R v BRAMLEY - [2009] SASC 372

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRAMLEY
[2009] SASC 372
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice Bleby)
8 December 2009
CRIMINAL LAW - PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - PUBLICITY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IRREGULARITIES IN RELATION TO JURY
Appeal against conviction - appellant pleaded not guilty to possessing cannabis for sale - prior to empanelment of jury, appellant pleaded guilty to two firearms offences on the same Information - trial Judge ruled that any evidence relating to firearms charges was inadmissible on the hearing of the cannabis charge - case list displayed on notice board in court building, and on the internet, included reference to firearms charges - no direction given to jury about firearms charges - jury unanimously found appellant guilty.
Whether jurors could have become aware of firearms charges - whether denial of opportunity for trial Judge to give appropriate directions led to a miscarriage of justice.
Appeal dismissed - no material risk of miscarriage of justice.
Controlled Substances Act 1984 (SA) s 32(3), referred to.
R v Plunkett (1997) 69 SASR 452, discussed.

R v BRAMLEY
[2009] SASC 372
Court of Criminal Appeal: Duggan, Nyland and Bleby JJ

DUGGAN J: In my view the appeal should be dismissed for the reasons given by Bleby J.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Bleby J.
BLEBY J. There appears every weekday in “The Advertiser”, a newspaper circulating in South Australia, a list of cases to be heard in courts in this State on that day. The information given lists the name of the case, the court and the courtroom in which the case will be heard. Lists of cases also appear on the notice boards of each court. In the case of criminal matters heard in the Sir Samuel Way Building, the list of cases also includes a brief description of the matters with which an accused is charged. I am not aware of the reason for this latter inclusion, but it has been the practice of the Registry to do so for many years. Information in similar form to that on the notice boards appears on the Courts Administration Authority’s website. It is the practice of listing the offences which gives rise to this appeal.
The appellant was charged on Information dated 18 August 2008 with three offences. Count 1 was possessing cannabis for sale. Counts 2 and 3 were each possessing a firearm without a licence. Each of the firearm counts related to Class “H” firearms, namely hand guns.
The trial commenced before a District Court judge on Tuesday 25 August 2009. The Judge had before him two applications under r 9 of the District Court (Criminal and Miscellaneous) Rules 1992 (SA). The first one sought an order that any evidence in relation to counts 2 and 3 on the Information be excluded from evidence on the footing that the appellant would plead guilty to counts 2 and 3, but not guilty to count 1. The second notice is not relevant for present purposes, but in order to have it resolved informally, which ultimately was the case, the hearing was adjourned to 10.00am the following day, Wednesday 26 August 2009.
On that day the Judge ruled that any evidence of or reference to the firearms the subject of counts 2 and 3 was inadmissible on the hearing of count 1, and that in any event, if it were admissible, it would be excluded in the exercise of the Judge’s discretion.
The appellant was then arraigned and pleaded not guilty to count 1 but guilty to counts 2 and 3. The jury was then empanelled and the accused was rearraigned before the jury on count 1, to which he again pleaded not guilty. The judge addressed the jury briefly, at the end of which he asked them to retire to the jury room serving that particular courtroom and to be back in time to resume the trial at 2.15pm.
The trial continued that afternoon and on the following day, Thursday 27 August 2009. Evidence was completed on the morning of Friday 28 August. Counsel’s addresses took place after the morning break and the Judge began his summing up just before the luncheon adjournment. The jury retired at 2.34pm and returned with a unanimous verdict of guilty at 3.16pm.
On each day of the trial, from Tuesday to Friday inclusive, the case list displayed in the foyer of the District Court building, besides indicating the courtroom, the time of commencement, the name of the Judge and the name of the appellant, described the charges in the following terms: “Possessing Cannabis For Sale/Possessing A Firearm Without A Licence (2)”. The appellant’s simple submission is that there is a possibility, by means of the case lists published on each day of the trial, that a member or members of the jury became aware of the charges of possessing a firearm without a licence, and that the appellant was denied any opportunity to apply to have the jury discharged or to seek a direction from the trial Judge to the jury to the effect that they should not be swayed in any way in their judgment by what may have appeared on the Court’s case lists. In the appellant’s submission, the failure to be afforded that opportunity constituted a miscarriage of justice.
