R v Blackmore

Case [2016] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

R v Blackmore [2016] QCA 181

PARTIES:

R
v
BLACKMORE, Christine Margaret
(appellant)

FILE NO/S:

CA No 181 of 2015
DC No 366 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Ipswich – Date of Conviction: 17 July 2015

DELIVERED ON:

28 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2016

JUDGES:

Margaret McMurdo P and Mullins and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – JURY’S MISCONDUCT – where, following the summing up, and after the jury had been excused for the day, a juror called his wife and said he was feeling distressed and under pressure – where the juror’s wife contacted a registry staff member and told her that the juror was considering obtaining a medical certificate so as not to have to return to court the next day – where the registry staff member advised the juror’s wife that the juror must return the next day – where the juror returned the next day and told the bailiff he wanted to continue deliberating – whether the communications between the juror, his wife, and the registry staff member were in contravention of s 50, s 53 and s 54 Jury Act 1995 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – IRREGULARITIES AS REGARDS PROCEDURE – MATTERS RELATING TO JURIES – where the trial judge gave the jury a majority verdict direction – where half an hour later a juror indicated he felt unwell – where the juror was discharged and the jury directed to continue deliberating with 11 members – where there was no evidence that the discharged juror was the sole dissenting juror – whether the trial judge erred in allowing the trial to continue with 11 jurors

Jury Act 1995 (Qld), s 33, s 50, s 53, s 54, s 56, s 57, s 59A, s 70

BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139, applied
Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36, cited
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, cited
R v Edwards, Heferen & Georgiou [2002] 1 Qd R 203; [2000] QCA 508, distinguished
R v GAE (2000) 1 VR 198; [2000] VSCA 18, cited
R v Hutchings [2007] 1 Qd R 25; [2006] QCA 219, cited
R v Metius [2009] 2 Qd R 442; [2009] QCA 3, cited
R v Orgles and Orgles [1994] 1 WLR 108; [1993] 4 All ER 533, cited
R v Roberts [2005] 1 Qd R 408; [2004] QCA 366, cited
R v Shaw[2007] QCA 231, cited
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, cited

COUNSEL:

E S Wilson QC, with J Sharp,…

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AGLC
R v Blackmore [2016] QCA 181
Case
[2016] QCA 181
Decision Date

CaseChat Overview and Summary

In the matter of R v Blackmore, the appellant sought to appeal his conviction on the basis that the trial was conducted in a manner that resulted in a miscarriage of justice. The appellant argued that the trial judge had erred in two significant respects: first, by allowing the jury to continue deliberating with only 11 members after one juror was discharged, and second, by failing to address the misconduct of a juror which contravened sections 50, 53, and 54 of the Jury Act 1995 (Qld). The appeal was heard and dismissed by the court.

The primary legal issues before the court were whether the trial judge erred in allowing the trial to proceed with 11 jurors after one was discharged, and whether the communications between the juror, his wife, and the registry staff member constituted misconduct that required the discharge of the entire jury. The court needed to determine whether these irregularities amounted to a breach of the procedural fairness required under the Jury Act 1995 (Qld) and whether such breaches warranted a new trial.

The court meticulously examined the circumstances surrounding the discharge of the juror and the subsequent deliberations. It noted that while the discharge of a juror typically necessitates the discharge of the entire jury, the trial judge has discretion under section 57 of the Jury Act to allow the trial to continue with the remaining jurors if no reserve juror is available. The court found that the trial judge exercised this discretion appropriately, considering the lack of evidence that the discharged juror was the sole dissenting juror. Furthermore, the court held that the communications between the juror, his wife, and the registry staff member, while technically a contravention of section 54, did not prejudice the fairness of the trial. The court concluded that the trial judge did not err in continuing the trial with 11 jurors.

As the appellant did not succeed on either ground of appeal, the appeal against conviction was dismissed. The reasoning of the court was grounded in the statutory provisions and the specific circumstances of the case, highlighting the trial judge's discretion in managing jury deliberations and the limited impact of the alleged misconduct. The court’s decision underscores the importance of maintaining procedural fairness while also recognising the practicalities of conducting criminal trials.

ORDERS:
The appeal against conviction is dismissed.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After carefully considering the appellant’s submissions and the unusual concatenation of circumstances in this case, I remain unpersuaded that the judge erred in exercising her discretion to order that the trial continue with 11 jurors, given the many factors I have listed supporting that decision and the paucity of evidence to support the hypothesis that Juror Number 6 was a dissenting juror or that in some other way there had been a flaw in procedural fairness resulting in a miscarriage of justice. The second ground of appeal is not made out.Conclusion As the appellant has not succeeded on either ground of appeal, I would dismiss the appeal against conviction.OrderThe appeal against conviction is dismissed. MULLINS J: I agree with Margaret McMurdo P. DOUGLAS J: I also agree with the President.

Ratio Decidendi

Legal Principle Established

Jury Act s 33 provides that a jury for a criminal trial consists of 12 people. Jury Act, Part 6, “Jury Trials,” Division 1, “Procedure following selection of the jury,” contains s 50 which requires that members of the jury must be sworn or affirmed “to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury’s deliberations except as allowed or required by law.” Part 6, Division 3, “Segregation of jury in criminal cases,” consists of s 53 and s 54 which relevantly provide:“53 Separation of Jury…(7)After the jury has retired to consider its verdict, the judge —(a) may allow the jury to separate, or an individual juror to separate from the jury, if the judge considers that allowing the jury or juror to separate would not prejudice a fair trial; and(b) may impose conditions to be complied with by the jurors or juror.(8)A juror must comply with any conditions imposed by the judge under subsection (7)(b), unless the juror has a reasonable excuse.…(10)The validity of proceedings is not affected if a juror contravenes a provision of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.54Restriction on communication(1)While a jury is kept together, a person (other than a member of the jury or a reserve juror) must not communicate with any of the jurors without the judge’s leave.(2)Despite subsection (1) —(a) the officer of the court who has charge of the jury may communicate with jurors with the judge’s leave; and(b) if a juror is ill—communication with the juror for arranging or administering medical treatment does not require the judge’s leave.(3)A person who contravenes subsection (1) may be punished summarily for a contempt of the court.(4)The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.” Part 6, Division 5, “Discharge of individual jurors or of whole jury,” includes s 56, s 57 and s59A which relevantly provide:“56Discharge or death of individual juror(1)If, after a juror has been sworn—(a) it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial; or(b) the juror becomes incapable, in the judge’s opinion, of continuing to act as a juror; or(c) the juror becomes unavailable, for reasons the judge considers adequate, to continue as a juror;the judge may, without discharging the whole jury, discharge the juror.…57Continuation of trial with less than full number of jurors(1)If a juror dies or is discharged after a trial begins, and there is no reserve juror available to take the juror’s place, the judge may direct that the trial continue with the remaining jurors.(2)However,…a criminal trial can not continue with less than 10 jurors.…(3)The verdict of the remaining jurors has the same effect as if all the jurors had continued present....59AVerdict in criminal cases for other offences(1)This section applies to a criminal trial on indictment…(2)If, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation, the judge may ask the jury to reach a majority verdict.(3)If the jury can reach a majority verdict, the verdict of the jury is the majority verdict.…(6)In this section —majority verdict means—(a) if the jury consists of 12 jurors—a verdict on which at least 11 jurors agree; or(b) if the jury consists of 11 jurors—a verdict on which at least 10 jurors agree.…”