Prothonotary v Hirata

[2000] NSWSC 106

CITATION:	Prothonotary v Hirata [2000] NSWSC 106
FILE NUMBER(S):	SC 12414/99
HEARING DATE(S):	23/02/00, 24/02/00
JUDGMENT DATE:	10 March 2000
PARTIES :	Prothonotary v Kay Keiko Hirata
JUDGMENT OF:	James J

COUNSEL :	M Sexton SC/K Nomchong - Plaintiff RF Greenwood QC - Defendant
SOLICITORS:	IV Knight - Plaintiff Jenny Bull & Company - Defendnt
CATCHWORDS:	Contempt of Court - jurors - interference with juror by solicitor for the accused - approaching juror and handing document to juror
DECISION:	Contempt of Court Established

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Friday 10 March 2000

12414/99 - Prothonotary v Kay Keiko HIRATA

JUDGMENT

1   HIS HONOUR: These are proceedings for contempt of court brought by the Prothonotary of the Court against the defendant Kay Keiko Hirata (“the defendant”), who is a solicitor. It is alleged that the defendant committed a contempt of court in an encounter she had on 28 May 1999 with a juror who was serving on a jury in a criminal trial at which the defendant was acting as the solicitor instructing counsel for the accused. Although the parties are described in the proceedings as “the plaintiff” and “the defendant”, the proceedings are criminal in nature (Witham v Holloway (1995) 183 CLR 525).

2   The evidence in the plaintiff’s case consisted of an affidavit by a solicitor employed in the Office of the Director of Public Prosecutions, who was the instructing solicitor for the Crown at the criminal trial, and affidavits by each of three members of the jury at the criminal trial. Two of these jurors were cross-examined by counsel for the defendant.

3   It was agreed at the hearing of the proceedings before me that, whether or not it was strictly required by the Jury Act, the jurors who had made affidavits should not be referred to by their names but by a description or pseudonym. The foreman of the jury was referred to as “the foreman”, a juror whose identification number in the criminal trial was 1.1J was referred to as “Mr S” and another juror was referred to as “Mr L”.

4   The defendant’s evidence included an affidavit by the defendant and affidavits by a number of other deponents, some of whose evidence I will refer to in more detail later in this judgment. The defendant’s evidence also included a report by Professor G.A. Starmer, an expert pharmacologist, and a report by an optometrist who had examined the defendant’s eyesight. The defendant herself, Professor Starmer and Ms Naomi Hamilton, who had made an affidavit which was read in the defendant’ case, were cross-examined by counsel for the plaintiff.

5   At the hearing there was no dispute about any of the following matters.

6   The defendant was born in Japan in 1959. She first came to Australia in 1983. She now speaks English fluently, but not perfectly and with a pronounced Japanese accent.

7   For a few months in 1984 the defendant worked as a sales assistant at a duty free shop in Sydney. Another employee at the shop was a woman named Monika Ortner. The chief sales manager at the shop was a man named Carl Gibson.

8   Between 1992 and 1995 the defendant did a law course at Sydney University, completing her degree in 1995. In 1997 the defendant completed a legal practice course at the Australian National University. Between about July 1998 and May 1999 the defendant worked on a casual basis as an employed solicitor instructing barristers at criminal trials.

9   The trial of William Edward Pearson on a charge of dishonestly destroying property by fire commenced before her Honour Judge Latham and a jury in the District Court on 22 April 1999, in court room 1.1 at the Downing Centre in Liverpool Street, Sydney. Mr John Bettens, solicitor, acted for the accused and Mr Gregory Scragg of counsel appeared for the accused. The defendant as an employee of Mr Bettens first attended the trial on 27 April 1999. From 3 May onwards she attended the trial regularly, instructing Mr Scragg.

10   It seemed to the defendant that one of the jurors at the trial might be Carl Gibson, whom she had known many years before at the duty free shop, and on 4 May she said to Mr Scragg that she thought she knew one of the jurors. She mentioned the matter to Mr Scragg, because she appreciated that any previous association between her and one of the jurors might create a problem for the trial.

11   Mr Scragg told the Crown Prosecutor at the trial what he had been told by the defendant. The Crown Prosecutor and Mr Scragg decided that it was not necessary to mention the matter to Judge Latham, for reasons including that the defendant was not sure that the juror was Carl Gibson, if the juror was Carl Gibson the contact between the defendant and the juror had occurred many years before, Carl Gibson and the defendant had worked together only for a few months, the trial had already run for a number of days and there had been no indication from the juror that he knew the defendant.

12   In November 1998 the defendant had met by chance Monika Ortner, her former fellow employee at the duty free shop, and they had subsequently remained in contact with each other.

13   In May 1999 there were a number of telephone conversations and a meeting between the defendant and Monika Ortner, in which the subject of the member of the jury who the defendant thought might be Carl Gibson arose. There are a number of differences between the defendant’s evidence, in her affidavit and orally, and Monika Ortner’s evidence in her affidavit, which was filed and read in the defendant’s case and on which she was not cross-examined. However, the following outline of events (which omits a number of controversial details) would appear to be common ground.

14   Some time in May, around 20 May, the defendant telephoned Monika Ortner and told her that she was instructing in a jury trial and that she thought one of the jurors might be Carl Gibson. A meeting between the defendant and Monika Ortner at the Downing Centre was arranged for 25 May.

15   On the morning of the day appointed for the meeting there were two telephone conversations between the defendant and Monika Ortner. The upshot of the second conversation was that the proposed meeting at the Downing Centre should take place.

