Quist v The Queen

[2021] SASCA 106

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

QUIST v THE QUEEN

[2021] SASCA 106

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Bleby)

7 October 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Appeal against conviction of one count of arson, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA).

The appellant was charged with one count of arson, contrary to section 85(1) of the CLCA. The prosecution case was circumstantial. After the jury had retired to deliberate, a note from the jury was provided to the trial judge. The note informed the judge that a juror had gone home the previous day and discussed an aspect of the case with their mother, and the mother had advised the juror that the appellant could not be found guilty.

Counsel for the appellant applied for an order declaring a mistrial. The judge refused the application, and instead gave the jury a direction about the note. Following the appellant’s conviction, the judge indicated at a directions hearing that she had refused the application because she was anticipating a real chance of acquittal.

The issues arising on appeal are whether:

•  the prosecution failed to particularise, or to adduce evidence at the requisite level of particularity of, the actus reus of the appellant in relation to the ignition of the fire, resulting in a miscarriage of justice (Ground 2);

•  the verdict was unreasonable or cannot be supported having regard to the evidence (Ground 3);

•  a substantial miscarriage of justice occurred by reason of the juror discussing the case with their mother while the jury was engaged in deliberations, and introducing the mother’s views into those deliberations (Ground 4); and

•  the judge’s subsequent refusal to declare a mistrial was itself tainted by error of law such as to cause a substantial miscarriage of justice (Ground 4).

Held (by the Court), granting permission to appeal on Ground 2, dismissing Grounds 2 and 3, and allowing the appeal on Ground 4:

1.  The judge’s failure to assess and determine the consequences of the incursion into the jury’s deliberations, and to rely on her own anticipation of an acquittal, constituted an interference with the integrity of the functions of the jury. The judge’s stated reason for refusing to declare a mistrial demonstrated a miscarriage of justice.

2.  The subject matter of the note was central to the jury’s consideration of the case. The judge’s subsequent direction could not cure the risk to the integrity of the jury’s deliberations. A fair-minded and informed member of the public would have had a reasonable apprehension or suspicion that the juror or the jury had not discharged or would not discharge their task impartially.  The juror’s actions as evidenced by the note caused a miscarriage of justice.

3.  The Court cannot be satisfied that, absent the events the subject of the note, the jury would inevitably have convicted the appellant. This is not a case for application of the proviso.

4.  The totality of the circumstantial evidence was capable of supporting a path of reasoning to guilt. The verdict was not unreasonable or incapable of being supported, having regard to the evidence.

5.  The prosecution particularised, and adduced evidence capable of proving, the actus reus in relation to the ignition of the fire, at the requisite level of particularity. The jury were comprehensively instructed as to the limits of the evidence in the context of the required standard of proof.

6.  The conviction is quashed, and the matter is remitted for retrial.

Criminal Law Consolidation Act 1935 (SA) s 85(1); Criminal Procedure Act 1921 (SA) s 158(2); Juries Act 1927 (SA) ss 55(1); 55(2); 55(3), referred to.

Coughlan v The Queen (2020) 267 CLR 654, distinguished.

Advertiser Newspapers Pty Ltd & Ors v Penhall [2021] SASCA 76; Brownlee v The Queen (2001) 207 CLR 278; Caleo v R [2021] NSWCCA 179; Carson v The Queen [2019] VSCA 317; Case Stated on Acquittal (No 1 of 2015); R v Stakaj & Ors (2015) 123 SASR 523; Craig v South Australia (1995) 184 CLR 163; Crofts v The Queen (1996) 186 CLR 427; Dansie v The Queen [2020] SASCFC 103; De Grunchy v The Queen (2002) 211 CLR 85; Dent v The Queen [2021] SASCFC 4; Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; Gilbert v The Queen (2000) 201 CLR 414; Jago v District Court (NSW) (1989) 168 CLR 23; Johnson v Miller (1937) 59 CLR 467; Mahmood v Western Australia (2008) 232 CLR 397; McInnis v The Queen (1979) 143 CLR 575; Mustafa v The Queen [2021] NSWCCA 164; Nanan v The State (Trinidad and Tobago) [1986] AC 860; NH v DPP (SA) (2016) 260 CLR 546; RCB v The Honourable Justice Forrest (2012) 247 CLR 304; R v Baden-Clay (2016) 258 CLR 308; R v Boland [1974] VR 849; R v Chaouk [1986] VR 707; R v Cox [1960] VR 665; R v Glastonbury (2012) 115 SASR 37; R v Headon [2014] SASCFC 4; R v Hillier (2007) 228 CLR 618; R v Ketteridge [1915] 1 KB 467; R v Overell [2013] SASCFC 52; R v Softley (1999) 206 LSJS 48; R v Twiss [1918] 2 KB 853; R v Wilton (2013) 116 SASR 392; Smith v Western Australia (2014) 250 CLR 473; Webb v The Queen (1994) 181 CLR 41; Weiss v The Queen (2005) 224 CLR 300; Dupas v The Queen (2010) 241 CLR 237; AW v The Queen [2016] NSWCCA 227; R v Debs [2011] NSWSC 1248; RPS v The Queen (2000) 199 CLR 620, considered.

QUIST v THE QUEEN
[2021] SASCA 106

Court of Appeal – Criminal:   Kelly P, Livesey and Bleby JJA

1. THE COURT:         Following a trial by jury, the appellant was convicted by majority verdict of one count of arson, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA). This appeal against conviction raises the following issues:

   ·whether the prosecution failed to particularise, or to adduce evidence at the requisite level of particularity of, the actus reus of the appellant in relation to the ignition of the fire, resulting in a miscarriage of justice (Ground 2);

   ·whether the verdict was unreasonable or cannot be supported having regard to the evidence (Ground 3);

   ·whether a substantial miscarriage of justice occurred by reason of a juror discussing the case with their mother while the jury was engaged in final deliberations, and introducing the mother’s views into those deliberations (Ground 4); and

   ·whether the judge’s subsequent refusal to declare a mistrial was itself tainted by error of law such as to cause a substantial miscarriage of justice (Ground 4).

2. On 12 July 2021, following concessions by the respondent, Kelly P granted permission to appeal on Grounds 3 and 4 and referred Grounds 1 and 2 to this Court for permission. The appellant has now abandoned Ground 1, which complained of an error in finding a case to answer.

   Background

3. On 23 December 2013, at approximately 5:15pm, a fire was deliberately lit in the disabled toilet block within the Parafield Gardens Shopping Centre. The prosecution case was that the appellant had lit the fire.

4. The appellant’s mother operated the Australia Post shop in the shopping centre.  The appellant was visiting her mother at the shop, as she had many times before. During this visit, the appellant left her backpack on the counter of the shop, unattended, for several minutes. Sometime after the shop closed, the appellant left the shop with a backpack and another bag.

5. The prosecution case against the appellant was circumstantial. It was that when she left the shop, she was carrying a backpack containing seven soft drink bottles full of petrol.  The prosecution alleged that the appellant splashed petrol from one bottle around the floor of the disabled toilet, leaving an open bottle containing petrol near the toilet itself.  She secreted the remaining six bottles in the cavity above the ceiling, through the gap created by the exhaust fan fitting.  As she walked to the door to leave, she lit a match to ignite the petrol.  This caused what was described as a vapour explosion or fire to ignite, on account of the accumulation of petrol vapours in the air.

   Summary of evidence

6. It is necessary to describe the evidence in a degree of detail.

   The CCTV footage

7. There was a CCTV camera operating from inside the Australia Post shop.  Its field of vision incorporated most of the inside of the shop and a relatively confined area of the shopping centre floor beyond the glass door and windows of the shop. The CCTV footage shows the appellant walking away from the shop and out of vision.  The footage then records, about six minutes later, an orange flash outside of the shop.  The appellant is then recorded coming into view, in a distressed state, proceeding to the front door of the shop.  The appellant had suffered serious burns, caused by being close to the fire in the disabled toilet.  She was the only person injured.

   The immediate witnesses

8. Witnesses gave evidence that their attention was drawn to the fire when they heard a woman screaming.  Foodland employees attended and extinguished the fire, using powder and water extinguishers. One employee, Mr Benjamin Huckstepp, estimated that the toilet door was 30 cm ajar, sufficiently wide for him to get the fire extinguisher in without disturbing the door.  He used a powder fire extinguisher.  He said he did not touch anything in the toilet, although he was not asked whether items were moved about by use of the extinguisher.

