Napier v The State of Western Australia
[2007] WASCA 248
•13 NOVEMBER 2007
NAPIER -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 248
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 248 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:105/2006 | 17 OCTOBER 2007 | |
| Coram: | WHEELER JA PULLIN JA LE MIERE AJA | 12/11/07 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WAYNE ROBERT NAPIER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Conspiracy trial Conspiracy to forcibly rescue prisoners from prison Incidents leading to application to discharge the jury Jury told by sheriff's officer that a cooffender had pleaded guilty Whether miscarriage of justice Whether judge's direction to jury was sufficient to overcome prejudice Whether trial judge should have made further inquiries Test to be applied when deciding whether jury should be discharged |
Legislation: | Criminal Procedure Act 2004 (WA), s 116(2) |
Case References: | Burnett (1994) 76 A Crim R 148 Cowell (1985) 24 A Crim R 47 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 Moore (1956) 40 Cr App R 50 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Romeo v The Queen [1988] WAR 305 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NAPIER -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 248 CORAM : WHEELER JA
- PULLIN JA
LE MIERE AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'SULLIVAN DCJ
File No : IND 1243 of 2004
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Catchwords:
Criminal law - Conspiracy trial - Conspiracy to forcibly rescue prisoners from prison - Incidents leading to application to discharge the jury - Jury told by sheriff's officer that a cooffender had pleaded guilty - Whether miscarriage of justice - Whether judge's direction to jury was sufficient to overcome prejudice - Whether trial judge should have made further inquiries - Test to be applied when deciding whether jury should be discharged
Legislation:
Criminal Procedure Act 2004 (WA), s 116(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms L B Black & Ms A S Rogers
Respondent : Ms C Barbagallo
Solicitors:
Appellant : Andrew Maughan
Respondent : Director of Public Prosecutions (WA)
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Case(s) referred to in judgment(s):
Burnett (1994) 76 A Crim R 148
Cowell (1985) 24 A Crim R 47
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Moore (1956) 40 Cr App R 50
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Romeo v The Queen [1988] WAR 305
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
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1 WHEELER JA: I agree with Pullin JA.
2 PULLIN JA: This is an appeal against conviction. On 15 May 2006, after a trial before Judge O'Sullivan and a jury, the appellant and two others, namely Alan Royce Dawson and David Graeme Hintz were convicted of an offence of a conspiracy to forcibly rescue from lawful custody an offender who was undergoing a sentence of strict security life imprisonment.
3 The indictment as originally drawn up read:
Between 1 January 2001 and 30 July 2001 at Casuarina and elsewhere JAMES STEWART ANDERSON, ALAN ROYCE DAWSON, DAVID GRAEME HINTZ and WAYNE ROBERT NAPIER conspired together and with another or others to commit an indictable offence, namely forcibly rescuing from lawful custody an offender who is undergoing a sentence of strict security life imprisonment.
4 However, Anderson pleaded guilty in the absence of the jury and a fresh indictment was prepared, and the appellant, Dawson and Hintz were then arraigned on an indictment which read:
Between 1 January 2001 and 30 July 2001 at Casuarina and elsewhere ALAN ROYCE DAWSON, DAVID GRAEME HINTZ and WAYNE ROBERT NAPIER conspired together and with another or others to commit an indictable offence, namely forcibly rescuing from lawful custody an offender who is undergoing a sentence of strict security life imprisonment.
5 The prosecution case was that in July 2001 Napier and Hintz were inmates in Casuarina Prison. They were kept in the special handling unit and in the same section of that unit which meant that they could have regular contact with each other. The conspiracy or agreement was to cause the escape, at the very least, of the appellant and Hintz. The appellant was at the time serving a sentence of strict security life imprisonment. The state's case was that the appellant and Hintz were the driving force behind the conspiracy. In July 2001, Dawson was living in the Perth community at liberty, having been released from Casuarina Prison in the weeks or months leading up to July 2001.
6 There was evidence of persons called Anderson and Mirsad who had also been in gaol. The evidence was described by the prosecutor in opening, who said:
In this trial, you will also hear of some other men relevant to the conspiracy or to the agreement. You will most certainly hear of a man by
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- the name of James Anderson. In July 2001, James or Jimmy Anderson was also living free in the Perth community, but he too had been released from Casuarina Prison in the weeks or months leading up to July 2001 …
The state's case is that the accused man Dawson together with Anderson who were in the community and possibly a few other men were the gofers. They were the foot soldiers on the outside of the prison to do whatever Hintz and Napier directed or ordered or needed them to do in order for this plan to escape from Casuarina Prison to come to fruition.
The relationship between all three accused men and James Anderson, Jimmy Anderson, and others is always difficult to assess but there is no doubt, members of the jury, that at least the accused men Hintz and Napier were well-acquainted with each other. They were - accommodated in that special handling unit at Casuarina.
