Napier v State of Western Australia

[2008] HCATrans 157

[2008] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P49 of 2007

B e t w e e n -

WAYNE ROBERT NAPIER

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 APRIL 2008, AT 12.04 PM

Copyright in the High Court of Australia

MS L.B. BLACK:   May it please the Court, I appear for the applicant.  (instructed by Andrew Maughan & Associates)

MR D. DEMPSTER:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J:   Yes.  Thank you, Ms Black.

MS BLACK:   This case is about the consequences of an officer of the court conveying inadmissible information to jurors that is highly prejudicial.  That is the very specific factual context of this case but the broader principle that we invite this Court to give consideration to stems from the very nature of a trial before a jury.  The nature of that trial is unique in the sense that the ultimate maker of a decision that affects the interests of the accused the decision will be known but the reasons for that decision can and never will be known to anyone.

It is for that reason that the Criminal Procedure Act and the Juries Act in the State of Western Australia strictly govern the behaviour and conduct of members of the jury and other persons when dealing with jurors.  In our submission, the receipt of inadmissible and prejudicial information by a jury that comes from an unauthorised and inappropriate source at a time proximate to the jury’s deliberations in a conspiracy trial must warrant the discharge of a jury.

KIRBY J:   Just give me a bit more factual material there.  I had not fully appreciated the timing.  Where do we find the reference to when the sheriff’s officer gave the illicit information to the jury or members of the jury?

MS BLACK:   It is found in the summary of our argument.  Unfortunately, we were unable to place the whole of the transcript into the application book, as was our initial intention.

KIRBY J:   Well, you just tell us what the transcript would reveal if we got the transcript.

MS BLACK:   What the transcript would reveal is this.  The trial proceeded over a period of seven days.  It was on day five that the issue with respect to the sheriff’s officer and the information conveyed to the jury arose.  So it was towards the end.  It was on day six that closing addresses occurred and the judge’s charge commenced.  So it was the day before and right toward the end of the evidence in the trial.

KIRBY J:   And the actual plea of guilty by Mr Anderson was on the first day of the trial?

MS BLACK:   It in fact was technically before the first day and I need to raise one aspect.  The indictment that your Honours have in the application book is not the ‑ ‑ ‑

KIRBY J:   Is that the corrected indictment or is it the original indictment found?

MS BLACK:   No.  We did attempt to provide both indictments but unfortunately were only able to include the first.  So, if I can explain factually.  The indictment that your Honours have at page 1 of the application book is the indictment that was originally preferred against the four accused.  Prior to the empanelment of the jury for the trial of Mr Napier and others Mr Anderson pleaded guilty.

KIRBY J:   Was the jury empanelled at the time Mr Anderson pleaded guilty?

MS BLACK:   No, they were not.

KIRBY J:   So, the jury did not know anything at all about Mr Anderson?

MS BLACK:   That is correct.

KIRBY J:   And the indictment was corrected, or a fresh indictment was prepared and the District Court Judge, Judge O’Sullivan, I think, said that he would forbid any reference to what Mr Anderson had done?

MS BLACK:   That is correct.

KIRBY J:   So the jury came in uncontaminated at all by the existence of Mr Anderson, his suggested involvement or his plea of guilty?

MS BLACK:   That is right.  That was done with the consent of the prosecution and indeed the prosecutor throughout the trial referred to Mr Anderson by name but never as a co‑accused or a previous accused or any reference.  Importantly, also, Mr Anderson was never called at the trial as a witness by any party.  So, it was a case where the mention of Mr Anderson as an accused who had pleaded guilty had no necessity to arise in the sense that it was not an inevitable part of the evidence that needed to be led but, more importantly, it was the information which the trial judge at the outset of the trial had ruled should not be raised in any shape or form.

KIRBY J:   If you sit for a long time in criminal appeals you know, and you would know, that Mr Anderson might have pleaded guilty at the end of the first, the second, the third, the fourth day.  That does happen.

MS BLACK:   It does.

KIRBY J:   In such cases the jury then gets the information and gets it perfectly lawfully and then the judge has to give very strong directions to the jury not to take that into account in any way prejudicially – rarely. in my experience of sitting for a long time in criminal appeals, does the case – then is it aborted and a retrial ordered?  That is a problem with your submission, is it not?

