Papazoglou v The Queen

[2015] HCATrans 30

[2015] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M98 of 2014

B e t w e e n -

ANTHANASIOS PAPAZOGLOU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 2.45 PM

Copyright in the High Court of Australia

MR T. KASSIMATIS:   May it please the Court, I appear with my learned friend, MS A.I. BURCHILL, for the applicant.  (instructed by Theo Magazis & Associates)

MR B.F. KISSANE, SC:   May it please the Court, I appear with MR A.J. GRANT, for the respondent.  (instructed by Office of Public Prosecutions)

KIEFEL J:   Yes, Mr Kassimatis.

MR KASSIMATIS: Your Honours, section 46 of the Juries Act 2000 is to be found at application book 306, line 6 in the judgment of the Court of Appeal, empowers a judge to take a majority verdict in a criminal trial subject to there having been met certain preconditions. The effect of subsection (2) is that the majority verdict cannot be taken unless the jury has deliberated “for at least 6 hours”. Like provisions dictate the taking of majority verdicts in criminal trials in most other Australian jurisdictions and, in particular, in New South Wales, South Australia, Western Australia and Queensland one sees language of the kind utilised in section 46, utilising in particular the term “deliberation” or “deliberate” or “deliberating” without an express definition provided by the statute, leaving it to the common law to inform what deliberation is.

What this case throws up is what the effect on the deliberative process and, in particular, the deliberative process characteristic of unanimous decision‑making, what the effect to that process is of the recalcitrant juror, the juror who refuses to engage, the juror who in the note given to the trial judge in this case refuses to discuss the issues or the verdicts in any way.  That occurred at a period of time, or during a period of time, between when the jury was deliberating from one hour to seven and a half hours. 

So, save for the hour on the Friday afternoon, there was on the face of the note given by the jury to the judge one juror who was not deliberating, and I use the phrase advisedly.  That is, not engaging in – and these are phrases taken from Black v The Queen, collective discussion calmly weighing up one another’s opinions and testing them by discussion.

KIEFEL J:   But what do you say to Justice Weinberg’s point that after the “impeccable” – I think his Honour called it – Black directions given that it must necessarily be taken that the juror would be attending to such matters?

MR KASSIMATIS:   By that stage the trial had miscarried, and this is why ‑ ‑ ‑

KIEFEL J:   I am sorry, how do you get that?

MR KASSIMATIS:   Because at the moment the direction is given by the trial judge and the jury is told that the unanimous verdict is no longer mandatory but only preferable, at that point the decision‑making process changes from one characteristic of unanimous decision‑making to one characteristic of majority verdict reasoning.

KIEFEL J:   But the judge has just reminded the jurors individually of what their obligation is; that continues despite that direction.

MR KASSIMATIS:   With respect, no.

KIEFEL J:   Do you mean that any number of the jurors might be able to sit back and think, well, I do not have to attend to this anymore?

MR KASSIMATIS:   No.  The point is at the point that the perseverance direction is given, the jury is also told that the judge at that stage is prepared to take a majority verdict.

KIEFEL J:   So?

MR KASSIMATIS:   Well, it is very important, because at the conclusion of the charge the jury is given a unanimous direction which mandates – which renders mandatory that the jury reason towards unanimity. 

KIEFEL J:   That they attempt to.

MR KASSIMATIS:   Indeed, and it is kept from them that they can return a majority verdict.  They are explicitly told that they cannot return a majority verdict.  Now, the statute necessitates that the jury engage in a mandatory period of six hours deliberation characteristic of unanimous decision‑making.  That did not occur in this trial.

KIEFEL J: I do not think that this – I might be wrong in this – I do not think it was particularly a matter of focus in the Court of Appeal, that is, the actual construction of section 46 and what the word “deliberating” might mean in context. In construing subsection (2) of section 46, one would think that the courts would attempt to avoid reading “deliberating” in a way which would require there to be an issue about whether or not a jury had deliberated or not.

