would want to take in playing it would be, what?

MR MacGREGOR:   If I were operating the fast-forward, and I am not, and your Honours are not going to do that, it would really I suppose have to be played in its entirety.  I would rather make the point clear to your Honours, and if your Honours felt that it was necessary in any event in the interests of discharging the appeal ‑ ‑ ‑

DAWSON J:   To look at it?

MR MacGREGOR:   And you felt obliged to look at it, no doubt you would.   But I am not going to invite your Honours to do so if it eats into the time that I have available to me for the purposes of advancing the argument.

DAWSON J:   Very well.  Your time commences from now.

MR MacGREGOR:   Thank you, your Honour.  I can shorten the issues in this application by telling your Honours that if your Honours go to page 16 of the joint application book your Honours will see that the President of the Court of Appeal in Queensland summarised the effect of the juror’s statement obtained after the trial in four Roman numbered paragraphs, the first three relating particularly to the foreman of the jury, and the last, (iv), to what we will be referring to as an unauthorised inspection of the loading area.  It is that, and that alone, the unauthorised inspection of the loading area, to which we will be restricting ourselves in this application.

Your Honours, the matter arose, so far as we are aware, in this way:  my instructing solicitors have filed a notice of change of solicitor on 17 January 1996 and all that we know of the statement which was obtained from the juror, Ms Cann, is to be adduced from the appeal papers in the Court of Appeal in Queensland.  That is, and we set that out specifically in the outline, at paragraph 16 on page 5.  The statement came into existence when Ms Cann, who was an accountant working for a firm of legal practitioners in Cairns, discussed the matter at the end of the trial with persons who knew the applicants.  As a result of those discussions a private investigator was hired to interview Ms Cann.  Subsequently a statement was filed with the Deputy Registrar of the Supreme Court in Cairns.  That statement was not an affidavit; it was a statement.  It was not verified and it was acted on in the Court of Appeal as if the statements contained in it were true and accurate and its authenticity and its accuracy was not called into question in the Court of Appeal in Queensland and we do not expect that it will be called into question here.

Clearly the Court of Appeal had a discretion to act on the material it had before it in whatever form it thought was appropriate and, if necessary, to order any inquiry of any extent which it thought was appropriate.  But our submission is that the statement itself provided information on which the Court of Appeal in Queensland could have acted and that that statement on its face disclosed an irregularity in relation to that juror herself and was therefore a direct statement by her.

DAWSON J:   Where is the point of principle involved?  The Court of Criminal Appeal did not adopt any wrong principle ‑ ‑ ‑

MR MacGREGOR:   The point of principle involved, your Honour, is that this was never a case for the application of the proviso; that there has, according to our research and a consideration of all of the material traversed in the Court of Appeal, never been a case where a jury has disobeyed the direction of a trial judge in relation to the consideration of evidence ‑ ‑ ‑

DAWSON J:   We do not know that, do we?

MR MacGREGOR:   The Court does know, your Honour, on the statement of Ms Cann, that she was told that three or four members of the jury had acted improperly, as the authorities categorise it, in participating in an unauthorised inspection of the scene of the loading.

KIRBY J:   How would one find the actual facts; by interrogating the jury, do you say?

MR MacGREGOR:   Ms Cann’s statement as qua her does say that she was told of this inspection and that she was influenced by it.  If it was thought necessary, as a matter of discretion, to have direct evidence of the inspection, because her account of the inspection is hearsay, if it was necessary to have direct evidence of the inspection, it was both within the statutory power of the court and its inherent power to order an inquiry of a limited kind.  The courts more recently, in recent years, have not been reluctant to order such inquiries in appropriate cases.

DAWSON J:    The question is whether it is an appropriate case, is it not?

MR MacGREGOR:   Indeed, but where ‑ ‑ ‑

DAWSON J:   That does not really raise a question of principle, does it?

MR MacGREGOR:   The question of principle, your Honour, is that the case was never a case for the application of the proviso.  There was here such a fundamental miscarriage, such a fundamental departure from the ordinary principles involved in the criminal trial in Australia, trial by jury in Australia, to exclude the application of the proviso; that the matter falls within any of the descriptions which would exclude the application of the ‑ ‑ ‑

DAWSON J:   Is that right?  I recall that in Wilde’s Case it was said that there are some departures from procedure which mean that the trial is no trial at all.  They are so fundamental that the accused has not had a trial.  Now, one could not say that here, could one?