MS BLACK:   It would be a problem if we were saying that the mere receipt of the information that Mr Anderson had pleaded guilty was in itself the ground that justified the discharge of the jury.  That was certainly an argument we did raise as our initial proposition, however, the position that we advance here is not that.  Our position is it was a combination of two things.  It was the receipt of this inadmissible information in combination with the circumstances under which it was received, that is, unlike what would normally happen in a criminal trial where perhaps a witness accidentally says something they are not supposed to say or, as your Honour Justice Kirby has already stated, where an accused pleads guilty during the course of a trial.

The very important difference here is that the manner in which the information came to the attention of the jury was peculiar and certainly highly inappropriate.  If I can take your Honours, because it is of some significance, to the actual note that conveyed the nature of the information.  It is found at page 65 of the application book.  What occurred was the trial judge was presented with a report from someone who was called the chief executive officer of the court and what his Honour said about the note was this:

I think yesterday, it might have been the day before, I think yesterday, [a member of his staff had been] asked by the juror what to do if someone had provided information to the jury about this case which had not been provided in open court.

The importance of that was the first concern raised came from a juror who was troubled by having received information that clearly they thought they should not have received.  Then the report went on:

Upon inquiry the chief executive officer told me that he gathered from his staff member that the information was that James Anderson had pleaded guilty and that that information had come from the sheriff officer.

All of this raises a number of concerns because, of course, as any practitioner in the criminal courts will know, a sheriff’s officer is not authorised under any circumstances to discuss the case with the members of the jury.  That is set out in the Juries Act and in the Criminal Procedure Act, but put simply, a sheriff’s officer can only discuss with members of the jury matters of an administrative nature such as where they should take their lunch, where they should gather in the morning and so forth.  So, for a sheriff’s officer to be talking to a jury at all about a matter of substance but, importantly, about a matter which the sheriff’s officer would have known had been ruled to be inadmissible ‑ ‑ ‑

KIEFEL J:   Is that what the trial judge is saying here or was it the member of the chief executive officer’s staff who had spoken to the juror over lunch rather than a sheriff’s officer?

MS BLACK:   I have read the note a number of times to try and make sense of it and, indeed, one of our points is it is not clear, but what it appears to me has occurred is a member of staff of the court – who that might be I do not know – but a member of staff had lunch with a juror, which of itself seems a little unusual, but during the course of that conversation the member of staff then was informed by the juror that the sheriff’s officer had told the jury this inadmissible information.

KIEFEL J:   The other possibility, which I would have thought more likely, is that the juror has then told the sheriff’s officer who has conveyed it to the judge.

MS BLACK:   Except that the preliminary part of the first paragraph is that the officer of the court who approached the chief executive officer he said that a member of his staff had come to him and told him that that member had had lunch with a juror.

KIEFEL J:   Yes, I see, or that the staff member had been told by the sheriff’s officer about the plea of guilty?

MS BLACK:   Well, no, I think it is that the staff member was told by the juror that the sheriff’s officer had told the jury.

KIRBY J:   But what is a staff member of the chief executive of the District Court doing having conversations with a juror?

MS BLACK:   Indeed.  That is why I say the difficulties raise a number of questions.

KIRBY J:   Is the sheriff’s officer a member of the staff of the chief executive of the District Court in Western Australia or not?

MS BLACK:   That question should be simply answered but is not and it is for this reason.  Section 13 of the Juries Act says that the jury officer for the District Court in Perth is the sheriff.  The sheriff is the sheriff of WA and the deputies and the office of sheriffs is a statutory office.  It is not entirely clear from that note whether the sheriff’s officer was the person having lunch with the juror or whether, what I think is more likely, it was a member of staff of the court other than the sheriff’s officer who had lunch with the juror. 

I say that that is the more likely interpretation because the juror said to the member of staff, effectively, “What do we do if the sheriff’s officer has provided us with information that had not been provided in open court?”  So, it would seem that whoever the person was having lunch with the juror that person should not have been but that person was probably not the sheriff’s officer.