There is also little doubt that Hintz knew and trusted the accused man Dawson …
The accused man Napier … certainly knew James Anderson who was on the outside and likewise you will hear numerous phone calls between Jimmy or James Anderson and the accused man Wayne Napier …
To be clear, members of the jury, Jimmy Anderson, Herman Chikonga, Elvis and Mirsad, the brothers - they don't form part of this trial. They are not sitting in the dock and you don't have to make any determinations about their guilt or otherwise, so don't even bother wasting your energy in respect of those. It is irrelevant for the purposes of this trial. Your task is simply to concentrate on those three men in the dock.
7 The state relied upon numerous recorded telephone calls between Hintz and the appellant and Anderson and Dawson. They utilised a code to speak about the planned break-out because the prisoners knew that telephone calls from the prison were recorded. The prosecutor, in opening, explained that in the telephone calls Hintz and the appellant could be heard 'calling the shots, directing the traffic, telling Anderson and Dawson where to go, what to get, people to ring, chasing things up and occasionally you will hear them frustrated. Hintz and Napier are frustrated. Things aren't moving quickly enough.' Other state evidence consisted of paper which recorded the code so that, for example, the word 'stereo' was shown to equal 'f/e loader', meaning a front end loader which was to be used in the break-out. The word 'subwoofer' was shown to equal 'getaway car'. Other notes referred to AK-47s and handguns and maps.
8 The grounds of appeal relate to three incidents which occurred during the trial. Two of the incidents resulted in applications to discharge
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- the jury which the trial judge dismissed. Two grounds of appeal concern the dismissals. Another ground is a complaint about a failure to make further inquiries concerning one of those two incidents, and the other incident is the subject of a ground of appeal alleging that the trial judge erred by failing to make a 'specific direction' about it. It is therefore necessary to refer to the three incidents which I will call the 'Notice on the Door Incident', the 'Juror Discharge Incident' and the 'Sheriff's officer Incident'.
The Notice on the Door Incident
9 The trial commenced on 5 May, and on 8 May 2006, in the absence of the jury, counsel for Hintz had the following to say:
I noted this morning that posted on the entrance to this court is a suppression order which goes to the effect that any matters referable to the accused person should not be the subject of publication other than in respect of this trial until the conclusion of this trial.
That court order posted on the very entrance that jurors are using to enter this courtroom acts, in my respectful submission, as a prompt to matters which have outstanding application or recent application.
10 He continued:
Today I personally sighted some jurors entering from that same door and in fact they made an assumption that the other door might be used. Again I suggest the damage against Mr Hintz is very grave and that he may not receive a fair trial as a consequence of this collection of prejudices that I have alerted the court to.
11 The trial judge called for the notice to be taken off the door and shown to him. His Honour then read the content of the notice which was as follows:
No reporting in any form of other proceedings involving the accused persons Anderson, Dawson, Hintz, Napier.
12 Counsel for the appellant did not raise any objection. Counsel for the prosecution briefly submitted that there was nothing 'alarmingly wrong with the notice that had been outside the court'. She said that she opposed the application even though there was no application in express terms for any order discharging the jury.
13 The trial judge then said:
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- I don't consider that what has been done has affected the fairness of the trial. It does seem to me that the notice clearly brings attention, as it is intended to bring attention, to any reader of the need to focus upon a reporting of these proceedings. I don't think there is any difficulty with it and I think we should simply proceed.
Juror Discharge Incident
14 On 9 May 2006, the trial judge said:
O'SULLIVAN: Yes. Counsel will have seen a note that I have received from a juror asking to be excused and without reading the details of the note the burden of it is that there have been developments at work, at her place of work, and they're short-staffed and her presence is required. She also expresses some concern that a locality referred to in the evidence is near to where she lives. Do counsel want to be heard about the matter? Ms Barbagallo?
BARBAGALLO, MS: Thank you, your Honour. Your Honour, can I just say I have in fact read the note and, your Honour, I am to understand that, through some verbal communication, that this juror had with the sheriff's officer that, in fact, she resided next to, seemingly, an accused not a witness. That's as I understand. I know what the note says but that's not my understanding of the position. If I am right about that I don't [know] which accused, I don't know what her contact, if any, has been, and I don't [know] whether she has communicated anything like that to the jury members. Now, I just simply raise this because they are obviously important issues.
O'SULLIVAN DCJ: Yes. Yes, I think without further ado I should have the juror in and ask her some questions perhaps.
BARBAGALLO, MS: The state's position is I don't have any problem with her being excused.
15 The juror was then brought into the court and the following occurred:
O'SULLIVAN DCJ: I have received a note from you. Can I first ask about your concern as to where you live? I don't want addresses or particular precise locations but your note reads, 'I realise I live close to one of the witnesses.' Is that the position?