MR MacGREGOR:   Certain members of the Court have criticised the terminology involved in that particular description of a circumstance in which the Court would hold that there has been a fundamental departure.  There are, of course, others.

DAWSON J:   I am not sure that I follow what you are saying, Mr MacGregor.

MR MacGREGOR:   There are passages in the judgments of this Court in Glennon which suggest that the principle that an accused person is entitled to a fair trial according to law is fundamental to the criminal law and it is arguably the most important of all legal principles.   The problem in the trial in this case, that an issue which the parties tendered, as they were entitled to do, constrained by the evidence which they sought to introduce and dealt with by the judge in accordance with the material which was before the court, was not the only material on which the jury decided this essential issue in the case.

DAWSON J:   But it may not have been.

MR MacGREGOR:   Well, if there is a risk that it may not have been, then that, in our submission, is enough.  You cannot, in our submission - it would be very dangerous to apply a proviso in circumstances where there was deliberate misconduct on the part of the jury in defiance of ‑ ‑ ‑

KIRBY J:   It cannot be an absolute rule, though.  If a jury, as I think one of the judges says, goes home and drives the car past and it is in a vicinity, as juries often are, there has to be a degree of flexibility.

MR MacGREGOR:   This goes beyond that, your Honour.  The essential problem is that during the course of the trial and before verdict no one had any knowledge of this occurring.  Therefore, it was impossible for the accused’s representatives or the accused to deal with the matter during the course of the trial, either by commenting on it to the jury, addressing the jury on it or having the benefit of judicial control of the jury by appropriate judicial direction.

KIRBY J:   I think it is recognised and accepted, if the evidence could be established, that there has been an irregularity.  The question is, “What follows?”   The Queensland court appears to have said two things:  one, that they did not get much help from your side and, secondly, that there is a discretion which they have to exercise and they exercised it against you.  What is new?

MR MacGREGOR:   They said, indeed, that it was a serious irregularity.

KIRBY J:   They recognised it and therefore our saying something about it cannot make it more serious or them to recognise the importance of the serious irregularity.

MR MacGREGOR:   No, your Honour, I accept that.  The point is a simple one.  It is our submission that where a jury, in the language of the law, misconducts itself; where it engages in evidence gathering and evidence giving in a criminal trial outside of the ordinary rules and procedures of the trial process in relation to a critical issue involved in the defence, which the defence has no knowledge of prior to verdict, no opportunity to deal with during argument and is denied the benefit of judicial direction in relation to that misconduct, then there has been a fundamental miscarriage ‑ ‑ ‑

KIRBY J:   We all see the seriousness of the issue but the question is, really, is this a good case?  It seems such an unbelievable defence that it does not seem a particularly good case in which this Court could add whatever it can add to the principle, because the principle is as stated in the Court of Appeal.

MR MacGREGOR:   Your Honours, there are some problems with what the court said about the so-called strength of the Crown case.  Quite clearly there was a very strong case of possession.  The vehicle which they were driving contained a substantial quantity of the illicit substance.

KIRBY J:   There was some defence which ‑ ‑ ‑

MR MacGREGOR:   But that entitled the accused, in their defence, to establish they did not know and had no reason to suspect that the material was cannabis or had an honest and reasonable belief that it was not cannabis.  Now, in discharge of that defence, they sought to rely substantially - and I will take your Honours, if given the opportunity, to the evidence and the remarks made during the addresses of counsel and the judge’s dealing with the issue as it was tendered by the parties in the trial.  There was very very little evidence of it at all beyond what was shown in the video.  I can summarise very quickly for your Honours what was shown in the video.  The video shows a storage shed; a refrigerator truck coming into view, turning and parking; the door of the shed being opened and one of the men loading the contents of the shed into the vehicle; the vehicle is locked and the vehicle drives away.

