R v Allan

[2002] NSWCCA 412

Reported Decision: (2002) 133 A Crim R 444

New South Wales

Court of Criminal Appeal

CITATION:	R v Allan [2002] NSWCCA 412
FILE NUMBER(S):	CCA 60178/01
HEARING DATE(S):	04/10/2002
JUDGMENT DATE:	4 October 2002
PARTIES :	Regina v Bernard Patrick Allan
JUDGMENT OF:	Wood CJ at CL at 32, 34; Howie J at 1; Smart AJ at 33

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/3212
LOWER COURT JUDICIAL OFFICER :	Moore DCJ

COUNSEL :	G Rowling - Crown L. Flannery - Appellant
SOLICITORS:	S.E. O'Connor - Crown D.J. Humphreys - Appellant
CATCHWORDS:	Criminal Practice and Procedure - non evidentiary evidence becoming available to the jury after retirement - whether miscarriage of justice.
CASES CITED:	R v Landsell (NSWCCA, unreported, 22 May 1995) R v Gilbert Adam (1999) 47 NSWLR 267 Crofts v The Queen (1996) 186 CLR 427
DECISION:	Appeal is dismissed.

60178/01

WOOD CJ AT CL
HOWIE J
SMART AJ

FRIDAY 4 OCTOBER 2002

REGINA v BERNARD PATRICK ALLAN

Judgment

1 HOWIE J: On 22 November 2000 the appellant was arraigned before his Honour Judge Moore and a jury on two counts of robbery in company. The offences were alleged to have been committed by the appellant on 13 August 2000 in two related incidents in Cabramatta. In respect of the first matter the alleged victim was Brian Austin and in the second Glen Hurry

2 The appellant pleaded Not Guilty to both counts. On 24 November 2000, at the conclusion of the Crown case and after the trial judge had given what is usually referred to as a Prasad direction, the jury returned a verdict of Not Guilty on the first count. The second count continued in the normal course to submissions and summing up, after which the jury retired to consider its verdict on 27 November.

3 At 10.10 am on 28 November 2000 the Judge received a note from the jury which read:

Yesterday while examining the red/blue Nike jacket of the accused in the lining beneath the black tape was two medi swipes and a glass tube wrapped in paper. I don’t know if this is important, but we felt that you should know (the tube was sharp at one end). Thank you. Jury (T38, 28/11/00)

4 The trial judge, after hearing submissions from counsel, determined not to discharge the jury but to direct them to disregard the objects they had found. The jury subsequently convicted the appellant. The single ground of appeal relied upon is that the trial miscarried because these objects inadvertently found their way into the jury room.

5 The evidence in the Crown case can be described briefly. In the early evening of 13 August 2000 Glen Hurry and Brian Austin were walking together in Cabramatta when they were confronted by three persons, two males and a female. These persons began to walk alongside them and they were joined shortly thereafter by one or more other persons.

6 According to Mr Hurry’s account, one of them, an Aboriginal in his late thirties and wearing a cap, said to him, "give us the gear". Mr Hurry attempted to run away but was chased by a person he described as a young fellow with shoulder length brown hair. This person grabbed Mr Hurry and threw him against a brick wall saying that he was going to knock him over if he did not give him the gear. Another person, described by Mr Hurry as being "pretty bulky" and in his late twenties, then went through his pocket and found his mobile phone and wallet. This person was wearing a red and black, or possibly dark blue, Nike jacket and a pair of black track pants. The Crown asserted that this person was the appellant.

7 Mr Hurry suddenly found an opportunity to escape and ran into a shop nearby. He asked the shopkeeper to call the police. Mr Hurry remained in the shop and a short time later saw the man wearing the Nike jacket come into the shop and rummage through packets of chips. When police arrived, Mr Hurry identified the man in the Nike jacket as having robbed him. The appellant was then arrested. The shop owner told the police officer that she saw the man with the red and black jacket run into her shop, when the police arrived, and he went to the chip section. Her husband had looked in this area after the man had left the shop and found a mobile phone. The police officer went to the area indicated and there located a black mobile telephone fitting the description of that stolen from Mr Hurry.

8 Mr Austin gave evidence that the man in a black Nike hat and a red and black Nike jacket said to him, "give us the gear". He felt something sharp being pointed into him by this man. Mr Austin was then told to empty his pockets by a man in a blue basketball jersey. Another man then took him to a block of flats where he was asked to hand over his bag and directed to take his clothes off. He was then taken back to where he had been first accosted by these persons and the man in the red and black Nike jacket started searching through his pockets. At the same time a female was searching through his backpack. When a police patrol car came past, a police officer asked whether there was anything wrong. Mr Austin said that there was not and the police drove away.