16   Before the meeting the defendant typed out a note for the juror who she thought might be Carl Gibson. As I will later recount, the defendant subsequently destroyed the note and there was no primary evidence of its contents. However, the defendant, Monika Ortner and a barrister Justin O’Loughlin, who read the note on 26 May 1999, gave fairly similar evidence of its contents and I accept their evidence. Mr O’Loughlin’s evidence was that, to the best of his recollection, the note said:-

“Hi! How are you? I haven’t seen you in a long time. Give me a call on this number… so we can discuss things”.

17   The defendant took the note to the meeting with Monika Ortner, which took place at the Downing Centre at about half past one on 25 May. At the meeting Monika Ortner signed the note “Monika”. She also wrote on the envelope which the defendant had brought to the meeting.

18   An envelope which, according to the defendant’s case, was the envelope in question was produced at the hearing of the proceedings before me. Counsel for the plaintiff was disposed to query that the envelope produced at the hearing was the envelope in question. However, Monika Ortner swore in her affidavit that the envelope shown to her at the time of swearing her affidavit, which was the envelope produced at the hearing, was the envelope in question. She was not required to attend for cross-examination on her affidavit and I consider that I should accept her evidence.

19   On the 25 May Monika Ortner wrote on the front of the envelope:-

“For
Carl Gibson (Juror)
Courtroom 1.1”

20   On the back flap of the envelope Monika Ortner wrote “From Monika Ortner”.

21   Monika Ortner made two fruitless attempts to deliver the note and the envelope to the juror. On the first occasion she went to courtroom 1.1 but it was closed. On the second occasion she asked a sheriff’s officer if he could help her deliver a message to a juror in courtroom 1.1 but she was rebuffed by the sheriff’s officer, who told her “we don’t pass on messages to anyone on the jury”. Monika Ortner returned to where the defendant was and told the defendant what the sheriff’s officer had said. Monika Ortner then left the defendant to return to her place of work, leaving the envelope and the note with the defendant.

22   On the following day 26 May the defendant had a chance meeting at the Downing Centre with Mr O’Loughlin of counsel, who she knew. She asked Mr O’Loughlin for some advice. According to Mr O’Loughlin’s evidence in his affidavit, which I accept, the defendant said to him:-

“Can you give me some advice. I think I know someone on the jury in the trial I am instructing. I have known him for a long time. I want to contact him so I can see him after the trial. One of my friends knows him as well. I have a note that she has given me”.

23   The defendant showed Mr O’Loughlin the note and he read it. The defendant asked “what do you think?”. Mr O’Loughlin said, “I suggest you burn that letter. If you make any attempt to contact the juror whilst the trial is running you will go to gaol”. Mr O’Loughlin asked the defendant whether she had spoken to her barrister in the trial and suggested that she speak to Mr Scragg again. Mr O’Loughlin said in his affidavit that he had a distinct recollection of the note but he did not have much of a recollection of the envelope, which he had not looked at in any detail.

24   After this conversation with Mr L’Loughlin the defendant tore up the note but she kept the envelope.

25   At about 11.15 on the morning of Friday 28 May Judge Latham completed her summing-up in the Pearson trial and sent the jury out to consider its verdict.

26   At about 4.15 in the afternoon the jury sent Judge Latham a note to the effect that it had been unable to reach a verdict and would like to resume its deliberations on Monday 31 May. After receiving the note, Judge Latham permitted the jury to separate for the week-end.

27   After the jury were permitted to separate, eight or nine of the jurors, including the foreman, Mr S and Mr L, walked to the Crown Hotel, which is a short distance from the Downing Centre. At the Crown Hotel the jurors sat together at tables in a bar on the ground floor. An open doorway led from the bar in which the jurors were to a small area, where there were a number of poker machines and a snack vending machine.

28   The defendant spent most of the time between 11.15 am, when the jury was sent out to consider its verdict, and 4.15 pm, when the members of the jury were permitted to separate, in the coffee shop at the Downing Centre. She drank about eight cups of coffee. She had had no breakfast that morning and had had only half a sandwich for lunch. At about 9.30 that morning she had taken two 25milligram tablets of a therapeutic drug Tryptanol, which she took as an anti-depressant.

29   The defendant herself went to the Crown Hotel shortly after 5 o’clock in the afternoon. She went to an upstairs bar, where she had a chance meeting with Mr David Pullinger, a barrister she was acquainted with, who was having drinks with another barrister. While she was with Mr Pullinger between shortly after 5 o’clock and about 6 o’clock, the defendant drank four glasses of full strength beer. At about 6 o’clock Mr Pullinger and his companion left the bar to go home.

30   After Mr Pullinger left, the defendant had a chance meeting with two solicitors she knew, Naomi Hamilton and Philippa Winston. While she was with them, she drank another glass of beer.

31   The defendant and Ms Hamilton went downstairs in the hotel, with a view to obtaining some snack food. They went into the area where the poker machines and the snack vending machine were, which was close to the bar where the jurors were. The defendant operated the snack vending machine and obtained some snack food.

The Encounter

32   I have now reached the point where an encounter between the defendant and the jurors Mr S and the foreman occurred. At the hearing before me there was no dispute about any of the facts I have so far stated. However, there was considerable conflict between the evidence of the two jurors on the one hand and the evidence of the defendant on the other hand, concerning the encounter between the defendant and the two jurors.