You can see, in the background, a roadway upon which there is some traffic.  How far away, there is no evidence of.  There is a reference to a supply road and clearly, the vehicle drives down a road.  But otherwise there is no evidence, there is no map, there is no evidence to suggest what the surrounding area contained, whether it was residential properties, whether it was industrial property, whether it was open ground or what.  The issue raised, both in the sworn evidence of the first applicant for whom I appear, and raised by counsel during the addresses and addressed on by the judge, was that this was done openly at 10 o’clock in the morning, apparently without any concern by those engaged in the operation of loading the truck that they were being observed.  That is that it was so open ‑ and the video discloses that they were unconcerned at 10 o’clock on a Saturday morning - that the inference to be drawn from it that they were not doing anything that was illegal.  Now, once the jury ‑ ‑ ‑

DAWSON J:   Did the Crown contest this?

MR MacGREGOR:   No, your Honour.  Once the jury caucused and went to the scene ‑ ‑ ‑

KIRBY J:   The jury never did.  It was suggested ‑ ‑ ‑

MR MacGREGOR:   Once the caucusing members of the jury went to the scene - either together or separately it is not altogether clear - and introduced into the case their descriptions arising from their assessment of what could be seen by the surrounding area, a very critical problem occurred for the accused.  On the way that it was left to the jury there is a video which simply shows an open loading and there is no evidence of what is going on around.  The only people who knew and could make judgments of that issue were those who went to the scene.  The fact that they went to the scene itself indicates that it was a matter which they considered of great importance and Ms Cann says that she was influenced by what she was told.

KIRBY J:   I would think that all of us, I am sure, understand the potential seriousness of a departure from the proper principle.  But where can you put your finger on the incorrect principle in the Court of Appeal?  They appear to have accepted the correct principle ‑ ‑ ‑

MR MacGREGOR:   The incorrect principle in the Court of Appeal is that courts have never, in accordance with our research, applied the proviso where, in trial by jury, there has been improper evidence gathering and evidence giving by selective members of the jury.

DAWSON J:   That is what I was putting to you.  The proviso is always available in appropriate circumstances to be applied unless the irregularity is such as to vitiate the trial, to establish that it was not a trial at all.  So you really have to come to that point and say ‑ ‑ ‑

MR MacGREGOR:   That is my point.  That was my opening point.  What I was not prepared to say, that you had to confine it in with a description that amounted to no trial at all.

KIRBY J:   There may be something in Domican that helps you there.  In that case, which concerned the proviso, the Court said because the Court cannot know what it was that had finally influenced the jury’s decision it cannot be excluded that they were influenced by the irregular material.  So I suppose that assists your argument.

MR MacGREGOR:   Your Honour, one gets most assistance in the argument, I suppose, from what Mr Justice Fullagar said:  the proviso was never intended, .....conviction stand, notwithstanding that overall the accused was denied a fair trial according to law.  Where is the fairness, having regard to the stringent directions which the courts give - perhaps they should go further.  They tell the jurors that they are to decide the case according to the evidence given in the court room in whatever form.  Perhaps they should go further and tell them that they must not play detectives and go on a gathering exercise themselves.  Since the 17th century jurors as witnesses have been replaced by jurors as adjudicators.  If, having regard to that direction, various members of the jury are to be permitted within the trial process to go on an evidence-gathering excursion, to prepare plans - see, the statement ‑ ‑ ‑

DAWSON J:   No one is suggesting that, Mr MacGregor.

MR MacGREGOR:   Your Honour, the statement which Ms Cann prepared suggests that during the course of - after the inspection had taken place, a plan prepared by one or other of the jurors, not in evidence, as the result of what they observed, was reproduced on a white board in the jury room and people ‑ ‑ ‑

DAWSON J:   As has been pointed out to you, it is conceded there was an irregularity and the Court of Appeal applied the proper principles in determining the issue and what is there for this Court to deal with?

MR MacGREGOR:   What is there for this Court to do, your Honours, is to declare that the deliberate misconduct of a jury in entering in an evidence gathering and evidence giving exercise, without the knowledge of the ‑ ‑ ‑

DAWSON J:   That is putting it a bit high, is it not?  Evidence of what certain members of the jury did ‑ ‑ ‑

MR MacGREGOR:   That must be evidence given.  That is introducing into the case important material going to the central issue of the defence of which the other jurors had no knowledge, the court had no knowledge, and the accused had no knowledge.