KIRBY J:   I think you have put enough poison in the well on that point but you have to leave time to deal with the issue of, I suppose it is the proviso, that the judge gave – this should not have happened, let that be absolutely clear and the Court of Appeal made that clear, this should not have happened but the judge did give the jury a very, very strong direction and the authority of the court and the hypothesis of the law is that the jury obeys the judge’s directions.

MS BLACK:   That is true but the court has also recognised over time that there are situations which can occur where there can be no direction capable of overcoming the prejudice that has already been caused.  This will often arise, for example, in a case of sexual misconduct where, on occasions, if the information revealed perhaps about an accused’s prior sexual record comes to the attention of the court, it is sometimes thought that that is information that no direction can cure because, while juries can be expected to follow the directions of a trial judge, there is also a recognition that at the end of the day they are 12 ordinary people and they will try very hard to follow the directions of a trial judge but they are not always able to.  We say that this is a case where there was no direction capable of curing the prejudice.

KIRBY J:   What is the best case in this Court particularly that supports that proposition?

MS BLACK:   The case of Nudd v The Queen is of assistance.  It is a 2006 decision.

KIRBY J:   Mr Nudd lost his appeal.

MS BLACK:   Yes, but what the Court affirmed in that case ‑ ‑ ‑

KIRBY J:   It cannot be of much assistance.

MS BLACK:   We can from this principle because, of course, that was factually different, but in that case it was affirmed that the court will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because inter alia some failure has occurred in observing the conditions which are essential to a satisfactory or, we say, fair trial.  If I can perhaps take your Honours to a decision that is not of this Court but it is a decision of the High Court and it may be one that provides some assistance in advancing our argument.  The first of those two decisions is the decision I have recently provided of I v Western Australia. 

KIRBY J:   That is a decision of the Court of Appeal, is it?

MS BLACK:   It is a decision of the Court of Appeal.  Put very simply, what occurred in that case was that a juror at the outset of a trial before the District Court indicated that they had a knowledge of the family of one of the witnesses.  Her Honour at first instance found that she could not go behind the juror’s comment to her that the juror considered, nonetheless, that he or she could impartially discharge their duty and the service on the jury.

The Court of Appeal in that instance found that the judge did have an obligation to go behind the juror’s own comment that they could discharge their duty and they held it on the basis, in part, that it is, of course, the trial judge themselves who has the obligation to exercise a discretion under the Juries Act to determine if the particular juror or the jury should be discharged.

HAYNE J:   I’s Case was a case of partiality, apparent bias.

MS BLACK:   That is right.

HAYNE J:   We are presently in the connected field, are we not, of what to do when the jury receives information it should not?  So, for example, what to do when a media outlet publishes material of a kind that the jury should not be aware of.

MS BLACK:   That is right.

HAYNE J:   Then it becomes, is there compelling reason to discharge the jury?

MS BLACK:   That question is determined by, we say, two features.  One is, what is the information that has come to the attention of the jury, and, two, how has that information come and perhaps I could add a third by saying when ‑ ‑ ‑

HAYNE J:   What is it about the circumstances here, entirely unsatisfactory as they are?  I mean, we begin from the premise, this should not have happened, it is wrong that it did, what more is it that you are drawing from it from that?

MS BLACK:   What we draw from it is firstly this.  The information came to the jury not from some bloke walking down the street making a passing comment but rather it came to the jury from the sheriff’s officer and the sheriff’s officer holds a particular position of power and influence with respect to a jury for this reason.  Under the relevant statutes the sheriff’s officer is the only person who can communicate directly with a juror outside of the court and so we say the first problem is the source of the information was a person in a trusted official capacity.

KIRBY J:   All right.  You have made that point.  What is the second point?

MS BLACK:   The second point is the information that was given had been ruled to be inadmissible.  That is the second and I have dealt with that, I think, earlier.  The third point is that we do not know the way in which or what was in fact said by the sheriff’s officer to the jury and that, we would say, is also of importance because the first question everyone is asking is, why was the sheriff’s officer talking to the jury about that issue at all?  Because that question is asked, it lead us to the necessary question, what on earth was said, because what was said and the way it was said may have had a very real influence on the jury’s assessment of the accused, including Mr Napier?