33   Mr S said in pars 6 and 7 of his affidavit:-

“6. A corridor which led to the toilet facilities passed through the room. As I walked through the room to go to the toilet a woman, who had been standing behind another woman at a vending machine, turned and spoke to me. I immediately recognised her as the solicitor assisting Mr Scragg, who was Pearson’s barrister at the trial. I had seen her take notes throughout the trial. We had an exchange of words with the following meaning:
‘She said: Excuse me. Don’t I know you’.
I said: ‘Yes I’m a member of the jury in Mr Scragg’s case.’
She said; ‘I have something for you.’
She then reached down to a handbag and took out an envelope about 9 inches by 4 inches (about 22 cm by 10 cm) in size. The envelope had a few words of writing on it but I did not read them.
She held it out towards me and said: ‘This is for you’.
I said: ‘I shouldn’t be speaking to you. I shouldn’t be near you. You should go’.
7. I then became aware that …, the jury foreman, was standing to my left. He said:
‘You shouldn’t be seen near us. You should go immediately’.
He waved his arm in a motion away from his body. At this stage she was still holding the envelope at about chest height. The woman said something which I did not hear and then bent down and put the envelope back into her bag and left with her friend”.

34   The foreman said in pars 5-12 of his affidavit:-

“5. About half an hour after we arrived at the hotel one of the jurors said to me:
“Isn’t that Mr Scragg’s assistant’.
6. I looked over to where the juror was looking and saw, in the poker machine area, (Mr S) standing with a woman who looked like Mr Scragg’s assistant. She appeared to be talking to (Mr S). I could not hear what was said but her lips appeared to be moving.
7. I got up in order to go over to them and stop the contact. I saw that there was not a clear pathway to the door through which I had seen them, so I walked around to another doorway which led into the poker machine area.
8. As I approached them, the woman was to the left and slightly in front of (Mr S). She bent down, took an envelope from her briefcase, held it out towards (Mr S) and said:
‘This is for you’.
I noticed that (Mr S) backed away. I think he said something but I either did not hear what he said or I do not remember what it was.
9. As I came up to them the woman was on my left and (Mr S) was on my right. She still held the envelope in her hand extended towards (Mr S). I do not recall whether it was in her left hand or her right hand. The envelope was blue. It was about the size of an A4 sheet of paper wide (about 21 cm) and about 11 cm high. It appeared to have some printed words on the top left hand corner. In the middle of the envelope were two words in handwriting which appeared to me to be a name. I do not recall what the name was. Below that was written the word ‘juror’.
10. I said to the woman:
‘Aren’t you Mr Scragg’s assistant?’
She did not make any response to me. She held the envelope out to (Mr S) again and said.
‘This is for you’.
I then said:
‘Stop. Stop. You shouldn’t be talking to us.’
As I said this I gestured to her by moving my right hand from my left side down and across in front of my body.
11. The woman continued to hold the envelope out towards (Mr S). I then repeated the gesture and said, more loudly:
‘Leave immediately’.
I pointed to the exit and said:
‘Just go’.
She said:
‘Oh. I might be mistaken’
12. She then bent down and put the envelope back into her bag, picked up her bag and walked away towards the corridor behind her. As she turned to walk away, I observed another woman standing beside me, who I had not previously noticed. The two women left together”.

35   The evidence of the third juror Mr L did not really advance the plaintiff’s case. Mr L remained seated at a table in the bar. He saw Mr S in the poker machine area, apparently talking to a woman. He could not see the woman clearly, because it was dark and his vision was obscured by other persons. He could not hear what was said. He did not see the woman holding an envelope.

36   The defendant’s evidence in her affidavit about the encounter with the jurors was contained in pars37-49 of her affidavit, in which she said:-

“37. As I was standing deliberating about the next snack I was going to buy and how I had to operate the machine, I sensed someone was near me, behind and to my left. I recall turning my body and I saw a male and a female sitting on chairs in front of a poker machine approximately a metre away from me. The female was playing the machine and the male was sitting close next to her.
38. I at no stage saw the female’s face as she was looking directly at the poker machine. The male had been sitting sideways facing the woman but he had turned his head to the left and was staring at me. As I turned around, we ended up looking at each other. We were still about a metre apart. I didn’t realize who he was immediately. I was only aware that he was smiling in a very friendly manner at me. He said to me words to the effect - ‘I know you.’ The thought immediately went through my mind - ‘who is that?’ I didn’t immediately connect his face to that of the juror or to the person I had known years ago as Carl Gibson. I am very short sighted and I had no glasses on. My reflexes were slow and it was reasonably dark in the area of the vending machine and extremely noisy.
39. The male person then said words to the effect to me - ‘I know you in the Court.’ I recall that I had an immediate thought that he could be Carl Gibson, the juror that had been on the Jury in the Pearson trial who I thought may well be this person Carl Gibson that I had worked with years before at Darrell James Duty Free.
40. Without really thinking I said - ‘Do you know me before the trial?’ The man continued to smile at me but did not make a reply.
41. I may also have said the words - ‘Do you know Monika?’ but I cannot be sure at the time of signing this affidavit as to whether I did or not.
42. I then remembered that I still had the envelope in my briefcase that had Carl Gibson’s name written on it. I realized that the man had trouble understanding my speech or hearing me because of the noise in the bar. I pulled the envelope out of my briefcase with my right hand and transferred it to my left hand, and pointed with my right index finger to the name ‘Carl Gibson’ which was written on the envelope. My best recollection is that I said words to the effect - ‘Are you this person?’ I may have said - ‘Is this for you?’ as I pointed to indicate to the man the name written on the envelope, but I cannot be sure at the time of swearing this affidavit what words I used exactly.
43. The man then replied - ‘No’.
44. I was just about to put the envelope back in the briefcase when I heard a male voice say - ‘Don’t you work with Mr Scragg?’ The voice came from the doorway between the poker machines and the vending machines.
45. The male was approximately 3 metres away from me and it was dark and I couldn’t see his face clearly.
46. I then heard him say words to the effect - ‘Other jurors are drinking over there’, indicating with his hand into the back area from where he had walked.
47. It was only then that I realized that the first man I had been talking to was a juror and that he was the person who I thought looked like Carl Gibson. As far as the second man is concerned, I recognized him also as a juror on the trial because he had used the words ‘Scragg’ and ‘juror’. I made this recognition not from recognizing his face but from the words he had used.
48. When the second man said ‘other jurors are drinking over there’, I felt really confused and began to feel that I didn’t understand what was happening. I said words to the effect - ‘Yes, but I shouldn’t speak to you.’ He kept talking to me but I could not clearly hear or understand what he was saying. He was waving his arms around. I decided to go back upstairs as I had now recognized him as a juror and his manner was making me feel very uncomfortable. Then I said - ‘I must go’ and I left with Naomi Hamilton. We walked upstairs together.
49. Whilst the second man was talking to me I held the envelope in my hand the whole time. The whole incident referred to above happened in very quick sequence. Naomi Hamilton was by this stage standing nearby and we went upstairs together. On the stairs Naomi said to me - ‘Who are they?’ I said to her ‘Jurors.’ She said to me - ‘Oh Kay. You had better talk to John’. I understood her reference to ‘John’ to refer to John Bettens who was my principal solicitor in the Pearson trial”.

