Percival v The Queen
[2015] VSCA 200
•31 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0066
| TRENT HILTON PERCIVAL | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, WEINBERG and OSBORN JJA |
| WHERE HELD: | GEELONG |
| DATE OF HEARING: | 3 June 2015 |
| DATE OF JUDGMENT: | 31 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 200 |
| JUDGMENT APPEALED FROM: | DPP v Percival (Unreported, County Court of Victoria, Judge Chettle, 7 March 2014) (Conviction) |
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CRIMINAL LAW – Conviction – One charge each of aggravated burglary, threat to inflict serious injury, common assault and criminal damage – Trial judge intervened on a number of occasions during cross-examination of Crown witnesses in manner that was critical of defence counsel – Foreman subsequently gave note to trial judge indicating that some members of jury had concluded from judge’s interventions that defence counsel was incompetent and by implication that defence case was unmeritorious – Judge directed jury that he was not expressing any view about merits of defence case and that jury should not draw any inferences against counsel or the accused based on his comments – Judge subsequently refused application to discharge jury – Whether failure to discharge jury gave rise to substantial miscarriage of justice – Foreman’s note indicated there was little likelihood jury would pay due regard to submissions put forward by defence counsel – Prejudice not cured by judge’s direction – Appeal allowed – Piccolotto v The Queen [2015] VSCA 143 and R v Mawson [1967] VR 205 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R van de Wiel QC with Ms M E Casey | Victoria Legal Aid |
| For the Crown | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA
OSBORN JA:
After a relatively short trial only lasting some five days, the appellant was convicted, in the County Court at Geelong, of one charge of aggravated burglary, one charge of threatening to inflict serious injury, one charge of common assault, and one charge of criminal damage. He was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Aggravated burglary [Crimes Act 1958 s 77(1)]
25 years
3 years
Base
2
Threat to inflict serious injury [Crimes Act 1958 s 21]
5 years
1 year
6 months
3
Common assault [common law]
5 years
6 months
-
4
Criminal damage [Crimes Act 1958 s 197(1)]
10 years
1 day
-
Total Effective Sentence: 3 years 6 months Non-Parole Period: 2 years Pre-Sentence Detention Declared: 20 days 6AAA Statement: N/A Other Relevant Orders: · Disposal Order
· Forensic Sample Order
The appellant originally sought leave to appeal upon a number of grounds. However, on 4 September 2014, he was granted leave to appeal upon one ground only:
1. The applicant did not receive a fair trial in that:
(b)His Honour erred in refusing to discharge the jury after a note from the foreman of the jury was provided to the Court describing the effect of his Honour’s interference on the applicant’s case; and
(c)His Honour’s directions to the jury to redress the effect of the interference were inadequate and likely ineffective.
Importantly, leave to appeal was refused on proposed ground 1(a), which complained of excessive intervention on the part of the judge in the cross-examination of two key Crown witnesses. In the written case filed in support of that ground, it was submitted that his Honour’s excessive intervention, and obvious disapproval of the way in which defence counsel was conducting the appellant’s case, had prejudiced the jury against him, and had thereby brought about a miscarriage of justice.
However, in granting leave to appeal on the two limbs of ground 1 that were considered arguable, the appellant was specifically authorised to refer to any passages in the trial transcript that would provide context to the matters complained of within those two limbs.
Background facts
There were few facts significantly in dispute in this trial. The appellant had met the victim, Tammy Rugg, about a week before the alleged commission of these offences. He claimed that she had either borrowed a sum of $115 from him and refused to return it, or that she had stolen that amount from him. She denied this, maintaining that she knew nothing whatever of any such money.
On the morning of 5 December 2012, the appellant and Ms Rugg exchanged a number of text messages. The general tenor of those messages, on both sides, was one of considerable hostility.
At about 7:45 am that morning, the appellant was seen leaving his block of flats in Ormond Road, East Geelong, by two cemetery workers, Michael Doherty and Peter Wallace. They were, at that time, arriving for work at the East Geelong Cemetery, which was located across the road. They claimed that the appellant appeared agitated, and was swearing and uttering threats. They both claimed to have observed him carrying what appeared to them to be a gun. They saw him get into a car and drive off.
Shortly afterwards, the appellant arrived at Ms Rugg’s home in Winstanley Road, Thompson. Moments later, there was an altercation between the appellant and Ms Rugg. On the Crown case, the appellant had forced his way into her house, whilst armed with an imitation firearm, and assaulted her within the premises. The defence case was that there had, indeed, been an argument between them, but that the appellant had not entered the house, and at no stage had been armed.
According to the Crown, once he had forced his way into Ms Rugg’s house, the appellant grabbed her around the neck, swung her around, and pushed her up against a bookshelf. He then threatened her with what she believed, at the time, to be a gun. In fact, the Crown contended that, as it happened, it was actually the handle of a novelty toilet brush in the shape of a gun. According to the Crown, the appellant thrust the object up against Ms Rugg’s chest. He said: ‘How the fuck would you like this to go through you?’. He then demanded the return of the money to which we have previously referred, and threatened her with serious injury.