9. Mr Huckstepp also gave evidence that when he pulled the pin of the fire extinguisher, a man came out of the door of the toilet next to the disabled toilet.  He looked at the employees with fire extinguishers and then exited quickly by the side door to the shopping centre.

10. Another Foodland employee, Mr Joseph Sikora, described the toilet door as being open to about 10 cm.  He saw a box of matches just inside the doorframe. He could not say whether use of the fire extinguishers moved anything around. The third employee, Mr Benjamin Stephens, entered the room by ‘the smallest amount’ so as to aim an extinguisher at the ceiling.  He did not touch anything.

11. A member of the public administered first aid to the appellant at the Australia Post shop.  At this time, the appellant twice said, ‘where is my bag?’.

    The appellant’s injuries and the appellant’s backpack

12. The appellant sustained burns to 23.5 per cent of her body.  The burns were located on her upper chest and lower neck, the back and front of both forearms, a strip across her lower back, both knees and a strip on the top of each of her feet. 

13. The Metropolitan Fire Service had initially removed the backpack from the scene. Police retrieved it and asked that it be returned to the position in which it had been found.  It contained a folder of the appellant’s personal documents. The front of the backpack had been badly burned.  The remains of a black shopping bag were found fused to it. The prosecution submitted at trial that the state of the backpack and the lack of burns to the front of the appellant’s body supported an inference that the appellant had been wearing the backpack on her front when she sustained the burns.

14. It was also the prosecution case that the backpack and shopping bag appeared full in the CCTV footage before the fire but were empty afterwards, other than for the folder of documents.

    The appellant’s evidence at the first trial

15. This was the second trial of the appellant on this charge.  She gave evidence at the first trial.  The prosecution evidence at the second trial included reading an edited transcript of that evidence.  In the course of that evidence, the appellant said that she had initially left the shop to put the washing that she was carrying in her vehicle.  She then went to the women’s toilet as she had been crying because of a disagreement she had been having with her daughter and an upsetting text message she had received in the course of that disagreement. 

16. On leaving the women’s toilet, she started to head towards the Foodland supermarket and heard a noise in the disabled toilets.  She wanted to make sure everything was okay there, as kittens had been dumped there previously.  The toilet door was ajar.  She opened the door and felt a big gust of heat.  She noticed her cardigan was melting and fell down.  She struggled to get up and was trying to get her cardigan off.  She headed to the shop but did not remember getting there. 

17. She thought that at the time she turned to look at the disabled toilet door when she heard the noise, she saw someone.  She had an image of a male with spiky hair, dark eyebrows and olive skin, and a person with something over their head, who spoke to her.  She was uncertain about the accuracy of those recollections. She denied taking accelerant with her to the shop or having anything to do with the fire. 

18. In cross-examination, she said the gap in the open door was not wide enough for her to see in.  She saw no smoke coming from the disabled toilet. She said that she approached the disabled toilet with her backpack over her left shoulder and on opening the door, felt an instant bright light and heat.  When the evidence of the damaged backpack was put to her, she said that she was not sure where it had been at the time.

    The fire scene investigation

19. The investigation of the fire scene revealed the following matters.

20. A melted soft drink bottle without a lid was located immediately adjacent to the toilet.  A red lid, consistent in appearance with being from a soft drink bottle, was on the edge of the sink.  The cover of the exhaust fan was on the ground.  Its appearance supported the conclusion that it had been on the ground when the fire began.

21. A partially burnt box of matches was found at the entrance of the toilet cubicle, partly opened. The matches inside were burnt.  An unlit match was found on the floor.

22. The fire investigator noticed a smell of petrol around the melted bottle, in the area near the ceiling fan cover, on the toilet paper roll, in and around the top of the drain and on a burned remnant of cloth handing from a rail next to the toilet.  A presumptive device gave readings indicating the presence of a fire accelerant.  The presence of petrol on the plastic bottle and the cloth was later confirmed. 

23. The investigator concluded that there had been a sustained fire in the area where the melted soft drink bottle was located next to the toilet.  He considered that the soot damage pattern in that area supported this view.

24. Petrol was located on the appellant’s jeans.  The presence of components of petrol could not be excluded from the appellant’s cardigan and singlet.

25. Six soft drink bottles, all of which were full of petrol and which had the caps screwed on, were found secreted in the ceiling space.  Their retrieval required a ladder.  The investigator instructed that the lids were not to be touched during the retrieval.  Once retrieved, they were placed in a line on the floor in the public area of the shopping centre, away from the cubicle.  Two bottles had suffered damage and could not stand upright. These were laid down on their sides before swabs could be taken.  The lid of each bottle was swabbed to test for the presence of DNA. The investigator who performed the swabs gave evidence that he wore a single pair of gloves throughout.

26. Five of the swabs were tested.  The amount of DNA found on the bottles was of the order of 100-150 cells, referred to as ‘trace’ DNA. Three swabs returned a result of insufficient DNA for profiling.  The swab from the lid of a Pepsi bottle returned three contributors.  The dominant contributor was 19 billion times more likely to be the appellant than an unknown, unrelated individual. The swab from the lid of a two-litre water bottle returned two contributors.  The dominant contributor was 19 billion times more likely to be the appellant than an unknown, unrelated individual.

27. Subsequent testing with updated software reduced the probability on the Pepsi bottle lid to 4.8 billion times more likely to be the appellant, and on the water bottle lid to 1.3 billion times, still extremely strong support for the appellant being a contributor.

28. The appellant raised at trial the prospect of contamination of the bottle lids by means of secondary DNA transfer.  The evidence of Dr Duncan Taylor, principal scientist at Forensic SA, included evidence as to how secondary transfer of DNA can occur. He explained the protective measures that are used to avoid contamination and the risk of contamination at a crime scene through the handling of exhibits and taking of photographs.  DNA can be transferred from one thing to another via a gloved hand.  He explained the risks of taking swabs at a crime scene. 

29. Having the bottles on the floor created a slightly higher risk of contamination.  The possibility of contamination was only ‘slightly elevated’ by the appellant having, in the immediate aftermath, passed through the area where the bottles were subsequently placed. Dr Duncan said that if it were accepted that the bottles had a high chance of contamination, it would be expected that the appellant’s DNA would be on all the bottles, not just two. 

30. There was a contest over the nature of the fire and how it could have accounted for the appellant’s injuries. The competing theses were that:

    ·there was a flash fire which ignited far quicker than the appellant anticipated when the heat source (match) was introduced; or

    ·a backdraft fire erupted when the appellant opened the door of the disabled toilet, which introduced a large amount of oxygen into the environment and caused a fireball to emerge.

31. The importance of the backdraft theory of the fire was that it undermined the prosecution case. A backdraft suggested that, consistently with the appellant’s case, the appellant had been confronted with an eruption of fire when she opened the toilet door from the outside, rather than having been in the toilet room and lighting the fire herself.

32. The fire investigator, Jason Wynne, gave evidence about the phenomenon of a ‘flash fire’.  This kind of fire can occur when petrol vapours are released into the air and mix with oxygen.  When the concentration of vapour reaches a certain level, and a source of ignition is introduced, a flash of fire can result.  This will look like the air is on fire. After that initial reaction, anything left in the room that can burn, will continue to do so. 

33. A ‘vapour explosion’ is related. It is a generally low-order explosion arising from the same kind of conditions, rather than the vapours simply being ignited in a flame.

34. Mr Wynne also described a backdraft effect.  His explanation was that this occurs at the end stages of a fire’s development, when it is starting to smoulder.  He said that it occurs in an airtight room, where the oxygen depletes and the fire starts to burn out.  If oxygen is suddenly introduced, such as by opening a door or a window, it can mix with the gases produced by the decaying fire and explode. He said that whether a backdraft effect will be created will depend on the size of the container and how airtight it is.

35. Mr Wynne was asked to express an opinion on the type of fire that had occurred in the disabled toilet, based on his observations of the scene and the CCTV footage.  He explained that the flash recorded on the CCTV was of no real assistance.  He said that there were no obvious indicators of an explosion at the scene itself, but accepted that there might not be much to provide an indication in any event.  However, the door, walls and roof were in place and no tiles were broken.  The light fixture was in place, although the fluorescent globe was missing.  He said that he ‘would be leaning more towards a flash fire, an ignition of a flammable vapour in the air space’.

1. He explained his understanding of the conditions necessary for creating a backdraft effect, specifically that the room needed to be airtight.  In this regard, he highlighted the existence of the exhaust fan cavity leading to the space between the ceiling and the roof.  He said that he would not expect too much smothering, when this cavity would have operated as a vent.