Why do I say that?  We say a conspiracy trial is quite significant.  If two people are alleged to have committed a burglary and one person pleads guilty to having done that, that does not necessarily follow that it makes it more likely the other person has also committed the burglary.  Where there is a conspiracy, the nature of which is an agreement, where one person admits to agreeing with the others in order to do a certain thing, the fact of that admission and that plea makes it more likely that a jury would consider, potentially, that there was guilt on the part of the other accused.  That is, of course, why a direction is given where such information must necessarily arise.  But we say that it is important because it adds to the prejudicial nature of the information given.

So, the difficulties here is that the jury were told something they should not have been told.  They were told it by a person who should not have been speaking to them.  We do not know what it was that that person said or indeed to whom it was said.  We do not know if it was said to the whole jury or only a small number of the jurors.  The next problem is that we will never know and can never know what was said or the extent to which it influenced the jury because, of course, no explanation was sought at the time and no explanation can now be sought from any of the jurors.

We say that if one looks at the Croft’s Case which sets out the factors that need to be taken into account in determining whether to discharge a jury, one of the factors is the stage at which the mishap occurs and that is why we say it is critical that this mishap occurred at a time very proximate to the jury’s deliberations.

KIRBY J:   It was not even a mishap.  It was a very wrong action by a person in an official position who is sworn – if the practice is the same in Western Australia as New South Wales – not to allow other extraneous information to come to the jury’s attention and to keep them in close confine.

MS BLACK:   Indeed, and it under the Juries Act it would appear that what the sheriff’s officer did on the face of it was an offence justifying the imposition of a fine as a penalty, but I think it is accepted by all ‑ ‑ ‑

KIRBY J:   Has this Court ever looked at this issue of discharging a jury for contamination by officials giving erroneous information?

MS BLACK:   No, it has not.

KIRBY J:   The problem has arisen from time to time in the past but I do not know that this Court has dealt with it.

MS BLACK:   All of the cases that I have looked at that have dealt with the discharge of a jury rather than a juror have all dealt with information arising in the course of the trial.  In that context, this Court and certainly the Court of Appeal in Western Australia has frequently considered what should occur when something is said or happens during the trial as part of the trial process proper, what should happen in those circumstances?  It is my submission that this Court has never been asked to address the issue of what should happen when information or something improper occurs in connection with the jury, not only from an outside source but an official outside source.  There are no cases referred to by the respondent on this

factual scenario and nor in my submission – they are my submissions, thank you.

KIRBY J:   Thank you very much.  Yes, Mr Dempster.

MR DEMPSTER:   May it please the Court.  Everyone was agreed that this should not have happened.  There was no call for further inquiry when submissions were invited by the learned trial judge as to what had happened.  It was accepted by everyone that the jury, or a juror – but it was treated as the jury – had been impermissibly informed of Mr Anderson’s plea of guilty.  His Honour was then in the position where he gave an emphatic direction for which he was commended unanimously by the Court of Appeal.

KIRBY J:   Just pause there.  An immediate application was made on behalf of the prisoner to discharge the jury and recommence the trial.  That was the sequence, was it not?

MR DEMPSTER:   Yes, that is correct.

KIRBY J:   And the judge said, “Well, I won’t do that but I will give a strong direction” and the Court of Appeal said that the direction he gave was strong.

MR DEMPSTER:   Yes.

KIRBY J:   But what has been put against the course that was taken was that this was coming from an official of the court with specific obligations not to do what was done and presumably knowing what the judge at trial had directed and we do not know what was said in connection with the passing of this information.  In other words, all we know is that the information was passed.  We do not know why on earth he was talking about the substance of the matter and what else he said, and he is a person with official status.

MR DEMPSTER:   Yes.  If one looks at the direction given, which is at 67 and 68 of the application book, it is given ‑ ‑ ‑

KIRBY J:   Yes, we have looked at that and it is a strong direction.  There is no doubt about that.  But the question is, was this a case where the contamination was so significant and impermissible and from such a source that the proper course was to start the matter again?

MR DEMPSTER:   Your Honour, as already has been said, pleas of guilty are not unknown.  Pleas of guilty at the eleventh hour by a co‑accused are not unknown, pleas by a co‑accused during trial are not uncommon.

