Najibi v R

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0217

WAHID NAJIBI	Applicant
	v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, WEINBERG and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 April 2016
DATE OF JUDGMENT:	28 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 177
JUDGMENT APPEALED FROM:	R v Najibi [2015] VSC 260 (Emerton J) (date of conviction 2 April 2015)

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CRIMINAL LAW – Application for leave to appeal conviction – Conviction for incitement to murder – Acquittal on six charges – Directed verdict of not guilty on one charge – Whether verdict inconsistent with acquittals – Leave refused.

CRIMINAL LAW – Application for leave to appeal conviction – Whether incitement to incite commission of offence would fall outside offence of incitement – Whether possibly convicted on that basis – Conduct of trial – Leave granted – Appeal dismissed – Crimes Act 1958 s 321G(1) – Sirat v The Queen (1986) 83 Cr App R 41 discussed.

CRIMINAL LAW – Application for leave to appeal conviction – Juror discharged as being incapable of continuing to act as juror – Whether wrongfully discharged – Whether discharge created fundamental defect in constitution of the jury – Construction of s 43, Juries Act 2000 – Value judgment whether circumstances fall within any of paragraphs (a) to (d) of s 43 – Whether judge bound to discharge juror where s 43 circumstances present – Whether ‘high degree of need’ test imported into s 43 – Construction of s 44, Juries Act – Sections 43 and 44 not exhaustive of power to discharge jury – Open to trial judge to discharge juror – Leave granted – Appeal dismissed – Juries Act 2000 ss 43 and 44 – R v Boland [1974] VR 849 – Wu v The Queen (1999) 199 CLR 99 – Zhu v The Queen (2013) 38 VR 77 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Ms C A Boston	Melasecca, Kelly & Zayler
For the Crown	Mr D A Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
WEINBERG JA
McLEISH JA:

On 2 April 2015, a jury in the Supreme Court found Wahid Najibi guilty of incitement to murder. It acquitted him of another six charges on an eight charge indictment. On the remaining charge, the jury returned a directed verdict of not guilty.

On 10 June 2015, Najibi was sentenced to eight years’ imprisonment on the incitement charge. The judge fixed a non-parole period of four years and nine months’ imprisonment.

Grounds of appeal

Najibi now seeks leave to appeal against his conviction; and, if leave is granted, that the appeal be allowed and his conviction quashed. He relies upon these grounds:

Ground 1
The guilty verdict on the charge of incitement to murder is inconsistent with the acquittals on the remaining charges.
Ground 2
A substantial miscarriage of justice has occurred by reason of the possibility that the jury convicted the applicant of an offence not specified on the indictment, namely, incitement to incite murder.
Ground 3
The learned trial judge erred in granting the prosecution leave to cross-examine Dijana Rozanic pursuant to section 38 of the Evidence Act 2008.
Ground 4
The discharge of Juror 296 amounted to a fundamental irregularity going to the root of the trial.

The applicant advanced written argument in support of all four grounds. But having regard to the recent decision of this Court in Director of Public Prosecutions v Garrett (a pseudonym),[1] his senior counsel did not pursue oral argument in respect of Ground 3. Rather, he preserved his client’s position.
[1][2016] VSCA 31.

The charges

The charges laid against the applicant were as follows:

CHARGE 1    The Director of Public Prosecutions charges that WAHID NAJIBI at Cranbourne in Victoria on or about the 22nd day of November 2011 without lawful excuse intentionally caused injury to [B].
CHARGE 2    The Director of Public Prosecutions charges that WAHID NAJIBI at Cranbourne in Victoria on or about the 22nd day of November 2011 without lawful excuse recklessly caused injury to [B].
CHARGE 3    The Director of Public Prosecutions charges that WAHID NAJIBI at Warragul in Victoria between the 25th day of December 2011 and the 1st day of January 2012 without lawful excuse intentionally caused injury to [B].
CHARGE 4    The Director of Public Prosecutions charges that WAHID NAJIBI at Warragul in Victoria between the 25th day of December 2011 and the 1st day of January 2012 without lawful excuse recklessly caused injury to [B].
CHARGE 5    The Director of Public Prosecutions charges that WAHID NAJIBI at Junction Village in Victoria on or about the 5th or 6th day of January 2012 took away [B] with intent to gain for himself an advantage namely a payment in the sum of $8,500 from the detention of [B].
CHARGE 6    The Director of Public Prosecutions charges that WAHID NAJIBI at Koo Wee Rup in Victoria on or about the 5th or 6th day of January 2012 made a demand of [B] namely the payment of $8,500 with a threat to kill [B].
CHARGE 7    The Director of Public Prosecutions charges that WAHID NAJIBI at Koo Wee Rup in Victoria on or about the 5th or 6th day of January 2012 made a demand of [B] namely the payment of $8,500 with a threat to kill [B’s girlfriend].
CHARGE 8    The Director of Public Prosecutions charges that WAHID NAJIBI at Melbourne in Victoria between the 1st day of January 2012 and the 14th day of February 2012 incited [B] to pursue a course of conduct which would involve the commission of an offence by [B] namely the murder of AHMAD KESHTIAR.

The eight charges. A broad outline of the circumstances relied upon

It is desirable at the outset to give a general description of the circumstances relied upon by the Crown.

In essence, the Crown contended that a man — sufficiently identified as ‘B’ — who had a criminal past and criminal connections, and who was known to the applicant, played a role in bringing about a meeting between the applicant and drug traffickers. B attended that meeting, and the applicant purchased a quantity of drugs. That was in November 2011. But, as the Crown would have it, the applicant was dissatisfied with the quality of the drugs which he had purchased, and demanded his money — said to be $8,500 — back from B. The latter denied any obligation to repay the moneys.

That led on, the Crown case proceeded, to B being assaulted by the applicant on two occasions.

The first assault — the subject of the alternative charges 1 and 2[2] — was said to have taken place on or about 22 November 2011. On the Crown case, the applicant was present at, and party[3] to the assault on B, although he did not physically participate. He did, however, demand his money back.
[2]Intentionally, alternatively recklessly, causing injury to B. See Crimes Act1958 s 18.
[3]As aider and abettor.

The second assault, according to the Crown case, took place sometime between Christmas Day 2011 and New Year’s Day 2012. On that occasion, B was assaulted by the applicant and other men in connection with the moneys the repayment of which the applicant had demanded. That alleged incident was the subject of charges 3 and 4.[4]
[4]Intentionally, alternatively recklessly, causing injury to B.

Then, according to the Crown case, on or about 5 or 6 January 2012, B was kidnapped by a group of men, taken to a location described as ‘the Koo Wee Rup lookout’, and there threatened by the applicant that unless he repaid the $8,500, he or his girlfriend would be killed. But then a third alternative was presented — that he kill a man whose photograph he was shown. The alleged kidnapping was the subject of charge 5, and was the subject of the directed acquittal. The demands for repayment accompanied by threats to kill either B or his girlfriend were the subject of charges 6 and 7.[5] The conduct the subject of the alternative proposal — that B kill a man whom he said was unknown to him — was, according to the Crown case, the first of a series of occasions upon which the applicant incited B to murder a man named Ahmad Keshtiar.[6] That was charge 8 on the indictment, the charge upon which the applicant was found guilty.
[5]Extortion with threat to kill, see Crimes Act 1958 s 27.
[6]See Crimes Act 1958 s 321G(1).

Circumstances more closely described

We begin by describing circumstances relevant to grounds 1 and 2. The circumstances relevant to ground 4 were discrete, and we will set them out later in these reasons.

Background

The applicant is Afghani by birth. He was born on 20 May 1987, and so is now aged 29. At relevant times, he was aged 25.

The applicant and his immediate family migrated to Australia in 1996. Other members of the family also migrated to Australia, and eventually there was an extended group of some 200 persons living here.

In 2005, and then in 2008, the applicant’s parents proposed that there be a marriage between the applicant and the daughter of one of the applicant’s uncles, Mahboob Najibi. The young woman’s name was Zahida. She was the applicant’s cousin.

The 2005 marriage proposal was rejected by Zahida’s parents. But the renewed proposal was accepted in 2008.

Zahida had no role in her parents’ decision that she marry the applicant. She made it clear that she wanted no part in it. To allay suspicions, she participated in an elaborate engagement event. But in late 2010 she left home without telling her parents and moved to Queensland with another young Afghani man, Ahmad Keshtiar. He, in time, became the intended victim of the murder.

Zahida and Keshtiar married. Zahida became pregnant. She fell ill, and they returned to Melbourne. But they had little or no contact with her family.

Meanwhile, the applicant had got on with his life. He did very well at school, and was said to be an accomplished sportsman. After leaving school, he worked in more than one job at the same time in order to support his family, his father having become ill. His work was in addition to him continuing studies. By late 2011, he had some involvement in the conduct of a pizza shop at Berwick, and was working as a security guard at a hotel in Warragul.

There was no doubt, on the evidence, that Zahida’s behaviour was a matter of shame to her immediate family and more widely within the extended group to which we have referred. One question which arose at the trial was whether the applicant shared this sense of shame, and whether it provided a motive for him seeking to have Keshtiar murdered. Trial counsel for the applicant raised an alternative hypothesis — that the suggested motive, shared by many, had caused some person other than the applicant to incite B to kill Keshtiar.

The applicant, we interpolate, appears to have had little contact with Keshtiar, although he evidently had the latter’s mobile telephone number and sent him several texts which were ambiguous, though certainly not friendly in tone. There was also evidence that the applicant described Keshtiar as a ‘fat fucker’ and as a ‘fucking fat, dumb fuck’.

Circumstances of the alleged offending more closely described

B’s evidence was of importance to all of the charges laid against the applicant, although to different extent.

His evidence was that the criminal conduct alleged against the applicant began with a drug deal. The applicant, in a record of interview, denied that there had been any such transaction.

On B’s account, other persons — that is, the drug traffickers — were present when the deal was made. But B refused to name them, and so the jury was left with B’s evidence and the applicant’s denial. B had a criminal past and criminal connections, and he admitted to a history of mental illness and drug and alcohol abuse. Moreover, he gave evidence that on the day of the transaction he had been on an ‘acid trip’. Understandably, much was made of these personal circumstances by the applicant’s counsel at trial. We add that the judge gave the jury an extensive unreliable witness warning with respect to B.

The only direct evidence that the first alleged assault occurred was given by B. The applicant denied that there had been any such incident. On B’s account, the only reason for the assault was the antecedent drugs purchase (of which he alone had given evidence) and the applicant’s demand for repayment of $8,500.

Respecting the first alleged assault — see [9] above — B gave a history of having sustained substantial injuries to his head and chest, and also to a knee. He gave evidence that another man had come to his home after the assault had occurred, and that the two of them had burned B’s bloodied clothes. But B was not prepared to name the man; and thus the jury was provided with no independent supporting evidence of B’s account of burning his bloodied clothes.

Tracey Sansom visited B on 26 November 2011. She gave evidence that B exhibited signs of having been assaulted. B gave her an account of what had occurred — that is, that he had had an altercation with a man who had followed him out of a hotel in Cranbourne. In evidence, B said that the account was false. One can understand why B might not have wanted to tell Ms Sansom that he had been assaulted over a drug deal which had gone wrong, but the fact remained that what he told her did not directly support his evidence that he had been beaten by a number of Afghani men, the applicant then being present, and the applicant having demanded repayment of moneys paid to purchase drugs.