It transpired that Ms Rugg’s 13 year old daughter, ‘LA’, was present in the house at the time. She said that she had witnessed the appellant’s entry into the house, and had seen him threaten her mother with the imitation gun. She said that he left the house almost immediately afterwards. As he walked down the driveway, she saw him knock over the letterbox in the front yard, thereby damaging it.
When interviewed by the police, the appellant admitted that he had gone to Ms Rugg’s home on the morning in question. However, he insisted that he had not, at any stage, gone inside. He denied having threatened or assaulted her. He also denied having been armed with a gun, imitation or otherwise. He did, however, admit to having knocked over her letterbox.
The appellant was arrested on the following day. Both his house and his car were searched. An imitation firearm (the handle of a novelty toilet brush) was located.
Plainly, the Crown case rested almost entirely upon the credibility of Ms Rugg, and her daughter.
Interjections during cross-examination
There is no doubt that the judge exhibited signs of impatience, right from the very outset of the trial. His Honour was justified in doing so. Although the parties had ostensibly agreed upon a document that could be placed before the jury that summarised the various telephone calls that had passed between them on the morning in question, and in the preceding days, that document proved to be inaccurate, and totally unsatisfactory. Defence counsel only discovered this as she was about to cross-examine Ms Rugg, and was plainly in some difficulty as a result. Both sides shared the blame for this.
In addition, his Honour had taken on other matters, both before court and during the lunch break. He could hardly have been impressed by the lack of care with which this case had seemingly been prepared.
Ms Rugg gave her evidence-in-chief on the afternoon of 4 March 2014 and was cross-examined on the following morning. Her daughter gave her evidence by way of VARE, which was played to the jury later that morning. She was cross-examined for a total of about 45 minutes on that afternoon.
At the appellant’s request, we viewed a recording of the daughter’s cross-examination. We were not asked to view the recording of Ms Rugg’s cross-examination. However, we have given careful consideration to the entire transcript of this short trial, and particularly those parts that encompass the cross-examination of both witnesses.
There is no doubt that the judge intervened on a number of occasions during the course of Ms Rugg’s cross-examination, and that of her daughter. In fact, the transcript of Ms Rugg’s cross-examination commences at page 105 and goes through to page 159. There are some 25 separate interjections by his Honour during the course of that cross-examination, all of them to a greater or lesser extent critical of defence counsel. Much the same can be said of the cross-examination of LA. That cross-examination commences at page 167 and goes through to page 190. The judge interjected on 16 occasions, once again, always in a manner that was critical of defence counsel. We were told by senior counsel for the appellant that defence counsel at trial had, in fact, been conducting her first jury trial. That may, in part, explain some of the failings so clearly exposed in her cross-examination.
It is convenient to deal first with Ms Rugg’s cross-examination. It should be understood that the defence case was that she had exaggerated the extent of the confrontation that took place between the appellant and herself by falsely claiming that he had entered her house, and perjuriously asserting that he had been armed. It was specifically put to her, in cross-examination, and not denied, that she was a methadone user, and on Centrelink benefits, in need of money. It was further put to her that she had instituted proceedings for criminal compensation, and that this was her motive for having turned upon the appellant.
To illustrate how this played out, it may be useful to refer to some, though by no means all, of the judicial interjections that ensued.
Early on in the cross-examination of Ms Rugg, defence counsel asked her whether it was true that everyone to whom she had introduced the appellant had ‘thought he was really nice’. The prosecutor rightly, and immediately, objected. The judge upheld the objection, correctly observing ‘[h]ow can she say what people think?’.
At another point, Ms Rugg was cross-examined about a particular telephone call that, according to records, had lasted no more than three seconds. Defence counsel asked her whether this was the first time, on the day in question, that she had spoken to the appellant. His Honour interjected: ‘How do you know that, it says three seconds. It doesn’t look like …’. Not surprisingly, the witness responded that she had not, in fact, spoken to the appellant at all on that occasion. Subsequently, as it became clear that the document from which defence counsel was cross-examining was inaccurate, his Honour expressed exasperation, saying: ‘This is hopeless’. He added shortly afterwards that he was not trying to ‘have a go’ at counsel, but that the whole exercise was ‘a waste of time’.
Ms Rugg was then asked whether it was possible that her daughter could, at some point, have read a statement that Ms Rugg had made to the police, the plain implication being that the daughter had tailored her own statement accordingly. Ms Rugg answered ‘no’, and added that she was certain that her daughter had not seen the statement. Counsel then put to her that ‘if she [the daughter] said she read it, she’d be lying?’. This elicited an appropriate objection from the prosecutor, which the judge correctly upheld. His Honour went on to say: ‘It’s a bad question’.
The cross-examination of Ms Rugg continued. It is fair to say that defence counsel seemed somewhat unsettled by what was occurring. Her cross-examination was permeated with questions that were vague, and of uncertain meaning. On occasion, they did not accurately reflect the evidence that had been given.
At various times, the judge admonished defence counsel for having gone back to matters that had already been fully explored. For example, counsel asked Ms Rugg whether she had spoken to the appellant twice on the phone on the day of the incident. His Honour interjected: ‘Haven’t we already done this? She said she remembered one but not the second — we have already dealt with this haven’t we … I think three times now’.