9 Mr Austin observed the man in the red and black Nike jacket walk into a shop. A number of police soon arrived and this man was apprehended and searched. A person came out of the shop and pointed to this man and said that he had hidden a mobile phone behind some chips in the shop.

10 After his arrest the appellant took part in a recorded interview. At the time he was wearing a red and dark blue Nike jacket but did not have a cap. The appellant agreed that he had been in the shop and had picked up a packet of chips. However, he denied robbing anybody or placing a mobile telephone in the shop.

11 In its case the Crown tendered the dark blue and red Nike jacket that the appellant was wearing at the time of his arrest.

12 At the end of the Crown case his Honour gave a very short direction to the jury as to their right to acquit the appellant on both counts at that point in time. He told the jury that they had to determine each case independently but that the Crown case relied entirely upon the evidence of the two principal witnesses. After a short adjournment the jury returned. They indicated that they wished to find the appellant not guilty in respect of the count involving Mr Austin but the foreperson said:

In the case concerning Mr Hurry we feel that the Crown has adequately provided evidence that the trial should continue.

13 The appellant then gave evidence denying that he had robbed anyone or that he had hidden a mobile telephone in the shop. He agreed he entered the shop but it was because he wanted to buy an ice-block even though he only had fifty cents in his possession. He gave an account that before he entered the shop he chased away a person who wanted to know where he could buy some Rohypnol.

14 The defence case was that, although there had been a robbery, the appellant was not involved and was mistakenly arrested when he left the shop.

15 I have already indicated that after the jury had retired to consider its verdict a note was received about the objects that had been located in the appellant’s coat. Having received the note, the trial judge sought submissions from counsel as to what course he should take and whether this was a matter that could be cured by a direction as the allegation made by Mr Austin included that he had been touched in the ribs by the man in the Nike jacket by something sharp. The Crown Prosecutor urged his Honour to direct the jury to put it completely from their minds. The appellant’s counsel said:

I’d support that, but what concerns me is that if they take that as maybe a weapon that could have been used and they speculate even after your Honour directs them then it will be very prejudicial to the accused. The other thing is your Honour, that since your Honour has already directed them to disregard the evidence of Mr Austin completely, and it’s Mr Austin who said something sharp was touched on his right side of his ribs, that’s what he said and of course, he didn’t say that to the police when he was cross examined, that it was the man in the Nike, black and red Nike jacket that poked him with anything. But there is room for quite a lot of speculation now Your Honour. But I think your Honour would be safe to tell them to basically disregard that completely, it is not part of the Crown case and I support your Honour’s decision that it was only merely tendered and relied upon the Crown as to the particular jacket.

16 After the jury returned to court a short time later, His Honour directed them as follows:

The jacket was tendered for you to see its colour and size. It was relied on by the Crown in the way the Crown put it to you yesterday as evidence indicating that [the appellant] was guilty. It was also relied on by [defence counsel] as indicating that he was not a person who conducted the robbery, was not a person who was engaged in the robbery. That is the purpose for which it is tendered. The Crown was unaware of what has been [found by you] and so was [defence counsel]. The Crown does not rely on this aspect and it has never relied on it and you must put that right out of your mind. The jacket was only tendered as a jacket and not what you might find. It is important that you should not go searching through the exhibits to look for, like Sherlock Holmes, some other evidence that has not been brought out in the court room. You must decide this case just on the evidence in the court. That is exceptionally important. You should not speculate about things that are outside the evidence unless they are rational inferences drawn from the evidence itself.

17 The following exchange then took place:

Foreperson: Your Honour the only reason that we sent it through was basically because it was sharp and when I picked up the jacket I was holding it in my hand and you could feel the sharp bit through the thing, and when I tipped it upside down it actually came out, so we just wanted to let you know in case someone else picked it up and it was sharp and we didn’t want them to cut themselves. We did basically talk about [it] and disregard[ed] it completely as not relevant, but we thought that because people did handle [it] we should let you know.

His Honour: Right, thank you, oh good we were just concerned that you were letting us know in case you thought there was some other evidence flowing from it.

Foreperson: (not transcribable).

His Honour: Just completely disregard that for all purposes and thank you for telling us.

The jury then retired again and delivered their verdict about forty minutes later.

18 Counsel for the appellant has submitted that, notwithstanding the attitude taken by the appellant’s representative at the trial, the finding of the objects in the appellant’s jacket unfairly prejudiced his chance of an acquittal for three reasons, being:

(i) Mr Austin had said that the man in the Nike jacket had pointed something sharp at his ribs. The appellant, by the time the items were found, had been acquitted by the jury of that count, and it would be hard for a jury not to take some comfort from the find when they were considering their verdict in respect of Mr Hurry’s evidence.
(ii) The items are suggestive of drug use. This is likely to create a prejudice in the minds of the jurors.
(iii) Both Mr Hurry and Mr Austin gave evidence that when the assailants approached them the assailants said “Give us your gear”, a well known colloquial expression for drugs.