B did attend hospital on 26 November. There was evidence that he was then suffering from lung damage, which could have been attributable to an assault. But other injuries which B claimed to have suffered were neither reported nor apparently noted at the time.

That was the entirety of the evidence respecting the first alleged assault.

Evidence as to the happening of the second alleged assault — see [10] above — was given by B. Only he gave direct evidence that it had occurred. In his record of interview, the applicant denied that it had occurred.

Once again, the reason assigned by B for the second assault was the alleged drug deal which the applicant was saying had gone wrong.

B’s evidence respecting the second alleged assault was demonstrated to be wrong in some of its circumstantial detail. Observations were made by others which were consistent with B having been assaulted, and a close associate, P, gave some evidence of complaint made by B. But the jury might have concluded, all other things apart, that P’s evidence was chronologically confused and hence unreliable; and that there was thus a reasonable doubt of the applicant’s guilt on one or other of charges 3 or 4.

Respecting charges 6 and 7,[7] B gave the only direct evidence of the demands made by the applicant accompanied by threats to kill B or his girlfriend. Again, the wellspring of the incident was said by B to be the sale of drugs which had been unsatisfactory from the applicant’s standpoint. Again, the applicant denied that the incident had occurred.
[7]We need not say anything about charge 5 (kidnapping), which was the subject of the directed acquittal.

Thus far, in our opinion, it is not difficult to see why the jury might not have been satisfied to the criminal standard that any of the offences alleged by charges 1 to 4 and 6 to 7 had been established.

The evidence with respect to count 8 was, however, in a number of respects distinctly different in character. In particular, there was evidence that B had dealt extensively with a man named Kosta.

In his final address, the applicant’s counsel made this submission to the jury:

There is no issue in this case that [B] was inciting Kosta, right? [B] is inciting Kosta. No issue at all about that. What the issue is, as you know by now, was anyone inciting [B], and if so, if so, has the Crown established beyond reasonable doubt it was Wahid Najibi? No.

The issue thus framed by counsel recognised that, whatever attack might be made upon B’s evidence that, prior to 9 February 2012, the applicant had incited him to kill Keshtiar, it was inescapably the fact that B had communicated, on a number of occasions between 9 and 14 February 2012 with Kosta in connection with the proposed murder of Keshtiar.

Kosta, we immediately interpolate, was an undercover police officer, the police having learned of Keshtiar’s intended murder and of B’s involvement in the matter.

The communications between B and Kosta were both oral and by B providing documents to Kosta — a photograph of the intended victim together with details of his family situation, his address and his motor vehicle.

So far as the communications were oral, they were audio recorded.

The issue framed by counsel in substance invited the jury to consider whether the Crown had proved to the criminal standard that the applicant had incited B to murder Keshtiar. Although counsel raised a question whether anyone had incited B to commit the murder, the whole gist of the defence, relevantly, was that many in the Afghan community had a motive to see Keshtiar murdered; and that the applicant had expressed no particular interest in the failure of the arranged marriage.

There were a number of threads to the evidence implicating the applicant as the inciter. At the heart of the matter was the evidence of B and, to a much lesser extent, P – in respect of the latter of whom, also, the judge gave a strong unreliable witness direction. There was, however, also a collection of surrounding minutiae. Whilst the jury might have concluded that the minutiae showed no more than that B knew a good deal about the applicant’s personal and family circumstances, the jury was not constrained to such a conclusion.

The evidence of events which allegedly occurred over a period of weeks preceding 9 February 2012 implicated the applicant. But in his recorded conversations with Kosta, B did not identify the applicant by name as the person inciting Keshtiar’s murder. In our view, it is entirely understandable that, for forensic reasons, applicant’s trial counsel focused upon communications between B and Kosta which were silent as to the name of the person who was inciting the murder, and in that connection emphasised the alternative hypothesis that some other aggrieved Afghani was inciting the murder.

Against that broad background, we turn to the evidence respecting count 8.

B gave evidence that he did not know the man whose photograph he was shown at the Koo Wee Rup lookout. He said that he was given a month to have the man in the photograph ‘dead’.

B gave evidence of a meeting, called by the applicant, held at what was described as the ‘Camms Road park’. This was in ‘[l]ate January, maybe early Feb’. B said that his friend, P, was with him. P confirmed his presence at such a meeting.

According to B, it was arranged on that occasion that he and the applicant should meet at a computer shop in Dandenong three days later. The applicant told him to come alone.

Next, according to B, a meeting was in fact held at the computer shop. P was present, but was wearing a hoodie so that he would not be recognised by the applicant. The applicant had certain documents printed out, and he gave them to B. There was a photograph of Keshtiar, documents (including a Google maps pin drop which identified his address), a picture of the kind of vehicle which he drove, and details of the licence plate number of his vehicle.

This may be said immediately:

(1) There was a computer shop at the place designated by B.

(2) The applicant had an account at that computer shop and used it from time to time for business purposes.

(3) The applicant admitted in a record of interview that he may have been at the computer shop in the several weeks before 14 February 2012 in B’s company.

(4) P gave evidence that he saw a man pick up papers at the shop counter and hand them to B. There was a central printing point in the shop, and P’s evidence was consistent with papers having been collected from that point.

(5) There were security cameras at the shop, but they automatically cleaned after one month.

(6) No record was available of documents which had been printed.

(7) B said that he later gave the particular documents to Kosta. The latter did receive documents from B. They were of the character which B stated he had received from the applicant. They related to Keshtiar. The photograph was of Keshtiar, and the documents accurately recorded information relating to him.

B gave evidence of a second meeting with the applicant at the park. He believed that it took place at the end of January 2012. The meeting was called by the applicant.

According to B, the applicant said that he ‘wanted me to go into the house with a double barrelled sawn-off shotgun, shoot it, unload it, reload it and shoot it again’. He said also that he believed the applicant asked him if he could get his hands on a weapon.

B gave evidence that in the course of this second meeting at the park, the applicant gave him $1,200 with which to buy a weapon. P gave evidence that he was present at a park meeting and saw this happen. P also gave evidence of overhearing a remark made by ‘Shaz’ that he did not care how B got a gun, that he could go door-knocking for it. That remark, P said, he particularly recalled.

The applicant denied that there had been any such meeting, just as he denied that there had been an earlier meeting with B at the park, and just as he denied that he had handed over documents to B at the computer shop.

B and P gave evidence that, following this meeting, they tried to source a weapon. They did so over a three day period. They used a motor vehicle which belonged to P’s girlfriend. Traffic infringement notices referable to the particular period were put in evidence. At that time, according to the evidence, the girlfriend was interstate. The date and place of the infringements provided some evidence that B and P were doing what they said.

According to both B and P, an arrangement was made with a woman named ‘Charlie’ that she would provide a weapon. There were meetings with her, P being present on more than one occasion. At the outset, she was given $500 in anticipation of her providing the weapon.

B gave evidence of a third meeting with the applicant. It occurred shortly after the days during which he and P had been trying to acquire a weapon. At this meeting, the applicant told him that Keshtiar had stolen the girlfriend of his cousin, that she was in a pre-arranged marriage, that in Afghan culture this was forbidden, and that he had caused a lot of dishonour to the cousin.

Pausing, it will be seen that, in his conversations with the applicant, B identified the person inciting the murder in language consistent with the applicant not being the man immediately involved in the failed arranged marriage.

Also at the meeting now under discussion, B said, the applicant told him that they — that is, B and P — should wear fluorescent work clothes so that if they were picked up by the police going to or from Keshtiar’s house, they would just look like two workers coming home from work.

B further gave evidence that he told the applicant that he had purchased a firearm, that P would drive, and he was to be the assassin.

According to B, the applicant said that once Keshtiar had been killed, the drug repayment debt would be settled.

Next, according to B, he had further contact with Charlie. He and P arranged to meet her, and did so. She asked for a further $450. She told them that she was going to meet the supplier of the weapon. A few days later, she rang B, and said that she would ‘put [him] in contact with someone who could get a gun’.

We pause again, and make two observations.

First, by this time — it preceded Kosta’s involvement from 9 February 2012 — there was a body of material, not wholly reliant upon B’s evidence, that the applicant had incited and was continuing to incite B to murder Keshtiar. The offence, if that evidence was accepted, was complete.

Second, by this time — that is, immediately prior to Kosta becoming involved — the applicant had paid out $950 to purchase a murder weapon. But he had no weapon.

On 9 February, Kosta contacted B. He did so because the police had learnt that Keshtiar was to be murdered, and that B was involved. Kosta told B that he had learnt from a man named Trent about B’s need for a weapon. Trent was an associate of Charlie, and was to have supplied the weapon for which B had paid. Kosta’s emergence thus made sense from B’s standpoint.

In the period 9 to 14 February 2012, there were a number of face-to-face meetings and telephone conversations between B and Kosta. The last of them were two telephone calls on the morning of 14 February. It was later that day, Kosta told B, that the murder was to be committed. Kosta was to be the ‘shooter’, and someone engaged by Kosta was to be the driver of the getaway vehicle. B gave a final go-ahead, and in answer to Kosta’s enquiry gave certain directions as to what was to be done if Zahida intervened. Plainly, we interpose, B had reliable information that the family comprised Keshtiar, his wife, and a young child. He had told Kosta this on an earlier occasion.

We pause again. There was no evidence that B had ever met Keshtiar, or that he had any means of acquiring either a photograph of the man or his personal, residential or vehicular details other than from a member of the Afghani community. It is further the fact that, for whatever reason, it was not put to him in cross-examination that he had either been incited to murder Keshtiar by someone other than the applicant, or been provided with the documents by some other person.

We return to B’s evidence. He said that he met with the applicant after his first contact with Kosta. The date upon which this meeting occurred was not made perspicuously clear, but from what B said he told the applicant on that occasion, it must have been after Kosta had agreed to become the killer. According to B, he told the applicant that it was going to cost $15,000 for Kosta to be the assassin, and arrangements were then made as to how the money would be handed over. It was to be in cash, in a pizza box, collected at the Dial-A-Pizza shop at which the applicant’s younger brother worked in Berwick. On that occasion, according to B, the applicant was ‘ecstatic’, ‘quite happy’ that the killing was to take place. He told B that he ‘couldn’t wait for the fat fucker to be dead’.

B also gave evidence of yet a further face-to-face meeting with the applicant. It was initiated, B said, by a telephone call made by the applicant to B’s mobile phone.

There was clear evidence, we interpolate, that the applicant and B regularly communicated by phone. Sometimes this was by mobile phone to mobile phone and sometimes from a home landline to a mobile phone. B also gave evidence that at times calls were made to the mobile phone of one or the other from a call box; and call records showed calls of that kind – though, obviously, they did not of themselves identify the caller.

Placed before the jury were details of relevant calls in the period 23 January to 6 February 2012. For reasons explained by a police witness, there was an absence of extant records for the period between 6 and 10 February. From the latter date, B’s phone was monitored, and calls were audio recorded. Several calls on 12 February, made from a call box, were on B’s account made by the applicant. But the applicant denied that it was his voice that had been recorded.