KIRBY J:   But I said to you it cannot be absolute because if the juror decides, or cannot avoid going home via the scene, are they ‑ ‑ ‑

MR MacGREGOR:   But that is not this case, your Honour.

KIRBY J:   I realise that, but what I am saying is, if you are looking for a principle, you cannot say that any information the juror gets during the course of the trial must automatically, whatever it is, stop the trial.

MR MacGREGOR:   But in this case, the next important step is that the material was reduced to a document, some kind of plan, which was then placed on the white board and it was that which, according to Ms Cann, formed the basis of her decision.  She contrasted that with what she perceived to be the openness of the loading.  Now, the inference has to be

drawn, first of all, that those members of the jury considered it particularly important to go there, so it was a central issue in the case; and secondly, the likelihood of those who were not there would simply take the view, “I wasn’t there; he or she was; they must know”, and they substitute the judgment for opinion of a third person, based on the experience of that third person outside of the trial process.

The other comment I am urged to remind your Honours is that the jury deliberated for nine hours.  The strength of the Crown case ‑ ‑ ‑

KIRBY J:   That suggests they were looking at things other than the white board.

MR MacGREGOR:   Indeed.  The point is that we do not know what effect the white board had on them and they should never have had the white board in the first place - they should never have had the contents of the white board in the first place.  Clearly, one could envisage circumstances - I mean, the circumstance that one of your Honours referred to, of course if you are driving along Queen Street in Brisbane you observe Queen Street in Brisbane, but that is not this case.  This is a case where, really, the essential issue in the defence was wholly undermined by the improper conduct of the jury.

KIRBY J:   The Court of Appeal acknowledged that and they just said that having regard to the strength of the Crown case, this was not a case in which to intervene.  It seems as if they had the correct principles in mind.  The best that you can suggest is that other minds might reach a different conclusion, and that is not sufficient reason ‑ ‑ ‑

MR MacGREGOR:   Well, no, your Honour, I go further than that and I say the proviso on the authorities should never be applied when there has been such an essential departure from the standard trial process in this country involving trial by jury, involving deliberation by the jury together of evidence tendered in the trial about which everyone knows and on which everyone has the opportunity to address, and to have the benefit of proper judicial direction, has been abandoned and is abandoned in every case where the courts will tolerate unauthorised improper inspections by jurors.

DAWSON J:   Mr MacGregor, I see your time has expired.  We have your written submissions.  Thank you very much.  Mr Weller.

MR WELLER:   May it please your Honours.  Your Honours, it is one of those very difficult cases where there was sworn evidence given by Mr Robert Myles and his Honour Mr Justice Pincus indicated that Anthony Myles - I would respectfully submit that his Honour made a mistake in saying that Anthony Myles could not take advantage of the evidence that was in the trial tendered and given by Robert Myles.  Robert Myles gave sworn evidence that he and his brother did not know there was cannabis in these boxes.  He also called an experienced fishing importer and exporter from the local town of Cairns to give evidence that the method of packaging of shark fin, which at first blush in these sort of cases, your Honours, one always tends to think that it is immediately implausible when someone says we thought it was something else, but there was evidence given by this exporter and importer of seafood that it was quite customary for shark fin to be compressed, put in blocks in the manner that the cannabis was here.  A third witness, of course, an independent witness, it would be suggested, gave evidence that corroborated the evidence of Mr Robert Myles that he had met this man Anderson on two occasions at a city hotel in Cairns.  Now, my threshold submission to your Honours is, of course, that Anthony Myles should benefit from all of the evidence given at the trial and therefore, to say that there is no problem applying the proviso in relation to him I would submit to your Honours would be inappropriate and unfair ‑ ‑ ‑

DAWSON J:   It is not a matter of no problem applying the proviso, it is a case in which there was a problem, but it is a question of whether in applying it, there was the incorrect application of any particular principle or the misapprehension of any principle.

MR WELLER:   I will not proceed further on that.  It was just that his Honour said that because Anthony Myles did not call any evidence, he felt it would be just silly for a jury not to convict him and I wanted to start on that basis, that really the both brothers are in the same boat, if I could put it that way, your Honours, that all of the evidence at the trial was relevant to Anthony Myles as well.