19 The question for this Court to determine is whether it is satisfied that the irregularity that occurred would not have affected the jury’s verdict. In determining that question it is necessary not only to consider the possible influence the irregularity might have had upon the jury by reason of its nature and significance to the issues before them, but also the effectiveness of steps taken to reduce the impact of the irregularity upon the jury. In determining this issue regard should be paid to the attitude of trial counsel who would be expected to be aware of the full ramifications of what occurred and how it might impact upon the issues before the jury.

20 In R v Landsell (NSWCCA, unreported, 22 May 1995) fragments of glass were found by the jury in a bag tendered in the Crown case. There was no evidence as to the origins of the glass and it was not suggested by either party that it had any relevance to the proof of the charges. There was, however, some evidence as to the breaking of a car window in the incident that gave rise to one of the charges before the jury. The trial judge directed the jury that the fragments of glass were not part of the evidence, that there was no evidence of how they came to be in the bag and they should not speculate upon that matter.

21 Simpson J, who was in the minority on the question of whether a miscarriage of justice had occurred by reason of the irregularity of non-evidentiary material being placed before the jury, stated (at 11-12):

The presence of the glass in the bag, once before the jury, constituted an irregularity in the trial: R v Marsland unreported, CCA, 17 July 1991; R v Rudkowski , unreported, CCA, 15 December 1992; R v Domican No.3 (1990) 46 A Crim R 428. The question to be determined then is whether the irregularity was such that this Court could be satisfied that it did not affect the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred: Marsland (supra), Rudkowski , (supra). This is the same test which is applied where evidence has been held to have been wrongly admitted: R v Maric (1978) 52 ALJR 631. It is the test which was applied by this Court, with different results, in both Marsland and Rudkowski . Those cases are distinguishable one from the other, inter alia, by the timing of the discovery of the irregularity. In Marsland the irregularity was discovered by its being brought to the attention of the trial judge by the jury during the course of their deliberation. In Rudkowski the irregularity was not discovered until after verdict. But the circumstance of the timing of the discovery of the irregularity does not, in my view, make any difference to the test to be applied.

Where the irregularity is disclosed during the trial, the same question must be asked, but the answer will depend, not only upon the magnitude and nature of the irregularity, but also upon the efficacy of the measures taken towards its amelioration following its discovery. In Marsland the irregularity having come to light before verdict, it was possible to take remedial steps, steps which were held by this Court to be sufficient. Similarly, in the present case, the answer to the question the court must ask itself will depend, not only upon the nature and degree of the irregularity, but upon an examination of the remedial steps taken.

The system necessarily places a great deal of faith in the ability of a jury to accept, and follow, the directions of a trial judge, even in circumstances where it might appear to the jury that they are asked to act against the dictates of common sense. Equally, however, the system recognises that there are bounds beyond which a jury cannot be expected, or asked, to go. For this reason, the criminal appeal courts have developed the notion encapsulated in the commonly used phrase "no direction to the jury could have cured the damage ....." Implicit in this notion is the recognition that there are occasions when the legal system accepts that a jury will not, or cannot be expected to, comply with the directions of a trial judge

Her Honour was of the view that the directions given by the trial judge were not capable of curing the prejudice flowing from the irregularity in that case.

22 Gleeson CJ, with whom Finlay J agree, stated (at 4):

As Simpson J has observed in her judgment, an irregularity having occurred, the question for this court is whether we are satisfied that it did not affect the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred. That question is to be answered in the light of the direction which the trial judge gave when the irregularity came to his attention.

Criminal trials, and appeals, are conducted upon certain assumptions, one of which is that juries understand and follow the instructions and directions they are given by trial judges. It frequently happens, in the course of trials, that information comes to the notice of juries which, for one reason or another, they are bound to disregard. For example, in joint trials evidence is often led which is admissible against one accused but not another. Sometimes such evidence has the potential to cause considerable prejudice to the accused against whom it is not admissible. Ordinarily, however, it is accepted that the problem can be solved by an appropriate direction to the jury to the effect that they should consider the case against each accused separately and, where necessary, disregard, for one particular purpose, information which they may use for another purpose.

Sometimes it happens that inadmissible material is of such a nature that a trial judge, or an appellate court, will conclude that no direction can adequately protect an accused person and that the only proper remedy is to discharge the jury, or, following a conviction, to order a new trial.

In my judgment, the material in question in the present case does not fall into that category. There is no reason to doubt that the jury would have understood and complied with the direction they were given. I am reinforced in that conclusion by the assessment of the situation that was made by the trial judge and by trial counsel, although I acknowledge that it is the duty of this court to make its own independent assessment.