THE JUROR: Yes. Yes, your Honour, just today.
O'SULLIVAN DCJ: By, 'the witnesses' who do you mean? Do you mean one of the persons referred to in the evidence?
THE JUROR: Yes, this morning. Do you want [me] to name the person?
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- O'SULLIVAN DCJ: I think that's probably the best way to proceed, yes. Could you name that person?
THE JUROR: Mersid.
O'SULLIVAN DCJ: Mersid. I see. The person who is referred to as Mersid. Yes, Mersid. I see. I don't think I will take that aspect of the matter further unless counsel want me to ask any further question of Madam Juror.
BARBAGALLO, MS: No, your Honour, not for me.
O'SULLIVAN DCJ: Mr. Illari.
ILLARI, MR: Your Honour, I suppose a concern that I would certainly have, and I don't know about my friends but I suspect that they would share a similar concern, is what the impact of that knowledge about this juror's closeness to a particular person who has been referred to would have on her deliberation and whether that would affect her deliberation and whether she has communicated to other jurors any concerns that she might have had. Those would be my concerns, sir.
O'SULLIVAN DCJ: Yes. I'm not sure whether you are premising those concerns upon an assumption that the juror should s[t]ay on the jury but I will certainly ask some questions if you want.
ILLARI, MR: Thank you, sir.
O'SULLIVAN DCJ: Madam Juror, have you discussed with anyone else on the jury or have you told anyone else on the jury that you live close to this Mersid?
THE JUROR: Yes, your Honour.
O'SULLIVAN DCJ: Have you in saying that or in reference to that made any comment to any jurors about whether that would affect the way you would regard - whether that would affect the attitude you would have in this case?
THE JUROR: No, your Honour.
O'SULLIVAN DCJ: I see, all right. By your note you mention a concern that you live in the locality where this person Mersid is referred to have lived and you also express some work concerns.
THE JUROR: Yes, your Honour.
O'SULLIVAN DCJ: Can I just ask you to elaborate on your work concerns. I gather that there are people at work who are either sick and not able to come back to work or due to take holidays. Is that the position?
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- THE JUROR: True, your Honour, yes.
O'SULLIVAN DCJ: And you're required as a hands-on in house carer in your work, are you?
THE JUROR: Yes, your Honour.
O'SULLIVAN DCJ: Can they cope without you?
THE JUROR: Well, they have just said that my - one of my boss rung and asked for me.
O'SULLIVAN DCJ: I see. You've had a request from your employer about it?
THE JUROR: Somebody rung this morning apparently.
O'SULLIVAN DCJ: Yes.
THE JUROR: For her to do that then she must be really very short. She surely will be on the floor now supervising but we're under accreditation and she's behind in her paperwork also so we have to
O'SULLIVAN DCJ: I see. So there's a need for you to [sic] back at work.
THE JUROR: I think so.
O'SULLIVAN DCJ: Yes, all right then. Now, do counsel wish to be heard about the matter further? It is my tentative view that I should discharge this juror. If you wish to be heard, Mr Illiari?
ILLARI, MR: I have no objection - personally I have no objection to that course but I do have further submissions in relation to matters arising from it, but certainly in relation to this juror I would personally have no objection to her being discharged, if it please your Honour.
O'SULLIVAN DCJ: All right. Mr. Hope.
HOPE, MR: That too is my position, your Honour.
O'SULLIVAN DCJ: Yes. Mr. Hogan.
HOGAN, MR: Yes.
O'SULLIVAN DCJ: Ms Barbagallo.
BARBAGALLO, MS: Yes, your Honour.
16 His Honour then indicated that he was prepared to discharge the juror but there were some further submissions before that happened.
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- Counsel for Dawson submitted that there was a concern that the juror had spoken to other members of the jury and he added:
The other thing that strikes me is that she began to look a little distressed and a little bit unhappy towards the end of what she was saying and I don't know why that is either and whether that is some concern that might have communicated itself to other members of the jury. My concern is now whether this jury has been, by this juror's familiarity, maybe, with the location at least, whether this jury has been contaminated.
18 His Honour then said:
I must say I had thought that her answers to my questions indicated that while she had communicated to another juror [or] other jurors the fact that she lived close to this person Mersid that she hadn't said anything more to them about her attitude in relation to this case. That's the first point. Secondly, as to a nervousness or troubled demeanour, she certainly did appear to be troubled when I asked her to elaborate upon her difficulties at work and that may or may not be a ground for concern. Perhaps I should have the juror back and ask her the questions. Ms Barbagallo, I haven't invited any comments from you but perhaps that's what I should do at this stage and simply ask a few more questions of the juror.