37   Naomi Hamilton’s evidence about the encounter in her affidavit was fairly brief. She said that after she and the defendant had gone into the area with the poker machines, she went to the bar to get some change in order to operate the snack vending machine and after she returned she saw a young man and a woman sitting apparently together at a poker machine. She said in her affidavit “I’m not sure of the actual sequence of events”. She then said in par14 of her affidavit:-

“I recall at some stage the man saying to the Defendant words to the effect - ‘I know you from the court’. The man also at some stage said words to the effect - ‘Aren’t you the one working with Greg Scragg?’ I did not hear the Defendant’s reply”.

38   Paragraphs 19 and 20 of Naomi Hamilton’s affidavit were as follows:-

“The next thing I recall after I turned away from the vending machine was another man walking through the door which is situate between the vending machine and the poker machine at which (Mr S) was sitting. He struck me as looking very serious and angry.
He said to the Defendant words to the effect - You work with Greg Scragg. You shouldn’t be talking to us”.

39   Naomi Hamilton had little recollection of anything else that happened in the encounter.

40   After the encounter with the jurors the defendant and Naomi Hamilton went back upstairs in the hotel. While they were on the stairs, Naomi Hamilton asked the defendant who the two men were and the defendant replied “jurors”. According to Naomi Hamilton’s affidavit, she told the defendant in blunt terms that she (the defendant) could not speak to jurors, even if she did not say anything about the case.

41   The defendant and Naomi Hamilton rejoined Philippa Winston. At some stage the defendant was told by Naomi Hamilton or Philippa Winston or both of them that she would have to tell Mr Bettens what had happened. According to Naomi Hamilton’s affidavit, the defendant said, “I didn’t know if I would have another chance to find out if he was the person I knew from years ago”.

Subsequent Events

42   There is evidence of what happened on the following working day, Monday 31 May 1999, in the affidavit of the solicitor from the Office of the Director of Public Prosecutions and in an affidavit by Mr Scragg. I am satisfied that I should accept this evidence. Indeed many parts of the solicitor’s affidavit were the subject of express admissions by the defendant. Transcripts of court hearings on 31 May were annexed to the solicitor’s affidavit.

43   On the morning of 31 May the defendant telephoned Mr Scragg. She had already telephoned Mr Bettens. She told Mr Scragg “I had some accidental contact with the jury on the week-end”. Mr Scragg arranged to meet the defendant at the Downing Centre. He telephoned Mr Bettens and the Crown Prosecutor at the trial.

44   At the Downing Centre Mr Scragg had a conference with the defendant. Mr Scragg made brief notes of the conference. His notes of what the defendant told him about the actual encounter with the jurors are as follows (I infer that “H.S.” is an abbreviation for “he said” and that “I.S” is an abbreviation for “I said”):-

“Buying snacks - with Naomi
1 juror - ½ m
Turned around
Eye contact
H-S - I know you
I.S - nothing - surprised ) He
H.S - I know you in ) see in
the Court trial
I.S - I shouldn’t as before
speak to you
H.S - Yeah yeah, I know I know
Another juror approached

Foreman
H.S - are you working with Mr Scragg
I.S - yes but I shouldn’t speak to you
H.S - other juror are drinking over there
I.S to first juror -
Do you know me before
the trial?
PAUSED I.S - Do you know Monica?
PAUSED
I.S Are you Carl Gibson
H.S - NO
I.S - I must go”.

45   Mr Scragg and the defendant then attended a conference with the Crown Prosecutor and the solicitor from the Office of the Director of Public Prosecutions. Mr Scragg gave an account of what the defendant said had happened, which was based on the notes he had made of his conference with the defendant but in which he expanded his notes into grammatical sentences. Mr Scragg then sent a message to the trial judge.

46   Judge Latham was already aware that there had been some contact between the defendant and members of the jury. When the foreman of the jury had arrived at the court on the Monday morning, he had spoken to a Sheriff’s Officer about the incident. The Sheriff’s Officer had sequestered the three jurors, that is the foreman, Mr S and Mr L, in a separate room and had suggested that a note be prepared for Judge Latham. The Sheriff’s Officer communicated with Judge Latham. At the time the court was convened for the first time on 31 May, Judge Latham had not yet received a note from the jurors.