In terms of the strength of the case and the implausibility, just very briefly, your Honours, sworn evidence by Robert Myles that he was a northerner from Queensland, been in the fishing industry for some 20 years, he was involved in the export of seafood, he had been overseas twice involved in that business, and that is where he met this fellow Anderson at the Royal Yacht Club.  Now ‑ ‑ ‑

DAWSON J:   That was the Philippines contact?

MR WELLER:   That is so.  That is the man that he gave evidence about, that what I could call the independent witness, the manager of a hotel in Cairns, said yes, this fellow Peter Anderson was a guest and he did come and go on dates and times that matched Mr Robert Myles’ story.  Now, what he stated was that he was a fellow that caught barracouta, mud crabs, it was seasonal work, and in between seasons he was down sea-trialing his brothers’ boat, Michael and Anthony Myles, and that he was doing it gratuitously.  When an opportunity for work came up, this fellow Anderson rang him and said, among other things, that his vessel was somewhat wrecked on the journey over.

When the appeal court refers to the implausibility of the story, they say it is implausible that a fisherman would be involved in the repair of a vessel, or there was a suggestion of that, but Myles gave evidence that he was involved in building and his whole family were involved in building and he was quite capable of repairing yachts.  Now that is the sort of thing, your Honours, where it becomes dangerous in this case to automatically assume, because it is probably the best case you will ever get of possession of cannabis, they are filmed loading the boxes, the truck travels eight hours and it is still locked and it is surveilled with no stops, so clearly that is the dangerous starting point - I withdraw dangerous ‑ ‑ ‑

DAWSON J:   That is the starting point which was very much against you.

MR WELLER:   Yes, your Honour.  But from then on, I would submit, your Honours, the situation is full of ‑ ‑ ‑

KIRBY J:   Possibilities.

MR WELLER:   Possibilities, yes, and that is what the jury ‑ ‑ ‑

DAWSON J:   But all of these matters were before the Court of Appeal.  You see, the point is that this Court is not a court of criminal appeal; that in order to obtain special leave it must be shown that there is some question which warrants the attention of this Court.

MR WELLER:   May I take you, your Honours, in the joint application book to page 10.  I appreciate that your Honours have well read the statement of the juror, but there are some very critical factors, and I do that in the context of Domican [No 3], whether the jury would otherwise undoubtedly have reached the same conclusion.  That is really the principle that I believe that my submissions strongest point is in terms of the Court of Appeal not following that principle strictly.  If your Honours refer to page 10, in the rather lengthy first paragraph, as my learned friend established, clearly three or four jurors performed this irregularity and brought a written diagram back into the jury room and transferred it to the white board.  Now, what she says is:

They pointed out the open areas and it showed according to these jurors that the front of the truck basically obscured the view from the roadway of the two men working in the shed and loading the truck. 

She then refers to exhibit 1 in the trial.

The video had shown that the Myles brothers were acting as if they didn’t care if they were seen. 

Now, of course, this is a delicate defence on any situation, your Honours, when the case of possession is open and shut.  The whole case rests on “We knew what was in the boxes or we didn’t”.  Now, exhibit 1 in the trial, this juror is very clearly sayings that that exhibit had shown that the Myles brothers were acting as if they did not care if they were seen which is the strongest defence point.  It gets to this fact of knowledge.  That is a very strong persuasive factor as to whether ‑ ‑ ‑

DAWSON J:   The point is, Mr Weller, that this Court does not conduct the same exercise as the Court of Appeal, merely in order to come to an opposite conclusion.  It may be possible, but you have to demonstrate some point of principle.

MR WELLER:   The principle, your Honour, is this, that if the test applied in Domican [No 3] is an appropriate - that the critical issue is would the jury have reached the same result.  Now, having regard to this statement - and this juror herself says ‑ ‑ ‑

DAWSON J:   See, that is the question in one way or another that the Court of Appeal asked itself, and came to a conclusion.

MR WELLER:   With respect, your Honour, my reading of the Court of Criminal Appeal, I do not believe they addressed the specifics of what this juror said.

DAWSON J:   You say they came to a wrong conclusion.

MR WELLER:   Yes.

KIRBY J:   You say they failed to apply the very rigorous test laid down by this Court in Domican?

MR WELLER:   Yes.