19 The juror was then asked further questions by his Honour and the following passage records what happened:
O'SULLIVAN DCJ: Firstly, you said that you did tell others on the jury, or another, that you lived closed [sic] to where this person Mersid was referred to as living in the evidence. Could you tell me exactly what you have told the jury about that?
THE JUROR: I just said to the lady sitting next to me that when I heard some of the conversation this morning actually that the person really lived just around where I live, and for me I take public transport every day - - -
O'SULLIVAN DCJ: I'm sorry?
THE JUROR: I take public transport every day to go to work and back, and that's just what I said that I lived - - -
O'SULLIVAN DCJ: And that's what you said to the juror sitting next to you?
THE JUROR: Yes.
O'SULLIVAN DCJ: Did you say any more than that?
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- THE JUROR: No, just where - - -
O'SULLIVAN DCJ: Did you say any of that to any other juror?
THE JUROR: We were in the room, so the foreperson knew about it.
O'SULLIVAN DCJ: The fourth person?
THE JUROR: The foreperson. Our foreperson knew about it.
O'SULLIVAN DCJ: And that's the person sitting on your right?
THE JUROR: Foreperson sitting here in this chair.
O'SULLIVAN DCJ: The foreperson? I beg your pardon. Thank you. So you told her as well, did you?
THE JUROR: Yes. That's why when Bill rang, we asked the question. Bill came to the room. He said to me that my boss - - -
O'SULLIVAN DCJ: Bill being the sheriff's officer.
THE JUROR: The sheriff's officer said to me that my boss rung, and so also the foreperson said, 'This is the time for you to also state what you just discovered.'
O'SULLIVAN DCJ: All right. Now, I asked you earlier whether you had indicated to any of the jury your attitude in this case. Had you indicated that?
THE JUROR: No, your Honour.
O'SULLIVAN DCJ: Yes, all right then, thank you. Are there any other matters or questions that counsel think it would be appropriate for me to put to Madam Juror?
HOGAN, MR: Your Honour, it wasn't clear to me from Madam Juror's answer whether she said to the other person, 'I take public transport every day,' or if that is just something that she thought.
O'SULLIVAN DCJ: I see.
HOGAN, MR: I'm not quite clear.
O'SULLIVAN DCJ: Did you speak of taking public transport every day or is that something that was just in your head?
THE JUROR: I said to her. Yes, I did state it that I go to work, I take public transport, and I stand on that bus stop - bus stop near that area. I don't have a driver's licence so I take public transport, and that's what I said to the person.
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- O'SULLIVAN DCJ: Yes. Any other questions or matters for me to pursue.
ILLARI, MR: I just wonder, through your Honour, whether Madam Juror received any response from other members of the jury to what she said. I don't know if I can take - - -
O'SULLIVAN DCJ: All right, thank you, Mr Illari. Having said what you said to the juror sitting next to you and then also speaking to the foreperson, did you receive any response from anyone?
THE JUROR: They just said to me to ask the question or to tell the sheriff.
O'SULLIVAN DCJ: To ask the question. What question?
THE JUROR: Yes, to ask Bill about that information.
O'SULLIVAN DCJ: Do you mean to ask the question about being excused from the jury?
THE JUROR: Yes.
O'SULLIVAN DCJ: All right, thank you. I don't think we will need to trouble you again, Madam Juror, but if you wouldn't mind just waiting outside for a moment.
THE JUROR: Thank you, your Honour.
20 Counsel for the appellant then submitted that he was 'concerned at that nervousness, a fear, and her expression of that fear to other jurors may well result in the jury … being contaminated.'
21 The sheriff's officer then asked if he would be permitted to speak and the judge permitted him to do so. The sheriff's officer said:
I may be able to shed some light on the juror. The juror approached me yesterday and asked how she could get excused from the jury and I told her, you would have to break your leg or something of that nature, and she said, 'But my boss has been phoning me at home,' and her boss phoned our office this morning and said she's a very important employee, he could not replace her, is there any way she could be excused? My boss asked me to tell the juror about her boss calling which I did and then she made it clear to me that she lived in close proximity of a witness, but she is a very nervous person, your Honour.
22 His Honour then discharged the juror and gave the following reasons for having done so:
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- I have taken the view that it was appropriate to discharge the juror in the absence of any objection or comment from counsel suggesting she shouldn't be discharged or comment from counsel suggesting she shouldn't be discharged and I primarily took that view having regard to her situation at work, her difficulties at work and the point that she makes in her note as to the nature of her job and her need to be at work.
That view was reinforced, I think, by the answers I received from the juror when I asked her to elaborate upon her work situation and her reasons for her wishing to be discharged. So far as any risk of contamination of the jury I am satisfied that the answers that I received from the juror indicated that such risk is non-existent. The juror has clearly told me that she told other jurors that she lived in the locality of someone mentioned in the evidence and it may be that that raised some concerns in her mind when she learned that and heard that in the evidence this morning.