There was no evidence that any juror looked at any of the case lists published during the course of the trial. They had no need to do so. On the day of empanelment the relevant section of the jury panel would have been directed to assemble at the appointed time in the jury pool room. From there they were taken to the courtroom where the Judge was sitting for the empanelment process. At the first luncheon adjournment they retired to their own jury room and were told to return to that room in time for resumption at 2.15pm. Thereafter, they knew that that was their room and their court. There is no evidence that the trial was transferred to another courtroom at any stage.
At the beginning of the month the whole jury panel was instructed as to the various means of ascertaining whether they were required on a particular day. That did not include any reference to case lists published in the Court foyer or on the website. On the same occasion they were told that the jury room attached to the relevant criminal court was their room until that trial was completed. They were told that if they were a juror on a part-heard trial, they “must report directly to the jury room attached to the Courtroom until that particular trial is completed and not to the Jury Pool Room”. There is no reason to believe that those instructions were not complied with.
At the same time the jury was instructed by the Sheriff’s officer not to conduct any investigations into any matter relating to the trial in which they might be involved.
If a jury did happen to see the case list, it can be assumed that he or she bore in mind the warning given in the video-tape shown to all potential jurors as part of their induction. In the course of that video-tape a judge stresses the importance of not convicting a person on doubtful or insufficient evidence. A male actor, who appears from time-to-time throughout the video-tape, then says to his female counterpart:
You know, I’m afraid I was one of those people who thought ‘Oh, someone’s been charged with an offence, then they must have done it’. Of course, now I can see only evidence can prove that.
I consider it more likely that, if a juror had looked at the case list and had seen the charges accompanying appellant’s name, he or she would have concluded that there was some kind of administrative mistake. They and each of them were fully aware that they were only hearing one charge, and that that charge had nothing to do with firearms. There was no suggestion that the appellant had been convicted of a firearms offence.
I turn to the conduct of the trial itself. The trial was very short. It involved a single issue only, namely whether the appellant had discharged the onus of proof that the amount of cannabis in his possession, about 2.2kgs, was not in his possession for the purpose of sale.[1] The offence allegedly occurred on a rural property. The presence of firearms is not unusual on a property of that nature. The jury heard extensive evidence from police officers involved in the search of the appellant’s home as to what could be expected to be found in the home of someone using cannabis for their own personal use. No evidence was given in relation to firearms in that context. Defence counsel addressed the jury in relation to the evidence that would normally be found if someone was a drug dealer. Firearms were not mentioned. There was nothing in the evidence or in the addresses of counsel to suggest that firearms were an essential part of drug cultivation or drug dealing.
[1] Controlled Substances Act 1984 (SA), s 32(3).
There was admitted into evidence a video-tape of portion of the search of the premises by police officers. Part of the tape, played at the request of counsel for the defence, contains the following exchange:
APPELLANT:             The first thing you’d want to check would be the guns.
POLICE OFFICER:      Do you have a firearms licence for them?
APPELLANT:             Yes. Want to see it?
POLICE OFFICER:      If you have it, if you have it handy, it would be good.
APPELLANT:             It’s in the car.
That conversation referred to some rifles in the house and dispelled any suggestion that guns found in the house on that occasion were unlicensed.
Early in his summing up and before the luncheon adjournment on 28 August, the Judge directed the jury in the following terms:
It is a really important aspect of a jury trial that you decide the case based on the evidence and just the evidence that you have heard here in court. You are not in a position where you should let sympathy or any dislike or moral view of people or their conduct have any bearing upon the verdict.