47   In the courtroom Mr Scragg, in the presence of the defendant, gave a version of what had happened, which was in accordance with the notes he had made at his conference with the defendant and in accordance with what he had told the representatives of the Crown. In particular, he told Judge Latham that it was the juror who had spoken first, that the juror had said “I know you”, that the defendant had said nothing, that the juror had said “I know you in the court”, that the defendant had then said “I shouldn’t speak to you”, that the juror had then said “I know”, that the foreman had then approached and had asked the defendant whether she worked with Mr Scragg and that the defendant had said “yes but I shouldn’t speak to you”. The defendant had then asked the first juror whether he had known the defendant before the trial, whether he knew Monika and whether he was Carl Gibson.

48   On the morning of 31 May the three jurors collaborated in preparing the note which the Sheriff’s Officer had suggested should be prepared for Judge Latham. I indicated at the hearing that any weight I would give the note would be affected inter alia by the circumstance that the note was the product of collaboration between the jurors. The note read as follows:-

“Nine jurors attended the local hotel on Friday pm. One juror moved to the poker machine area within view of the other members. A woman of Asian appearance, who we believe is Mr Scragg’s assistant, approach the juror in the poker machine area. She mentioned that she knew the juror saying, ‘Don’t I know you from some place?’ The juror responded that he was involved on Mr Scragg’s case. She responded with ‘I have something for you’. She drew from her bag a blue envelope & attempted to hand it to him. The juror recoiled & refused to accept it. As the other members noticed this encounter one other juror came to the scene and asked the woman to leave immediately. She attempted to hand over the envelope again & was told to leave immediately again. She mentioned that she may have been mistaken then & she left with the envelope via a small corridor accompanied by another woman who had been standing nearby. Other jurors saw the woman but from their position did not see the envelope”.

49   After receiving the jurors’ note, Judge Latham had the court reconvened. She informed the parties that she had decided to allow the three jurors to rejoin the other jurors and to allow the full jury to continue deliberating. She had the jurors’ note marked (MFI 46) but declined to make it available to Mr Scragg.

50   On the afternoon of 31 May the jury reached a verdict in Mr Pearson’s trial. Before the verdict was actually taken, Judge Latham was informed that Mr Scragg wished to make an application. Her Honour said that as the jury had reached a verdict she would not entertain any application. The jury then returned a verdict of guilty.

51   In the late afternoon of 31 May, after the verdict of guilty had been taken and after Mr Pearson had been remanded for sentence, the three jurors, that is the foreman, Mr S and Mr L, gave evidence in court before her Honour in response to questions from her Honour.

52   Mr S gave evidence inter alia that the defendant had approached him, that the defendant had said “I know you from somewhere”, that the defendant had said “I have something for you” and that the defendant had produced an envelope. Mr S added, “now at the time I presumed nothing of it, it could have been just a coincidence. She might have thought I was maybe someone else”.

53   Mr L gave evidence that he had remained sitting at the table and had not heard any of the conversation.

54   The foreman gave evidence inter alia that he had walked up to where another juror and a woman he identified as “Mr Scragg’s assistant” were, that he had seen the woman holding out an envelope and that he, the foreman, had told and gestured to the woman to leave.

55   After the three jurors had given evidence Judge Latham permitted Mr Scragg to see the note MFI 46. Mr Scragg complained about not having been permitted access to the note earlier. He asserted, “if I had this note your Honour could not have resisted a discharge application”. Her Honour replied that she “would have resisted a discharge application in any event”. Her Honour then said that she would be calling on the defendant to show cause why she (Judge Latham) should not refer to the Supreme Court for determination the matter of whether the defendant had been guilty of a contempt of court. Her Honour agreed to grant a short adjournment to enable the defendant to obtain legal advice.

56 On 2 June 1999, after hearing brief submissions from senior counsel then appearing for the defendant, Judge Latham decided that, pursuant to s203 of the District Court Act, the matter of the defendant’s contact with the jurors be referred to the Supreme Court for determination of the question whether or not a contempt had been committed. Her Honour delivered a judgment in which she recorded many of the events which I have referred to earlier in this judgment. With regard to the application which Mr Scragg said he would have made for the discharge of the jury, her Honour said “in my view the interest of justice would not be served by acceding to an application, the basis of which had been engineered by the accused’s instructing solicitor”.

Finding of Facts

57   It is necessary for me to make findings of fact about what happened in the encounter between the defendant and the jurors. Factual issues to be determined include who approached who, what was said and done in the encounter and at what point did the defendant realise that the other person she first encountered was a juror in the Pearson trial.

58   As previously remarked in this judgment, counsel for the plaintiff was disposed at least at one stage in the hearing to query that the envelope which had been produced at the hearing was the envelope which the defendant had on the evening of 28 May. However, in the state of the evidence, including the unchallenged evidence of Monika Ortner, I accept that the envelope produced at the hearing was the envelope the defendant had on 28 May. I also accept that during the encounter on 28 May the envelope had nothing in it.

59   Although it was common ground that the defendant had had an envelope, had taken it out of her briefcase and had held it out towards Mr S, it was disputed that she could be said to have “proffered” the envelope. Counsel for the defendant submitted that I should find that the defendant was merely showing the envelope to Mr S.

60   Another factual issue is what intention the defendant had during the encounter. Counsel for the defendant submitted that the defendant’s intention was vital. Counsel for the plaintiff submitted that it was not essential for me to find that the defendant had any particular intention in order for the charge of contempt to be established.

61   I was impressed by each of the plaintiff’s witnesses, the foreman and Mr S. I was particularly impressed by the foreman. I accept that at the time of the encounter neither was significantly affected by alcohol. I consider that the credibility of their evidence is enhanced by the following considerations.

62   The foreman realised that something significant and untoward might be happening, as soon as he observed the defendant and Mr S together.