In answer to my questions about whether that had affected her attitude and whether that attitude had been communicated to other jurors I am satisfied that she indicated that she had not communicated any view that she took as a result of that information or in relation to the case generally to other jurors. I am quite satisfied that there has been no contamination of the jury, no improper influencing of the jury by any information that might have been given to the other jurors by this juror and I think it's appropriate simply now to proceed. Could we have the jury back in please and if the witness would come back to the witness box. Thank you.
Sheriff's officer Incident
23 On 11 May, in the absence of the jury, the trial judge had the following to say:
Just before we proceed this morning I would like to raise something with counsel and just invite their comments. This morning the chief executive officer of the court came to me and gave me a report in these terms, he said that a member of his staff had come to him and told him that that member had had lunch with a juror, I think yesterday, it might have been the day before, I think yesterday, and was 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.
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. That's the burden of the chief executive officer's report. Do any counsel want to comment about that?
24 Counsel for Hintz submitted that he thought there was authority that a guilty plea by one accused should not be disclosed to the jury during the course of conspiracy charges relating to others. He submitted that it
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- suggested that if someone was prepared to plead guilty to the fact of a conspiracy then the jury would infer that there was definitely a conspiracy. The trial judge pointed out, however, that it was put to the jury that James Anderson was a co-conspirator and made the obvious point that Anderson was not before the jury. His Honour said he thought it was inevitable that the jury would wonder about Anderson's role and that he would have to say something to the jury anyway. Counsel for the other parties, including counsel for the appellant, also supported the application by Hintz, counsel for the appellant saying, 'If I take it to be an application to discharge the jury'. Counsel for the appellant said that it impacted more upon the appellant than the other co-accused because it was the appellant who was more often 'on the phone to Mr Anderson'.
25 Counsel for the prosecution pointed out that the matter could have proceeded with Anderson in fact being arraigned with the appellant and the other two and pleading guilty in front of the jury, in which case Anderson would then have been remanded for sentencing. Counsel for Hintz later located the decision of Romeo v The Queen [1988] WAR 305, which will be referred to later in these reasons. Counsel for Hintz then also added:
[T]he fact that there has been discussion extraneous to this trial by a juror suggests that at least one juror is making independent inquiries in respect of this trial and secondly, had, as my learned friend Mr Illari has noted, had this trial commenced differently with a plea from Mr Anderson that might well have had a marked effect on the decision by Mr Hintz to elect to give evidence.
- The reference to what Mr Illari said was a reference to Mr Illari's submission (on behalf of Dawson) that if Anderson had pleaded guilty in the presence of the jury, then his defence 'would have been differently structured'. His Honour said that he had 'some difficulty, frankly, understanding what the forensic disadvantage might be to the defence by reason of this information having come to the jury'. His Honour then said:
The first thing to be said clearly is that this should not have happened. No information of this kind or any kind concerning the case should have been passed to the jury other than in open court. Having made that observation I think that it is appropriate to say, nevertheless, that I do not consider it necessary to discharge the jury.
The information the jury have received, or it's assumed all the jury have received, that Anderson has pleaded guilty should clearly be the subject of a direction from me. A direction, I think, which ought to be given now and then again later in perhaps more expanded terms so as to emphasise its importance. That direction should be that the fact that Anderson has
- pleaded guilty and been convicted upon that plea is not admissible in evidence against any of these accused and is irrelevant to the issues which the jury must decide in this case.
I have said to counsel what has been reported to me. I don't think it's necessary to take matters further either by inquiries of the sheriff's officer or the jurors. I will, in giving the jury a direction now about the significance of Anderson's plea, also emphasise to the jury again, as I have previously in the course of the trial, the importance of each juror not discussing this matter with anyone outside of the jury. I think we will now proceed. Could we have the jury in please, Mr Usher.
- When the jury returned, the trial judge directed them as follows:
O'SULLIVAN DCJ: Thank you, members of the jury. I'm sorry you've been kept waiting this morning. There have been some issues which have arisen in the course of the trial which it was necessary to discuss with counsel in your absence but we are now in a position to proceed. Before we do proceed with the taking of further evidence there are a couple of things I would like to say in relation to the matter and they are these.
Firstly, it has been reported to me that you, or one or more of you, have been informed that the person James Anderson, who is not one of the accused standing his trial in these proceedings before you, has pleaded guilty and been convicted of conspiracy of this offence as charged against the other accused.
That was information which should not have been given to you, members of the jury. It should not have been given not because of any desire to keep you in the dark, as it were, and to only give you half a case but because Anderson's plea of guilty and conviction is irrelevant to the issues which arise for you[r] determination in this case. The issues which arise for your determination in this case concern whether or not each of these accused, and they are the only accused before you, each of these three accused are guilty as charged.