2. It was put to Mr Wynne in cross-examination that rather than the room needing to be airtight, a backdraft can occur in conditions of a ‘ventilation controlled fire’. This is where limited ventilation allows the fire to continue to burn and create the gases necessary to cause a fireball, when intermixed with a sudden introduction of oxygen.

3. Mr Wynne was unfamiliar with the term ‘ventilation controlled fire’.  However, he agreed with the general proposition that a backdraft effect could occur in circumstances of limited ventilation. He agreed that when the door was opened, there would be a ‘smoke explosion’ which sends out a fireball capable of burning a person at the door.

4. It was put to Mr Wynne that he had not made the necessary calculations of the ventilation areas when compared with the size of the cubicle to be able to say whether a backdraft could have occurred.  Those matters were beyond his expertise. This cross-examination appears to have been designed to establish that Mr Wynne was not able to exclude the proposition that the fire was a backdraft fire. His evidence in chief had not gone so far in any event, notwithstanding that he had started from the proposition that the room needed to be airtight to create a backdraft.

5. The defence called Simon Cox, an expert in fire investigations. His evidence was that the necessary conditions for a backdraft were that there be a compartment, a ventilation controlled fire, a sustained flame of some sort and the introduction of oxygen to that fire.  He said that a ‘smoke explosion’ was a related but different concept. In that case, the initial conditions of a compartment and a ventilation controlled fire are essentially the same.  However, rather than the explosive ignition occurring through the opening of a vent such as a door, when the gas layer produced by the burning sinks in the room, oxygen that is already in the lower layer of the room mixes at the interface in circumstances that are sufficient to ignite the mixture. The explosive pressure then causes the compartment to fail at its weakest point, such as by opening a closed door.

6. Mr Cox described a flash fire as being completely different.  He said that this occurred where there was a pool of flammable liquid, from which vapour was slowly drifting away.  Petrol vapour is denser than air, so it spreads slowly. If that vapour comes into contact with a source of ignition, then a flame front will spread back to the pool and ignite the liquid.  A flash fire does not require over-pressure or an explosion to be so described.  However, if the event is contained in a closed room, then there may be a vapour explosion.

7. Mr Cox expressed the opinion that the fire in the disabled toilet was a ventilation controlled fire, leading to a backdraft event.  He based his opinion on the amount of soot and smoke that had accumulated and been deposited on the walls and ceiling, and the evidence of a small sustained fire directly above the plastic bottle on the floor, that contained petrol.

8. He was asked about the possibility of a flash fire.  His opinion was that this had not occurred.  He said that if a flash fire had occurred, the initial spread of fire would have been at a low level, petrol vapour being denser than air.  It would have reached a pool and a pool fire would have then developed.  If the door was closed, that would recede. If it was open, there would have been a sustained fire that would have potentially reached the ceiling, with flames emerging from the door, rather than a sudden flash.  The height of the damage inside the room indicated that the door had been closed during the build-up.

9. Mr Cox further gave evidence that he had visited the toilet and made measurements of the room and ventilation sources. His calculations based on these measurements showed that the room ‘was well into the ventilation controlled fire regime’. In cross examination, he accepted that he had been required to make certain assumptions in doing so, in particular about the dimensions of the exhaust fan.

10. Mr Cox said that the evidence the appellant gave at the first trial was consistent with a backdraft occurring.  He was critical of a number of aspects of Mr Wynne’s evidence.  He conceded that a backdraft required a ‘relatively airtight’ space.

11. The prosecution case was that a number of matters undermined the backdraft theory.  The room contained the vent for the exhaust fan.  The appellant’s evidence had been that the toilet door was ajar when she approached it, and she saw no smoke.  Both experts accepted that an open door was likely to present visible signs of burning and emerging smoke.

12. Further, two of the Foodland employees had described the door as being ajar by 30cm and 10cm, respectively.  The prosecution case was that the presentation of this relatively narrow gap was inconsistent with a forceful explosion of the sort that would have been generated by a backdraft event.

    No case submission and summing up

13. Following the close of the defence case, senior counsel for the appellant submitted that the appellant had no case to answer and that the judge should direct the jury to acquit.  The essential element of this submission was that the prosecution was required to prove how the appellant had started the fire, and had led no evidence of how anyone had done so.  The judge ultimately accepted that there was a case to answer, but in the course of argument expressed concerns about the particularity of the prosecution case as to how the fire had started. In ruling that there was a case to answer, she reminded counsel that any submissions would have to be based on evidence, and that for the purposes of summing up, she would need to be very carefully advised as to the pieces of circumstantial evidence on which the prosecution relied.

14. The judge articulated that concern about the particularity of the prosecution case in her summing up:

    In that regard I need to direct you that Mr Wynne did not express any opinion about how a person would go about starting a fire using petrol in the disabled toilet which would end up as a flash fire.  He gave no evidence about how she would use the petrol to start the fire.  There is no evidence about what the arsonist on the prosecution case needed to set fire to in order to start the flash fire. Is it a match thrown into the air? Is it a match lit near the petrol? What factors with [sic: will] need to exist in order for the arsonist to suffer burns?

    The only area that was positive for petrol on the prosecution case was around the area of that bottle near the toilet that was melting.  You heard evidence that certain items smelt of petrol but Wynne gave no evidence about where there was petrol on those items before the fire started or whether that smell can be explained because those items had been in a room where there was a petrol fire.

    In cross-examination he gave some incidental evidence that the area he marked in red on a photo on the floor may have been petrol poured by the arsonist on the floor but he also said it could have been petrol leaking from the melting bottle.

    So members of the jury, there is no evidence of petrol being splashed around the room at all.  So how, on the prosecution case, was the fire actually started and how, on the prosecution case, could the arsonist have come to suffer burns when lighting that petrol fire.

    If you are left wondering about those matters then you may well not have reached the level of satisfaction beyond reasonable doubt. As I said at the outset, this is an area of expertise, namely petrol fires, because they are outside the ordinary experience of non-experts. The prosecution cannot leave you guessing or speculating about how the accused, if she was the arsonist, could have started the fire or could have been at the risk of being burnt in the fire.

    The jury’s deliberations

15. The jury retired and commenced deliberations late on the morning of 16 March 2021.  At 5:15 pm, they requested to go home and come back the next morning.  The judge permitted this and gave the following direction:

    I need to direct you, of course, that it is as crucial as always, if not more so because you are in the middle of your deliberations, that you do not discuss anything about this case with anybody else.  Your discussions have to be solely within the 12 of you.  In the old days, juries used to go to a hotel so there could be no communication with anybody else, but we do not do that anymore, on the understanding that there is no discussion or communication with anyone else about the issue or the case whatsoever.

16. This direction was in orthodox terms.  It could not have been clearer.

17. Deliberations recommenced the next morning.  The jury were provided with transcripts of evidence they had requested the previous day.  In the course of the morning, the judge informed counsel that she had received a note in the following terms:

    Your Honor [sic]

    One of the Jurors has gone home last night and discussed the case with their mother about the following

    Backpack being empty and other jurors assumed it was filled with petrol prior, they asked their mother what her thoughts were, and the mother advised you can’t find her guilty.

18. Defence counsel sought an order declaring a mistrial. The prosecution opposed this. The judge ruled in the following terms:

    Mrs Shaw, given the stage of the trial and the nature of the note, whilst I am concerned obviously that the jury in question has breached my direction yesterday, I am not minded to grant a mistrial.  If it goes the wrong way for your client you can deal with that accordingly.

19. The last sentence in this quoted passage appears to be a reference to the possibility of the appellant appealing in the event of being convicted, on the ground that by reason of the contents of the note, there was a miscarriage of justice. It is difficult not to infer from that comment an acknowledgment by the judge at the time that the refusal of the application was, or at the very least may have been, in error.

20. In any event, the judge gave the jury a direction about the note, which she extended to include some further summing up about the evidence of the state of the backpack:

    I understand that contrary to what I said to you yesterday, one of you has gone home and discussed this case with a parent.  It was very important what I said to you last night, that this case is decided solely on the evidence and only between the 12 of you.  That is fundamental to the system.  No-one other than the 12 of you has sat through this trial and heard the evidence.  As we know, people outside this courtroom can have all sorts of opinions but they haven’t sat here and heard the evidence and their opinions are entirely irrelevant.

    Now, I understand that that discussion is based on the topic about the backpack. The note says, it is to do with the backpack being filled with petrol. I need to remind you, the prosecution case is that Ms Quist was the arsonist. The prosecution’s scenario is that when she went to the post office, and you can see her enter the post office on the CCTV footage, she had a backpack and a bag and that it contained those seven bottles of petrol. Now, the only evidence you have about that is what you see on the CCTV footage. I have said to you during my directions be very careful about that because the CCTV footage doesn’t zoom in on the backpack and can’t be clear. You also know that the backpack has never been tested for petrol.