KIRBY J:   That is true, but we do not then have a person sitting in prison for six years, or whatever the prisoner got, who, whatever anybody says, will think he was convicted because the jury were told that one of his co‑accused earlier had pleaded guilty and they did not need to know that.  They should not have known it.

MR DEMPSTER:   Indeed, it was wrong and we accept that.  Of course, everyone accepted that.  The question is whether it was curable by direction.  There was an emphatic direction.  It is important, I think, to look at the direction in the sense that his Honour spelt out that it was very wrong that the jury received the information but he did so in a way, in a sensitive way, which did not increase the prejudice, in fact, because the jury, had they been left in the dark, might have thought, “Well, this is something we shouldn’t have been told.  It must be dreadful.”  Rather, his Honour told them simply that the plea was irrelevant to the issues but it was not something which was some dark secret to be kept from them.  It was simply they would not be told because it was irrelevant.

His Honour emphasised that and went on to emphasise separate consideration of the remaining cases against the three who were then on trial, including the applicant and his Honour was commended for that direction.  It should not have happened and everyone knows about that, but it is not the sort of mishap which could not be saved by such a strong direction.

KIRBY J:   Yes.  Have you any cases you want to draw to our attention or do you say it is all there in the Court of Appeal’s reasons?

MR DEMPSTER:   It is all there we say, respectfully, in the Court of Appeal reasons.  Of course, there are examples given where pleas of guilty of co‑accused comes to the jury’s attention.  We say that is not uncommon.  The way in which it came to the jury’s attention here of course should not have happened but his Honour corrected that.  May it please the Court, I do not think I can add to those submissions.

KIRBY J:   Thank you very much.  We are back to you, Ms Black.  Is there anything in reply?

MS BLACK:   Thank you, sir, just very briefly.  If I can just briefly refer to the decision of Burnett, and your Honour has asked me whether there were any decisions on point.  In the case of Burnett the prosecution deliberately raised the question of a plea of guilty by a co‑offender.  The Court of Appeal held that that information should not have been led in that particular case and found in favour of the applicant on the appeal.  As part of their reasoning, what they stated was that it was not the case that the plea of

guilty was a necessary part of the overall material to be placed before the jury and, in those circumstances, the placement of that information before the jury resulted in an unfair trial and a retrial was ordered.

What we say in our case is what happened was much worse and the reason, quite simply, we say it was much worse is this.  If information or inadmissible material is put before a jury during the course of a trial one can have regard to the transcript to see what was said, how it was said and to assess the likely impact upon the jury.  As a result of what occurred in this case and the failure of the trial judge to conduct an inquiry, Mr Napier will never know how it was the sheriff’s officer came to be talking to the jury, what it was he told the jury and the very real question, why he told the jury the information because, of course, one possible reason was to influence the jury.

It will never be known what he said, how he said it or why he said it because it is not on the transcript, because it did not occur during the course of the trial.  Our submission is it is that aspect that makes this appeal of merit in terms of the Court’s consideration because, as I have already indicated, it is not a matter that has been considered previously.  I make the final passing comment that what is important, also, is that it was a member of the jury themselves who raised a concern about the information that he received.

KIRBY J:   Yes, you made that point earlier.

MS BLACK:   Thank you, your Honours.  I have no further submissions.

KIRBY J:   Yes, thank you.  The Court will adjourn briefly to consider the course we take in this matter.

AT 12.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.39 PM:

KIRBY J:   I would grant special leave in this matter.  However, Justice Hayne will now give the reasons and pronounce the orders of the Court.

HAYNE J:   The communication with a juror of the kind which it is alleged occurred in this case was very wrong.  It should not have happened.  Justice Kiefel and I, however, are not persuaded that it is arguable that the trial judge’s discretion to discharge the jury in consequence of this wrongful communication of information to the jury had to be exercised in favour of discharge.  The direction the trial judge gave to the jury about what they could and could not do with the information they had been given improperly was very strong.

In all the circumstances, we are not persuaded that it is arguable that there has been any miscarriage of justice in this case.  Special leave is accordingly refused.

AT 12.41 PM THE MATTER WAS CONCLUDED