Each accused must be judged by you separately and moreover each accused must be judged by you by reference only to the evidence admissible against him. In due course I will be telling you, members of the jury, that when you come to decide upon your verdicts in this case three verdicts are required of you not one verdict. You will be asked to deliver a verdict of guilty or not guilty, as the case may be, in respect of each accused separately and consistently with that requirement when deciding upon your verdict in relation to a particular accused I will be telling you, and I tell you now, that it is necessary that you only have regard to evidence relevant to that accused.
It [is] not then a package deal, as it were. The question for you is not, are all these three accused guilty or not guilty, each accused stands separately and is entitled and must be judged in law separately by you. It may well
- be, it's entirely a matter for you, that at the end of the day you might find one accused guilty, for argument's sake, and two not guilty or two guilty and one not guilty. Each accused stands alone and should be judged by reference to the evidence relevant to him.
As to that, the evidence, if it was attempted to be led, that James Anderson pleaded guilty to a charge of conspiracy and has been convicted of that charge is irrelevant and would not have been admitted and you would not have been told about it and so that information should in no way impact upon the judgment that you have to make in respect of each these accused. That is a direction I give you now and I will come back to that so as to emphasise its importance and elaborate upon further in due course.
The other point I want to make very briefly, members of the jury, is this. I asked you, each of you, earlier in the trial to be careful not to speak of this matter to anyone outside of the jury members.
I asked you not to discuss this matter with anyone who is not on the jury so as to eliminate or reduce as much as possible any chance of you being influenced in any way by something said by someone who is not a jury member and who doesn't have a role to play in this trial in communicating information to you; in other words, by counsel or myself or witnesses. I want to emphasise again the importance of that principle and to ask you again to be sure not to discuss this matter with anyone outside of the jury so as to avoid any chance of any undue influence being exercised upon you.
Grounds of appeal
26 The grounds of appeal read as follows:
1. The Learned Trial Judge erred by not making a specific direction to the jury after not allowing the application by defence counsel to discharge the jury in relation to a note clearly visible to the jury which stated:
(a) …
(b) the sign being so prejudicial to the Appellant that it warranted specific direction by the Learned Trial Judge to ensure a fair trial to the Appellant; and
(c) a miscarriage of justice occurred.
2. The Learned Trial Judge erred in not allowing the application by defence counsel to discharge the jury as a result of conduct of an officer of the Sheriff in that:
(a) the officer of the Sheriff had informed the jury of a plea of guilty by a co-accused just prior to the trial; and
- (b) this was prejudicial to the Appellant to the extent that it could not be corrected by direction to the jury.
- 3. The Learned Trial Judge erred in not requiring further investigation of the conduct of the officer of the Sheriff in that:
(a) The Learned Trial Judge accepted hearsay evidence, which could not disclose the full extent of the contamination to the jury;
(b) direct questioning of the officer of the Sheriff could have shown further conduct causing contamination of the jury; and
(c) the error was such that a miscarriage of justice occurred.
4. The learned trial Judge erred in not allowing the application by defence counsel to discharge the jury after a juror sought to be discharged in that:
(a) the application partly rested on the fact that the juror was fearful of coming into contact with the accused who lived near to her address; and
(b) this was prejudicial to the Appellant in that the jury was contaminated to an extent that could not be corrected by direction to the Jury.
The direction given by the learned trial Judge increased the prejudice that already existed by that stage by telling the jury on two occasions that the information they had been given was information that they should not have been given.
Ground 1
28 I will deal with this ground after dealing with ground 2 because it contains one point which is merely a repetition of the point made in ground 2.
Grounds 2 and 3
29 It is necessary to deal with ground 3 first, because it is a complaint about what happened before the application was made by defence counsel
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- to discharge the jury. As set out above, the judge informed the parties in the absence of the jury about what he had been told by the Chief Executive Officer of the court.
30 The essence of the complaint in ground 3 is that because the report about what the sheriff's officer said to the jurors was third-hand, this should have prompted the trial judge to make further inquiries. What the appeal is not about, is whether it was acceptable for the judge to act on evidence not received via a witness under oath. The court was informed by counsel that it is quite common during a trial for a court to act on unsworn material when considering whether a jury should be discharged or not. If that is so then it must be because of the implicit consent of all the parties.
31 This ground must be dismissed for the following reasons. His Honour reported information which revealed that the jury had been told that Anderson had pleaded guilty. In the context of this case, where the evidence was that Anderson participated in the conspiracy, this could only have been understood as Anderson having pleaded guilty to the same charge which was before the court. His Honour having reported this information, he then invited comment from counsel. It was open to counsel appearing for the appellant and those appearing for the other parties to either accept the correctness of the report or to ask for further inquiries if any of them felt that such inquiry should be made. No objection was raised concerning the form of the report or about its accuracy. No submission was made by any of the parties that further inquiries were necessary.