KIRBY J:   We will just have to ask the Crown about that.  I wrote the Court of Criminal Appeal decision in Domican that was reversed by this Court and I am therefore very conscious of the strictures of the principle.

MR WELLER:   I am well aware your Honour was - I was pleased your Honour was sitting this morning because your Honour is fully aware of that case.  Can I just dwell, your Honours, on the wording of this statement further, repeating:

The video had shown that the Myles brothers were acting as if they didn’t care if they were seen.  This drawing was done to show that the chances of them being seen was very slim.  The jurors claimed that if you were driving past in Roberts Road all you would have seen was the front of the truck.

Now, that is the irregularity.  You have got this caucus claiming or denigrating or weakening the defence case that, we did it in the open, that helps us be believed that we had no knowledge what was there.  She then goes on to say:

during debates about the guilt or non guilt of the two accused -

now we know it went for nine hours, that was never addressed by the Court of Appeal, the fact that here is a juror saying we were debating about the guilt or otherwise in this environment.  Now, she refers to Appo, this is the foreman and I am certainly not suggesting there is any impropriety in having strong charactered, impressive or assertive foreman in this case, but if you take it in the atmosphere, you have got this environment where he has already, we know, brought a list of butchers in Mackay and is talking about the price of meat, and he has also brought in some evidence or some information about the fact that rail freight would have been better than a truck - now ‑ ‑ ‑

KIRBY J:   Mr Weller, one thing that worries me is at page 36 line 15 ‑ and I mentioned this to Mr MacGregor - their Honours say:

We received little assistance from the parties on the factual question of the inevitability, or otherwise, of the guilty verdicts in this case.

Now, if that is correct and if you did not give the essential assistance to apply the Domican test, then why should we give you a second chance to do it in the High Court of Australia.  Their use of the words “inevitability, or otherwise” indicates that they had in mind the Domican test.

MR WELLER:   Your Honour will appreciate we were not representing the accused at that stage - and that is not particularly relevant - but as I understand it, the transcript of the trial was before the court and their Honours made some mistakes in relation to that.  This delicate defence, his Honour Mr Justice Pincus says, it is very implausible they were doing this work for no payment.  Now, the sworn evidence of Robert Myles and under cross‑examination was they got paid $2,000.  Now, the transcript was before their Honours.  Mr Justice Pincus then, with the utmost of respect, seemed to be supporting this implausible argument by saying, “Oh, they were delivering it to a caravan park.  It would not be assumed that the residents of the caravan park would ingest a ton of shark fin or that it is a tremendously appealing place to distribute shark fin.” 

But in fact the sworn evidence was totally different to that.  The transcript that was before the Court of Appeal said that there was an arrangement for the brothers to deliver this man’s truck, with meat and shark fin in it, to him at this caravan park.  So the Court of Appeal, from coming from an extremely strong case of possession, then go on, with the transcript before them - I saw that when I first read the judgment, your Honours, that both sides did not help the court tremendously in the strength or weaknesses of the case - but the transcript was there and there are errors, based on what the Court of Appeal did in that respect, to say they did it for nothing.  I mean, if this story of someone wanted me to move these boxes from north to south in Queensland, and part of the reasoning was “Oh, but I wasn’t getting paid for it”, every little niche makes that story more hard to believe.  Also, if you take the view, quite sensibly, if you were just told “Oh, we were delivering it to a caravan park”, his Honour is correct, one should attach some cynicism to it.

KIRBY J:   It may be a little unfortunate for your clients, but the fact is that when I look at that passage it seems to me pretty clear that the Court of Appeal did address the correct test.  They addressed the Domican test.  And we are not, as the presiding Judge has said, here to be a super court of criminal appeal; we just cannot do that.  Therefore, so long as the correct principles are applied, the principle on irregularity, the principle on stringency, there is nothing new in this case, unfortunately.