That is to say, you would not construe section 46(2) in a way which would suggest as appropriate an investigation into the quality of what was occurring in the jury room and as to whether each juror individually was attending to his or her task. In context of what section 46 provides for, deliberating for at least six hours may mean no more than the jury is required to be out, where the matter is being discussed they are called deliberations under the general direction of the court as to what they may do. It may mean no more than that.

MR KASSIMATIS:   With respect, in the ordinary course, in circumstances where a jury has retired to consider its verdict, in the absence of evidence to the contrary, that presumption holds true.  It would be a rare case indeed that invites consideration of what constitutes deliberation, but that is what this case is.  This is the case where the conduct of one juror was such that it moved the rest of the jury – and that is why the act of delivering the notes to the judge is as important as the content of the note ‑ moved the rest of the jury to invite the judge to provide assistance because one of their number was not deliberating, and at that point ‑ ‑ ‑

KIEFEL J:   Well, you use the word “deliberating”, which is to use the statutory language; what did the note say, that the juror was refusing to discuss it?

MR KASSIMATIS:   The note appears at page 111 of the application book.  Her Honour says by way of preface:

I have received a rather lengthy note, which I will read to counsel, the gist of it is that there is one juror who is not participating in discussions –

and that is important, with respect, because that is the judge’s instinctive reaction to the note.  She has read it before disclosing it to the parties at the Bar table:

“For Judge Sexton, the jury would appreciate your advice on the following.  A juror at the outset of deliberations on Monday 22 April, advised that he/she was unable to deliberate and discuss any verdict with us as his/her decision on the matters had been decided and that his/her opinion was not going to change in any way no matter what discussion took place by other jurors in the forthcoming days.

It goes on at line 26:

The jury is continuing to deliberate in accordance with your instructions and with recourse to all the evidence, but there appears to be recalcitrance on the part of one juror to participate in the process in any way.

KIEFEL J:   Quite.  Now, that points out what it is all really about.  The courts do not take investigations or undertake considerations as to whether someone is doing enough or attending to things in the way in which it would be hoped that juries do.  Not to participate does not mean people are not listening.  Even if they have made up their mind, it is up to the others to try to persuade them.  Of course, at one point or other in the jury process it may well be the case that someone says “I am completely against this”.  Well, the other members of the jury attempt to persuade that person to another ‑ ‑ ‑

MR KASSIMATIS:   There are two things about that.

KIEFEL J: That is not what the idea of jury deliberation is. The jury in section 46 is referring to the jury as a whole being out and having had a sufficient opportunity to come to a verdict. That is what deliberation for six hours was intended to refer to.

MR KASSIMATIS: No, with respect. Section 46(2) refers to “deliberating”. Section 46(3) refers specifically ‑ composite phrase “period of . . . deliberation”. The two will be one and the same in most cases.

KIEFEL J:   No, I do not think that is right.  It is two totally different things.  Subsection (3) is having regard to particular circumstances and gives the court a wider discretion regardless of the six hour point.

MR KASSIMATIS:   Sorry, your Honour, one moment; page 306 of the application book.  Yes, quite right.  The submission that I made is the one I wanted to make.  In subsection (2) your Honour will see that the statute utilises the phrase “deliberating”.  In subsection (3), which is the discretionary element of the section, it uses the phrase “period of time for deliberation”.  The statute distinguishes between the two.  In almost all cases the two will be the same.  That is, the period of time that a jury is in the jury room will be the period of time that they are presumed to be deliberating, but whether they are deliberating or not is a question that will arise when the jury raises it, and the jury in this case has raised it.  A palpably frustrated jury has sought the assistance of the trial judge because one of its member is not participating at all in what they understood the deliberation process to be, and that understanding ‑ ‑ ‑

KIEFEL J:   Quite, that is what they understood it to be ‑ ‑ ‑

MR KASSIMATIS:   But that understanding, with respect, is predicated upon the directions they were given by the trial judge at the conclusion of her charge which is taken word for word from Black v The Queen.

KIEFEL J: Mr Kassimatis, when the jury refer to deliberations they are not construing section 46.

MR KASSIMATIS:   No, your Honour.

KIEFEL J:   That is what you are supposed to do.