At another point, Ms Rugg was asked about a conversation with a man named Peter, which she claimed had taken place after the appellant had left her house. It was put to her that the records showed that she had not spoken to Peter that day until about 12:50 pm. Ms Rugg agreed, explaining that she had been unable to speak to Peter earlier that day because she had been at the police station, lodging her complaint against the appellant.
It was then put to Ms Rugg that she had, in fact, spoken to Peter before the appellant had arrived at her house. She specifically denied having done so. The judge interjected: ‘You said that three times’. His Honour was obviously displaying signs of irritation by this stage, clearly regarding this line of cross-examination as being of little utility. He then added that the witness had already answered that question ‘about three or four times’.
Shortly thereafter, the witness was being taken through the events of the morning in question once again. It was put to her that she had previously told the police that she had pushed the appellant out of her house seconds after he had entered. This was said to be at odds with her evidence at trial. It was further put to her that she had previously said that the appellant had tried to enter the house, but that she had managed to pull the screen door shut, and thereby prevented him from doing so.
Although there was nothing particularly objectionable about this line of cross-examination, the judge observed that Ms Rugg had been asked about whether she had pushed the appellant, after he entered the house, ‘about six times’. Later, his Honour criticised defence counsel for having cross-examined the witness on the basis of her police statement in a manner that involved skipping from one paragraph to another, without providing appropriate context. When counsel, in response, offered to read the paragraph that she had previously omitted, his Honour’s reply was ‘I’m just trying to work out what you are doing’.
At one point, the transcript reads as follows:
COUNSEL:The first person you speak to after this incident I say to you — is Trent.
HIS HONOUR: Is that a question?
COUNSEL:Do you accept that?
HIS HONOUR: On the phone — in person?
COUNSEL:On the phone
HIS HONOUR: Again, I mean, that’s an appalling question. Come on, try and ask — if you mean on the phone, say so. I mean, do you exclude her children?
There were other interjections and comments of this kind. Most of them, it must be said, were properly based. However, there is no doubt that the judge’s view of defence counsel’s performance, as being less than laudatory, came through loud and clear.
When it came to the cross-examination of Ms Rugg’s daughter, there was more of the same. It is only necessary to provide several brief examples to illustrate the point.
At one stage, defence counsel cross-examined LA along the following lines:
COUNSEL:You spoke to your mum after the video? – – – Not really.
COUNSEL:When you say not really; do you mean, yes, a little bit?
HIS HONOUR: What about, I mean, you’ve got to put this questioning in some context. Do you mean they spoke about the case or whether she asked what she was having for dinner or what’s on telly tonight or —
COUNSEL:About the case, Your Honour.
HIS HONOUR: — what clothes she’s supposed to wear. I mean, of course, she spoke to her mum but what do you mean …
The cross-examination continued:
COUNSEL:When you got home from the video you saw your mum? – – – I went to my aunt’s after the video.
Your mum was there? – – – Yeah.
You spoke to her about making the video? – – – No.
At some point you came back to court, I think it was June last year for a committal hearing in this matter and you were on the video screen again? – – – Yeah.
COUNSEL:You remember that, and you had read your mum’s statement that she’d made to the police? – – – Um
HIS HONOUR: When? When are you suggesting she read the statement?
COUNSEL:You read her statement a couple of days before you came to court in June last year? – – – Yeah.
And that was because you’d seen it in the lounge room? – – – Yeah.
On the TV mantle? – – – Something, I don’t know, forget.
And you read through it? – – – Not all of it.
That helped you remember the story? – – – No.
HIS HONOUR: What’s ‘the story’ mean? … what does it matter whether she read the mother’s statement before the committal; if she did? Given that the evidence is contained in something that occurred on 5 December, months before that.
Subsequently, the transcript reads as follows:
COUNSEL:When you think back now — this is something that happened quite a while ago? – – – Yes.
At the end of 2012? – – – 12.
You are struggling to remember all the detail now; is that right?
PROSECUTOR The detail of the text messages?
HIS HONOUR: Yes, of what? I think that’s a fair comment. We’ve been beating around the edges of this case for a while. It might be worth getting onto the substance.
COUNSEL: In the video there were some times where you used phrases like ‘pretty sure’ or ‘along those lines’ — when you said that
HIS HONOUR: Hang on. I don’t think that’s fair either you can’t just pluck a phrase out of the air and ask her what she meant without tying into the particular comment — the question she’s asked. I mean, I just repeat, wouldn’t it be better to get to something more central to the issues in the case like what she saw or didn’t see?
There was, thereafter, a good deal of cross-examination directed towards the location of the letterbox, and whether the photographs taken by the police had accurately depicted where it had ended up on the morning in question.
This produced the following discussion:
COUNSEL:I just want to make sure that that’s where we’re talking about. When the police came and took the photo — that’s where the letterbox was — after Trent had finished with it? – – – I’m pretty sure my brother picked it up and then mum told him to put it back down or something.
HIS HONOUR: How about we go to something relevant?
Once again, this was shortly followed up with this exchange:
COUNSEL:Again anything you want to change about what you’ve told me today. Have a really long think about that one?
PROSECUTOR: What’s being put here, Your Honour? It should be clear.
HIS HONOUR: I don’t understand what’s going on. I’m still waiting to see. Is that a proposition? I must admit, I’m with [the Prosecutor] where she does have a think when she’s asked whether or not she wants to change anything.
