Nadjowh v The Queen

[2018] NTCCA 17

CITATION:Nadjowh v The Queen [2018] NTCCA 17

PARTIES:NADJOWH, Elonda

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF

THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:21555555

DELIVERED:  2 November 2018

HEARING DATE:  2 November 2018

JUDGMENT OF:  Riley AJ

CATCHWORDS:

CRIMINAL LAW – LEAVE TO APPEAL

Whether there is an arguable case – whether the trial judge erred in allowing
the trial to continue after the jury had been mistakenly provided with a number of documents not in evidence – whether trial judge’s directions insufficient to remedy risk of unsafe verdict – applicable principles – there is an arguable case – leave to appeal granted

CRIMINAL LAW – BAIL APPLICATION – BAIL APPLICATION AFTER
CONVICTION AND SENTENCING – BAIL PENDING APPEAL

Appeal Bail – Bail Act 1982 (NT) s 23A – whether special or exceptional
circumstances shown – major part of the custodial sentence will have been served before the hearing of the appeal –  prospects of success on appeal – applicable principles – bail granted

Bail Act (NT) s 23A

McRoberts v The Queen (2018) NTCCA 11; R v Sharp (1999) QCA 393;

Barker v The Queen (1994) 78 A Crim R 1.

REPRESENTATION:

Counsel:

Applicant:M Aust

Respondent:  D Jones

Solicitors:

Applicant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    C

Judgment ID Number:  Ril1805

Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Nadjowh v The Queen [2018] NTCCA 17

No. 21555555

BETWEEN:

ELONDA NADJOWH

AND:

THE QUEEN

CORAM:     RILEY AJ

Ex Tempore
REASONS FOR JUDGMENT
(Delivered 2 November 2018)

1. This is an application for leave to appeal, and for bail following conviction and sentence and pending appeal.  The application for leave to appeal was introduced into the proceedings this morning and Mr Aust is to file the appropriate documentation in support of the application, by close of business on Monday. I point out that the only document that is required is the formal application. 

1. In support of the application for leave reliance has been placed on the affidavits and other material before the Court in relation to the bail application.  

1. As to the bail application, the situation is governed by s 23A of the Bail Act which provides that:

   Where an appeal is pending in the Court of Criminal Appeal against a conviction or sentence, bail must not be granted by the court or any other court, unless it is established that special or exceptional circumstances exist justifying the grant of bail.

1. A recent discussion of the relevant considerations in relation to such an application was in the case of McRoberts v The Queen (2018) NTCCA 11. In that case it was observed that, while the totality of the circumstances must be looked at, there are two major matters regularly relied on to establish special or exceptional circumstances. Those matters are the likelihood that the whole or a major part of the custodial sentence will have been served before the hearing of the appeal and, the second is that there are some prospects the appeal will be successful.

1. There are policy grounds which support a strict approach to appeal bail after conviction and sentence and those are set out at paragraph 16 and subsequent paragraphs of McRoberts v The Queen.  Prominent amongst those is the maintenance of public confidence in the administration of justice, and of course, the finality of litigation.  There are other policy grounds which are relevant, however I do not need to summarise those here.  They are contained in McRoberts v The Queen.

1. In considering the prospect that an appeal will be successful, it is sometimes the case that an obvious error in the proceedings below will indicate that an appellant has good chances of success.  This may afford the appellant sufficient reason to be granted bail.  In many other cases, the prospects for success of an appeal can only be considered in a preliminary and cursory manner, because all of the relevant information is not available or it is simply too fresh to be able to deal with all of the information that is available.

1. The ground of appeal must be one of real substance which would probably justify, at least, a retrial.  In the present case, the applicant was convicted following a trial by jury.  She was convicted of causing serious harm and, on 24 October 2018, was sentenced to imprisonment for 2 years and 6 months, to be suspended after 6 months, on various conditions.

1. The effect of her sentence was that she must serve an actual term of imprisonment of 6 months.  I am told that if her appeal is to be heard, the hearing will not be until at least March 2019.  I am informed that by that time she would have served something like 80 per cent of the actual term of imprisonment imposed by his Honour.

1. The applicant filed a notice of appeal with two grounds.  Those grounds are to constitute the notice of appeal, if leave is granted.  The grounds are as follows:

(a) The decision of the learned trial Judge to allow the trial to proceed in circumstances where the jury in their deliberations had been mistakenly provided with a number of documents not in evidence, was a wrong decision on a question of law and resulted in a miscarriage of justice, such that the judgment of the court of trial should be set aside; and

(b)The direction of the learned trial Judge, after the jury in their deliberations had been mistakenly provided with a number of documents not in evidence, was insufficient, as a matter of law, to protect against the risk that the jury would rely on the documents in reaching their verdict and accordingly that direction resulted in a miscarriage of justice, such that the judgment of the court should be set aside.