MR KASSIMATIS:   With respect, deliberation is not a phrase that is defined by the Act.  Deliberation is a term that is to be given ‑ ‑ ‑

KIEFEL J: And it is not just deliberating. The correct way to approach section 46(2) is to read the composite term “deliberating for at least 6 hours”, that might give a clue to what the statute is trying to say.

MR KASSIMATIS:   Indeed.

KIEFEL J:   It is speaking about a period of time during which the jury undertakes a process with which the court is not usually interested ‑ ‑ ‑

MR KASSIMATIS:   If that were the case ‑ ‑ ‑

KIEFEL J:   ‑ ‑ ‑it usually wants to stay away from.

MR KASSIMATIS:   Your Honour and I are at ad idem.  If that were the case, then the phrase “period of time” in subsection (3) would be otiose.  Deliberating for a period of six hours when there is evidence from the jury room that casts doubt upon the integrity of the deliberating process invites scrutiny that attaches to whether the subsection has been met.  One cannot equate, in my respectful submission, the phrase “deliberating for . . . 6 hours” in subsection (2) with the “period . . . for deliberation” in subsection (3).

NETTLE J:   What does “period of time for deliberation” mean, period of time for deliberating or something else?

MR KASSIMATIS:   That is the time spent by the jury in the jury room.

NETTLE J:   So the words are the same as “period of time for deliberating”, are they?

MR KASSIMATIS:   Yes, the focus is on period of time, not the deliberating process which is the focus of subsection (2), which must last six hours minimum before the deliberative process characteristic of unanimous decision‑making is displaced and replaced by an entirely different deliberative process.  That was the point, at least partly, of Cheatle v The Queen, to distinguish the unanimous deliberating process from one characteristic of majority decision‑making.

NETTLE J:   What would happen in a case where the jury came back after, say, six hours of apparent deliberating and said “Your Honour, we are frustrated, we have got one juror who from the moment we sat down said ‘I am not going to deliberate’”?  The judge gives them a further direction to persist, they come back another six hours later and say “Well, the position has remained the same, as soon as we went back after the last direction the juror said, ‘I have told you I am not going to deliberate’”.

MR KASSIMATIS:   Discharge the juror.

NETTLE J:   Yes, I see.  That is the only available option?

MR KASSIMATIS:   Well, you have got a juror that refuses to adhere to the directions given them by the judge.  You have got a juror that is thumbing his or her nose at the directions given them by the judge.

NETTLE J:   And you would say no capacity in the judge in those circumstances to take a majority verdict.

MR KASSIMATIS:   Not unless the preconditions of the statute were met.

NETTLE J:   Yes, I see.  Thank you.

KIEFEL J:   Which would mean that the other members of the jury would have to be successful in holding that person’s attention and making them communicate with them for six hours before they could return and ask the court to ‑ ‑ ‑

MR KASSIMATIS:   No, to the contrary ‑ ‑ ‑

KIEFEL J:   ‑ ‑ ‑ and for the court to then ‑ ‑ ‑

MR KASSIMATIS:   ‑ ‑ ‑ an application would be made for the juror to be discharged.

KIEFEL J:   Well, there might be a few of those happening. 

MR KASSIMATIS:   Before I sit down, this is a statute that regulates the process of reasoning which, of itself, displaces at least seven centuries of unanimous decision‑making.

KIEFEL J:   Mr Kassimatis, it is a statutory provision which prescribes the minimum period which must pass before a judge can consider whether to take a majority verdict and which then gives the court a discretion beyond the minimum period stated for it to require the jury to take a longer period before a majority verdict is taken.

MR KASSIMATIS:   Enacted in the context of the displacement of a fundamental common law right, a statute which by virtue thereof should be adhered to as scrupulously and with necessary inconvenience as might necessitate.  If the Court pleases.

KIEFEL J:   Thank you, Mr Kassimatis.  We need not trouble you, Mr Kissane.

There are insufficient prospects of success in this matter to warrant the grant of special leave to appeal.  The interests of justice do not require it.  Special leave is refused.

The Court will adjourn to 10.15 am on Wednesday, 4 March in Canberra.

AT 3.03 PM THE MATTER WAS CONCLUDED