In any event, according to B the final meeting which he had with the applicant on 12 February was ‘just to make sure that everything was going ahead as planned’.

We should now say a little more about the audio taped conversations between B and Kosta.

In the first conversation, on 9 February 2012, B variously told Kosta that he was ‘hiring’ the latter because he didn’t drive, that ‘the job’ was ‘up in Epping’, that the job was ‘for 20 grand’, that he knew the intended victim’s address and his car, that he had a photograph, that he had already paid for a weapon but was still waiting for it, that as far as he knew there were only three people in the victim’s home — ‘a newborn baby, the missus and a guy’ — that the job was to ‘take out the guy’, that payment would be made on the Friday after the killing in cash in a pizza box at a shop where ‘the younger brother works’, that it was ‘an Afghan culture hit’, that if ‘you steal another man’s wife, it’s death’, that the man to be killed ‘is the guy who stole the wife’, that ‘the original bloke I haven’t seen, alright. He’s got a contractor’ who had made the approach, that all he wanted Kosta to do was to drive and swing a sledgehammer once, that the plan was ‘to go up there in high vis gear’, that he was talking about ‘death. Walk in with a 12 gauge double barrel shotgun. Empty it, reload it and empty it again’.

The audio tape further revealed that Kosta volunteered to get the necessary weapon, ‘a rental’, that B described it as now being a ‘joint operation’, and that B said he would pay Kosta $5,000 but could not pay any money upfront. He had been given $1,200, of which he had spent $950 on the purchase of a weapon but with no result.

Again, as the conversation developed, B provided particulars of the so called ‘contractor’. The details did not identify the applicant by name, but were such as the jury might well have concluded identified the applicant.

In the course of this conversation there was something of a shift in the proposed roles of B and Kosta. Whilst B initially said that he would ‘pull the trigger’, he later told Kosta that if the latter pulled the trigger, he would give him $15,000; and he said that he would prefer Kosta to pull the trigger. Finally, we note, B told Kosta that he had details of the registration plates of the vehicle driven by the contractor. This was no doubt intended to give Kosta some security that he would be paid for what he did.

Much of the conversation on this occasion pertained to incitement of B by the man he described as ‘the contractor’ to kill Keshtiar, together with circumstantial detail which assisted to a conclusion that the applicant was the contractor. What B told Kosta on that occasion, the judge later directed the jury, was not independent evidence supporting B’s account of incitement by the applicant. Nonetheless, it was an account of the circumstances which facilitated conclusions that B was being incited to murder Keshtiar by an Afghani man of whom some circumstantial description was given, the motive lying in an intended wife having been ‘stolen’.

On 11 February 2012, a little after 4.00pm, Kosta and B met again. The audio recording of their conversation reveals that B gave Kosta the documents which he said he had obtained some time earlier from the contractor. Kosta confirmed in his viva voce evidence that B gave him documents on that occasion, and he produced them.

Other than that, the two men discussed a weapon, and B complained that Charlie and Trent had not thus far provided one. B confirmed that Keshtiar was to be murdered. B gave Kosta $500 as a down payment for the killing. B said that he wanted Kosta to ‘pull the trigger’. The men discussed what motor vehicle was to be used to get to and from the scene.

Later in the conversation, B said that ‘job’s yours. You do it the way — you plan it out. You do it how you wanta do it’. He also said ‘it’s now your show’ and that if Kosta wanted ‘to do it by himself’ he could do so.

B confirmed that the money would be ‘ready on Friday’ and that he had spoken to the contractor. B also confirmed the pizza shop payment method. B said that he had spoken to the contractor since 9 February but that he had said nothing about Kosta (according to B’s evidence, the latter of these statements was not true). B reiterated that he had registration plate details of the contractor’s motor vehicle. B provided other details of the contractor which tended in favour of the applicant having been the person involved. B’s proposal, in short, was that Kosta just ‘finish it’; ‘preferably closed casket’.

There was a mixed content in this conversation. Again, it revealed information pertinent to incitement of B by the applicant to murder Keshtiar. On its face, it disclosed continuing incitement by the applicant. On the other hand, the conversation revealed that B was retreating from physical participation in the murder.

There was next a recorded phone conversation between B and Kosta on the late morning of 12 February. B confirmed that he wanted Kosta to go ahead with the killing. Kosta suggested a particular day.

Then there were two calls between B and Kosta on 14 February. In the first of them, Kosta told B that ‘job’s on tonight’; and ‘I got a boy steering’. The conversation also involved Kosta asking B what happened ‘if the missus gets in the way’? B’s response was that he had already been told, ‘the choice is yours what should be done’. Other than that, Kosta asked for $1,000 for the supposed driver and he and B discussed payment of $15,000 on the following Friday.

In the second call, B said that Zahida (he did not name her) should not be killed and that he had spoken to the contractor that day. In fact, B said in evidence, he had not spoken with the applicant that day.

B also said that he either wanted the weapon for which he had paid, or else his money back. The idea was that Kosta would sort this out, by his supposed acquaintance with the man Trent.

Finally, B said that Kosta should ‘go straight through and do it’.

Ground 1
Applicant’s submissions

Applicant’s counsel submitted in writing that the Crown case had been that charges 6, 7 and 8 were intertwined. The alleged incident at the Koo Wee Rup lookout, which gave rise to charges 6 and 7, was part of the circumstances relied upon in support of the alleged incitement to murder. Further, the incitement was said to be constituted, at least in part, by the alleged demand by the applicant for $8,500 accompanied by threats to kill B or his girlfriend. So, there having been acquittals on charges 6 and 7, a fortiori where there had been acquittals on all other charges, the guilty verdict on charge 8 was ‘an affront to logic and common sense’.[8] No reasonable jury could have maintained a distinction between B’s credibility with respect to charges 1 to 4 and 6 to 7 on the one hand, and with respect to charge 8 on the other, particularly when the incidents founding charges 1, 2, 3, 4, 6 and 7 were all said by B to relate to the applicant’s claim for repayment of $8,500, and when charge 8 was partly concerned with that amount. Counsel focused upon what he submitted was the unreliability of B’s evidence. He noted that the judge had directed the jury that it would be dangerous to convict on B’s unsupported evidence, and had given an unreliable witness direction in respect of his evidence. Minor pieces of evidence supporting B’s account, counsel submitted, did not go to its heart.
[8]MacKenzie v The Queen (1996) 190 CLR 348, 366–8 (‘MacKenzie’).

Orally, counsel developed, by reference to the prosecutor’s opening, his submission that the circumstances of charges 6, 7 and 8 were intertwined. He developed also his submission that B’s evidence was entirely unreliable. Counsel went through the evidence which B had given respecting each of the assaults, and also matters pertinent to charges 6, 7 and 8. He dwelt upon the content of the audio taped conversations between B and Kosta.

Counsel submitted that the jury did not accept the motive which was alleged for the commission of the offences alleged by charges 1 to 4 and 6 to 7. It followed, he argued, that the jury could not have been satisfied of the motive for charge 8 — which was to expunge the alleged $8,500 debt.

Counsel confirmed that he was contending for a factual inconsistency.

When it was put to him that there was evidence capable of supporting B’s account, in particular evidence given by P, counsel referred to a single answer given by P in cross-examination.

Crown submissions

Counsel for the Crown submitted in writing that there was no inconsistency between the verdicts. The jury had simply given separate consideration to each charge, and had applied the judge’s direction that it could accept some but not all of a witness’s evidence; or had simply not been satisfied of the applicant’s guilt to the criminal standard on some charges. The fact that there was some crossover between some of the evidence pertaining to charges 6, 7 and 8 did not mean that the verdicts must be the same. There were distinct elements to each charge. Moreover, it was not the case that the extortion charges formed part of the actus reus of the incitement charge. Further and importantly, the incitement charge was supported by other direct and inferential evidence — including the evidence of P — which was lacking in respect of the other charges. The judge had given an unreliable witness direction in respect of P, but the jury was entitled to accept him as a witness of truth.

Orally, counsel submitted that the not guilty verdicts on charges 1 to 4 and 6 to 7 did not mean that the jury had rejected B as an honest and reliable witness. Rather, the jury had acted according to the judge’s instructions that it should look for ‘supporting evidence’. There was supporting evidence in respect of charge 8.

Counsel asserted that, with respect to charge 8, the Crown had not put all its eggs in ‘the drug deal gone wrong’ basket. Assuming that there had been such an incident then, as the Court observed, it gave the applicant a ‘hold’ over B; but it was not the motive for the intended murder.

Analysis

In our opinion there is no substance to this ground.

The question whether there is a factual inconsistency between verdicts is to be considered in light of the six propositions stated by Gaudron, Gummow and Kirby JJ in MacKenzie.[9] They have often been repeated, and we need not repeat them again. Rather, it is convenient to refer to this pithy summary of the way in which an appellate court should approach a claim of inconsistent verdicts:[10]

The authorities make it clear that appellate courts should approach a claim of inconsistent verdicts with caution. If there is an apparently rational explanation for a jury’s having differentiated between various charges, that explanation should be preferred to one which suggests that the jury may have foresworn their oaths, and impermissibly compromised.

[9](1996) 190 CLR 348, 366–8.

[10]Pillay v The Queen (2014) 43 VR 327, 331 [26] (citations omitted).

In the present case, a jury giving separate consideration to each charge could readily have concluded that charges 1 to 4 and 6 to 7 were not established by the Crown to the criminal standard; but that it was otherwise in the case of charge 8. For reasons which we have explained at [24]–[34] above, proof of charges 1 to 4 and 6 to 7 essentially turned upon acceptance of B’s evidence — there being no supporting eyewitness evidence and no contemporaneous supporting material.

On the other hand, in the case of charge 8, there was evidence apart from the evidence of B. We have referred to such evidence at [42], [46], [48], [52], [54]–[55], [74], [76] and [78] above. That evidence was not confined to what P was able to say. There was other material which, although for the most part at least not going to the heart of charge 8, was open to be regarded by the jury as being highly persuasive that B’s account was both truthful and reliable.

Although it is not decisive, we should say that in our view the jury was not required to be satisfied that there had been a drug deal which had gone wrong in order to find the applicant guilty on charge 8. It was not in doubt that the applicant and B had maintained some kind of relationship over a period of months, not least in late January and early February 2012. The jury might rationally have concluded that B’s reputation as a ‘go to’ man where violent criminal conduct was required would have been well known in the circles in which he moved. Despite B’s account that he acceded to the incitement by reason of the applicant’s demand for repayment of monies, we consider that it was open to the jury to accept B’s evidence that the applicant had incited him to kill Keshtiar whether or not it was persuaded that the applicant had a ‘hold’ over B.

Ground 2
Legislation

Section 321G(1) and (2) of the Crimes Act 1958 read as follows:

321G   Incitement
(1)Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by—
(a)       the person incited;
(b)       the inciter; or
(c)       both the inciter and the person incited—
if the inciting is acted on in accordance with the inciter’s intention, the inciter is guilty of the indictable offence of incitement.
(2)For a person to be guilty under subsection (1) of incitement the person—
(a)must intend that the offence the subject of the incitement be committed; and
(b)must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place.

Charge 8 was as follows:

[The applicant] at Melbourne in Victoria between the 1^st day of January 2012 and the 14^th day of February 2012 incited [B] to pursue a course of conduct which would involve the commission of an offence by [B] namely the murder of [Keshtiar].