    The defence case is, of course, that Ms Quist never had seven bottles of petrol in her backpack, that she went to the post office that day, as she did once a week, spoke to her mother, picked up some washing, had some angry texts with her daughter and then left, put her washing in the car and on her way to Foodland stopped at the ladies toilets because she was upset and wanted to check her face. So, you cannot make any assumptions about whether or not there was petrol in the backpack. A case cannot be decided on guesses or speculation. It is the prosecution case they want you to find that there was petrol in the backpack but that does not enable you to assume that that was the case. But, you need to understand that’s part of their case.

    Mrs Shaw, in her closing submissions, made arguments to you about the difficulties about the prosecution case given the weight of those bottles as they must have been on the prosecution case and observations of what you can see on the CCTV footage, that Ms Quist left her bag and backpack on the counter almost five minutes when people were in and out of the post office and the unlikelihood of that.

    So, you have to look at the evidence and you have to consider it for yourselves bearing in mind, of course, the submissions that you heard from counsel and the onus of proof is on the prosecution and the standard of proof is beyond reasonable doubt. Please dismiss from your minds any influence that anyone from outside has had and reduce it back to the 12 of you and 12 of you only, I can’t stress how important that is. With that in mind can you please turn to the jury room and continue your deliberations, thank you.

21. Following the appellant’s conviction, the judge indicated at a directions hearing that as a notice of appeal against conviction had been filed, she would not sentence the appellant until the appeal was heard and determined. The following exchange between the judge and defence counsel then occurred:

    HER HONOUR:   I can say that your application for a mistrial was refused because I was anticipating a real chance of acquittal.

    MRS SHAW:      Yes, I assumed that.

    HER HONOUR:   Quite frankly, and if the test had been unsafe and unsatisfactory on your application for no case to answer, it might have been a different result so I have views and I’m not going to sentence her until the Court of Appeal has handed down their decision.

22. The second comment recorded above indicates, in no uncertain terms, that the judge considered the verdict to be unsafe and unsatisfactory. By itself, that observation was of no moment, other than to inform the future progress of the matter.  However, the basis on which the judge held that view also, it seems, caused her to have anticipated an acquittal.  By her own words, it was on that basis that she refused the application to declare a mistrial.

23. It is convenient to commence with the issues raised by these events late in the trial. The issue raised by the note and the issue of the judge’s subsequent statement for refusing to declare a mistrial are best considered together.

    Jury deliberations and the perception of extraneous influence

24. Section 55(1) of the Juries Act 1927 (SA) empowers the Court to permit the jury to separate, if it thinks there are proper reasons to do so. Section 55(2) extends this to the period when the jury has retired to consider its verdict. Section 55(3) empowers the Court to impose conditions to be complied with by the jurors when separated. The section gives an example of a condition prohibiting the jurors from discussing the case with anyone during the separation. The judge had imposed a condition to this effect before the jury separated overnight.

25. The imposition of a condition of this nature on a jury separating for the night gives effect to a significant element of procedural fairness in jury trials, appropriately described in terms of guarding against real or apprehended bias of, or within, the jury.  In Webb v The Queen, Mason CJ and McHugh J observed:[1]

    The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias.

    [1]     Webb v The Queen (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).

26. Whether a reasonable apprehension of bias exists in a particular case will require consideration of the nature of the identified irregularity associated with the jury’s function and the likely effect of any direction given by the judge. Their Honours concluded:[2]

    It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.

    [2]     Webb v The Queen (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).

27. Whether an incident gives rise to a such a reasonable apprehension is a matter of evaluative judgment.  Webb concerned a murder trial. On the morning that the judge was to commence summing up, a juror had given a bunch of flowers to a person at the court, asking that it be given to the deceased’s mother. The trial judge dismissed an application to discharge the jury. He had already stressed the importance of impartiality and objectivity in their deliberations and directed them to put aside feelings of sympathy or prejudice.  Following the incident, he gave a further, detailed warning to like effect, incorporating reference to the incident.  In determining that any risk of bias or prejudice could be met with a warning, he made findings about the juror, both as to her attentiveness at trial and her concern about and apology for her conduct.

28. The trial judge had not applied the correct test, but a majority of the High Court, acting on its own evaluative judgment, held that he had in the event been correct to dismiss the application and order the trial to proceed. Chief Justice Mason and McHugh J expressed their evaluative judgment of the circumstances as follows:[3]

    Although, by her own admission, the juror was an impulsive person and had disobeyed an earlier warning not to communicate with persons associated with the case, we think that a fair-minded and informed person would not apprehend bias on her part. While her sympathy for the deceased’s mother had caused her to act as she did, that sympathy had not manifested itself in any act of hostility towards the accused or of partiality to the Crown. Its significance lay in the fact that it indicated that the juror was or might be incapable of examining the evidence dispassionately and impartially. But the public ventilation of the incident, the juror’s apology, the recognition of the seriousness of what she had done, the general attentiveness and diligence of the juror, and the strength and detail of the judge’s second warning were countervailing factors of considerable strength.

    [3]     Webb v The Queen (1994) 181 CLR 41 at 56 (Mason CJ and McHugh J).

29. Their Honours concluded that a fair-minded observer would not, in those circumstances, apprehend bias or lack of impartiality on the part of the juror.

30. Justice Brennan did not differ as to the applicable test, but dissented in the result. He considered that the matters relied on by the majority would not cause the suspicion of partiality to be ‘wiped away’.[4] The difference in conclusion illustrates the nature of the evaluative judgment to be undertaken.  In undertaking his own analysis of the steps available to avoid any reasonable apprehension of bias, Brennan J referred to various historical practices.  These included physically separating the jurors from the other participants in the trial, keeping the jury together and in isolation when considering their verdict, directing them not to have regard to evidence not adduced regularly in court and not to discuss the case with anyone else.[5]  His Honour then noted the more recent practice of allowing jurors to separate physically, with an appropriate warning.  He noted the early limits placed on this practice:[6]

    But, in respect of a jury which retires to consider its verdict, the strict practice of keeping the jury together and in isolation from outside contacts was generally continued.  Thus, in Reg. v Chaouk[7], a conviction was set aside and a new trial ordered where three of the jury, after the jury had retired to consider its verdict, had been transported by taxi, unaccompanied by a keeper, to their overnight accommodation. The possibility of a prejudicial communication during the journey by taxi could not be excluded. In Chaouk, the irregularity in procedure was sufficient by itself to warrant the setting aside of a conviction, although there was no other ground shown for apprehending that the jury had not reached its verdict impartially. Of course, a stricter approach to an irregularity is taken when it affects the isolation of a jury from external contacts while the verdict is being considered than when it affects the isolation of a juror from external contacts at an earlier stage of the trial[8].

    (Footnotes in original)

    [4]     Webb v The Queen (1994) 181 CLR 41 at 62 (Brennan J).

    [5]     Webb v The Queen (1994) 181 CLR 41 at 57 (Brennan J).

    [6]     Webb v The Queen (1994) 181 CLR 41 at 58 (Brennan J).

    [7] [1986] VR 707.

    [8]     R v Twiss [1918] 2 KB 853 at 858-859 distinguishing R v Ketteridge [1915] 1 KB 467.

1. In Chaouk, the focus was on the importance of ensuring that there be no risk of communication between outsiders and the jury once the jury had commenced its deliberations.  In the application of the principle to that case, Kaye J located the test squarely within the framework of reasonable apprehension of bias:[9]

   The incidences of separation of at least three jurors from the other jurors and unaccompanied by a keeper for an unknown period of time in the presence of an outsider on two occasions were, in my opinion serious infringements of the common law rule. A reasonable bystander might well have speculated what might have been said by a taxi‑driver to the separated and unaccompanied jurors.

   [9]     R v Chaouk [1986] VR 707 at 714 (Kaye J).

2. Three observations follow from this.  The first is that while an evaluative judgment will always be required in determining whether there is a reasonable apprehension of bias, the evaluation will place importance on the circumstance of the jury having retired to deliberate. This is the point at which the jury are apprised of all the evidence. Whatever is unknown on the evidence will remain unknown.  Moreover, they have moved from a phase of listening, and likely some degree of evaluation, to one of deliberation. The authorities reflect an established view that outside influence at this deliberative stage carries a greater risk to public confidence in the integrity of the jury’s function.