32 It is true that the failure of counsel to raise objection or to take a particular course of action in a trial, will not always be fatal to an appeal. An appeal alleging that there has been a miscarriage of justice is not necessarily defeated because of a failure of counsel to take action which may have altered the course of the trial or the course of the evidence. This is because the appeal court is concerned not with the performance of counsel's task or his or her professional standards, but with the question about whether there was a miscarriage of justice: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [25], (Gummow and Hayne JJ). However, action taken by counsel, or the failure of counsel to take certain action, is relevant and will be taken into account for the reason given by Gleeson CJ in Nudd (at [8] - [9]) which is that as a general rule, counsel's decisions bind the client. Gleeson CJ pointed out that if it were otherwise, the adversarial system could not function (Nudd [9]). The fact that a
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- particular course was not followed by counsel, does not result in a miscarriage of justice if it was a rational decision.
33 In this case, the sheriff's officer involved was in court or would have been available if any of the parties had wished the judge to question the officer. It was open to any of the parties to invite the judge to make further inquiries of members of the jury. There was nothing in the information reported to the judge and reported by his Honour in open court, which gave rise to any uncertainty about what the jurors had been told. Thus, the matter proceeded on the basis that his Honour had accurately reported the relevant information which had been given to the jury. In the circumstances it was capable of being seen as a rational decision for counsel for the appellant and the other parties to accept the accuracy of the report and to make submissions about the consequences. As to the objective nature of that test see TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, [17] (Gleeson CJ), [27] (Gaudron J), [95] (McHugh J) and [107] (Hayne J).
34 In the absence of any issue about the accuracy of the CEO's report, this ground has no merit. I should add that counsel for the appellant submitted that jurors may have been given other information by the sheriff's officer. This ground cannot be sustained by mere speculation. Ground 3 should therefore be dismissed.
35 Ground 2 has then to be considered. This ground complains about the trial judge's refusal to discharge the jury because it was told by the sheriff's officer that Anderson had pleaded guilty.
36 The power of a judge to discharge a jury is found in s 116(2) of the Criminal Procedure Act 2004 (WA). All that the subsection says is that the judge may discharge the jury from giving its verdict on a charge if the judge is satisfied 'it is in the interests of justice to do so'. When considering whether it is in the interests of justice to discharge a jury because of some irregular incident involving a juror or the jury, the question to be asked is whether, notwithstanding a proposed or actual warning of a trial judge, the incident 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. See Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 per curiam. No rigid rule can be adopted to govern decisions on an application to discharge a jury following an inadvertent and potentially prejudicial event that occurs during a trial. The possibility of slips occurring are inescapable and much depends upon the seriousness
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- of the occurrence in the context of the contested issues; the stage at which the mishap occurs, the deliberateness of the conduct and the likely effectiveness of a judicial direction to overcome the apprehended impact: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440.
37 The appellant says that because the proceedings concerned a conspiracy, the disclosure was 'extremely prejudicial' to the appellant. The further particular which is added, complains that that prejudice was 'increased' because the jury was told by the trial judge on two occasions that the information they had been given was information they should not have been given.
38 The appellant relies upon the case of Burnett (1994) 76 A Crim R 148, where an appeal against convictions succeeded when a co-offender's pleas of guilty on some of the charges were disclosed to the jury. However, in that case, the prosecution deliberately led the evidence of the pleas of guilty intending that they should be taken into account as evidence against the accused for reasons which it is unnecessary to relate here. The court on appeal concluded that those reasons did not justify the admission of the evidence about the co-offender's plea of guilty and it followed that the pleas of the co-offender were wrongly admitted and hence affected the fairness of the trial.
39 That is not the situation here. The jury found out that Anderson had pleaded guilty, but was directed in very clear terms by the trial judge that Anderson's plea of guilty was irrelevant. This was the correct course to take. Lord Goddard in Moore (1956) 40 Cr App R 50, 53, explained that when two people are indicted together for a criminal offence and one pleaded guilty and the other not guilty, then it was 'the commonest thing in the world to tell the jury … "You must not pay any attention to the fact that the other man has pleaded Guilty"'. Lord Goddard also pointed out that even if the plea had not been taken in the presence of the jury, it was often difficult to avoid telling the jury in some way that the other person had pleaded guilty. Street CJ in Cowell (1985) 24 A Crim R 47 at 50 said:
When in the course of a trial, one of a number of co-accused pleads guilty, that fact is, of course, inevitably known to the jury … trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury.