Applicant’s submissions

Applicant’s counsel submitted in writing that the jury may have convicted the applicant of an offence with which he was not charged — that is, incitement to incite murder. Counsel referred to Sirat v The Queen[11] as one instance of such a thing occurring. The Crown had relied upon a number of alleged incidents, the first of them at the Koo Wee Rup lookout. But some of them occurred after Kosta had become involved; and, as alleged, they in fact involved the applicant inciting B to incite Kosta to murder Keshtiar. There was at least a risk that the jury had convicted the applicant of an offence not specified on the indictment.
[11](1986) 83 Cr App R 41, 44 (‘Sirat’).

Counsel accepted that if Kosta had in fact killed Keshtiar, B would have been guilty of Keshtiar’s murder. So also, we observe, would the applicant on the assumption that B’s evidence was accepted. But, counsel submitted, s 321G(1) of the Crimes Act 1958, by its language, did not encompass ancillary liability. Rather, as reflected in charge 8, it required commission of the incited offence by the person incited. Counsel argued that s 323 of the Crimes Act 1958 — evidently he was referring to that section as it stood at the time of the conduct the subject of charge 8 — had the effect that a person counselling or procuring the commission of an indictable offence did not ‘commit’ that offence.[12] Section 323, at the relevant time, was as follows:

A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender.

[12]The substituted s 323 and the new s 324 introduced by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 only apply to offences alleged to have been committed on or after the commencement of those sections. See s 8 of Act 63/2014, relevantly the inserted s 623(3) of the Crimes Act 1958.

When asked by the Bench what was the theory of the case advanced by the prosecution, counsel referred to a passage in the prosecutor’s closing address where, having referred to the alleged incident at the Koo Wee Rup lookout, counsel had said—

and that is the commencement of the incitement to murder Ahmad Keshtiar, and that continues because there are other acts done where there is the continuation of the incitement.

Further, according to counsel, at various points in her charge the judge had accepted the prosecutor’s references to the entire course of conduct — conduct up to and including 14 February 2012.

When it was put to him that what was involved was simply a change in the way in which the incited murder was to be implemented, counsel submitted that whilst this was so, it did not meet the applicant’s argument that s 321G(1) required conduct by B which involved the commission of the incited offence by him.

Crown submissions

Counsel for the Crown submitted in writing that the jury had plainly not convicted the applicant of an incitement offence other than that charged. The basis of the Crown case had been clearly defined in counsel’s opening and closing addresses, and in the judge’s charge. There had been no exception to the charge. Further, the judge had provided the jury with an aide memoire which set out the elements, and a question trail. The jury could not have been in any doubt as to the elements of charge 8, and of the evidence which related to those elements.

Counsel further submitted that Sirat, relied upon by the applicant, was distinguishable. There, the Crown had put its case in alternative ways, some of which were not within the charge on the indictment, or were not known to law.

Counsel submitted also that it was inconceivable that any juror could have been satisfied that the applicant had incited B to incite Kosta to kill Keshtiar without being satisfied also that the applicant had incited B to kill Keshtiar. For this reason, no substantial miscarriage of justice could be demonstrated.

Orally, counsel referred also to the record of interview between police officers and the applicant. He observed that the police had only ever put to the applicant that he had incited B to murder Keshtiar. There had been no suggestion that he had incited B to incite Kosta to murder the intended victim.

Counsel submitted that what had been done at trial was to rely upon the interaction between B and Kosta as evidence of the incitement of B by the applicant. That was the whole thrust of the Crown’s case.

Analysis

When opening, in connection with charge 8, the prosecutor simply referred to the series of events beginning at the Koo Wee Rup lookout and culminating on 14 February 2012. She did not describe a juridical basis for the charge.

To be clear, however, it was not suggested that the Crown case on charge 8 was other than that the applicant incited B to kill Keshtiar.

In his opening statement for the applicant, counsel stated that his client ‘never incited [B] to kill Ahmad Keshtiar. If someone was inciting [B] to commit a murder it was not the man in the dock …’

Developing that theme, counsel stated that ‘it is really disputed in this case that there is any sort of motive based on rejection, unrequited love, unreturned love, a jilted lover type of theory here’.

Counsel further asserted that the situation created by Zahida running away ‘brought shame … to a very large extended family that you will hear about. There was a very large pool of people that this, the refusal of the arranged marriage and the running away, had an impact on.’

We need not refer again to B’s evidence, or (except as mentioned in the succeeding paragraph) to the evidence of P insofar as it implicated the applicant, or to the evidence of surrounding circumstances which a jury might have concluded bespoke the applicant as the inciter of murder. We do note, however, that much of the cross-examination of B was directed to his criminal past, his mental instability and addictions, and to whether he had had an opportunity of putting his head together with P in order to work out a consistent story. Puttage, specifically that the applicant had never incited B to murder Keshtiar, was cast in broad terms. It was not put to B that any person other than the applicant had incited him to murder Keshtiar. Neither was B asked any question as to why, of all people, he had nominated the applicant as the person who had incited the murder.

About P’s evidence, we only add, in addition to what we have said earlier, that he referred to a particular facial characteristic of the man whom he had observed meeting B. That characteristic matched up with an observation made by a police witness.

We turn next to the Jury Directions Act 2015. The judge sought the assistance of counsel to identify matters in issue. The prosecutor said that it mattered not whether there was some unknown person behind the applicant, whose bidding the applicant was doing, so long as the applicant had incited B to murder Keshtiar.

Asked by the judge what was in issue with respect to charge 8, applicant’s counsel replied — ‘Didn’t happen, your Honour. As I said in my opening, if anyone was inciting [B], that is to murder Keshtiar, it wasn’t Wahid Najibi.’

It is quite apparent from what had thus far transpired in the trial that the issue sought to be agitated for the applicant in this Court formed no part of the contest.

It is perfectly clear, also, that the prosecution never deviated from contending that charge 8 was one of incitement of B by the applicant to murder Keshtiar.

The judge provided the jury with a document setting out the elements of each offence. It was consistent with the way in which the charges were laid and with the issues identified by the parties. In the case of charge 8, it said—

In order for the accused to be guilty of incitement to commit murder, the prosecution must prove two elements:
One — the accused incited [B] to commit the offence of murder; and

Two — the accused intended the offence of murder to be committed.
One — Did the accused incite [B] to murder Ahmad Keshtiar?
‘Incitement’ may occur in a variety of ways. It may include words or conduct.
‘Murder’ is when a person, without lawful justification or excuse (such as self-defence), causes the victim’s death by acts that are conscious, voluntary and deliberate, and intends to kill or cause really serious injury.
Two — Did the accused intend [B] to commit the offence of murder?
Intention may be inferred from the actions of the accused and the circumstances in which the incitement was made.
YOU MUST BE SATISFIED OF EACH OF THESE ELEMENTS BEYOND REASONABLE DOUBT.

Moreover, the judge provided counsel with a draft of her charge, and they had the opportunity — which was taken by one or other of counsel — to address particular aspects of the draft. As in the case of the document which set out the elements of the charge, no objection, evidently, was taken by defence counsel to her Honour’s draft with respect to charge 8. The final addresses, and the charge, must be read and understood in the context thus established.

The Crown prosecutor, in her address, dealt with what she apprehended might be a submission for the applicant that someone other than the applicant had incited B to murder Keshtiar. She submitted that there was no evidence to support such a conclusion.

Further with respect to charge 8, the prosecutor referred to the Koo Wee Rup lookout events as being the ‘commencement of the incitement to murder Ahmad Keshtiar’, something that ‘continues because there are other acts done where there is the continuation of the incitement’.

The prosecutor then referred to various events of which B had given evidence, and to Kosta’s involvement. Most of what the prosecutor submitted with respect to the interaction between B and Kosta had to do with things said by B which tended to implicate the applicant as the person who had incited him to murder Keshtiar. The prosecutor said relatively little about the role which Kosta assumed, save for pointing out that on B’s account he told the applicant about it. Other than that, the prosecutor identified the minutiae which, she submitted, established the great likelihood that it was the applicant who had incited B to murder Keshtiar.

We turn to the closing address of trial counsel for the applicant. It had two particular themes. First, that nothing which B said in evidence could be accepted. Second, that if someone had incited B to murder Keshtiar, it was not the applicant, but some other affected member of the Afghani community.

Counsel discoursed at lengths upon B’s defects, and upon alternative candidates for any incitement. In the latter connection, counsel made these submissions:

As I have said on a couple of occasions, if anyone is running [B], it is not Wahid Najibi, right? You can’t even trust [B] that even there is someone in the background. If it is an Afghani, it does not have to be Wahid Najibi. There is no evidence beyond reasonable doubt that it was Wahid Najibi. It could have been someone else from the wide circle, someone else who as lost faith (sic), someone else who wants to cleanse the shame on the family and, by doing so, would put himself in pretty good stead, you might think, with the grandfather.

and:

… so there are other people, other people from that big, big group, and what if it is someone just got even nothing to do with it, got even nothing to do with the whole Afghani connection, right, but maybe has a beef with Keshtiar through his brother, the one who has been in gaol for ten years. I’m not saying his brother would try kill his own brother. I can’t throw around allegations like that, but there is a past, there is a connection with Shafi or Ahmad Keshtiar, he is connected to his brother who is a serious criminal, who has shot a number of people in the past …

and:
So Wahid is inserted into the story by [B] and [P] falls into step, police see him as an obvious suspect, most people might see him as an obvious suspect, maybe somebody who should have been doing something about it anyway if it is an Afghani who is a bit peeved.

and:
[B] met other Afghans, right? You hear that in the listening device material. He did meet other Afghanis, so Wahid Najibi is not only Afghani connection that [B] can talk about, okay. That’s important. Wahid Najibi is not isolated.

Those submissions culminated in the submission, which I have earlier noted, that:

There is no issue in this case that [B] was inciting Kosta, right? [B] is inciting Kosta. No issue at all about that. What the issue is, as you know by now, was anyone inciting [B], and if so, if so, has the Crown established beyond reasonable doubt it was Wahid Najibi? No.

I come to the judge’s charge. Her Honour said this:

I can tell you now that in relation to the principal offence of incitement to murder the prosecution has to prove two elements beyond reasonable doubt. First, the accused did the acts that amount to inciting [B] to commit [the] offence of murdering Ahmad Keshtiar, and second that the accused intended the murder of Mr Keshtiar to be committed.

and:
Whether there are facts and circumstances from which you can infer that the accused intended the murder of Ahmad Keshtiar to be committed, and what those facts and circumstances are, is a matter for you, depending on how you regard the evidence. You do not have to accept all or any of the facts and circumstances put forward by the prosecution as supporting that necessary inference. What facts and circumstances you accept for the purpose of reaching your verdicts is a matter for you.

and:
The defence has put to you that there is a reasonable possibility that some other member of the extended family incited the murder of Ahmad Keshtiar. If you find on the evidence as a whole that there is a reasonable possibility that someone other than the accused incited the murder of Ahmad Keshtiar, then you must acquit the accused. If you think there is a reasonable possibility it was somebody else, but this is because on the basis of evidence you accept, you have not been satisfied beyond reasonable doubt that the accused incited the murder as the prosecution alleges.