3. The second observation is that the matters that inform the evaluative judgment, which include the fact of the jury having retired to deliberate, are not fixed considerations.  They can be circumscribed by statute and influenced by changing social conditions.  In Brownlee v The Queen, which preceded the advent of social media, Gleeson CJ and McHugh J observed:[10]

   One aspect of the jury system that must be capable of changing, and adapting to the circumstances of the time, is the measures that are taken to guard against the danger of jurors being subjected to improper outside influence. That is because the danger itself changes with varying social conditions and methods of communication. Keeping jurors separate during all or part of a trial is only one way of addressing the danger. Jurors are given warnings by trial judges, aimed at reducing the possibility of external influence. Their anonymity is protected so far as practicable. But the potential sources of improper influence are various, and the legislation presently in question is a recognition of the fact that isolating jurors, especially during lengthy trials, may properly be regarded by a trial judge as an unnecessarily oppressive means of achieving the desired end. The ultimate protection in every case must lie in the sense of responsibility of jurors themselves.

   [10] (2001) 207 CLR 278 at [27] (Gleeson CJ and McHugh J).

4. So it is that s 55(2) of the Juries Act 1927 confers a power to permit the jury to separate after they have retired. Where a permitted separation has facilitated an incursion into the jury’s deliberations, the question of whether the incursion gives rise to a reasonable apprehension of bias must accommodate this statutory permission. Focus turns to the nature of the incursion and the directions given or proposed.

5. The third observation relates to the assumption that must be made about directions to the jury in informing any reasonable apprehension of bias:[11]

   The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.  It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.  

   [11]   Gilbert v The Queen (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J).

6. The necessary evaluative judgment commences with this assumption, but the assumption will not be maintained against all reason.  As the New South Wales Court of Appeal recently observed in the context of a challenge to a failure to order separate trials:[12]

   As is evident from the need for separate trials in particular cases, there are cases where there is a real risk that, notwithstanding the directions given, the jury will unconsciously take into account the inadmissible evidence.

   [12]   Caleo v R [2021] NSWCCA 179 at [151] (Bathurst CJ, Beech-Jones and N Adams JJ agreeing).

7. In Advertiser Newspapers Pty Ltd & Ors v Penhall,[13] this Court was divided about whether to allow an appeal by media companies against an order requiring articles published on the Internet to be taken down. The majority held that in the circumstances of the case, the availability of the material presented a real and significant risk of prejudice to the accused’s right to a fair trial, and hence to the proper administration of justice.[14] Justice Doyle observed the authorities established that take-down orders should not be made where the evidence does not establish a real risk to an accused’s right to a fair trial by reason of the availability of the material on the Internet, and a real prospect that an order will have a material effect on reducing that risk.[15] Nevertheless, he held that in the circumstances of that case:[16]

   there was a real and significant risk of the adverse material coming to the attention of jurors, and influencing jurors who become aware of it.  Whilst an important consideration, I am not satisfied that the directions that will no doubt be given to the jury will be an entirely adequate safeguard against this risk.  Further, while the evidence is not as clear as it might have been, I consider it permits me to conclude that the take-down order will have a material effect in reducing the availability of the adverse material on the internet and hence in reducing the risk of it coming to a juror’s attention.  

   [13] [2021] SASCA 76.

   [14]   Advertiser Newspapers Pty Ltd & Ors v Penhall [2021] SASCA 76 at [182] (Doyle JA, Kourakis CJ agreeing).

   [15]   Advertiser Newspapers Pty Ltd & Ors v Penhall [2021] SASCA 76 at [199] (Doyle JA, Kourakis CJ agreeing).

   [16]   Advertiser Newspapers Pty Ltd & Ors v Penhall [2021] SASCA 76 at [203] (Doyle JA, Kourakis CJ agreeing).

8. Justice Livesey dissented in the result, but not as to the applicable principles.  When leading into the question of utility of the take-down orders, he placed emphasis on the required assumption that juries can and do follow directions:[17]

   In the circumstances, it may safely be assumed in this case that there have been and will be “thorough and appropriate directions to the jury” by the trial Judge.[18] A trial conducted in those circumstances remains fair notwithstanding the scope for any lingering uncertainty about whether all jurors will invariably comply with the directions given and their obligations,[19] and regardless whether one might describe the juror potentially exposed to prejudicial material as “defiant”, “misguided” or “innocent”. The ubiquity of mobile phones and personal communication devices excites understandable concern about the conduct of jury trials. It is not now possible to simply sequester a jury and expect it to remain immune from all risk of exposure to prejudicial material. Far from undermining the efficacy of the jury, this feature of modern life requires that, of necessity, confidence continue to be placed in the capacity of jury members to abide by their oaths and the directions they are given.

   (Footnotes in original)

   [17]   Advertiser Newspapers Pty Ltd & Ors v Penhall [2021] SASCA 76 at [212] (Livesey JA).

   [18]   Dupas v The Queen (2010) 241 CLR 237, [38].

   [19]   AW v The Queen [2016] NSWCCA 227, [16]-[18] (Payne JA, with whom Campbell and Wilson JJ agreed): “a remote risk” and [61]-[62] (Campbell J, with whom Wilson J agreed): “no reason for supposing that there is any real risk of a juror flouting those directions and embarking on a frolic …”. By contrast, it is “unrealistic to think that it has not happened … and will not in the future”: R v Debs [2011] NSWSC 1248, [32] (Hulme J).

9. Penhall provides an example of differing evaluative judgments, in a particular context, as to whether there would be a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a jury will not discharge its task impartially by reason of the risk of outside influence.[20] Webb v The Queen[21] provides another, in a more directly comparable context.

   [20]   Webb v The Queen (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).

   [21] (1994) 181 CLR 41.

10. Where an irregularity has taken the form of extraneous influence on a jury or juror at the point of the jury having retired to deliberate, the concern may be acute, in that the incursion has been established.  Thus, in R v Wilton, this Court observed that:[22]

    where an irregularity has occurred in the sense that the jury has been subjected to improper extraneous influence, an appeal court will not inquire into the actual effect of that influence upon the jury’s verdict but will determine the materiality of the influence according to whether the court considers it was objectively capable of affecting the verdict.  Generally, the verdict will be set aside unless the court is satisfied that the same verdict would have been returned had the improper influence not been present.[23]

    (Footnote in original)

    [22] (2013) 116 SASR 392 at [23] (Blue J, Sulan and Kelly JJ agreeing).

    [23]   R v Softley (1999) 206 LSJS 48 at 56 per Doyle CJ (Wicks J agreeing) and 57-58 per Debelle J; R v Glastonbury (2012) 115 SASR 37 at [50]-[62] per Sulan J (Kourakis CJ and Stanley J agreeing).

11. These principles then inform consideration of the jury’s note and trial judge’s only stated reason for refusing to declare a mistrial.

    The judge’s refusal of the application

12. As observed above, the statement by the judge at the time she ruled against declaring a mistrial tended to indicate an acknowledgment this may have been in error. The judge made no further inquiry into the circumstances surrounding the note, either of the jury as a whole or of the individual juror.  She did, however, give a direction in terms that spelt out clearly the importance of the principle against extraneous influence, and added to that a summary of the evidence on the prosecution case relating to the backpack that, in its terms, emphasised the limits of that case.

13. There was no apparent assessment of the circumstances to which this Court might offer any deference, on account of the advantage the judge would have enjoyed.[24] This Court on appeal is left with the note and the direction.  However, the matter is then complicated by the only reason given by the judge for the ruling at the subsequent directions hearing.  This was that she was anticipating a real chance of acquittal.

    [24]   See R v Boland [1974] VR 849 at 877; Crofts v The Queen (1996) 186 CLR 427 at 432 (Dawson J), Carson v The Queen [2019] VSCA 317 at [90] (T Forrest JA, Niall and Ashley JJA agreeing).

14. Whether this was the only reason for refusing the application, or a material reason, that statement mischaracterised the judge’s task in a fundamental manner. The task was to engage in an evaluative judgment of whether the note gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury would not discharge its task impartially, allowing for any corrective direction she was prepared to give.  That the judge anticipated a chance of acquittal was irrelevant. 

15. In context, without any inquiry into the circumstances revealed by the note and in the absence of any other reason being articulated, there is a reasonable apprehension that this was the only reason for refusing the application.  Whether or not that apprehension reflects reality, it is apparent on any view that the decision was governed, or at the very least infected by, an irrelevant and impermissible consideration.