COUNSEL:Yes, all right.
PROSECUTOR: At the invitation of the police.
HIS HONOUR: Yes, so she has a think, so what?
In a similar vein, and shortly afterwards:
COUNSEL:They’re having an argument, it’s outside and you don’t see anything and then he leaves. That’s what happened; isn't it? – – – No way.
Your mum calms down after he has left? – – – No, she was still upset.
She tells you what she told the police? – – – No.
She has asked you to do the same? – – – I wouldn’t listen to her.
You don’t listen to your mum? – – – (No audible response.)
Why is that?
HIS HONOUR: That’s not what she said, ‘I wouldn’t listen to her if she’d said that’. She didn’t say, I don’t listen, she said, ‘I wouldn’t listen to her’.
COUNSEL:In fact what has happened is the two of you have put your heads together and told a story to the police? – – – No.
That’s not what happened? – – – What do you mean, what’s not happened?
What you’ve described is not what happened and you’ve come along to court, changed your story; you changed it back in June last year to fit with your mum’s story
PROSECUTOR: Well, I object to that, Your Honour, that’s not demonstrated at all.
HIS HONOUR: That’s the proposition. I don’t understand how it’s put that she’s changed her story. That’s what the proposition is. You can either agree with it or disagree, [counsel].
…
COUNSEL:That you’ve changed things about what you’ve said? – – – No.
Changed what Trent was wearing? – – – No.
Changed where he was standing and the angle you saw it on?
HIS HONOUR: Where did she do that?
COUNSEL:(Indistinct) the transcript, Your Honour.
HIS HONOUR: No, the two bits that you pointed to was where she said it was near the book shelf and that he was wearing a black jacket. They were the two bits that you pointed to before; aren’t they them?
COUNSEL:Yes.
HIS HONOUR: That’s not where he was standing; that’s where he pushed her.
At that stage, there was only some formal evidence still to be led. The appellant did not give evidence, and none was called on behalf of the defence.
The foreman’s note
On the following morning, effectively the fourth day of the trial, this discussion occurred, in the absence of the jury:
HIS HONOUR: Sorry for keeping you waiting; that matter went a little bit longer than I hoped it would. The jurors handed my Tipstaff a note, from the Foreman of the jury, which I will read and then deal with.
‘I have concerns of what I am observing in the jury room. The jurors’ conversations are, in my opinion, putting too much credence on the rulings of His Honour, in particular, with rulings and comments relating to the cross-examination by the defence. The reaction from your ruling by some jurors is that she is bad at her job and swaying their decision towards the prosecution which, in my opinion, is far too early at this stage.’ Signed ‘Alan Jones’.
I certainly wasn’t making any suggestion that you were bad at your job. I think that must be a reference to when I said, ‘Can we get on to something more relevant yesterday’, but we were beating around the edges.
What I intend to do is say to the jury that they should not see anything I say in the way in which I control — I haven’t made any rulings — any comments or directions I make in relation to the way in which the cross-examination has been conducted is only designed to get on with it, nothing to do with — and they should not draw any inference adverse to the accused man and they should keep an open mind until they’ve heard it all. I have to say something because they’ve raised it, and I have to share it with you because I’m obliged to.
I certainly — I was telling you to get to something more central, I agree with that, but I think there’s been an unholy focus on phone calls in this, but I can understand why, but …
Defence counsel did not, at that stage, make any application for the discharge of the jury. She appeared to acquiesce in his Honour’s proposal that he deal with the note in the way that he had foreshadowed.
Immediately thereafter, the jury were brought back into Court. His Honour gave them the following direction regarding the note:
HIS HONOUR: Ladies and gentlemen, I have had a note handed to me by Mr Furey from the Foreman, Mr Jones, indicating that there has been perhaps some reaction from what is described as my interaction with defence counsel when she was cross-examining. That is probably when I said yesterday at some stage, ‘Can we get to something more relevant or central in the case?’ And things of that sort. I want to make it clear — I’m not in any way expressing an opinion or view about the case, the way in which it should be determined and certainly not expressing a view about whether Mr Percival is guilty or not guilty.
Any expressions that I make in relation to the running of the trial are simply designed to try and get on with it rather than form any view. You certainly shouldn’t draw any inference against [defence counsel] or the accused man because of anything I say in relation to the way the case has been conducted and it is important that you keep an open mind about the case until you have heard all the evidence. This case is not determined by whether I think any of the barristers are doing a good job. This case is determined by whether or not the evidence proves the accused man is guilty of the offences charged. It’s just how that evidence gets before you I’m attempting to — usually — my job is to make sure it gets before you as efficiently as possible and we don’t waste time and that’s really all I was saying and you shouldn’t take those comments — anything I said yesterday — hold that against the accused man. Yes, can we get on with the case please?
At that stage, no exception was taken to his Honour’s direction. Further evidence, of a non-contentious nature was then called and the Crown closed its case.
The application for a discharge
Later that morning, after having had the opportunity to reflect upon the matter of the foreman’s note, and the judge’s direction to the jury, as well as the matter of a second note in which the jury were plainly ‘fishing’ for information as to whether Ms Rugg or the appellant had prior convictions, defence counsel sought a discharge of the jury.