63   Each of the foreman and Mr S endeavoured to recall what had happened, soon after it happened. They participated in the preparation of the note MFI 46 on the morning of 31 May. Indeed, there was evidence, which I accept, that the foreman and Mr S had discussed the incident on the Friday evening shortly after it had happened. Each of the foreman and Mr S gave substantially similar accounts in the note prepared on the morning of 31 May, in the evidence each gave in the late afternoon of 31 May and in the affidavit each swore in these proceedings. Each adhered to that account when cross-examined before me.

64   I take a less favourable view of the credibility of the defendant.

65   The evidence about the amount of alcohol the defendant had drunk and the Tryptanol she had taken and the evidence of Professor Starmer about the defendant’s probable state of intoxication and about the likely interaction of the alcohol, Tryptanol and caffeine she had consumed, would seem to have been adduced on behalf of the defendant, at least partly with a view to suggesting that on the evening of 28 May the defendant’s speech would, to her knowledge, have been affected and this circumstance, together with her Japanese accent, would explain why she held out the envelope with Carl Gibson’s name written on it and should lead me to have at least a reasonable doubt about the accuracy of the jurors’ understanding of what it was the defendant had said to them. However, if at the time of the encounter the defendant was seriously intoxicated by alcohol (as Professor Starmer said) and her state of intoxication would have been exacerbated by the ingestion of Tryptanol (as Professor Starmer said), then those circumstances would, in my opinion, cast some doubt on the reliability of her observation and recollection of what happened.

66   An evidentiary issue which I consider has some significance is whether the defendant herself, as distinct from Monika Ortner, desired to establish contact with Carl Gibson and accordingly to determine whether the juror Mr S was in fact Carl Gibson.

67   The defendant gave evidence that it was Monika Ortner who was anxious to see Carl Gibson and that she herself was not anxious to see him.

68   At first sight, the defendant’s evidence would seem to be corroborated by the circumstances that the note was signed by Monika Ortner and not the defendant, that it was Monika Ortner who wrote on the envelope and that Monika Ortner wrote on the flap of the envelope “from Monika Ortner” and that on 25 May Monika Ortner made two unsuccessful attempts to deliver the envelope and the note to Mr S.

69   However, Monika Ortner in her affidavit, which, as I have said, was filed and read in the defence case and on which she was not cross-examined, said that in the first telephone conversation between the defendant and Monika Ortner the defendant had said inter alia that she, the defendant, would love to see and catch up with Carl Gibson and that the defendant suggested that Monika Ortner should pass a note to the juror who the defendant thought might be Carl Gibson, because the defendant as a solicitor instructing in the trial could not do so, whereas Monika Ortner, who was not a solicitor, could. The note was typed out by the defendant, not Monika Ortner. According to Monika Ortner’s affidavit, her two unsuccessful attempts to deliver the note on 25 May were made at the instigation of the defendant. The defendant told Monika Ortner not to mention the defendant’s name. It is common ground that after these attempts to deliver the note Monika Ortner left the note and the envelope with the defendant.

70   The defendant did not abandon the project of finding out if the juror was Carl Gibson. On the following day 26 May she showed Mr O’Loughlin the letter and asked him for advice. As I have already stated, she said inter alia to Mr O’Loughlin, “I want to contact him (the juror), so I can see him after the trial”.

71   On 28 May the defendant, on the version she gave Mr Scragg on the morning of 31 May, asked Mr S, even after the foreman had intervened, “do you know me before the trial?”

72   I have concluded that, whether or not Monika Ortner wanted to see Carl Gibson again, the defendant did and attempting to establish whether the member of the jury was in fact Carl Gibson exerted a kind of fascination for her, which continued up to the time of the encounter at the hotel.

73   The finding I make that the defendant was herself keenly interested in finding out whether Mr S was Carl Gibson renders it more probable that it was the defendant, and not Mr S, who initiated the contact or encounter between them, when by chance they were close together in the hotel.

74   Earlier in this judgment I quoted paragraphs 37-49 of the defendant’s affidavit. According to paragraph 38 of the defendant’s affidavit the defendant, when first spoken to by Mr S, did not connect him with either the juror she had seen in court or Carl Gibson. According to paragraph 39 of her affidavit, the defendant, after having been spoken to twice by Mr S, thought that the person speaking to her might be Carl Gibson. According to paragraph 47 of her affidavit, it was not until after the foreman had spoken to her that she realised that the first man was a member of the jury.

75   I do not accept this evidence by the defendant. I am satisfied, to the requisite standard, that when the defendant first became conscious of Mr S being close to her in the hotel, she recognised him, notwithstanding that she was intoxicated and was not wearing her glasses, as being the juror who she thought might be Carl Gibson.

76   Paragraph 39 of the defendant’s affidavit lends some support to this finding. In paragraph 39 the defendant said, “I had an immediate thought that he could be Carl Gibson, the juror that had been on the jury in the Pearson trial, who I thought may well be this person Carl Gibson”.

77   Paragraph 40 of the defendant’s affidavit also supports this finding. The defendant said in paragraph 40 of her affidavit that she said to the man “do you know me before the trial?” I do not consider that she would have asked a question in these terms, unless she realised that the person with her was a person who had known her during the trial.

78   More fundamentally, it is highly improbable that the defendant did not immediately recognise the person close to her as being the juror who she thought might be Carl Gibson. The defendant had first observed Mr S as a juror on 3 May. On that day she thought he might be Carl Gibson. Between 3 May and 28 May she would have had many opportunities to observe Mr S. On 28 May she still thought he might be Carl Gibson. She had a keen interest in finding out whether he was in fact Carl Gibson. On 28 May she found herself in close proximity to Mr S. According to her affidavit Mr S was only about a metre away from her. According to what she had told Mr Scragg on the morning of 31 May, he was only about half a metre away from her. Although the defendant is short-sighted, Mr S was so close to her that her short-sightedness should not have presented a problem in recognising him. At an early stage in the encounter, even on the defendant’s own version, she thought that the person might be Carl Gibson. It was highly unlikely that the defendant would have thought that the person close to her, who was in fact the juror Mr S, might be Carl Gibson, without also thinking that he was the juror who, over a period from 3 May to 28 May, she had thought might be Carl Gibson.