1. It was initially asserted that this was an appeal by right because it related solely to a question of law.  Further consideration of that proposition has been undertaken and the applicant has now sought to proceed by way of an application for leave to appeal.

1. It is necessary, of course, for the applicant to have an appeal on foot in order for there to be a grant of bail. 

1. The irregularity relied upon is that a number of documents contained in two bundles marked for identification, were provided to the jury at the commencement of their deliberations.  None of those documents were exhibits in the applicant's trial.

1. It appears those files were provided to the jury accidently, instead of the trial exhibits.  The error was discovered when the jury sent a note to the presiding Judge requesting copies of the voir dire exhibits.  The material was with the jury for something like two hours, before the irregularity was detected.

1. The trial Judge heard from counsel as to the future conduct of the trial, and defence counsel submitted that the prejudice was incurable and warranted a discharge.  The prosecutor did not oppose the application, whilst not necessarily consenting to it.

1. Nevertheless, his Honour made a ruling that any prejudice could be cured by a direction and proceeded to direct the jury accordingly and continue with the trial to verdict.  The verdict of guilty was subsequently received. 

1. It does not automatically follow that if a jury is exposed to material which has not been entered into evidence, a new trial will be ordered. In the case of R v Sharp (1999) QCA 393, the Queensland Court of Appeal considered a matter where material not being exhibits in the trial was made available in the jury room to the jury during their deliberations. The Crown accepted that an irregularity occurred when the materials were placed in the jury room. The material included a bundle of photographs and an unedited version of the transcript of a record of interview between the investigating police officer and the appellant in that case.

1. The Court observed that it is a fundamental principle of the administration of justice, that no person should be convicted except by the verdict of a jury after a fair trial, according to law. The court examined the material, in the context of the case presented to the jury and concluded that the irregularly available material had no or so little bearing on the matters in issue in the trial that it could not be said that the appellant was denied his entitlement to a fair trial, such that the verdicts of guilty returned by the jury ought be quashed.

1. Further, it was concluded that there could be no suggestion that the appellant lost a chance, which was fairly open to him, of being acquitted on the charges and therefore no substantial miscarriage of justice occurred.  In Sharp, it was observed that:

It will depend upon the quality of the irregularly admitted evidence considered against the issues upon which a jury must reach a decision and the whole of the regularly admitted evidence. 

1. In the earlier case of Barker v The Queen (1994) 78 A Crim R 1, the Court had observed that:

The verdict of the jury must be set aside unless the court is satisfied that the jury would have returned the same verdict if the irregularity had not occurred.

1. In the present case, counsel for the applicant contended that this was a case in which fundamental error occurred and that leave to appeal should be granted, without undertaking a close examination of the documentation.  I reject that submission and do not find that fundamental error did occur.

1. It was put that the jury was able to scrutinise and absorb the vast amount of documentation which should not have been before them.  The application before me proceeded on the basis that this was the case and that the materials had been read by the jury members, albeit there was no evidence to that effect.

1. Counsel for the applicant took me to various items from the materials to support a submission that the documents gave rise to a danger of prejudice, such as to undermine the credit or character of the applicant or her evidence at the trial.  Counsel for the respondent provided equally detailed submissions, as to why those materials did not give rise to any danger of prejudice or, indeed, it was submitted, to an arguable case for appeal.

1. Having listened to counsel and having read the materials, it seems to me that there is an arguable case for an appeal and that leave to appeal should be granted.  That is not to say that this is a strong case, but rather that it is a case capable of argument.  The individual items, to which counsel for the applicant referred, were such that they did not suggest a strong case for appeal.

1. However, the combined effect of those materials, wrongly placed before the jury, could arguably have incorrectly influenced the outcome of the trial.  In my view, the applicant is entitled to the opportunity to present that case to a Court of Criminal Appeal.  The test to be met is that the case is one which is fit for appeal and, as has been held, an arguable case is sufficient to justify a grant of appeal.

1. In the circumstances, I do grant leave to appeal on the two grounds I identified earlier in my remarks. 

1. In relation to the application for bail, the major concern is the length of time that the applicant will spend in custody awaiting her hearing.  As I have indicated, the first available hearing date is in March 2019, and by that time she will have spent some 80 per cent of her term of actual imprisonment in custody.

1. In those circumstances, I think it appropriate that she be granted bail.

1. In granting bail, I am aware that she has one conviction for a breach of bail from 2013.  On that occasion, without proceeding to conviction, the charge was found proved and she was released on a good behaviour bond.  She does have accommodation in Batchelor and her present partner is in court to support her. It is his accommodation at which she will be staying. 

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