The judge returned to charge 8 somewhat later in her charge. She said this:

Finally, incitement to murder. The prosecution alleges that between 1 January 2012 and 14 [February] 2012 the accused incited [B] to pursue a course of conduct that would involve the commission of the offence of the murder of Ahmad Keshtiar. Obviously inciting a person to murder is a crime. In order to find the accused guilty of incitement to commit murder the prosecution must prove two elements beyond reasonable doubt. The first element that the prosecution must prove is that the accused incited [B] to commit the offence of murder. The second element is that the accused intended the offence of murder to be committed.

and:
The first element that the prosecution must prove, as I have said, is that the accused incited [B] to commit the crime of murder. A person can incite someone to do something in a variety of ways. In this case it is alleged that the accused incited [B] to commit the offence of murder by threatening him with his own death or the death of his girlfriend or by making a demand for $8,500. So it is put on those three bases.

and:
In this case the prosecution says that the accused incited [B] to murder Ahmad Keshtiar in two ways. First, by forcing [B] to choose between his own death, the death of his girlfriend or the death of Ahmad Keshtiar. Second, by offering payment in the amount of $20,000 and forgiving the purported debt of $8,500. It is for to you determine whether the accused incited [B] to commit the crime of murder. In making this determination you do not need to consider the effect of the accused’s conduct on [B], that is what I said to you earlier, as long as the accused incited [B] to find Ahmad Keshtiar and kill him using a shotgun, it does not matter whether that incitement was successful or not. So for incitement you do not need a successful incitement.

and:
The second element that the prosecution must prove is that the accused intended the offence of murder to be committed. This requires you to be satisfied beyond reasonable doubt that the accused intended [B] to intentionally kill Ahmad Keshtiar and without lawful excuse. You must also be satisfied that the accused intended or believed that [B] would kill Mr Keshtiar without lawful excuse at the time the offence was to be committed.
In this case the prosecution says that the accused’s intention for the offence of murder to be committed is to be inferred from his actions which were directed to achieving the result of murder. Those actions were intending that [B] would fear for his life or for the life of his girlfriend if the murder was not committed, the promise of forgiving the $8,500 debt, the provision of information and details of Ahmad Keshtiar and where he could be located, that is his name, photograph, the photograph of a similar car to the one that Mr Keshtiar drove, the registration number of his car, his address and Google maps of the surrounding area, the fact that he maintained contact with [B] throughout the planning phase to ensure that the murder would go ahead, so those are the things that the Crown says show the accused’s intention that the offence of murder be committed.

and:
I have already taken you through the evidence of what Mr [B] said happened at Koo Wee Rup Lookout, that is where the incitement started. The Crown case is that the incitement was an ongoing thing through until 14 [February 2012] when Mr [B] was arrested and Mr [P] was arrested and the accused was also arrested before being released.

Against that background, the judge referred to evidence which B had given about his meetings with the applicant, to P’s evidence in that connection, and to B’s interaction with Kosta.

Defence counsel took no exception to any part of the judge’s directions with respect to charge 8.

In our opinion, it is quite clear that, despite the end date of the ‘between dates’ offence charged, the prosecution case was run as one in which the applicant incited B to murder Keshtiar, and nothing else. So understood, the contact between B and Kosta, on analysis, was substantially directed to showing that B had been incited to murder Keshtiar by the applicant — the applicant being identified or identifiable by a number of things said by B to Kosta — in the period up to 9 February 2012. The case run by the defence, relevantly, was that there had been no incitement to murder by the applicant, there being alternative candidates. In that connection, applicant’s counsel laid considerable store on his cross-examination of other witnesses, including Zahida’s father and other members of her close family.

Having regard to the form of charge 8, the evidence adduced, the issues identified on enquiry under the Jury Directions Act 2015, counsel’s closing submissions, and the judge’s charge, we reject the applicant’s submissions that there was a risk that the jury convicted the applicant on a charge other than that specified by charge 8. The submission that there was such a risk stands in stark contradiction to the way in which charge 8 was addressed at trial. There is no complaint that trial counsel conducted the trial incompetently, and we see no reason to suppose that he did so.

We add this. If we had considered that there was a risk such as was contended for by the applicant, we would have agreed with the submission for the Crown noted at [111] above. We would have rejected ground 2 on the footing that no miscarriage of justice had been demonstrated.

In all the circumstances, the matter of principle raised for the applicant in this Court need not be decided. But we should say something about it.

The applicant’s argument depended, at least mainly, on the characterisation of the alleged incitement. Counsel pointed out that charge 8 alleged that the applicant incited B to commit the offence of murder, not that he incited B to incite Kosta to commit that offence.

It was submitted that, although charge 8, compatibly with s 321G(1) of the Crimes Act 1958, alleged that the applicant incited B to commit the nominated offence, the Crown case was conducted in a way which created a risk that the jury might reason that the charge would be made out by evidence that B subcontracted performance of the nominated offence to Kosta. In those circumstances, if Kosta had murdered Keshtiar, both the applicant and B would have been guilty of murder. But, absent the killing, counsel submitted, the applicant could not be guilty in those circumstances of inciting B to commit the murder.

Further, as we understood counsel’s submissions, the applicant could have been charged with inciting B to incite Kosta to murder Keshtiar. If charge 8 had been framed in that way, the applicant could have been found guilty of an offence against s 321G(1). But the charge was not so framed.

There appears to be uncertainty whether there can be an offence of incitement to incite the commission of an offence. In England, Professor Glanville Williams[13] has suggested that there is ‘no reason why not.’ But he notes authority which suggests the contrary.
[13]Text Book of Criminal Law (Stevens & Sons, 2^nd ed, 1983) [19.4].

Upon that point, there is also Sirat,[14] relied upon by the applicant in support of his principal argument. By s 5(7) of the Criminal Law Act 1977 (UK) -

Incitement and attempt to commit the offence of conspiracy (whether the conspiracy incited or attempted would be an offence at common law or under section 1 above or any other enactment) shall cease to be an offences.

[14](1986) 83 Cr App R 41.

Parker LJ, for the Court, stated that—

There is no doubt that at common law incitement to commit a crime is an offence. This being so, it follows logically that if A incites B to incite C to commit a crime … A is guilty of incitement to commit a crime, namely, incitement.[15]

[15]Ibid 43.

That proposition, his Lordship said, would be subject to the qualification that C was neither dead nor non-existent. But in any event, s 5(7) had now intervened. In consequence, if A incited B to agree with C that C would wound D, A’s incitement of B, by statute, was not an offence.

In Victoria, the common law with respect to the offence of incitement was superseded by s 321G(1) of the Crimes Act 1958, which was inserted by the Crimes (Conspiracy and Incitement) Act 1984. The section was based upon the report of the Attorney-General’s Criminal Law Working Group[16] on incitement.[17]
[16]The chairman of which was Professor P L Waller.
[17]The Group also reported on conspiracy, and somewhat later, on attempt.

Unfortunately, in the present connection the report was relevantly silent. On the other hand — (1) section 321L of the Crimes Act 1958, also inserted by the 1984 Act, abolished the offence of incitement at common law; and (2), section 321F(2), also inserted at the same time in accordance with the Working Group’s draft, was to the same effect as s 5(7) of the English Act of 1973.

It may be, in light of the provisions last-mentioned, that incitement to incite the commission of an offence is no longer an offence under Victorian law. But that is of academic interest in the present case, because, for reasons which we have attempted to explain, and by contrast with the alternative possibilities raised by the particulars of charge in Sirat, the charge as here laid, prosecuted and defended was not a charge of incitement to incite the commission of an offence.

Regardless whether the applicant might have been charged and convicted of inciting B to incite Kosta to murder Keshtiar, the central point of the applicant’s argument, as we have previously noted, was this: as charge 8 was drafted, consistently with s 321G(1), it required that B personally commit Keshtiar’s murder; and there was no such incitement once B subcontracted the killing to someone else — though both the applicant and B might have been convicted of murder had the killing taken place.

Of course, if a charge of incitement to incite murder might have been laid, the applicant’s argument would have meant, in the present case, that the entirety of the circumstances could have been reflected in two charges — (1) that the applicant incited B to murder Keshtiar in the period between late January and 8 February 2012, and (2), that the applicant incited B to incite Kosta to murder Keshtiar in the period 9 to 14 February 2012. What the consequences of proof of those charges would be for purposes of sentence need not be explored. It is at least clear that the situation just described illustrates the highly artificial nature of the applicant’s submissions.

We return to the applicant’s central argument. As presently advised, we doubt that s 321G(1) should be read as narrowly as applicant’s counsel contended.

The meaning of the provision is to be found in its text.[18] Neither counsel cited authority for or against the meaning propounded by the applicant.[19] Our own researches have revealed that whilst the subsection has been considered by this Court on a number of occasions,[20] in none of them did the argument advanced in this case arise. The argument appears to be novel.
[18]In R v Massie [1999] 1 VR 542 [14], Brooking JA was evidently unpersuaded that the text of s 321G was clear — contrary to the description given it by the Minister in his Second Reading speech.
[19]Sirat (1986) 83 Cr App R 41, relied upon by the applicant, was not in point.
[20]R v Massie [1999] 1 VR 542, R v Sahin (2000) 115 A Crim R 413, R v Zhan Yu Zhong (2003) 139 A Crim R 220.

The subsection can be broken down, so far as is relevant to the applicant’s argument, into a progression as follows: (1) incitement of B by A; (2) incitement that B pursue a course of conduct; (3) incitement that the course of conduct involve the commission of an offence by B; (4) action by B in accordance with A’s intention. Charge 8 set out each step in that progression, save the last. The offence was specified as Keshtiar’s murder.

The applicant’s argument focused upon what is comprehended by the notion of the commission of the offence of murder by B. According to the argument, that form of words excluded commission of the offence by way of counselling or procuring commission of the offence. That was because the word ‘commission’ must be taken to be confined to primary liability — and counselling or procuring the commission of an offence was, so the argument ran, a derivative liability at the time.

Reading the subsection as a whole, reflected in charge 8, as presently advised, we do not consider that the reading advanced by the applicant is the correct one. It seems to us to place undue weight on the words ‘commission’ and ‘by the person incited’. The subsection refers to incitement to ‘pursue a course of conduct’, which course of conduct ‘will involve the commission of an offence’ by the person incited; and action upon the incitement ‘in accordance with the inciter’s intention’. Those phrases seem to us apt to embrace incitement and action in which the role of the person incited is more broadly comprehended than the applicant would have it.

We should add three things. First, the language ‘to pursue a course of conduct which will involve the commission of an offence’ is the same in the case of s 321(1) with respect to conspiracy and in the case of s 321G(1). The two provisions were inserted by the same Act. That language differs from the language recommended in each instance by the Criminal Law Working Group,[21] but in its report on attempt, the Group described the briefer wording as ‘most beneficial’. In any event, neither counsel referred to this coincidence of language, and we will not speculate what might have been said.
[21]Viz: ‘…will necessarily amount to or involve the commission of an offence’.

Second, depending upon whether incitement to incite the commission of an offence still constitutes an offence, it appears to us that the meaning propounded by applicant’s counsel could cause considerable mischief from the standpoint of an accused in particular circumstances.