23 Similar considerations arise where at the trial a request was made for a discharge of the jury because of some irregularity of this nature but the discharge was refused by the trial judge. This Court is then required to determine for itself whether there was a miscarriage of justice by reason of the irregularity but should take into account the attitude of the trial judge and what steps were taken before the jury to address the impact of the irregularity. In R v Gilbert Adam (1999) 47 NSWLR 267 this Court quoted the following passage from Crofts v The Queen (1996) 186 CLR 427 at 440-441:

"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript".

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice".

And referred to a later passage in the same judgment:
"…it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account".

24 In the present case, it is not necessary for this Court to resort to an assumption that the jury would abide by the direction of the trial judge as it normally must do. It should be recalled that, when explaining why the matter had been brought to the Court’s attention, the foreperson said:

….We did basically talk about [it] and disregard[ed] it completely as not relevant, but we thought that because people did handle [it] we should let you know.

I do not see why the foreperson’s statement should not be relied upon when considering whether there was a possibility that the finding of the objects may have influenced their verdict.

25 The first matter relied upon as showing that irreparable prejudice had been suffered by the appellant, is that Mr Austin gave evidence that the person in the Nike jacket had pointed something sharp at his ribs. It was submitted that the jury might have used the objects found to infer that this person was the appellant and then used that finding to support the charge involving Mr Hurry.

26 It is clear that Mr Austin was an unsatisfactory witness in many ways and the fact that the jury acquitted on that count at the end of the Crown case is unsurprising. It appears that persons in court had considerable difficulty hearing his evidence. On a number of occasions the trial judge complained of being unable to hear what he was saying. His Honour also commented to counsel that the jury had given indications during his evidence that they could not hear or understand what he was saying. Further, the witness was proved to be unreliable in that crucial parts of his evidence were inconsistent with his statement to police. His description of the person in the Nike jacket did not match the appellant in a number of significant respects. There were inconsistencies between the description he gave to the jury of this person and that which he had given to the police.

27 On the other hand, the evidence against the appellant in respect of the charge involving Mr Hurry was overwhelming because of the finding of the victim’s mobile telephone in the very place where the appellant had been standing in the shop. The appellant’s explanation of why he went into the shop was unconvincing to say the least. Although the jury were warned of the dangers of identification evidence, it was not the usual case of visual identification. The evidence of Mr Hurry was that the person who had just robbed him came into the shop shortly after he did. There was no dispute that the appellant entered the shop a short time after Mr Hurry and that he left just as the police arrived. It was a very strong circumstantial case and, once again, it is not surprising that the jury dismissed the possibility that the appellant had not been the person who placed the mobile phone where it was found and hence was the robber.

28 The jury were given directions about the evidence of Mr Austin in the summing up as follows:

Now in looking at the evidence in this matter, the way this case has gone, the verdict that you return in the case concerning Mr Austin means that you should completely disregard Mr Austin's evidence for all purposes. As I said to you at the outset these are two cases that were heard together for the sake of convenience and Mr Austin's evidence against - in Mr Austin's evidence rather, is evidence in the Crown case in that matter and should not be taken into account in this matter and it is important that you should disregard the evidence for all purposes. The - well perhaps I should just leave it at that - I was about to say Mr Austin's evidence was given in a very low volume so one cannot be sure from here or from the bar table just what it was that you heard Mr Austin say. It is what you heard that matters. So I do not propose to deal with any parts of his evidence which, as I say, were given in that case and it would only be for the purpose of indicating to you, in any event, that you should not take it into account in this matter. So it is very important that you should not take his evidence into account in this case in any way.

29 I do not believe that there is any real possibility that the jury would have used any evidence given by Mr Austin when considering the case involving Mr Hurry both because of the nature and manner of his evidence and the directions given in respect of it. I do not think that there is any real possibility that the situation changed when the jury found the objects in the appellant's jacket.

30 I am also of the view that the other two matters relied upon are without substance. The items are not necessarily suggestive of drug use, but, even if they were, I do not believe that the jury would have used that evidence to the prejudice of the appellant such that he lost any reasonable prospect of acquittal. The suggestion that in some way the finding of those objects would have led the jury to reason that, because they were indicative of drug use and because there was evidence given by Mr Hurry that the assailants had said "give us your gear", it followed that the appellant was one of the assailants is untenable. In any event, the persons most capable of determining whether there was any prejudice arising in any way from this irregularity were the trial judge and the appellant’s counsel. Neither raised any suggestion of prejudice being occasioned from the finding of the objects on the basis that the appellant might be thought to be a drug user.

31 I propose that the appeal be dismissed.

32 WOOD CJ at CL: I agree.

33 SMART AJ: I also agree

34 WOOD CJ at CL: The order of the Court will be as Howie J has proposed.

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