This was reinforced by what followed an unfortunate and ill-advised suggestion from the prosecutor during the course of his address. He was discussing the amount of cannabis involved in 2.2kgs. He invited the jury, during the luncheon adjournment, to go to the Central Market at the rear of the Court building and to go past a fruit and vegetable stall and pick up a 2kg bag of oranges and feel the weight of it. Not unnaturally, the first matter to be addressed by counsel for the defence in his address to the jury was to warn the jury against that practice. He said:
Normally, judges will direct juries that the case must be decided on the evidence and the evidence alone. Juries are not permitted to conduct their own investigation outside of the courtroom in trying to decide what is the truth of the matter. Insofar as my friend suggests that you should wander through the market and pick up a bag of oranges and see how heavy 2kg might be, can I urge you that's not part of the process, as he well knows.
Having begun his summing up to the jury, before adjourning for lunch the Judge said:
In the course of the arguments of counsel there were comments made to you about what 2 kg or how much 2 kg feels like. It is very important that you do not go off at lunchtime and conduct your own inquiries about what 2 kg is. As I said to you at the beginning, your assessment of all of this is based on what you heard here in court. So, if you are wandering through the market, I am directing you not to go and conduct your own inquiries or to pick up things you think weigh 2 kg. Let’s confine your consideration of the matter to the evidence you have heard here and not to any examination you might want to do of produce in the market. Let’s keep to the right path.
Although it related to another topic, it was a stark reminder to the jury not to make any inquiries of their own but to decide the case solely on the evidence before them.
Counsel for the appellant, in his written submissions, referred us to the decision of this Court in R v Plunkett.[2] In that case there had been publication on the morning of the trial, by a local newspaper in a circuit town, of material which, it was acknowledged, had the potential to prejudice the fair trial of the accused. The newspaper reported that the appellant had been charged with other offences (arising from an unrelated incident), but that the alleged victim had asked that those charges be withdrawn because of the stress the matter was causing her. The trial Judge refused to adjourn the trial and decided that any prejudice could be cured by an appropriate direction to the jury. By majority, the Court of Criminal Appeal upheld the course taken by the trial Judge. Of the article in question, Doyle CJ said:[3]
I accept that the article had the potential to prejudice a fair trial of the appellant. It referred to a charge that could be read as conveying sinister overtones. Although it was only a charge, and a charge that was withdrawn, it was withdrawn for reasons that did not dispose of the accusation. It was capable of causing the average person to doubt the character and credibility of the appellant.
[2] (1997) 69 SASR 452.
[3] Ibid 454.
Counsel sought to distinguish this case from Plunkett because the prejudicial material contained in the newspaper article was known to the Court before the trial commenced, and the trial Judge in Plunkett gave careful and specific directions to cure the prejudice. It was submitted that in this case the issue of firearms which was the subject of exclusion by the trial Judge’s direction was conveyed or was likely to have been conveyed to the jury by the Court, that the appellant was not aware that it was likely to have been so conveyed and that he was therefore denied an opportunity to make an application for discharge of the jury or to seek appropriate directions from the trial Judge.
As to lack of opportunity, counsel representing the appellant at trial was a very experienced criminal barrister who must have been aware of the Court’s universal practice of summarising the charges against the name of the accused on the case list published in the foyer of the Court and on the website. However, that is not really to the point. The question is this case is whether, in all the circumstances, the publication of the charges by that manner was likely to prejudice the fair trial of the appellant. The answer to that question was not in dispute in Plunkett.
Taking into account all the factors I have mentioned relating to the initial instruction of jurors, the likelihood of jurors having looked at the case list at all, the likely reaction if they did, the conduct of the trial itself, the only reference in evidence being to guns in respect of which the appellant claimed to hold a licence and the various directions given in the course of the trial, I am not satisfied that there was a material risk of the trial having miscarried. I would therefore dismiss the appeal.