R v Deane-Johns

[2011] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DEANE-JOHNS

[2011] SASCFC 55

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Peek)

17 June 2011

CRIMINAL LAW - PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - INDIVIDUAL JURORS

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

Appellant convicted of four counts of threatening life and one count of possessing a prescribed firearm - sentenced to six years' imprisonment with a non-parole period of four years' imprisonment.

Appeal against conviction - whether trial Judge should have discharged the jury, or individual juror who had met witness during antenatal course - whether trial Judge erred in providing the jury with a written memorandum - whether trial Judge erred in directing the jury that they should not consider the credibility of the STAR Force officers.

Appeal against conviction dismissed.

Appeal against sentence - sentence not manifestly excessive - trial Judge failed to take into account two months that the appellant had already served in custody - head sentence and non-parole period reduced by two months - head sentence reduced to five years and ten months' imprisonment with a non-parole period of three years and ten months.

Criminal Law Consolidation Act 1935 (SA) s 19(1); Firearms Act 1977 (SA) s 11(1), referred to.
Webb and Hay v The Queen (1993-1994) 181 CLR 41, applied.
R v Tulisi [2008] SASC 306; R v Muir [2009] SASC 94; R v Radford (1986) 133 LSJS 110, considered.

R v DEANE-JOHNS
[2011] SASCFC 55

Court of Criminal Appeal:       Sulan, Vanstone and Peek JJ

1. SULAN J: The appellant, Mark Temple Deane-Johns, was charged with four counts of threatening life, contrary to section 19(1) of the Criminal Law Consolidation Act 1935 (SA), and one count of possession of a prescribed firearm, contrary to section 11(1) of the Firearms Act 1977 (SA).

2. The appellant was found guilty by majority verdicts of four counts of threatening life, and a unanimous guilty verdict was returned in respect of possessing a prescribed firearm.  He was sentenced to six years’ imprisonment with a non-parole period of four years’ imprisonment.

3. The appellant appeals both the convictions and the sentence.

   Background

4. On 5 October 2005, the appellant’s wife made an emergency call to the police reporting that her husband had a shotgun in his vehicle and was behaving erratically in their home.  At 5.21 pm the police attended the home.  They observed a car in the driveway.  The police treated the matter as ‘high risk’ and arrangements were made for the STAR Force to attend.

5. The STAR force members arrived at 6.37 pm.  They established that the appellant was in the house.  The appellant was requested to surrender.  He refused and police negotiators then attended at 7.45 pm.  Negotiations were not successful.  It was the prosecution case that the appellant exited the front door of his home at 7.55 pm and walked quickly towards his car in the driveway, at which point he opened the rear door and retrieved a sawn-off shotgun from the car.  The shotgun was pointed at four STAR Force officers who then shot ten rounds of ammunition at the appellant.  Although the appellant was not hit by a bullet, he was injured from fragments of shrapnel which appear to have come from a knife that the appellant was holding and which had been hit by a bullet.

6. It was the defence case that the appellant had not approached his car, and that he had been shot at after leaving his house, while holding only a knife and not a shotgun.  The appellant alleged that Sergeant Devey, a member of the STAR Force, had found the shotgun in the appellant’s car after the appellant had been wounded, and had placed it by the appellant to “cover up” a mistake that had been made by STAR Force officers in prematurely shooting at the appellant when he was not armed with a gun.

   Appeal against conviction

   Ground 1 – The application to discharge the jury

7. The appellant contends that the trial Judge should have discharged the jury, or an individual juror, after it became known that the juror knew the witness, Sergeant Devey.  Sergeant Devey, a STAR Force officer, was the subject of count 3.  His evidence commenced on the afternoon of 20 September 2010, and continued on 21 September 2010.  On the morning of 21 September 2010, the trial Judge received a note from a juror indicating that she had met the witness and his wife approximately four years ago during an antenatal course, which the juror was conducting as a midwife.  The note read:

   Dear Sir, I have realised I have met Cameron Devey.  Approximately four years ago, I was doing an antenatal course with his wife.  I don’t think this is a problem, but thought I should let you know.