The transcript of that application reads as follows:
COUNSEL:I have an application, Your Honour, and that’s to discharge the jury on the basis of the questions received today. The first one being of the greatest impact on my client, he is very stressed that the jury are pre-judging the matter and will not give it due consideration.
HIS HONOUR: All right, that’s that, and yes, what’s the next bit?
COUNSEL: And that is exacerbated by all the to-ing and fro-ing this morning, in a sense confirming their concerns and then we’ve got queries about irrelevant matters and it’s the combination of those things, Your Honour, that suggest the jury’s going off in directions that we don’t want them to go off in.
HIS HONOUR: Is that all?
COUNSEL:And that can’t be cured by direction.
HIS HONOUR: It already has been cured by direction. I understand your submission. You’ve put it, it’s on the record. I don’t believe there’s a high degree of necessity. I think what the note indicates is why I read them both on the transcript. The first one indicates that the Foreman had concerns that some of the jury might have been overreacting to what was perceived to be my criticism of you. I think I fixed that when I told them this morning that it is nothing to do with the case and they should — and I gave them a direction that they should wait until they heard it all and not pre-judge it.
Appellant’s submissions
Put simply, the appellant contends that, irrespective of whether the judge interfered excessively in the cross-examination of the two central witnesses in this trial, and irrespective of whether his Honour’s interjections and comments were largely justified, the effect upon the jury, as demonstrated by the foreman’s note, was to unfairly damage the appellant’s prospects of acquittal.
The appellant also draws attention to a point at which LA — by that stage visibly distressed — was told by the judge, in a comforting manner, ‘you’re not doing yourself justice’. This is said, albeit unintentionally, to have bolstered her credit, when that was one of the central issues in the trial.
In their written submissions, counsel referred to some 26 interruptions on the part of the judge in the cross-examination of LA. As we have previously stated, we can identify only 16 such interjections, so far as she was concerned. The difference between counsel’s count, and our own, is of little real significance.[1]
[1]See R v Lars (1994) 73 A Crim R 91, 126-7.
In any event, the appellant submits that the effect of all these interjections was to render defence counsel’s cross-examination ineffective. The jury’s perception as disclosed in the foreman’s note would have been that his Honour took the view that much of the cross-examination was irrelevant, time-wasting, and largely incompetent.
The appellant submitted that his Honour’s direction to the jury, in response to the foreman’s note, did not properly address the problem, and certainly did not cure it. At no stage did he seek to disabuse the jury of the perception of at least some of them that defence counsel was incompetent. Rather, he approached the matter on the basis that even if that was his opinion, it had nothing to do with the jury’s performance of their task. He considered that all that was required was an assurance, on his part, that he himself had not intended to express any view about the merits of the defence case, and that any such opinion that he might have formed was irrelevant so far as they were concerned.
The appellant submits that if the prejudice that had arisen was capable of being cured the direction given did not do so. The fact that some jurors had apparently been swayed to the prosecution view because they considered that the judge was exhibiting such strong aversion to the way in which the defence case was being conducted meant that there was a high degree of need to discharge this jury. Moreover, his Honour’s interjections had plainly disrupted the thread of cross-examination to the extent that defence counsel’s ability to do her job had been seriously hampered. In other words, the effectiveness of the cross-examination had been seriously undermined.
Respondent’s submissions
The Crown submitted that the judge’s interjections had almost all been entirely justified. LA, in particular, had been cross-examined in a ‘laboured fashion’. Many of the interjections had been couched in terms that were not so much critical of defence counsel personally, but were rather designed to ensure that the questions asked were clear, and of real assistance to the jury.
Dealing first with the appellant’s complaint about the judge having said to LA ‘you’re not doing yourself justice’, the Crown submitted that this was nothing more than an act of compassion on his Honour’s part, and would have been understood to be so by the jury. It would not have caused the jury to accord additional weight to LA’s evidence, beyond that which it merited.
While the Crown readily accepted that excessive interference or involvement by a judge in the conduct of a trial could, in certain circumstances, give rise to a miscarriage of justice, this was not such a case. A judge has a responsibility to ensure that every trial is conducted and contained within reasonable limits, and is not prolonged by irrelevant or inappropriate cross-examination. This may, on occasion, require a judge to interrupt cross-examination in order to enquire as to the relevance of questions asked, or clarify their meaning.
As regards the foreman’s note, the Crown submitted that his Honour had indicated to counsel what he proposed to tell the jury, and there had been no dissent from that course. There was no application at that stage for a discharge of the jury. To the extent that some jurors had formed the view that his Honour did not think much of the defence case, or the manner in which defence counsel was conducting it, the direction would, as his Honour said, have ‘cured’ the problem.
There was no high degree of need or necessity to discharge the jury. The judge’s discretion in that regard had not miscarried.
Analysis
It is convenient to deal with the two limbs of ground 1 together.
It may be useful to articulate clearly, at the outset of these conclusions, precisely what issues this appeal raises. In that regard, it will be recalled that leave to appeal was refused in relation to what was then proposed ground 1(a). That ground complained of excessive and wholly unwarranted intervention on the part of the judge during the cross-examination of the two central witnesses against the appellant, it being contended that this gave rise to a substantial miscarriage of justice.