MR WELLER:   Your Honour, just on that, if we revert back to what my learned friend commenced with, then if I can go back to the juror’s statement finally, that what the juror says in this context of debates about guilt or non guilt:

The one that influenced me most was the drawing of the shed showing that there was a minimal chance of the accused being seen -

So, really, your Honours, it gets back to pre-proviso consideration.  If this was a trial where the trial was interrupted and the jury came out and said, “Look, the foreman is giving us prices of freight as against truck” or “Three or four of the members of the jury have brought a little map in about the scene”, what would happen?  I am sure that, in this case, the Myles brothers would not be in gaol for 10 years on that particular trial, your Honours, with respect.  We have a jury oath to only act on the evidence.  We have a system that says you get a fair trial based on the evidence and we have got a document that was before the Court of Appeal that says, “I was influenced” in the context of a fairly assertive personality by something critical, absolutely at the heart beat of the defence as to knowledge, that we did it Saturday morning.  The rules regarding views - I mean, judges alone in civil cases are terribly restrained ‑ ‑ ‑

DAWSON J:   No one doubts that there was an irregularity.

MR WELLER:   Then this irregularity, out of the words of this juror’s mouth, says “I was influenced by that irregularity in the context of a debate about guilt or otherwise”.  Now, the defence was precluded from a fair trial, (a), it could have been patched up if it happened through the trial, either by the jury being discharged or, alternatively, all members go on the view and some strict guidelines and then some questioning.  The view was six months after the incident.  Had it changed?  They did not go on a Saturday, we can deduce that, because the actual actions of the accused brothers was on a Saturday morning in what Detective Lawrie in evidence said was a row of storage sheds open for the general public.  We know they must have gone at night or morning during the week.  Six months later we do not know whether the scene changed or otherwise.

I can indicate to your Honours, and it is perhaps often the plaintiff cry of the person in gaol, that they do not feel they had a fair trial once they learned this.  That is not meant to be persuasive to your Honours but, clearly, if you look at the principle of our jury system and our rules and oaths of jurors and something as critical as this, the real question is, “Has there been a miscarriage of justice?”

DAWSON J:   That is the question which the Court of Appeal considered.

MR WELLER:   In our joint summary of argument, your Honours, point 2, my learned friend has asked me to refer you to again.  Basically that the principle is whether the test to be applied for determining whether an irregularity involving the jury, not disclosed during the trial, is different to that involving an irregularity disclosed during the trial.

Your Honours, it is a situation where clearly the Court of Appeal, I would submit, did not really apply the Domican test in that contest as to whether there has been a miscarriage of justice because they melded the principles and went straight into - they took it into the realm of “Well, is it a strong or weak case?”

KIRBY J:   I do not think you can read that passage I read to you in that way.  If that passage were not there, I would see great force in what you have said, but they have used the Domican word “inevitable”.  That is page 36 line 15.

MR WELLER:   The point is though, your Honour, is it a question of the inevitability of guilt.  The real question is, is it not, as to the actions of the jury?

KIRBY J:   As Justice Dawson has pointed out to you, it is the starting point of this application, that the jury acted irregularly.  The Court of Appeal had that principle in mind and applied that principle and then it turned to the particular case, said it got little assistance from the parties and addressed itself to the question of inevitability.  So the principles have been correctly applied and we just cannot be a general super court of criminal appeal for the country.

MR WELLER:   The question of inevitability of the guilty verdict, I mean, my reading not just of that page, of the whole judgments, was not strictly to the Domican test, your Honours, it was  not a matter of “If this incident had not happened, would the jury have reached the same verdict?”  All of their Honours writings seem to relate to the inevitability of the verdict, based on the strength of the prosecution case, not on what the jury was doing.  And not once in any of the judgments, your Honours, was there reference to her precise wording “I was influenced”.  How can one feel safe that the jury verdict would be the same if you have got a statement from a juror saying “I was influenced”?  That is the disturbing point in this case and that is where I would ask your Honours to consider.  It would be totally ‑ I mean if your Honour says that Domican  was addressed, I would suggest to your Honours that never once in any of the Court of Appeal judgments was there reference to the precise wording of that juror.

DAWSON J:   I see your time has expired, Mr Weller.  Thank you.

MR WELLER:   If your Honours please.

DAWSON J:   The Court need not trouble you, Mr Bryne.

The Court of Appeal does not appear to have misapprehended any applicable principle in these cases.  In any event, the Court is not persuaded that any appeal arising from these applications would enjoy sufficient prospect of success to warrant the grant of special leave.  Special leave is accordingly refused.

AT 10.19 AM THE MATTER WAS CONCLUDED