Third, for sake of completeness, and absent argument on the point, we remark that the argument mounted in the present case might well now be unavailable in light of ss 323 and 324 of the Crimes Act 1958 as respectively substituted and inserted in 2014.[22]
[22]By Act 63/2014.

Ground 4
Circumstances

Thirteen jurors were empanelled to try the case. One of them was to be balloted out before the jury commenced its deliberations.

On 26 March 2015, the trial being well advanced, a question arose as to whether a juror — described in the transcript as ‘juror 296’ — had become incapable of continuing to act as a juror. A note was provided on behalf of the jurors other than juror 296 (‘the jurors’ note’). Juror 296 also provided a note (‘the 296 note’). The judge asked juror 296 a number of questions in open court. Neither counsel submitted that any other member of the jury should be asked questions about the matter. Her Honour came to the conclusion that the juror was incapable of continuing to act as a juror, and she discharged him. Neither the prosecutor nor applicant’s counsel submitted that, if juror 296 was discharged, the entire jury should be discharged. On the other hand, counsel for the applicant had argued against the discharge of the one juror.

The sequence of events is revealed by the following passages in the transcript.

HER HONOUR: I’ve been told that there is a difficulty with one of the jurors and one of the jurors’ mental health. At the moment it appears that they are preparing a note for the court about this particular juror. I’m not sure whether the juror, himself, is a signatory to the note, but it is to do with a serious mental health issue and I propose to ask him to come alone into the jury box and I would just like to ask him some questions about his health, his capacity to cope and so forth, and I will ask you whether there is anything further he should be asked after I have asked him two or three questions, depending on his answers. I will not send him back into the jury room; I will send him to the — I think probably the best place is the ante‑chamber there.
[PROSECUTOR]: Yes, because he can’t go through those doors because there is a suppression order on the front of those doors.
HER HONOUR: I will ask Mr O’Hanlon to take him out into the antechamber there while I give consideration to whether or not he should be discharged.

and:
HER HONOUR: I am going to stand down and wait for this note to come. I am then going to have a look at it, discuss it with you. As I have said, I suspect the way forward is going to be as I foreshadowed unless you have got ‑ ‑ ‑
[DEFENCE COUNSEL]: I don’t think I will be asking to keep him on the jury. It is will be a question of what that means about the balance.
HER HONOUR: You don’t think you will, or you will?
[DEFENCE COUNSEL]: No. If there a juror — well, we will see what the note says.
HER HONOUR: My concern is that I think this obviously needs to be done very carefully and very properly. I don’t want the jury to effectively select the person who is balloted off. That’s my concern. I need to be satisfied, if I am going to discharge a juror, that there are circumstances as described under s 43 of the Juries Act that enable me to do that.

and:
HER HONOUR: Have you both had an opportunity to read the note?
[DEFENCE COUNSEL]: Yes, Your Honour, but we are just in the very moments of digesting it so, yes. We have both read it through for a couple of minutes.
HER HONOUR: I don’t think there is any doubt that this juror should be discharged and it might be just as well to do that sooner rather than later.
[PROSECUTOR]: We need to discharge him sooner, but then I have to go and take some instructions on the balance of the jury is what I understand Your Honour is allowing an opportunity for?
HER HONOUR: Yes. I propose to get him in and tell him I have read the letter and is there anything that he wants to add to it or say about it.
[PROSECUTOR]: Perhaps if when Your Honour’s associate does that, he brings all his belongings with him, plus his notes to be put into the custody of the associate.
HER HONOUR: Yes. Would you go and get the juror, please, with all his belongings and his notes. He can just sit in the box.
(At this stage Juror 296 entered the court.)

HER HONOUR: If you wouldn’t mind coming down to the front. Take a seat there. I will not be long. Thank you for your note and thank you for being so frank about your circumstances. I understand from your note that you feel that your judgment may be clouded; is that right?
JUROR: That’s correct.
HER HONOUR: And that I conclude from that that you are not coping particularly well?
JUROR: I would still like to continue, perhaps — I know I am not doing the court any favours clashing with the other jurors, it does not cause me any — I enjoy the cut and thrust at the very least, and am I just seeing the whole thing as, nah, well, I am not really happy with the thinking, and when I look at the facts as presented, why, I think why it is at the court in the first place, so I question that. It is not my right to question that, and I am not legally qualified.
HER HONOUR: Okay. Don’t say any more.
JUROR: Yes.
HER HONOUR: You have a history of being unwell psychologically, bipolar disorder?
JUROR: Correct.
HER HONOUR: And you feel at the moment that your judgment might be clouded?
JUROR: Correct.
HER HONOUR: Thank you again for being so open and frank about this. On that basis, I will be discharging you as a juror from now.

and:
HER HONOUR: Yes. I am satisfied that you have become incapable of continuing as a juror, so thank you. Mr O’Hanlon will take you back to the jury pool room. Have we told the Juries Commissioner about this?
[DEFENCE COUNSEL]: Your Honour, I know Your Honour’s made — I have heard what Your Honour has just said. I would ask for a few minutes, and perhaps before the jury (sic) is finally discharged, to make a submission to Your Honour. It is a very difficult situation, I know, but reading the note carefully and considering matters, I just am not comfortable with the way the process has happened so far. I mean no disrespect at all to Your Honour, but I need to raise it now because I do have a concern with the two notes and with what is in this juror’s note. I apologise for impertinence or whatever but this is the time I need to raise this if I have a concern.
HER HONOUR: I will hear from you.

and:
[DEFENCE COUNSEL]: Your Honour, I just closely have read the two matters, the two letters, and I am concerned by some of the things in there and my submission is it doesn’t necessarily — we are not at the point where Your Honour should discharge him, at least perhaps without more consideration and perhaps further submissions on it. For example, the note from the balance of the jury of 26 March 2015 states — we all have it. Should I read it onto the transcript? “One [of] the jurors has asserted that he does not wish to continue as a juror in this case. He has indicated that he has a history of mental health issues and that the trial is causing him excessive stress. He wishes to excuse himself from the rest of the case. He has indicated quite strongly that, ‘It is all bullshit’. He has suggested that there is a conspiracy involved, in fact, multiple conspiracies. We have observed that he has become increasingly voluble and has been involved in a number of discussions where the conclusions he has drawn were quite different to those of the rest of the jury. While regrettable, the rest of the jury is not qualified to rule on this matter. Please advise.”
The note from Juror No 296 is different in some significant ways, Your Honour, and it may just be there are some differences of opinion in the jury, and that’s what deliberations is all about. “I feel that my judgment in the case of Wahid Najibi v The DPP is perhaps being” — I will add the emphasis – “perhaps been clouded and I may not be fit to continue as a juror. I have been diagnose with the bipolar which has been managed successfully for number of years. I have over 30 years’ continuous employment in the public service and hold degree and post‑graduate in taxation and accounting (so I have a relatively high level of intelligence and awareness). However, I feel my judgment is being clouded due to possible imaginations regarding the whole case. Having said this, I am happy to continue but I do not wish to cause undue stress, cost, inconvenience to the Supreme Court of Victoria. I am in your hand, Your Honour.”

and:
HER HONOUR: I think it is more than a disagreement. I think there are references to “conspiracy theories” in one letter and “imaginings” or “imaginations” in another letter, and there is a clear reference to “clouded judgment” and the possibility that he is not fit to continue as a juror. “I feel that my judgment is being clouded due to possible imaginations regarding the whole case.”
[DEFENCE COUNSEL]: And he has underline (sic) the word “possible”.
HER HONOUR: Yes. That might [be a] symptom of his disability or his illness.
[DEFENCE COUNSEL]: He has got bipolar, which is being treated. He is not psychotic. He is not decompensating into madness. The jurors have not — the concerns raised by the other jurors have not gone beyond he’s become voluble. This man has been take notes. He has been concentrating very hard, as they all have. I didn’t want to ask any questions and, of course, I am — and everybody is concerned about making inquiries as to jury deliberations and so on and not - - -
HER HONOUR: Yes, you can’t go there.
[DEFENCE COUNSEL]: Yes. But if there is a juror saying this is it all — to quote the letter – “bullshit” - - -
HER HONOUR: That’s not in itself an irrational response necessarily, but to receive a letter from a juror saying, “I feel that my judgment in the case is perhaps being clouded”, and then giving me a background of bipolar disorder, and then saying again, “I feel that my judgment is being clouded”, even though he refers to “possible imaginations”. I am satisfied that he is incapable of continuing to act as a juror and he ought to be discharged on that basis, and I propose do that.

Applicant’s submissions

Having referred to the sequence of events, counsel for the applicant submitted in writing that the judge’s act in discharging the juror constituted a fundamental irregularity in the trial. From the time when the juror was discharged — wrongly — there was a fundamental defect in the constitution of the jury.[23] The failure of defence counsel to seek a discharge of the entire jury was not in point. There was no suggestion that the rest of the jury had been infected by the process leading up to juror 296’s discharge. In any event, counsel could not waive a fundamental irregularity in a criminal trial.
[23]See the observations of Redlich JA in R v Chung & Rechichi (2010) 25 VR 221, 224 [12] (‘Chung & Rechichi’).

[47]Ibid [49]–[50] (citations omitted).

As we apprehend it, Vincent JA was there saying that the Boland test was applicable when considering, under s 43, whether the whole jury should be discharged; and that, for the purposes of s 44, the same test should be applied — assuming that that the jury numbers had not decreased below the minimum number permissible.

His Honour’s analysis seems to have assumed that the power to discharge the whole jury was now to be found, not in the common law, but in s 43 of the Act. But whether that assumption had been the subject of submissions is unclear. Its correctness or otherwise is a matter to which we will return.

We next refer to R v Goodall.[48] A juror showed signs of distress during the prosecutor’s final address in a sexual offence case. The juror had himself been a victim of abuse. The juror stated that he felt able to continue. Defence counsel applied for the discharge of the whole jury, on the basis that the distressed juror was not impartial and may have tainted the rest of the jury. Counsel alternatively applied for the distressed juror to be discharged. The judge took the latter course. He stated that he believed that there was ‘good reason to do so’. His Honour was thereafter assured by the jury foreman that the remaining jurors were able to return a true verdict according to the evidence. The trial then proceeded with 11 jurors. The accused man was convicted and sought leave to appeal on the ground that the judge had erred by not discharging the whole jury.
[48](2007) 15 VR 673 (‘Goodall’).

The question on the application for leave to appeal was whether, assuming that the single juror had rightly been discharged on the ground of apprehended bias, the entire jury should have been discharged because of a reasonable apprehension that its members may have been infected or tainted in discussions with the discharged juror.

Redlich JA, who delivered the main judgment, said this under the heading ‘General Principles’:

A trial judge’s discretionary power to discharge the juror and proceed with 11 jury members derives from s 43 of the Juries Act 2000. The test which should inform the exercise of the discretion was stated in R v Boland:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident “a high degree of need for such discharge”, that high degree being “such as in the wider sense of the word might be denoted by necessity”. [Footnotes omitted.]

A reasonable apprehension that a juror is biased is one of the circumstances that constitutes a high degree of need. In Webb v R Mason CJ and McHugh J said:
[T]he test to be applied in this country 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.

