R v Bates

[1995] QCA 388

[1995] QCA 388

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

AMBROSE J

CA No 212 of 1995
THE QUEEN
v.

MICHAEL JAMES BRADLEY BATES

BRISBANE
..DATE 26/07/95
THE CHIEF JUSTICE: The appellant was convicted, after a
trial, on counts of rape and indecent assault with a
circumstance of aggravation.

The only ground of appeal against his conviction was that the trial Judge failed to discharge the whole of the jury panel in the circumstances which I shall outline.

In view of the nature of the submission that was made to the trial Judge, it is probably important to set out some preliminaries. Immediately after the jury had been empanelled, the trial Judge asked the Prosecutor, in the way that is ordinarily done, to inform the jury of the names and addresses of the proposed Prosecution witnesses and then, addressing the empanelled members, told them that if they knew anything about any of the Prosecution witnesses who were proposed to be called which would cause them to believe, on reasonable grounds, that they could not discharge their duty impartially, then he would like them to so indicate and he would consider the matter further. None of the jury panel gave any indication in response to His Honour's observation to them.

The case involved an issue of consensuality in sexual intercourse which had occurred or, as it was put to us, the issues were whether the complainant had consented or the appellant may have mistakenly believed that she did. The act of sexual intercourse in question was one which occurred while the complainant was grossly intoxicated and the appellant had gained entry to her room. There was no corroboration of the claim of rape and the case came down to one, as was obvious in those circumstances, of word against word. Matters of credit and perhaps the complainant's credit, in particular, were obviously very important matters.

The complainant was the first Crown witness and she was under cross-examination at the time the trial was adjourned at the end of the first day. Apart from suggestions made to the complainant that the sexual intercourse had been consensual, it was said to her that she was telling deliberate falsehoods and was doing so because she thought her relationship with her boyfriend and her boyfriend's mother would stand better if she made an allegation of rape in respect of the intercourse that had occurred, and was accordingly responding by making a false allegation.

Before evidence resumed on day 2, a juror, who has been
identified in the submissions as juror number 4, advised the
bailiff that, although he had not recognised the complainant
by name, he did recognise her when she came into the Court.
The juror number 4 then continued to sit with the other jurors
and, according to the bailiff, said words, apparently
generally to the effect, "I thought I had better mention it to
him." This matter was then communicated to the trial Judge
and he proceeded to question juror number 4 in some little
detail, doing this in the presence of counsel and the
appellant.
The summary provided to us is sufficient to adopt and it shows
that juror number 4, when questioned by the trial Judge, said
he did not know the complainant by name. He had no personal
knowledge of the complainant as such. He recognised her
because he had seen her drop off her son at a children's club
at the church he attended. He said, in passing, "G'day. How
are you?" He had not spoken to the child and had no control
or disciplinary responsibility in respect of the child in
matters pertaining to the church. Importantly, he did not
believe that this would in any way affect his judgment in the
trial and he mentioned his having seen the complainant to one
other juror, saying he needed to speak to the bailiff. He
told this other juror, who later became identified as juror
number 8, that he recognised the complainant's face and knew
her by sight but he had not said anything else to juror number
8.

Now, counsel for the appellant sought the discharge of the jury, basing his submissions on alleged unfairness to the appellant, where the complainant's credit was so much in issue. The submission was that this credit issue gained additional strength because the complainant was shown as being a church-going woman and also that there might be speculation among other jurors as to a reason for discharge if those other jurors remained to serve at the trial.

His Honour, acting out of what he described as an abundance of caution, decided to discharge juror number 4. He said that he did not think that he should give any particular explanation to the remainder of the jury as to why he had done so, and it is easy to understand his viewpoint in that respect.

Appellant's counsel then raised the further issue of what
juror 4 might have said on his return to the jury room, and
juror number 4 when asked responded by saying he had told the
other jurors that he could not speak about anything. Juror
number 4 was then discharged and appellant's counsel inquired
whether the trial Judge would ask the other jury members
whether any of them were informed of the circumstances under
which juror number 4 knew the complainant. There was
discussion between the trial Judge and counsel about this.
His Honour then informed the remaining jurors that he had
discharged juror number 4 for what appeared to him to be good
reason and that he had spoken to that juror in the Court that
morning because the juror had said something to the bailiff.
The Judge then asked the remaining members of the panel, "Did
juror number 4 tell any of you whether he had some
acquaintance with the complainant woman and, if so, under what
circumstances?" In answer to that question, only juror number
8 responded in the affirmative and he was then questioned by
the trial Judge in the absence of the other jurors. Juror
number 8's response was, "This morning he" - referring to
juror number 4 - "did mention in passing that he had
recognised her in the shopping centre or something on two
occasions I think he mentioned." He was sure that nothing
further was mentioned and he did not think it would in any way
affect his sense of judgment and impartiality in the case.

At this point, juror number 8 was directed to wait outside and further submissions were taken. Appellant's counsel renewed his application for the discharge of the whole jury panel, basing this on what juror number 8 had said he had been told by juror number 4 and apparently because of his concern over the suggestion that juror number 4 had known the complainant in connection with what might be described, broadly, as a church contact and concern also about what, notwithstanding the answers that had been given, might have been conveyed to other members of the jury panel.

As an alternative to seeking the discharge of the whole panel, appellant's counsel asked for the discharge of juror number 8 and the trial Judge, this not being opposed by the Crown, and acting once again in a particularly cautious fashion it might be thought, discharged juror number 8. He subsequently told the remaining members of the jury that he discharged juror number 8 for what appeared to him to be good reasons.

Behind the submissions which we have heard and which were, to
greater or lesser degree directed to the trial Judge, there
appears to be some concern that the way in which the
complainant's truthfulness might be regarded might be thought
to be affected by the fact that she was someone concerned to
maintain contact with a church because she dropped her son off
at a church-run club on the occasion or occasions to which
reference has been made.
The weight of that matter might be decidedly debateable.
However there is no doubt that in matters which arise in the
course of a trial, a trial Judge is given a very wide
discretion about the most appropriate way to proceed. In this
case, in my opinion, the Judge may indeed have gone further
than other Judges may have done acting as he did out of his
concern for the integrity of the trial and acting also with a
sense of caution which he thought was called for.

In my opinion there is no reason for apprehension that the trial Judge in this case did not deal effectively with the matters which had emerged. He might have chosen to act in other ways but nothing would have compelled him to discharge, in my opinion, the whole panel in the situation which did emerge. There is no reason to be suspicious of some deeper, hidden mischief involving the jurors which might affect the integrity of the trial.

The incident would be correctly regarded as a minor one occurring in the course of a trial and there is no reason to think that the result of the trial Judge's actions in response to the applications of counsel for the appellant was that any reasonable apprehension concerning the fairness of the appellant's trial remained.

I would dismiss the appeal.

DAVIES JA: I agree. AMBROSE J: I agree. THE CHIEF JUSTICE: The appeal is dismissed.

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