79   A further problem with the defendant’s credibility is that there are differences between the evidence she gave in these proceedings and the account she gave to Mr Scragg on the morning of 31 May, including that in the account she gave to Mr Scragg she made no mention of the envelope.

80   I am satisfied, to the requisite degree, that the defendant had a keen interest in determining whether Mr S was Carl Gibson, so that she could renew her acquaintance with Carl Gibson; that before 28 May she had attempted to communicate with Mr S through the medium of Monika Ortner; that on 28 May she was still interested in finding out whether Mr S was Carl Gibson; that at the Crown Hotel she found herself in close proximity to Mr S; that she immediately recognised Mr S as being the juror at the trial; that she approached Mr S (at least in the sense of being the first to speak) with a view to finding out if he was Carl Gibson.

81   Having regard to these findings and my findings about the relative credibility of the witnesses, I consider that I should accept the rest of the evidence of Mr S and the foreman about the encounter, including that the defendant said with reference to the envelope that it was for Mr S and that the defendant held out the envelope towards Mr S. In at least one sense of the word “proffer” that is to “spontaneously offer”, the defendant proffered the envelope to Mr S.

82   As I have already found, the note which the defendant had typed was not inside the envelope and there was nothing else inside the envelope. Mr S did not take the envelope; he refused to take it. As Mr S said in giving evidence before Judge Latham on 31 May he “presumed nothing” of the incident, that is he did not attach any importance to the incident and thought that the defendant might have mistakenly thought that he was someone else.

83   I am satisfied that the defendant, notwithstanding her state of intoxication, intended to do the acts which I have found she did and intended to say the things which I have found she said. I accept that her object was to find out if the juror was Carl Gibson and that she held out the envelope so that Mr S would be able to read the name “Carl Gibson” written on the envelope and that she had no intention either to influence Mr S by causing him to believe that the envelope contained some inducement or to cause the jury to be discharged.

The Plaintiff’s Case

84   In the summons by which the proceedings for contempt were commenced the plaintiff specified the alleged conduct by the defendant which was alleged to constitute a contempt of court. The conduct specified included that the defendant approached Mr S at the hotel, asked Mr S whether she knew him, heard Mr S say that he was a juror in the trial in which Mr Scragg was appearing, said that she had something for Mr S and produced an envelope and held it out to Mr S. In the summons the plaintiff alleged that this conduct of the defendant constituted a contempt of court, either because her conduct was intended by her to produce certain results or because her conduct had an objective tendency to produce those results. The results alleged in the summons were to -

(a) Influence the juror by offering a threat reward or inducement to the juror; or

(b) Influence the juror by causing the juror to believe that the envelope contained a threat reward or inducement; or

(c) Cause the jury to be discharged.

85   In his final address counsel for the plaintiff, having regard to the evidence which had been given at the hearing and the findings I was likely to make about what the defendant herself had intended by her conduct, confined his submissions to submitting that the conduct of the defendant constituted a contempt in that it had an objective tendency to influence Mr S by causing him to believe that the envelope contained a threat reward or inducement or to cause the jury to be discharged. It was submitted that the defendant’s conduct in having such an objective tendency had, as a matter of practical reality, a tendency to interfere with the administration of justice in the trial of Mr Pearson and was therefore a contempt.

The Law to be Applied

86   As I remarked near the beginning of this judgment, the present proceedings are proceedings for contempt of court and are accordingly criminal in nature. The onus is on the plaintiff to prove the charge of contempt beyond reasonable doubt Witham v Holloway. I have borne in mind the criminal nature of the proceedings and the criminal onus and standard of proof in making the findings of fact I have already made.

87   Most recent reported cases of contempt of court are cases of publications allegedly interfering with the due course of justice in particular legal proceedings. The present case is not such a case, even thought the conduct of the defendant relied on included the holding out of a document (that is the envelope) to a juror. It seems to me that the present case, so far as the first way in which the plaintiff’s case was finally put is concerned, can be classified as a case of alleged interference with a person having duties to discharge in a court of justice, namely a juror. See Borrie & Lowe the Law of Contempt (3rd ed) 1996 at pp423-426. At p423 Borrie & Lowe say:-

“The principle upon which interfering with jurors amounts to contempt is perhaps best explained by Pigot CB in R v Martin (1848) 5 Cox CC 356 (Ireland). He said:
‘It is important that there should be no improper interference with the administration of justice; and above all, that juries should be protected from every interference with them in reference to the discharge of their important and sacred duties; they form a portion of the tribunals by which the law of the land is administered’”.

88   Although the present case is not a case of contempt by a publication, both parties submitted that , in relation to both ways in which counsel for the plaintiff finally put the plaintiff’s case, I should adopt the principle governing contempt by a publication, authoritatively stated in John Fairfax & Sons Pty Limited v McCrae (1954-1955) 93 CLR 351, which has not been departed from in subsequent cases. See for example Hinch v Attorney General (Vict) (1987) 164 CLR 15 per Mason CJ at 28 and Deane J at 47; Attorney General for New South Wales v Dean (1990) 20 NSWLR 650 at 655-656. In John Fairfax & Sons Pty Limited v McCrae Dixon CJ Fullagar J, Kitto J and Taylor J said in their joint judgment at p370 that it had to be established “that the matter published has as a matter of practical reality a tendency to interfere with the due course of justice in a particular case”. I accept that in the present case what the plaintiff has to establish beyond reasonable doubt is that the conduct of the defendant had, as a matter of practical reality, a tendency to interfere with the due course of justice in the trial of Mr Pearson in either or both of the ways submitted by counsel for the plaintiff.