Generally, an appellate court will be slow to interfere with the discretionary decision of the trial judge with respect to the discharge of the jury. In Webb Mason CJ and McHugh J said:
[T]he decision of the judge is a discretionary judgment in the sense that it involves a value judgment. Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for the trial judge’s opinion. The law reports contain many cases where the decision of the trial judge to continue a trial has been upheld, notwithstanding irregular incidents. [Footnotes omitted.]

The test set down in Webb invites consideration of the effect of any direction or warning given to the jury by the trial judge in respect of the irregular matter, on the basis that a fair-minded observer would also consider the effect of the judge’s warning in assessing whether the jury could discharge their duty impartially. [49]

[49]Ibid 677 [17]–[20] (citations omitted).

His Honour observed that the judge’s decision to discharge the individual juror was justified by resort to para (b) or (d) of s 43. The judge had not made a finding that the juror was ‘not impartial’ – vide para (a). Further, in the opinion of Redlich JA this was plainly not a case of actual bias, and the apprehended bias test could not have been made out. But even if that was not so, there had been no risk of contamination of the rest of the jurors.

In Goodall, the only question was whether the judge ought to have discharged the entire jury. Determination of that question involved the exercise of a judicial discretion. The ‘high degree of need’ test was apposite. Even so, what is not clear, with respect, is what Redlich JA meant when he referred to the ‘discretionary power to discharge [a] juror and proceed with 11 jury members’ being informed by Boland. If his Honour meant only that the question whether one or the other course ought be taken involved the Boland approach, it would be one thing. But if his Honour meant that an individual juror should not be discharged without there being a high degree of need, it would be quite something else.

Next, we must refer to R v Cavkic (No 2).[50] There, on the trial of three men accused of murder, the trial judge, after consultation with counsel, discharged one of the jurors after the jury had retired to consider its verdict. The men, having been convicted, sought leave to appeal against conviction and sentence. Their presently relevant argument was that s 43 used the phrase ‘during a trial’; and that the trial comes to an end once the jury retires. Hence, s 43 could not apply, and the judge could not discharge one juror without discharging the whole jury.
[50](2009) 28 VR 341.

This Court[51] concluded that a trial continues until at least the jury is discharged, which will ordinarily not occur until it has delivered a verdict. It also made this observation:

Of course, when one comes to the exercise of the discretion for which s 43 provides, there may well be cases where the circumstances necessitate the discharge of the whole of the jury. Much may depend on the stage of the trial in which the discretion was invoked. But there is no complaint made here about the exercise of the judge’s discretion, and given the circumstances which led to the discharge of only one juror under s 43, it is readily understandable that trial counsel were agreed that it was the appropriate course to adopt. [52]

[51]Vincent and Nettle JJA and Vickery AJA

[52]Ibid 371–2 [118].

It may be that the Court was there opining that s 43 embraces the question whether, in the exercise of a discretion, the whole jury rather a single juror should be discharged. But that is not altogether clear. It may be that the Court was saying no more than that, if a single juror is to be discharged under that section, a separate discretion must be exercised, outside the confines of the section, whether to discharge the whole jury.

We should next refer to R v Arnott.[53] There, the accused man was convicted of the shooting murder of a security guard. During the trial, the judge discharged a juror on medical grounds. She did so over the objection of defence counsel. Her Honour refused to discharge the entire jury, defence counsel having submitted that there was a high degree of need that she do so. The judge gave, we add, a s 44 direction (described as an order) that the trial continue.
[53](2009) 26 VR 490.

Having been convicted, the accused sought leave to appeal on a number of grounds. One of them was that:

(3) The learned trial judge erred in the exercise of his discretion pursuant to section 43 and 44 of the Juries Act 2000 to discharge a juror and to allow the trial to continue with less than 12 jurors.[54]

[54]Ibid 492.

In this Court, the matter was approached by the applicant on the footing that both ss 43 and 44 are ‘discretionary provisions’. It was accepted that s 44 involves consideration of the ‘high degree of need’ test.

In giving the main judgment,[55] Ashley JA assumed — consistently with the applicant’s approach — that each of ss 43 and 44 involved an exercise of discretion. He concluded that no House v The King error had been demonstrated in respect of the exercise of either discretion. He observed, with respect to s 43, that:

As to the exercise of power under s 43, and in response to some of the matters raised by counsel, I make these observations:
…
(5) … the s 43 inquiry is concerned, in the first place, with whether it is demonstrated to the judge’s satisfaction that, for one of the reasons set out in paragraphs (a) to (d), a juror is incapacitated from continuing to serve. [56]

[55]With which Nettle and Redlich JJA agreed.

[56]Ibid 523–4 [133].

Although Ashley JA did not specifically say so, it is apparent that his Honour treated the assumed discretion under s 43 as becoming applicable once satisfaction was reached that circumstances fitting one of paras (a) to (d) of s 43 were present.

Then comes R v Chung & Rechichi.[57] Long into a trial, and whilst the jury was deliberating, two jurors became separated from the others. One had a coughing fit, and was given a lozenge by a relative of one of the two accused men. The judge ruled, on application by the prosecutor, opposed by defence counsel, that the two jurors should be discharged and that the trial should continue with the remaining 10 jurors. The judge gave some indication to the remaining jurors as to why he had discharged the others.
[57](2010) 25 VR 221.

The accused men, having been convicted, sought leave to appeal on the ground that the two jurors ought not to have been discharged. Leave to appeal was granted and the appeal was allowed, but not on the basis of there being any error in the judge’s discretion to discharge the jurors. Rather, it was because of the prejudicial nature of what his Honour had thereafter said to the remaining jurors.

The issue which the trial judge had to consider was identified by Redlich JA, who gave the main judgment, as being whether the events which had transpired gave rise to the possibility of an apprehension of bias.[58]
[58]Ibid 225 [15].

His Honour noted that the judge had applied the test — pertinent to apprehension of bias cases — stated in Webb v R[59], and he referred to the judge’s conclusion that there was ‘a high degree of necessity’ to discharge the two jurors.[60]
[59](1994) 181 CLR 41, 53 (Mason CJ and McHugh J).
[60](2010) 25 VR 221, 225 [17].

Under the heading, ‘Did the discretion of the trial judge miscarry?’, Redlich JA said this:

To succeed on this ground it is necessary for the applicants to demonstrate that the trial judge erred in exercise of the power to discharge a juror, as provided by s 43 of the Juries Act 2000. The power involves the exercise of a discretion which attracts the principles which govern appellate review of discretionary decisions discussed in House v R. As was observed by Mason CJ and McHugh J in Webb:
[T]he decision of the judge is a discretionary judgment in the sense that it involves a value judgment. Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for the trial judge’s opinion. The law reports contain many cases where the decision of the trial judge to continue a trial has been upheld, notwithstanding irregular incidents.

On the appeal counsel thus sought to attack the ruling of the trial judge on two bases. First, it was submitted that his Honour’s decision was one that no reasonable judge could have made, such that his Honour’s discretion miscarried. Further it was said that the trial judge made a number of material errors of law as he took into account irrelevant considerations and failed to take relevant considerations into account. Each of these submissions should be rejected.
The question falls to be considered in light of authority which sets out the basis upon which a trial judge might exercise the discretion under the Juries Act to discharge a jury or juror (the test for both being the same). Section 43 of the Juries Act 2000 provides that a judge may discharge a juror without discharging the whole jury if:
(a) it appears to the judge that the juror is not impartial; or
(b) the juror becomes incapable of continuing to act as a juror; or
(c) the juror becomes ill; or
(d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror.

Despite the broad terms of s 43, the power to discharge a juror has been narrowly construed. As was recognised in R v Boland:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident “a high degree of need for such discharge”, that high degree being “such as in the wider sense of the word might be denoted by necessity”.

The discretion may only be exercised where it is found that there is a ‘high degree of need’ to do so. In the present case, it is the reasonable apprehension that a juror is biased which is the circumstance that is said to constitute the requisite high degree of need. Notwithstanding its confines an appellate court will be slow to interfere with a discretionary decision of the trial judge to discharge jurors.
In support of its submission that the trial judge’s discretion miscarried, the applicants sought to draw an analogy with the decision of the High Court in Webb. It was submitted that the conduct of the juror in Webb was more serious than that in the present case, and yet the High Court concluded that a fair-minded observer would not have had an apprehension of a lack of impartiality on the part of that juror. So it was said that the trial judge must have been wrong in the present case.
This submission fails to give due regard to the fact that the power to discharge a juror is discretionary in the sense that it involves a value judgment. [61]

[61]Ibid 226–7 [19]–[25] (citations omitted).

His Honour’s observation that the basis upon which the trial judge ‘might exercise the discretion under the Juries Act to discharge a jury or juror (the test for both being the same)’[62] is, with respect, not easy to understand. His Honour’s reference thereafter to Boland, a case concerned with whether a jury should be discharged, and his statement that, ‘The discretion may only be exercised where it is found that there is a “high degree of need” to do so’,[63] taken together, seem to mean that the ‘high degree of need’ test somewhere fits within s 43 in the decision whether a single juror should be discharged. What is also clear is that Redlich JA treated s 43 as involving the exercise of a discretion.
[62]Ibid 227 [21].
[63]Ibid 227 [23].

Authorities including Winsor, Boland and Chung & Rechichi were considered by this Court in Zhu v R.[64] A man convicted of murder sought leave to appeal against his conviction on three grounds. One of them was that the trial judge erred by—

failing to discharge the juror who had seen, spoken with and congratulated the prosecution witness Andy Tsai at poker tournaments. [65]

[64](2013) 38 VR 77.

[65]Ibid 78–9 [1].

At trial, defence counsel had unsuccessfully sought the discharge of the jury, apparently on the footing that there was a risk that it had become tainted because one juror had had some conduct with an important prosecution witness. Defence counsel had not sought the discharge of the single juror. So the particular ground of appeal alleged an error by the trial judge referable to an application not made at trial. On the other hand, the trial judge did state that there was ‘no need’ to discharge the particular juror at the stage of the trial when the issue arose, and that the juror was not incapable of assessing the witness’s evidence in a dispassionate way.

In argument in this Court in that case, it was submitted for the applicant that ‘a reasonable apprehension of bias arose which gave rise to the requisite high degree of need required to discharge at least that juror’.[66]
[66]Ibid 80 [55].

In rejecting that ground, Redlich JA and Kaye AJA stated that, ‘A trial judge’s discretionary power to discharge a single juror and proceed with 11 jury members derives from s 43 of the Juries Act 2000’,[67] and that the exercise of the power under s 43 was ‘the exercise of a discretionary power which attracts the principles which govern appellate review of discretionary decisions discussed in House v The King’[68].
[67]Ibid 80 [57].
[68]Ibid 80 [58].

Then their Honours said this:

Although the power to discharge a juror involves a value judgment the broad power under s 43 to discharge a juror has been narrowly construed. The test governing the judge’s exercise of the discretion to discharge a juror was stated in R v Boland:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident “a high degree of need for such discharge”, that high degree being “such as in the wider sense of the word might be denoted by necessity”.[69]

[69]Ibid 80–81 [59] (citations omitted).

Their Honours observed that:

A reasonable apprehension of bias in respect of a juror is one of the circumstances that constitutes a high degree of need for the discharge.[70]

[70]Ibid 81 [60].