16. In R v Headon,[25] evidence emerged in the course of a trial that the appellant had been in gaol for a number of years. The trial judge refused to declare a mistrial. The appellant appealed against that refusal and further complained that the revelation had caused a miscarriage of justice.  Justice Vanstone observed:[26]

    The decision of the trial judge not to declare a mistrial is not, of itself, properly a ground of appeal.  The relevant complaint is that inadmissible material emerged and that this led to a miscarriage of justice.  Whether there was a miscarriage of justice is to be determined in the light of all the evidence given in the case and having regard to the directions given by the judge. 

    [25] [2014] SASCFC 4.

    [26]   R v Headon [2014] SASCFC 4 at [18] (Vanstone J, Kourakis CJ and Stanley J agreeing).

17. The Court treated the complaint as one of a miscarriage of justice occasioned by the receipt of inadmissible material, with the prejudice not being cured by the subsequent direction to the jury.

18. The substantive complaint arising from the note in the present matter is of a similar nature. The appeal is against conviction and the ground in question depends on establishing a miscarriage of justice. However, unlike in Headon, the refusal of the application was attended by a serious irregularity in the trial process. Whether the matters revealed by the note caused a miscarriage of justice that required discharging the jury is one question. Whether the trial judge’s stated reason for refusing to declare a mistrial itself constituted a miscarriage of justice, is another.

19. Section 6 of the Juries Act 1927 provides for criminal trials in the Supreme and District Courts to be by jury, subject to exceptions. That statutory foundation imports recognised principles developed by the common law that articulate the power of the jury and protect its integrity. A jury is a constituent part of the Court.[27] Its role as ‘the constitutional tribunal for deciding issues of fact’ is fundamental.[28] The integrity of its processes is maintained by developed rules, in particular, the ‘exclusionary rule’:[29]

    It is a general rule of the administration of criminal justice under the common law that once a trial has been determined by an acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict.

    (Footnote omitted)

    [27]   NH v DPP (SA) (2016) 260 CLR 546 at [72] (French CJ, Kiefel and Bell JJ), quoting Case Stated on Acquittal (No 1 of 2015); R v Stakaj and Others (2015) 123 SASR 523 at [34] (Kourakis CJ).

    [28]   R v Baden-Clay (2016) 258 CLR 308, [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Dansie v The Queen [2020] SASCFC 103 at [427] (Livesey J).

    [29]   Smith v Western Australia (2014) 250 CLR 473 at [1].

20. That rule does not prohibit the admission of evidence of irregularity extrinsic to jury deliberations, which has been held to extend to events that occurred outside the jury room or jury box.[30]  It was not in contest that the note in the present case has that character. For present purposes, however, the exclusionary rule is a function of the power of the jury.  As the High Court explained in NH v DPP (SA), the rule:[31]

    supports the principle that a verdict declared by the foreperson in the sight and hearing of the other jurors and without their dissent is taken to be their true verdict. Therefore, where the verdict was not delivered in the sight and hearing of one or more of the jurors, evidence may be adduced from them that they did not agree with it.[32] That is because the court has power to correct a verdict in such a case. So too in cases of fraud or subornation or intimidation, or where a juror or jurors lack the capacity to understand the proceedings, the court has the requisite power to intervene, and may take evidence in the exercise of that power.

    (Footnote in original)

    [30]   Smith v Western Australia (2014) 250 CLR 473 at [27].

    [31]   NH v DPP (SA) (2016) 260 CLR 546 at [82] (French CJ, Kiefel and Bell JJ).

    [32]   Nanan v The State (Trinidad and Tobago) [1986] AC 860 at 871.

21. In other words, the exclusionary rule exists to protect, and illustrates the importance of, the integrity of the jury verdict. The judge, being the other key constituent part of the Court, has a power of intervention in the event of an external interference with that verdict.

22. NH v DPP (SA) concerned the possibility of going behind verdicts as declared by the foreperson without dissent from the other jurors. After the jury had been discharged and had dispersed, the foreperson returned and said that he had mistakenly told the Court that at least ten of the jurors had agreed on not guilty verdicts. The High Court held that the verdicts were presumed to be assented to and correctly communicated. The reasons of the plurality explain the inviolability of the integral functions of the jury. The Court held that the Supreme Court did not have an inherent power to set aside or amend the verdicts. The plurality distinguished the circumstances of that case from cases of external attack on those functions.

23. The test for whether there has been a violation by external attack is set out in Webb v The Queen, above.[33]  It follows that on an application to declare a mistrial on the ground that the jury’s function has been compromised, for a judge to rely on considerations extraneous and irrelevant to that test is to fail to guard the integrity of a constituent element of the Court in the discharge of its obligations. Indeed, by refusing the application on the basis that she anticipated an acquittal in any event, the judge misapprehended her function.

    [33]   Webb v The Queen (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).

24. The appellant was entitled to a verdict where her complaint, that the integrity of the jury had been compromised, had been determined according to law. The mischief in what occurred is illustrated by analogy with the High Court’s reasoning in determining that a Prasad direction is contrary to law.[34] In the course of reaching that conclusion, the Court observed that even if it were possible to avoid a misconception that a Prasad direction carried an implication that the judge considered acquittal to be appropriate:[35]

    there remains the vice that the direction trenches on the adversarial nature of the trial. The duty of the judge is to preside impartially, ensuring that the trial is fair to each party[36]. The prosecution is entitled to have a full opportunity to explain the way its case is put, and to have a verdict from the jury that is based on the application of the law as explained by the judge to their factual determinations.

    (Footnote in original)

    [34]   Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350.

    [35]   Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350 at [53].

    [36]   Jago v District Court (NSW) (1989) 168 CLR 23 at 28 per Mason CJ; McInnis v The Queen (1979) 143 CLR 575 at 581-582 per Mason J, citing R v Cox [1960] VR 665 at 667 per Herring CJ, Lowe and Little JJ.

25. No less is an accused entitled to a verdict where challenges to the impartiality of the jury have been determined according to law. The mischief in what occurred was not simply the potential miscarriage of justice by reason of the original putative external influence on the jury as contemplated in R v Headon.[37] The judge’s failure to assess and determine the consequences of that incursion, and to rely on her own anticipation of an acquittal, constituted an interference with the integrity of the functions of the jury. That failure to respect the proper role of the jury, and the expression of views about the verdict of the jury in the presence of the accused, are unfortunate. They tend to engender disquiet, if not a sense of grievance, about the result. It formed no part of the trial judge's function to determine guilt. 

    [37] [2014] SASCFC 4.

26. On any view, the judge’s stated reason for refusing to declare a mistrial caused a miscarriage of justice.  For the reasons appearing below in the context of discussion of application of the proviso, the consequences were even more fundamental.

    The effect of the note

1. The respondent submitted that the note relays an exchange to the effect that the view of the juror’s mother, communicated to the jury, was that the appellant could not be found guilty. It followed, the respondent submitted, that there could be no miscarriage of justice, as the jury manifestly rejected that sentiment.

2. This submission might be thought to obtain some support from the observation by Mason CJ and McHugh J in Webb that the sympathy of the juror, apparent in the act of giving flowers to the mother of the deceased:[38]

   … had not manifested itself in any act of hostility towards the accused or of partiality to the Crown.

   [38]   Webb v The Queen (1994) 181 CLR 41 at 56 (Mason CJ and McHugh J).

3. Should such an act of hostility to the accused or partiality to the Crown be apparent, this would certainly be influential and likely determinative, in that a conclusion that it was objectively capable of affecting the verdict may well be all but inescapable.  However, that is not the end of the matter.  As Mason CJ and McHugh J explained, the significance of the apparent sympathy of the juror for the deceased’s mother:[39]

   … lay in the fact that it indicated that the juror was or might be incapable of examining the evidence dispassionately and impartially.

   [39]   Webb v The Queen (1994) 181 CLR 41 at 56 (Mason CJ and McHugh J).

4. As senior counsel for the appellant, Mr Doyle QC, submitted, that is not limited to situations where the incursion is, on its face, directly prejudicial to an accused. It is reasonable to assume that a jury’s deliberations will feature complex dynamics.  It follows that in the present matter, there is a risk that because of this, an external incursion into those deliberations, on a topic that the jury was required to consider, may have met with acquiescence, dismissal, resistance or a combination of any of these amongst the jurors.

5. Whatever the potentially complex reception, the risk that the incursion affected the dynamics of the jury’s deliberations cannot be excluded.  There was a risk that the external nature of an incursion would harden the attitude of some jurors against the proposition the subject of the mother’s comment, or otherwise marginalise the juror who had facilitated the incursion.