40 These passages were quoted with approval in Burnett's case. See also Romeo v The Queen at 307 where Burt CJ concluded that it was
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- necessary for the trial judge to direct the jury that a co-offender's plea of guilty was not admissible against the other accused in proof of a conspiracy charge. See also Brinsden J at 310. It is therefore clear that in most cases any prejudice to the accused on trial is sufficiently overcome by a clear direction to the jury not to take information about a co-offender's plea of guilty into account. In this case the direction was given and it was sufficient to neutralise any prejudice to the appellant. The submission that a conspiracy is different and that information the jury is given about a co-offender's plea of guilty is irretrievably prejudicial cannot be accepted. The appellant did not seek to argue that Romeo was wrongly decided.
41 The appellant also complains that the statement by the trial judge that the information should not have been given to them in some way created the prejudice and led to a miscarriage of justice. That submission must be rejected. The trial judge very carefully neutralised any impression that the jury may have initially had that they had been given some secret and particularly damaging material, by pointing out that the information had not been given to them, not because of any desire to keep the jury in the dark and to give only half of the case, but because Anderson's plea of guilty and conviction were irrelevant. That was an entirely proper and commendable direction to the jury.
42 Finally, it is necessary to reinforce what the trial judge said, namely that the sheriff's officer should not have communicated information about Anderson's plea of guilty to the jury. A sheriff's officer in charge of a jury should take particular care not to discuss with the jury the case or anything about the accused or the witnesses.
43 Ground 2 must be dismissed.
Ground 1
44 Ground 1 alleges that the suppression order posted on the court door created a miscarriage of justice. It is said that the notice 'implied that there were other criminal proceedings on foot in relation to the appellant' and that 'something undisclosed' had happened to Anderson who was not present at trial but who was mentioned in the notice on the courtroom door.
45 In submissions, counsel for the appellant said that there were two complaints contained within this ground. One was that the notice revealed that there were proceedings against Anderson. This point falls away in the light of the matters discussed in relation to grounds 2 and 3.
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- By the end of the trial, the jury knew that Anderson had pleaded guilty and had been directed not to take that information into account. The jury therefore knew that there were, or had been, other proceedings concerning Anderson. They also well knew that Anderson was alleged to be a participant in the conspiracy because he was frequently mentioned during the trial.
46 The second complaint was the fact that the sign referred to other proceedings against the appellant. The appellant submitted that it would have been read by the jurors as meaning that there were, or had been, other criminal proceedings on foot and that this was prejudicial and caused a miscarriage of justice. The latter part of that submission must be rejected. It was obvious from the evidence in the case that there had been other proceedings against the appellant, Hintz and Anderson. The appellant and Hintz had been in prison at the time of the conspiracy. The sign made it clear to any fair-minded and informed observer that media reporters were not to report any other proceedings concerning Anderson, the appellant or the other accused. Any fair-minded and informed observer would understand that without such a direction, reporters may have felt free to report what had happened in the trials that resulted in the appellant and Hintz being in prison and which resulted in Anderson's conviction. To suggest, as counsel for the appellant did, that the notice would have been read by jurors as meaning that there were even other unresolved criminal proceedings against the appellant is drawing a long bow and is a search for a meaning which does not expressly appear in the notice. Impermissible speculation is required to derive such meaning. Ground 1 should therefore be dismissed.
Ground 4
47 The appellant submitted that if no other ground succeeded, then this ground alone would not lead to the quashing of the conviction. No other ground does succeed, but nevertheless, the merits of the ground can be quickly dealt with. The juror sought a discharge for two reasons; one, because she lived near one of the persons referred to in the evidence and two, because of work reasons. The person referred to was Mirsad, who had been mentioned in the evidence. The juror gave this information to one of the other jurors and the jury 'foreperson'. Counsel for one of the accused submitted that the juror appeared:
[A] little distressed and a little bit unhappy towards the end of what she was saying and I don't know why that is either and whether that is some concern that might have communicated itself to other members of the jury.
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48 Counsel for the appellant adopted that submission. His Honour, however, concluded that the juror's 'nervousness or troubled demeanour' appeared when the juror was asked to elaborate upon her difficulties at work.
49 Toohey, Gaudron, Gummow and Kirby JJ said in Crofts v The Queen at 440, that much leeway must be allowed to a trial judge to evaluate potentially prejudicial events that occur during the trial. The court made the point that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than could be discerned from reading the transcript. However, their Honours observed, at 441, that the duty of an appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that correct principles were kept in mind. The appellate court must also decide for itself whether the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.
50 In this case, nothing has been advanced by the appellant during this appeal to demonstrate that his Honour's conclusion that the juror's nervousness appeared when speaking about work concerns was in error. In any case, if the juror was nervous about living near Mirsad, it was a concern personal to that juror. As a result, there is nothing to call into question his Honour's conclusion that there had been no improper influencing of the jury. In those circumstances there is nothing which would lead this court to conclude that there was a miscarriage of justice.
51 Ground 4 must be dismissed.
52 LE MIERE AJA: I agree with Pullin JA.
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