89   It was submitted on behalf of the defendant that it was necessary for the plaintiff to establish that the defendant intended to interfere with the administration of justice or at least that the defendant had “a blameworthy attitude of mind”. Counsel referred to the judgment of Kirby P (as his Honour then was) in The Prothonotary v Collins (1985) 2 NSWLR 549 at 551, where his Honour cited Russell on Crime 12 ed (1964) at 22.

90   I do not consider that this submission should be accepted. It is well settled that in the case of contempt by a publication it is not essential for the prosecutor to prove an intent to interfere with the administration of justice, although the defendant’s intention can be relevant to whether a charge of contempt has been made out. In John Fairfax & Sons Pty Limited v McCrae Dixon CJ, Fullagar J, Kitto J and Taylor J said at p371:-

“The actual intention or purpose lying behind a publication.. is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the Court as a relevant consideration, its importance varying according to circumstances”.

91   See also Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 especially per Hope JA at 673-676; Attorney General for New South Wales v Dean at 655-656.

92   These principles concerning the defendant’s intention have also been stated in cases involving other kinds of contempt. In Lane v The Registrar of the Supreme Court of New South Wales(Eq Div) (1981) 148 CLR 245, a case involving advice given by the alleged contemnor that certain documents did not have to be produced in answer to a subpoena for production, the High Court in a judgment of the Court said at p258:-

“An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important”.

93   In Harkianakis v Skalkos (1997) 42 NSWLR 22, a case involving contempt by subjecting a party to litigation to improper pressure, Mason P said at p28:-

“Intention to interfere with the due administration of justice is not necessary to constitute a contempt”.

94   Borrie & Lowe submit at p425 that in a case of contempt consisting of an interference with jurors (or a juror):-

“Mens rea is required only to the extent that the alleged contemnor must be proved to have intended to do an act which, objectively construed, is calculated to interfere with the course of justice”.

95   In my opinion, the only intention on the part of the defendant which the plaintiff has to prove in the present proceedings is that the defendant intended to engage in the conduct alleged to constitute a contempt. Nor is it necessary for the plaintiff to prove that the defendant had in some way a morally blameworthy attitude of mind.

96   What the plaintiff has to establish is that the conduct of the defendant had an inherent tendency, as a matter of practical reality, to interfere with the administration of justice, not that the conduct actually produced an interference with the course of justice in the particular case. Hence, the defendant’s conduct would be capable of amounting to a contempt of court, even though the defendant’s conduct did not in fact cause Mr S to believe that the envelope contained a threat, reward or inducement and did not in fact cause the jury to be discharged. In Attorney General v John Fairfax & Sons Limited (1980) 1 NSWLR 362 the Court of Appeal said at 368:-

“Without purporting to state the test exhaustively, it can be said that contempt can be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings. This tendency is to be determined objectively, by reference to the nature of the publication; and it is not relevant for this purpose to determine what the actual effect of the publication upon the proceedings has been, or what it probably will be”.

97   In the present case Judge Latham said that, if an application had been made for a discharge of the jury, she would have refused it. In accordance with the authorities I have cited, the statement by her Honour would not be relevant to determining whether a contempt of court had occurred. In any event, what her Honour said was hypothetical, inasmuch as no application had actually been made to her, and in saying what she did her Honour was influenced by a suspicion she had apparently formed, on the limited information available to her, that the defendant as the accused’s solicitor had deliberately set out to “engineer” a ground for a discharge of the jury and Judge Latham, having such a suspicion, would naturally have been unwilling to permit such an objective to be achieved.

Application of the Law to the Facts Found

98   The question remains whether the conduct of the defendant relied on by the plaintiff, which I have found occurred, had, as a matter of practical reality, an objective tendency to interfere with the administration of justice in the trial of Mr Pearson, by causing the juror Mr S to believe that the envelope contained a threat, reward or inducement or by causing the jury to be discharged.

99   It is, of course, easy to conceive of examples of conduct which would more obviously amount to a contempt, for example a holding out to a juror of an envelope which in fact contained a threat, reward or inducement, such as an amount of cash. It is also necessary to bear in mind that conduct will not amount to a contempt of court, unless it has the required tendency to interfere with the administration of justice “as a matter of practical reality”.

100   I have concluded that I should hold that a contempt of court has been established in both of the ways in which counsel for the plaintiff finally put the plaintiff’s case. The defendant was a solicitor instructing counsel for the accused in the courtroom in a criminal trial before a jury. The trial had reached a crucial stage, in that the jury had commenced its deliberations, but the members of the jury had been allowed to separate temporarily before resuming their deliberations. The defendant approached one of the jurors, believing that he was a juror, and spoke to him. She claimed in what she said to know the juror and obtained confirmation from him that he was a member of the jury. Then, knowing that the person she was speaking to was a juror, she said that she had something for him. She produced an envelope, held it out towards the juror and said words to the effect that the envelope was for the juror.

101   I am satisfied beyond reasonable doubt that such conduct of the defendant had, as a matter of practical reality, an objective tendency to cause a juror to believe that the envelope related to the trial in which he was serving as a juror and that it contained some kind of threat, reward or inducement to discharge his functions as a juror at that trial in some particular way. Further, I am satisfied beyond reasonable doubt that such conduct of the defendant had, as a matter of practical reality, an objective tendency to provide a ground for discharging the jury, so that the trial would be aborted.

102   I find the charge of contempt of court established.

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Last Modified: 09/25/2000