6. Not all extraneous incursions will provoke such an apprehension.  However, in the present case, the subject matter of the note was central to the jury’s consideration of the case. The incursion occurred by way of a juror introducing his mother’s views into the jury room on a critical topic. In that circumstance, the judge’s direction could not cure the risk to the integrity of the jury’s deliberations. The conclusion must follow that a fair-minded and informed member of the public would have had a reasonable apprehension or suspicion that the juror or jury had not discharged or would not discharge its task impartially.[40] The juror’s actions as evidenced by the note caused a miscarriage of justice.

   [40]   Webb v The Queen (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).

   The proviso

7. The question that follows is whether, notwithstanding that both aspects of the complaint are established, no substantial miscarriage of justice has actually occurred.[41]

   [41]   Criminal Procedure Act 1921 (SA) s 158(2).

8. In the ordinary course, this question requires the Court to consider whether it can be satisfied that the same verdict would have been returned had the identified miscarriage of justice not occurred. The Court must review the whole of the record of the trial, make its own assessment of the evidence and determine whether, making due allowance for the limitations applying to an appellate court proceeding on the basis of the record, the appellant was proved guilty beyond reasonable doubt.[42]

   [42]   Weiss v The Queen (2005) 224 CLR 300 at [39], [42]-[45].

9. Having regard to the whole of the record requires consideration of the fact of the guilty verdict as well.  It is necessary to keep in mind the accusatorial nature of the process and that the standard of proof is beyond reasonable doubt.[43]

   [43]   Weiss v The Queen (2005) 224 CLR 300 at [43].

10. Even where an appellate court is persuaded beyond reasonable doubt of an appellant’s guilt, there will be cases where it is nonetheless proper to allow the appeal and order a new trial.  The High Court in Weiss indicated that significant denials of procedural fairness can fall into this category.[44] While it did not explore the scope of that potential exception, the necessary reasoning behind it is readily apparent. Adherence to procedural fairness is an essential characteristic of the exercise of judicial power.[45] A significant denial of procedural fairness in judicial proceedings will constitute jurisdictional error, causing a trial not to have been conducted according to law.[46] 

    [44]   Weiss v The Queen (2005) 224 CLR 300 at [45].

    [45]   RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [42] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). See generally, French, R., ‘Essential and defining characteristics of courts in an age of institutional change’ (2013) 23 JJA 3.

    [46]   Mustafa v The Queen [2021] NSWCCA 164 at [81]-[87] (Rothman J, McCallum JA and Ierace J agreeing).

11. In the present case, neither miscarriage of justice warrants application of the proviso.  First, for the reasons set out above, the judge’s stated reason for not declaring a mistrial reveals a failure to conduct the trial according to law, and a failure by the judge to discharge her function of maintaining the integrity of the jury, a constituent part of the Court established by statute. The judge’s misapprehension of her function constituted a jurisdictional error of the type into which an inferior court may fall when otherwise acting wholly within the general area of its jurisdiction, as identified by the High Court in Craig v South Australia in the context of an application for judicial review:[47]

    Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.

    [47]   Craig v South Australia (1995) 184 CLR 163 at 177-178.

12. On an appeal, an error of this nature has the same consequence as would a significant denial of procedural fairness. The trial miscarried. The miscarriage of justice was substantial.  Having regard to the observations of the High Court in Weiss, it is not necessary to conduct a review of the evidence before concluding that the only appropriate course is to allow the appeal and, subject to the complaint that the verdict was unsafe and unsatisfactory, order a new trial.

13. Secondly, as to the miscarriage of justice occasioned by the juror’s communication with his mother and reporting that to the jury, we have set out the effect of the necessary review of the evidence, above.  The evidence of the appellant’s DNA on two of the bottle caps was of considerable significance and gave strength to the prosecution case. Nevertheless, the possibility of contamination was in issue.  Further, the contest between the experts as to the nature of the fire and how it could have accounted for the appellant’s injuries was very much live. This is not a case where the Court can be satisfied that, absent the events the subject of the note, the jury would inevitably have convicted the appellant.  It is not a case for application of the proviso.

    Whether the verdict was unreasonable or cannot be supported having regard to the evidence

14. This being a circumstantial case, the appellant submitted that having regard to the relatively general evidence of the fire scene investigator Mr Wynne, and the various items of circumstantial evidence, the prosecution case was incapable of proving the appellant’s guilt beyond reasonable doubt. To this end, the appellant relied on the following:

    ·Mr Wynne’s evidence, bearing in mind his limited experience and expertise, lacked the capacity to exclude the hypothesis that the fire was a ventilation controlled fire which created a backdraft effect when the applicant fully opened the door to the disabled toilet;

    ·Mr Cox had superior expertise and concluded that a flash fire had not occurred;

    ·the hypothesis that the appellant had placed six bottles of petrol in the ceiling through the fan blades in the six-minute interval was improbable, given her height and the likely limited space between the blades;

    ·the possibility that another person had established a fire in the toilet was not excluded. The appellant had given evidence in her first trial of seeing a man with a beard.  Mr Huckstepp had seen a man coming out of the male toilets;

    ·the thesis that the appellant had been carrying a backpack full of petrol was improbable in circumstances where she had left it for several minutes on the shop counter unattended, and where it was found to contain a folder of her personal documents;

    ·the DNA samples were trace amounts.  Positive samples were found only on two of the six lids.  The appellant submitted that this limited recovery does not support the prosecution thesis of the appellant handling the bottles, screwing on the lids and putting the bottles in the ceiling.  The amounts of DNA are consistent with contamination, in circumstances where the evidence did not exclude the risk of contamination on account of the investigating officers not having followed proper procedures in securing, swabbing and moving the exhibits.  Innocent transfer could not be excluded;

    ·it was agreed that the nature of the burns could not assist one way or the other as to the possibility of being exposed to a backdraft or a flash fire; and

    ·it was agreed that it was not possible to determine whether the presence of petrol on the appellant’s clothes was the result of transfer in liquid or in vapour form. Consequently, the test results were neutral as to whether the appellant had been exposed to a petrol fire or had lit a petrol fire.

15. In these circumstances, the appellant submitted that the prosecution case, pitched at the level of generality that it was, lacked the capacity to prove guilt beyond reasonable doubt.  In circumstances of an absence of motive, and unchallenged evidence as to good character, the reasonable possibility of innocent exposure was not negatived.

16. The appellant referred to Coughlan v The Queen,[48] also an arson case.  The appellant there had been present at his house at the time that it was destroyed by an explosion and a fire. He ran from the house, past some people and rode away on a motorcycle he had parked nearby.  He reported the fire to the police later that evening.  He said he had advertised the motorcycle for sale and had been waiting for a prospective buyer to arrive.

    [48] (2020) 267 CLR 654.

17. Two witnesses had smelt petrol before the explosion, and the appellant’s tracksuit pants and shoes were found to contain petrol residue. Expert prosecution evidence was to the effect that the explosion had been caused by the build-up of gaseous vapours in the house, with an unknown source of ignition.  They could not rule out an electrical fire.  The appellant was underinsured and not in financial difficulty.

18. The High Court held that the presence of petrol on the clothing and the evidence of the witnesses who smelt petrol was not capable of supporting the inference beyond reasonable doubt that the explosion was of petrol vapours, as there was no evidence of petrol residue inside the house.  When viewing all of the circumstantial evidence together, the reasonable hypothesis consistent with innocence that the appellant had put forward was not capable of being excluded.

19. The totality of the circumstantial evidence in the present case was qualitatively different from that in Coughlan. Noting the matters relied on by the appellant, the respondent emphasised the following matters:

    ·the presence of the DNA on two twist bottle caps, the strength of those results and the evidence supporting the low likelihood of contamination or innocent indirect transfer.  Dr Duncan’s evidence was that a contamination event would likely see DNA on not just two lids;

    ·the presence of petrol on the appellant’s jeans;

    ·the appellant’s presence at the fire;

    ·the appellant’s movements in the shop as recorded on CCTV, which included carrying two bags. There was evidence that the appellant had a practice of collecting a bag of washing from her mother at the shop, that would be ready to go. The CCTV footage showed the backpack seemingly hanging from her shoulder heavily;

    ·the appellant left the shop and walked in the direction of the toilets;

    ·the appellant’s concern about the location of her bag immediately following the fire;

    ·the appellant’s answer about the position of her bag on her body when the nature of the burn pattern was put to her;

    ·the matters relied on by Mr Wynne in favouring the thesis of a flash fire; and

    ·the absence of proven motive is not to be equated with a proven absence of motive. It was neutral.[49]

    [49]   De Grunchy v The Queen (2002) 211 CLR 85 at [29]; R v Overell [2013] SASCFC 52 at [22] (Peek J).