In the course of the Court’s refusal to grant leave to appeal on that ground, it was noted that most, though not all, of the judge’s various interjections had been justified. Moreover, most of the criticisms levelled at defence counsel’s cross-examination had been warranted.
The issue to be determined is whether, given the terms of the foreman’s note, the application by defence counsel for a discharge of the jury should have been granted. That also calls for consideration of the separate question whether his Honour’s direction to the jury cured whatever problem had been revealed, having regard to the terms of that note.
The relevant principles governing discharge of a jury are well-established. They seem to stem from the old English case of Winsor v The Queen.[2] The principle is one of necessity. There must be evidence of ‘a high degree of need for such discharge’.[3]
[2](1866) LR 1 QB 390.
[3]Ibid 394 (Earl CJ).
That same principle has been applied many times both in this State, and throughout Australia.[4] Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within a trial judge’s discretion. However, it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice.[5] When a trial judge’s refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, in the circumstances, any prejudice could be dispelled by a clear warning to the jury.[6]
[4]R v Knape [1965] VR 469; R v Boland [1974] VR 849; Crofts v The Queen (1996) 186 CLR 427; R v Halliday (2009) 23 VR 419.
[5]Crofts v The Queen (1996) 186 CLR 427, 432.
[6]Ibid.
In Webb v The Queen,[7] the test was put somewhat differently, albeit in a quite separate context. The question as formulated was whether, having regard to the particular irregularity involving a juror that had occurred, there was a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury had not, or would not, discharge its task impartially. In R v Matthews,[8] Callaway JA drew these two distinct strands together, and observed:
In my opinion, the test is still whether there is a high degree of need, but a reasonable apprehension of bias is one of the circumstances that constitutes a high degree of need.[9]
[7](1994) 181 CLR 41.
[8](1999) 1 VR 534.
[9]Ibid 537.
In Maric v The Queen,[10] it was made clear when a trial judge had refused an application to discharge a jury, and the accused had been convicted, the appeal then brought was not against the failure to discharge the jury, but against the conviction itself. In other words, the question is not whether the discretion miscarried, but whether the failure to discharge the jury gave rise to a miscarriage of justice.
[10](1978) 52 ALJR 631.
In many such cases, the issue of whether to discharge the jury has arisen because evidence of bad character has inadvertently been led. On occasion, it has been held that an irregularity of that kind can be cured by a strong direction. At other times, this has been held to be insufficient.
The present case is quite different. It really turns upon the perception of at least some members of the jury that the judge, by his interjections, regarded defence counsel as incompetent and, at least by inference, considered the defence case to be unmeritorious. What makes this case somewhat unusual is the foreman’s note revealing what was going through the minds of at least some jurors.
There is a precedent for a discharge of the jury to be granted in circumstances where the judge’s criticism before a jury of the course followed by defence counsel in cross-examination results in unfairness. In R v Punnett,[11] a New Zealand case, several accused stood trial charged with the manufacture and sale of drugs. Counsel for two accused cross-examined witnesses at inordinate length, with repetitive, confused and irrelevant questions. The judge repeatedly intervened to restate questions appropriately, and to prevent counsel from giving evidence from the bar table. Punnett, another accused, sought a discharge of the jury on the basis that her defence was inevitably prejudiced by the jury’s clearly adverse reaction to her co-accused’s counsel’s incompetence.
[11][2006] 1 NZLR 133.
The trial judge concluded that counsel’s incompetent conduct had rendered it necessary, in the interests of justice, to discharge the jury. Laurenson J noted that counsel’s cross-examination elicited strong reactions from the jury, including frustration, amusement, and embarrassment. He held that this had prejudiced Punnett beyond repair by any directions that he could give. Significantly, he observed that the jury’s reaction to the judge’s many interventions, all of which it might be thought were appropriate, had created an impression in the minds of the jury that there was little substance to any defence. Moreover, the trial had blown out in length to a period that was unforeseen, and unacceptable.
Interestingly, in his reasons for discharging the jury, his Honour focussed upon the perception that his constant admonitions of defence counsel would have had upon its members. That had reached the point where at least some of the jurors were likely to be scornful of any submissions advanced by counsel who was the main offender in that regard. As his Honour put it, the combination of pointless and interminable cross-examination must have led the jury to the point of thinking that if this was the best that counsel for the two accused could have produced on their behalf, there could not be any real merit in the defence.
Of course, the present case is stronger in one respect than Punnett because, as we have said, we are not left in a position of having to speculate as to what impact the judge’s interventions had upon at least some of the jury. Assuming, as we must, that the foreman’s note was broadly accurate, and fairly recounted what was being discussed in the jury room, we know what conclusions had already been drawn by some of the jury. In the very recent decision of this Court in Piccolotto v The Queen[12] the Court , without the assistance of a note from the jury inferred that the frequency and nature of the interventions by the trial judge in the jury’s presence would have so undermined the credibility of defence counsel in the eyes of the jury that a miscarriage of justice occurred and a new trial was ordered.[13]
[12][2015] VSCA 143 (‘Piccolotto’).
[13]Ibid [59].