Their Honours ultimately framed the question to be decided, and their conclusion, this way:

The question which arises under this ground is whether it was open to her Honour to conclude that a fair minded lay observer with knowledge of the material facts would not have entertained a reasonable apprehension that the juror would not bring an impartial and unprejudiced mind to the determination of the verdict.
In our view, it was open to her Honour to exercise her discretion not to discharge the individual juror or the jury.[71]

and:
Given the juror’s limited contact with the witness and the juror’s demonstrated propriety, it was open to her Honour to conclude that a lay observer in these circumstances would not entertain a reasonable apprehension that the juror would discharge his duty improperly. There was no high degree of need for the discharge of either the juror or the jury. [72]

[71]Ibid 82 [64]–[65] (citations omitted).

[72]Ibid 82 [66].

There is no doubt that, in the passage cited at [236] above, their Honours equated a judge’s discretion to discharge a juror with the discretionary power to discharge a jury as affirmed in Boland. But just how that was reconcilable with s 43, with respect, was not developed.

The various authorities to which we have referred, are not, in our view, readily reconcilable. So far as we can see, there has been no close examination of the text of s 43; and statutory construction begins and ends with the text.[73]
[73]Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503, 519 [39].

We turn to consider that section. It states that a judge may ‘discharge a juror without discharging the whole jury if’ any one of four circumstances — the last being residual and imprecise — are established. Each of those circumstances requires a finding of fact, although circumstances (a) and (d) are framed in the language of ‘it appear[ing] to the judge’.

Unless the judge finds that some circumstance fitting within paras (a) to (d) is present, there is simply no occasion to discharge a juror under s 43.

It can next be said, in our opinion, that whether a circumstance fitting of any paras (a) to (d) is present in a particular case involves a value judgment, one in respect of which reasonable minds might differ; and which, for that reason would attract the application of House v The King principles in the event of any appeal. Further, because what is in prospect is the discharge of at least one juror, a judge should require considerable persuasion before concluding that any such circumstance is present. It is also a reason, we think, why para (d) should be narrowly construed, and why circumstances alleged to fit within that paragraph should be rigorously examined before a judge is satisfied that the circumstances relied upon do fall within the paragraph.

Assume, then, that a judge is persuaded that a circumstance fitting one of paras (a) to (d) is present. Is a ‘high degree of need’ test to be imported into the judge’s consideration whether to discharge the juror at that point; and, if so, how?

If it be assumed that a ‘high degree of need’ is pertinent to the question whether an individual juror should be discharged, it seems to us that each of the circumstances fitting paras (a) to (d) of s 43, once established, is very likely to import a high degree of need that at least the juror be discharged. Thus, a conclusion that a juror, as it appears to the judge, is not impartial would seem pre-eminently to be a circumstance carrying with it a high degree of need to discharge at least that juror. Reasonable apprehension of bias has been consistently so regarded.

So also, a conclusion that a juror has become ‘incapable of continuing to act as a juror’ (para (b)) or that it appears to the judge that a juror ‘should not continue to act as a juror’ (para (d)) in all likelihood, as it seems to us, import a high degree of need to discharge at least that juror. The same situation should be understood to apply in the case of para (c). Sensibly read, ‘illness’ must be understood to be something more than transient unwellness which could be mitigated by a short delay in the conduct of the trial.

Thus, as it seems to us, by finding the presence of a circumstance fitting one of paras (a) to (d), the judge would thereby be at least very likely to find - assuming that it was necessary to do so - that there was a high degree of need to discharge the juror.

However, while the language of a ‘high degree of need’ may therefore be a useful shorthand description of the circumstances which are addressed by paragraphs (a)-(d) of s 43, the expression should not be used as a substitute for the statutory language, or as an overriding limitation on the operation of the section.[74] We do not read any of the authorities referred to above as suggesting the contrary.
[74]R v Ousley (1996) 87 A Crim R 326 (Hayne JA, Southwell and Smith AJJA).

What is the function, then, of the the words ‘A judge may … discharge a juror without discharging the whole jury.. .’? As we see it, there are two possibilities.

The first possibility begins with the proposition that s 43 is concerned with a single question: should an individual juror be discharged? So understood, the section has nothing to do with discharge of a jury. If that be the situation, then the answer to the question whether the apparent discretion should be exercised will lie in the finding that a circumstance fitting one of paras (a) to (d) is present. That is because the quality of the disability revealed by the presence of such a circumstance will make it inconceivable in practice that the juror should not be discharged. This is equivalent to saying that ‘may’ where appearing in the opening part of s 43, means ‘must’ – so that that there is no discretion at all.[75]
[75]See, eg, Leach v The Queen (2007) 230 CLR 1, 17–18 [38] (Gumow, Hayne, Heydon and Crennan JJ), citing Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134–5, Mitchell v The Queen (1996) 184 CLR 333, Ward v Williams (1955) 92 CLR 496, 505–6 and Julius v Bishop of Oxford (1880) 5 App Cas 214.

The second possibility is that the discretion is concerned with the question whether, a circumstance fitting to one of paragraphs (a) – (d) having been found to exist, the single juror, or rather the whole jury, should be discharged.

The second possibility recognises that the exercise of the power in s 43 to discharge a single juror is inevitably accompanied by a decision under s 44 whether, in effect, to discharge the whole jury. There is no doubt that the latter question attracts the judge’s discretion, and that, upon that question, the ‘high degree of need’ test will apply. However, the test is whether there is a high degree of need to discharge the jury, not whether there is a high degree of need to continue with less than 12 jurors. It may be that the discharge of a juror gives rise to a high degree of need to disharge the whole jury.[76]
[76]Wu v The Queen (1999) 199 CLR 99, 108 [28]–[29] (McHugh J).

In our opinion, the first possibility is the correct construction of s 43. The words ‘without discharging the whole jury’ do not set up a discretionary choice whether to discharge the single juror or the whole jury, but are explanatory of the judge’s power to discharge a single juror.

As we have ealier noted, at common law there was no power to discharge a single juror without discharging the whole jury. Then, from 1876 onwards in Victoria, there was implicit statutory power to do so in particular circumstances. The power to continue the trial in such circumstances was affirmed, subject of course to the judge being satisfied that there was no high degree of need to discharge the whole jury.

It is entirely consistent with the break-up of s 44 in its pre-2000 form into the present s 43 and 44 that s 43 should be concerned solely with circumstances – now explicitly described – in which a judge should discharge an individual juror, the balance of the old s 44 now being contained in the new s 44.

We should make two further observations.

First, it is not necessary to find a judge’s power to discharge a jury in the words ‘without discharging the whole jury’ in s 43. Sections 43 and 44 do not, in combination, constitute a code. They address only the circumstances in which, a determination being made that a single juror must be discharged, the question is whether the trial should nonetheless continue. There can be many circumstances in which the only question will be – should the whole jury be discharged – and in which no question will arise of discharging a single juror. R v Halliday[77] is an instance of such a case. In such circumstances, the traditional common law test will apply - just as it will do, in a practical sense, in a s 44 determination.
[77](2009) 23 VR 419.

Second, and pointing up the confined scope of s 43, whilst that section exhausts the possible circumstances in which a single juror may be discharged, it does not exhaust the possible circumstances in which s 44 will fall for consideration. That section will be in point if a juror dies.

Our analysis of ss 43 and 44 is consistent with the reasoning in Wu v The Queen.[78] The only discretion that arises, when the conditions in s 43 as construed above are found to be satisfied, is the discretion under s 44. Wu was concerned with s 22 of the Jury Act 1977 (NSW) — a section akin to s 44 in its pre-2000 form. It was there said by Gleeson CJ and Hayne J that a decision to discharge a juror and decision to proceed with a jury of less than 12 ‘are distinct steps and often will be affected by different considerations’;[79] while McHugh J stated:

although two stages are involved in the making of a s 22 order, the first stage cannot always be separated from the second stage. Before the judge discharges a juror for illness or ‘any other reason’, the judge will usually need to consider whether exercising the power of discharge[80] has implications for the continuation of the trial with the remaining jurors.

[78](1999) 199 CLR 99.

[79]Ibid 103 [6].

[80]Ibid 108 [30].

Gleeson CJ and Hayne J said:

If satisfied that the incident gives rise to a reasonable apprehension or suspicion, the judge would, it seems to us, be bound to discharge those of whom the apprehension or suspicion would be held (whether that is a single juror or the whole jury). No discretion would fall to be exercised in such a case. By contrast, however, questions of discretion might be said to arise when a judge must decide between interrupting the course of a trial (for example, to allow a juror to recover from temporary illness) and discharging the juror concerned and proceeding with the trial without interruption.
Questions of this kind were touched on in the course of argument of the present appeal but were not explored fully. We do not think it necessary to decide in this case whether a judge ordering the discharge of a juror (or jury) is exercising a discretion. If the trial judge was exercising a discretion in this case, no error in that exercise is demonstrated. If the trial judge was exercising a power the exercise of which depended upon certain facts or findings, the conditions for the exercise of the power existed in this case. [81]

[81]Ibid 103-4 [9]-[10].

So, it might be said, s 44 in its pre-2000 form, by analogy, involved two overlapping questions; and ss 43 and 44 do nothing new.

We turn to the circumstances of the present matter. There was no analysis by counsel at trial of the way in which s 43 operates. No submissions were made about the relevance or otherwise of the ‘high degree of need’ test. No application was made for the discharge of the entire jury.

The judge expressed the issue this way:

I need to be satisfied, if I am going to discharge a juror, that there are circumstances as described under s 43 of the Juries Act that enable me to do that.

Her Honour concluded, as we have earlier noted, having read the notes and after hearing from the juror, that juror 296 was incapable of continuing to act as a juror and ought be discharged.

Her Honour did not refer to the language of the opening part of s 43. But having found that the juror’s circumstances fitted within para (b) of that section, even if a high degree of need had anything to say upon the question whether the juror ought to be discharged, for reasons stated above such a need was established — that is by the incapability finding. No application to discharge the jury was made by either party, and it is not complained on this application for leave to appeal that the judge erred by not discharging the jury.

This ground of appeal therefore turns on whether the judge’s (implicit) finding of incapability was not open. In that regard, we reject the submissions for the applicant. The judge was evidently influenced in her conclusion by the statement of juror 296 that, ‘I feel that my judgment is being clouded due to possible imaginations regarding the whole case.’

The juror, as revealed to the judge, had a history of mental illness. Albeit that the juror stated that it had been successfully managed for a number of years, the juror’s reference to feeling that his judgment was being clouded due to possible imaginations, together with the jurors’ note which stated that juror 296 ‘has suggested that there is a conspiracy involved in fact multiple conspiracies’, were open to be understood by the judge as suggesting that juror 296 no longer had the capability of continuing to act as a juror. The submission for the applicant in this Court that the juror might rationally have considered that the evidence did reveal multiple conspiracies — presumably, involving members of the Afghan community wishing Keshtiar’s death — was not persuasive when put into the context of the entirety of the material before the judge.

Her Honour made a value judgment that circumstances falling within para (b) of s 43 were established. The fact that another judge might not have been so satisfied is not to the point.

Conclusion

We would refuse the applicant leave to appeal on grounds 1 and 3. We would grant him leave to appeal on grounds 2 and 4, but would dismiss the appeal.

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[2016] VSCA 177

28 July 2016