20. It is critical not to fall into a trap of simply considering each piece of circumstantial evidence in isolation. As Kelly J noted in Dent v The Queen,[50] ‘[i]t has been emphasised often enough that this is an inappropriate way to evaluate the strength of a prosecution case based on circumstantial evidence’.[51] The High Court has reiterated this caution on a number of occasions.  It is sufficient to note its recent statement in R v Baden-Clay:[52]

    For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.

    (Emphasis in original, citations omitted)

    [50] [2021] SASCFC 4.

    [51]   Dent v The Queen [2021] SASCFC 4 at [101].

    [52] (2016) 258 CLR 308 at [47]. See further, R v Hillier (2007) 228 CLR 618 at [48]; Dansie v The Queen [2020] SASCFC 103 at [443] (Livesey J, Parker J agreeing).

21. It may well be that no one piece of circumstantial evidence was capable of proving guilt beyond reasonable doubt. However, the totality of the circumstantial evidence was capable of supporting a path of reasoning to guilt. The verdict was not unreasonable or incapable of being supported having regard to the evidence.

    Whether the prosecution failed to particularise, or to adduce evidence at the requisite level of particularity of, the actus reus of the appellant in relation to the ignition of the fire, resulting in a miscarriage of justice

22. This ground relates to the matter that had been the subject of the no case to answer submission, discussed above, and the trial judge’s subsequent direction to the jury that emphasised the generality of the prosecution case.  The appellant submitted on appeal that the prosecution had not, in any timely way, articulated the particular acts by the appellant that were said to have caused the fire to ignite.  The question is whether this produced uncertainty in the prosecution case that carried a risk of unfairness, in that it made it more difficult for the defence to make forensic choices. The appellant’s written submissions articulated the complaint in the following way:

    Although the prosecutor ultimately articulated a more specific case than was opened upon, first, that was after the close of the prosecution case and, secondly, it remained at a relatively high level of generality, in that, in the absence of a secure evidential foundation, it posited some undisclosed level of dispersion of petrol on the floor, and, although it became clear that the Crown case was ignition of vapours and not liquid, it was non-specific as to whether the flash fire was said to have occurred immediately upon the striking of the match, or whether it was otherwise while the match was in the air (say, while being thrown), and neither the evidence nor the prosecution submissions engaged with matters such as the quantity or proximity of petrol that would be required in either scenario, the likely ignition time, and how that might bear on the likely injuries or burns that would be expected.

23. This ground is closely related to the complaint that the verdict was unsafe and unsatisfactory, but relates specifically to that part of the complaint that urged the superiority of the expertise and explanation of Mr Cox over the more general evidence of Mr Wynne. In circumstances where Mr Wynne’s evidence was of a fairly general nature in supporting his preferred thesis of a flash fire, the complaint is, in essence, that the prosecution having failed+ to lead more specific forensic or other expert evidence as to the cause of the fire, the appellant was disadvantaged by not knowing the thesis of ignition that she was facing.  That left the appellant, in trying to meet possible hypotheses, at risk of making out a prosecution case.

24. The appellant drew an analogy with Mahmood v Western Australia.[53]  In that case, the position of blood stains on the accused’s trousers was said to be inconsistent with the accused’s account of how he had come into contact with his wife’s body, and consistent with him having killed his wife. The prosecution witnesses were not asked about it. On appeal, the prosecution conceded that some evidence might have been called about the blood stains, relevant to their source and whether they could have come from an implement such as a knife.[54] The High Court held that it was neither necessary nor appropriate for the judge to direct the jury that an inference adverse to the prosecution case could be drawn by reason of that absence of evidence. Rather, the question was whether, in the circumstances, the jury should entertain a reasonable doubt about guilt.[55]

    [53] (2008) 232 CLR 397.

    [54]   Mahmood v Western Australia (2008) 232 CLR 397 at [20].

    [55]   Mahmood v Western Australia (2008) 232 CLR 397 at [27], citing RPS v The Queen (2000) 199 CLR 620 at [27]-[29].

25. This ground of appeal in Mahmood was concerned with the appropriate direction to be given on the state of the evidence, given that there was no evidence supporting a thesis that the blood was the product of a knife being placed in the appellant’s pocket. The Court concluded:[56]

    Contrary to his contention, the appellant had the opportunity to explain the presence of the blood in his pocket. He did not offer an explanation. There was no evidence before the jury about the matter. They were not in a position to conclude that the blood stains were made by a knife, placed in the pocket by the appellant. There were other possibilities, consistent with innocence. These were addressed by her Honour the trial judge in her direction to the jury. The use of the word “hypothesis” may not always be advisable, and plainer terms preferable. But what her Honour said, particularly by way of example, was sufficiently clear to convey to the jury that they could not draw the inference suggested by the prosecution, given the standard of proof required.

    [56]   Mahmood v Western Australia (2008) 232 CLR 397 at [28].

1. In the present matter, it is not the case that there was no evidence capable of supporting the prosecution thesis that the fire was a flash fire. The lack of particularity in Mr Wynne’s evidence of which the appellant complains, and the corresponding limits to his thesis, did not preclude the prosecution case being established beyond reasonable doubt. The case was circumstantial, relying on the totality of the evidence outlined above. Having regard to that totality, a failure of the prosecution to prove the precise method of ignition, such as whether the appellant ignited vapours or pooling petrol, did not foreclose a conviction.

2. The information sufficiently particularised the actus reus, identifying the ‘particular act, matter or thing alleged as the foundation of the charge’.[57] This was that the appellant:

   on the 23^rd day of December 2013 at Parafield Gardens, knowing that she had no lawful authority to do so, intentionally or with reckless indifference damaged by fire a shopping centre…

   [57]   Johnson v Miller (1937) 59 CLR 467 at 489 (Dixon J).

3. In opening, the prosecutor said:

   Turning to the prosecution case, on 23 December 2013, just before Christmas, sometime prior to approximately 5.15 pm in the afternoon, it will be clear, I suggest, that petrol was splashed around the floor of a disable toilet located near the back or side entrance of the Parafield Plaza Shopping Centre and a fire was lit. Now, fortunately, as will become clear, despite the presence of plastic drink bottles filled with petrol in the roof space above the disabled toilet, the fire did not spread beyond the toilet thanks to the intervention of some quick-thinking staff members from Drakes Foodland supermarket nearby. They were able to extinguish the fire.

   Now, the accused, Ms Quist, was badly burnt in the fire. She was taken from the scene by ambulance to the Royal Adelaide Hospital, and you will hear about the burns she received to her arms, hands, feet, face and neck, and you will see the photographs. There is no doubt from the nature of her burns that she was close to the fire when it was actively burning and it’s the prosecution case that she was close to the fire when it ignited. It’s the prosecution case that she was so badly burnt because she was the one who had splashed the petrol around the room and she was the one who had ignited the fire.

4. The prosecutor was more specific in her closing address as to the prosecution thesis of ignition, that is, that it was the vapours that had been ignited:

   Sergeant Wynne was of the view that the fire here, given a lack of any discernible low‑order explosive effect, that is doors being in place, walls in place, not seeing any damage to the compartment, that what had occurred in the disabled toilet was what is called a flash fire, which is an ignition of the flammable vapour in the air space. In other words, someone had used petrol in the room introducing flammable petrol vapours into the air space, then lit it with a match, causing a flash fire or fire cloud, which then subsequently caused the other things in the room, like the toilet roll and the power socket to go up in flames; and that was what was responsible…

5. While the complaint of insufficient specificity as to cause incorporates the prosecution having so refined the case only in address, there is no complaint that the defence was not on notice of the evidence that Mr Wynne would give, general as it may have been. The prosecution evidence of cause was necessarily circumstantial and general, given the destruction wrought by the fire.  It did not render the totality of the circumstantial evidence, which included the DNA evidence, incapable of supporting a conviction.

6. As set out above, the judge in summing up explored the limits of Mr Wynne’s evidence in searching detail, pointing out the absences within that evidence that might cause the jury to entertain a reasonable doubt. The jury were comprehensively instructed as to the limits of the evidence in the context of the required standard of proof. We reject the complaint that the prosecution either did not particularise, or did not adduce evidence capable of proving, the actus reus at the requisite level of particularity.

   Conclusion

7. We grant permission to appeal on Ground 2. We dismiss Grounds 2 and 3. We allow the appeal on Ground 4.  We quash the conviction and remit the matter for retrial.