It should be noted that the character of the interruptions by the trial judge in Piccolotto differed in one significant respect from the present case. In Piccolotto, the judge had engaged in a series of bitter exchanges with defence counsel regarding that counsel’s conduct. Some of these exchanges took place in the presence of the jury. The remarks in question went so far as to accuse counsel of serious impropriety, even to the point of suggesting that he was deliberately seeking to mislead the jury.
The Court in Piccolotto referred to the decision in R v Mawson.[14] In that case, it was held that a miscarriage of justice had occurred as a result of excessive intervention on the part of the trial judge in the questioning of various witnesses, as well as certain comments he had made in his charge regarding the defence case. Winneke CJ, delivering the judgment of the Full Court,[15] said the following as to the applicable principles:
It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage is shown by the case of R v Clewer (1953) 37 Cr App R 37. The miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of R v Bateman (1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain (1936) Cr App R 204, or again the miscarriage may result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done. That was the principle applied in a case of this kind by this Court in R v Delaney, [1955] VLR 47; [1955] ALR 45.[16]
[14][1967] VR 205 (‘Mawson’).
[15]Winneke CJ, Adam and Barber JJ.
[16]Mawson [1967] VR 205, 207. See also R v Lars (1994) 73 A Crim R 91.
Having referred to this passage, the Court in Piccolotto went on to find that the judge’s remarks had so tainted the atmosphere of the trial as to make it likely that the jury would have concluded that he did not view defence counsel as trustworthy, and would therefore have undermined the accused’s prospects of acquittal.
As Piccolotto demonstrates, the potential for unfairness arises, not because the trial judge expressed himself in forthright terms regarding defence counsel’s conduct, but that it took place in the presence of the jury. The problem in that case could have been avoided if the jury had been sent out before the judge admonished counsel.[17]
[17]Piccolotto [2015] VSCA 143, [43].
While in the present case we accept that the judge’s rulings and interventions responded directly to the course taken in cross-examination by defence counsel, and that the judge’s responses were in no way excessive, in the sense of disproportionate to the number of problems which arose, nonetheless it was not appropriate for his Honour to have denigrated or demeaned counsel in the presence of the jury. The use of terminology such as ‘an appalling question’ and ‘we’ve been beating around the edge of this case for a while’ and ‘how about we go to something relevant’ significantly weakened the credibility of the case attempted to be put by defence counsel. It must be remembered that, ultimately, it was not the judge’s role to determine what aspects of the circumstantial case were important. That question, and the related question of the significance of any inconsistencies in the evidence, were matters for the jury. It was not his Honour’s role to comment on counsel’s competence in a way which diminished her credibility, and possibly the credibility of the defence case, in their eyes. Such comments had the obvious potential to unfairly prejudice the appellant.
As in Piccolotto, the judge was entitled to prevent defence counsel from putting questions in cross-examination that were inappropriate, unduly repetitive, and in some cases almost incomprehensible. Where the prosecution had objected, then beyond upholding the objection, no commentary by the judge was needed. On those occasions where the prosecutor did not object and the questions were unfair to the witness, there was little alternative but to interject, at least on most occasions, in the presence of the jury. But on such occasions some care was called for in the manner in which counsel was restrained. As the Court said in Piccolotto:
The power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted. Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible. A trial judge who does not intervene to prevent undue delay or to ensure that the parties focus upon the critical issues may otherwise be the subject of criticism by an appellate court. ….
Secondly, as the conduct of counsel affected the proper course of the proceedings, the judge was entitled to reprove counsel to ensure that witnesses were treated fairly and that the court’s time was not wasted. In doing so, judges, being human, can be expected to react with impatience or irritation from time to time. They may sometimes have to be strong and forceful but they should, no matter the provocation, comport themselves with dignity.[18]
[18]Ibid [41]–[42] (citations omitted).
It was unnecessary, as we have said, for the judge to employ such strongly pejorative terms as ‘appalling’ when characterising a question that was undoubtedly poorly formulated. A more neutral expression of disapproval could, and should, have been adopted in order to ensure that the jury did not form an unduly negative view of defence counsel’s competence. In addition, the judge’s repeated comments to the effect that he could not understand what defence counsel was seeking to achieve through her cross-examination would have been better left unsaid, or at least unsaid in the presence of the jury.
In the present case, it can be confidently concluded that the potential for unfair prejudice in fact came to fruition. From the foreman’s note, it can be inferred that at least some members of the jury not only believed that the judge had formed the view that defence counsel was incompetent, but also, formed the view, whether justified or not, that his Honour considered the defence case to be without merit. Where a trial judge repeatedly criticises the conduct of counsel in the jury’s presence, both of these risks become prominent.[19]
[19]Ibid [43].
When the note was first drawn to his attention, the judge said, in the absence of the jury, that he ‘certainly wasn’t making any suggestion that [defence counsel] [was] bad at [her] job’. With respect, that observation does not seem to us to sit well with the judge’s manifest and increasing exasperation at counsel’s conduct of her cross-examination.
The judge commented that the foreman’s note had to be a reference to an observation that he had made on the preceding day along the lines of ‘can we get on to something more relevant’. That seems to us to understate the problem considerably. The foreman’s note spoke of ‘rulings and comments’ relating to the cross-examination by the defence. We think that that reference went far beyond the single comment which the judge had picked out as having given rise to the problem.
There was a real issue as to whether, having received a note in those terms, any direction could have cured the problem. As it happened, when the jury were brought back, the judge once again primarily singled out that same comment, regarding the need to move on to something more relevant, as the underlying basis for the note. Although his direction to the jury focussed exclusively upon that comment, it would not have served the appellant well had his Honour returned to the many other criticisms that he had legitimately levelled at defence counsel’s cross-examination. That it would have been undesirable to do so, serves only to illustrate how difficult it would have been to give a direction that addressed the prejudice that had arisen.
Certainly, his Honour told the jury that he was not in any way expressing an opinion about the case, and the way in which it should be decided. He told the jury that the comment to which he was directing attention had been made purely in order to keep the trial moving along at a reasonable pace. He added that the case against the appellant was not to be determined by whether he thought ‘any of the barristers are doing a good job’.
Two points can be made about that direction. First, it did not address the jurors’ perception that the judge had formed the view, throughout the whole of defence counsel’s cross-examination, that she was ‘bad at her job’. Although his Honour had, at an earlier stage and in the absence of the jury, denied any suggestion that he considered defence counsel to be incompetent, it was significant that he did not say anything to unequivocally dispel that perception on the part of the jury in their presence. Indeed, it might be thought that the general thrust of his direction was to precisely the opposite effect. By telling the jury that they should not be influenced by whether he thought that any of the barristers were doing a good job, his Honour was likely to have reinforced in their minds, albeit undoubtedly unintentionally, that he in fact regarded defence counsel as generally incompetent.
Secondly, his Honour did not, and perhaps could not, adequately address the real concern, expressed in the note, that his repeated interventions, sometimes using strong language, indicated that he had formed an adverse view of the defence case. By responding only that he had been endeavouring to keep the trial moving along, the direction did not confront the specific problem that the note posed. His Honour did not unequivocally state that he had not formed an adverse view, of the appellant’s guilt, only that he should not have been understood as expressing any opinion.
What alternative course could his Honour have adopted? Here the position becomes even more difficult. In theory, he could have told the jury that they were mistaken in thinking that he regarded defence counsel as incompetent. He could have added that it was his practice to intervene, and interject, regularly in cross-examination, and no inference of incompetence on her part should be drawn. Certainly his Honour did not do so, and no doubt for good reason. Having regard to what had transpired, the jury would almost certainly have found a statement to that effect difficult to accept.
It should be said that this was not an easy defence case, and counsel had to confront two very difficult witnesses. She was put in an awkward situation when, unexpectedly and at the last moment, it emerged that the telephone records upon which she had based much of her proposed cross-examination of Ms Rugg were substantially inaccurate. Of course, she was herself, along with the prosecutor, to blame for that fact. As a result, her cross-examination lacked focus, and it must be said, she made a number of serious errors. In the meantime, it seems that the judge was becoming increasingly impatient. By the end of her cross-examination, the defence case, such as it was, had effectively been derailed.
It was as a result of all this that defence counsel, belatedly perhaps, sought a discharge of the jury. As has been seen, that application was dealt with perfunctorily. His Honour simply concluded that any problem that may have arisen had been entirely cured by direction. He had instructed the jury to put aside any perception that they may have formed as to his belief as to the strength of the Crown case, and admonished them that they should not pre-judge matters.
Again with respect, the judge’s ruling, rejecting the application for a discharge, failed to address the main problem. As the Court observed in Piccolotto, it was the fact that counsel’s credibility had been irreparably undermined that could not be cured by a direction.[20] But here the conclusion of unfair prejudice does not depend upon inferential reasoning, it having been disclosed that at least some members of the jury had formed the view that his Honour regarded defence counsel as incompetent. The appellant’s situation was effectively rendered almost hopeless. He was dependent upon the jury paying close attention, not just to the evidence, but also to the arguments to be put forward by his counsel in her final address. There was little likelihood, by this stage, that the jury would pay due regard to anything that she said, given their belief that the judge had little or no respect for her as an advocate.
[20]Ibid [48].
Of course, his Honour did pose for himself the correct question when he refused the application for a discharge — namely, was there a high degree of need to grant that application. However, in answering that question he failed to consider at least some of what lay behind the foreman’s note. That same error permeated the limited, and therefore inadequate, direction that he ultimately gave the jury, when in truth there was no real alternative other than to order that they be discharged.
In that regard, we consider it to have been a relevant factor, in the proper exercise of the judge’s discretion, that this was a very short trial, and the foreman’s note, if acted upon by leading to a discharge, would not have occasioned any great harm.[21] At most, two or three days would have been lost, although we do not lose sight of the fact that the two central witnesses would have had to give their evidence, and undergo cross-examination, a second time.
[21]Although there is some authority for the proposition that the length of a trial should have no bearing on whether a jury should be discharged, the better view seems to be that this is a matter that may properly be taken into account. In other words, while the principles governing discharge are the same irrespective of how long the trial has been running, the result of their application may be different: see R v Boland [1974] VR 849, 866. C.f. R v Johnson (1979) 22 SASR 161, 182.
For these reasons, the appeal should be allowed and a new trial be ordered.
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