8. The trial Judge first indicated that there did not seem to be a problem.  He adjourned, however, to allow defence counsel to speak to their client.  Counsel for the appellant made an application to discharge the jury.

9. The judge enquired as to the juror’s knowledge of and relationship with the witness.  The juror described their meeting some years ago as lasting approximately 20 minutes.  She thought she might know the witness in a “very superficial kind of way”.

10. When the trial Judge spoke to the juror it became apparent that there was a question as to whether the juror actually knew the witness or not.  The juror, when asked whether she knew him or thought she knew him, responded that she thought she knew him.  The juror explained that she did not recognise his name, and it took her a while to recognise that she may know him after seeing him.  The time at which the juror said she had contact with the witness did not coincide with his wife being pregnant.

11. The trial Judge refused the application.  He did not give reasons.  It is not possible to discern from the transcript the test that the trial Judge applied in arriving at his decision.  He said:

    I don’t think there’s enough to discharge this juror or any of the jurors for that matter, the juror strikes me as being an intelligent sensible, mature lady who is conscious of her obligations as a juror and I don’t see it presenting a problem such that she or the balance of the jury should be discharged.  I refuse the application.

12. The test in determining whether to discharge a juror was considered by the High Court in Webb and Hay v The Queen.[1] 

    [1] (1993-1994) 181 CLR 41.

13. The question for this Court is having regard to the circumstances and the observations of the trial Judge whether a fair-minded, informed member of the public would reasonably apprehend that the juror involved would not discharge her duty impartially.

14. In Webb and Hay, the defendants were charged with murder.  On the morning after the trial Judge had commenced his summing up, a juror handed a bunch of flowers to the deceased’s fiancé in the courthouse, with a request to pass them on to the deceased’s mother.  The prosecutor reported the incident to the trial Judge and counsel for each accused made applications to discharge the jury.  The Judge considered that the relevant question was whether there was a real danger that the position of the accused had been or might have been prejudiced by what had occurred.  The trial Judge did not discharge either the jury or the juror.  The Judge directed the trial to proceed.  He gave a direction to the jury to disregard any emotional feelings that any juror may experience in determining the case, having regard only to the evidence.

15. Mason CJ and McHugh J held that the test applied by the trial Judge was not correct.  They said:[2]

    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.   (Emphasis mine)

    [2] Ibid 53.

16. Toohey J agreed with the test as stated by Mason CJ and McHugh J.  Applying that test, the majority dismissed the appeal.  Deane J agreed that the test in Australia is the reasonable apprehension test.  He said:[3]

    The present case falls within the second of the above categories, namely, disqualification by conduct.  That being so, it follows from the foregoing that the question for the learned trial judge was whether, in all the circumstances, the conduct of the particular juror would cause a fair-minded lay observer with knowledge of the material objective facts to entertain a reasonable apprehension that the particular juror, and/or other jurors under her influence, might not bring an impartial and unprejudiced mind to the determination of the appropriate verdict in the case of each of the accused persons.  His Honour’s comments indicate that, instead of addressing that question, he addressed the question whether there was, in his own view, a real possibility of actual bias.  That means that he failed to apply the correct test.  (References omitted)

    [3] Ibid 75.

17. Deane J, however, disagreed with the majority decision and would have allowed the appeal.

18. In discussing the facts, Mason CJ and McHugh J said:[4]

    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.

    [4] Ibid 56.

19. The High Court considered that the relevant factors in the case were the circumstances which gave rise to the application to discharge the jury, the impression formed by the Judge of the juror when dealing with the application, and the effect of the Judge’s directions, if any, to the jury to correct any irregularity.

20. The appellant contends that the nature of the meeting between the juror and Sergeant Devey, that is in circumstances of supporting his wife at an antenatal course while his wife was pregnant, is one in which the juror was likely to have formed an opinion of the witness.

21. The appellant submits that at the time the juror raised the matter, it was not apparent that Sergeant Devey’s credibility would be a major issue in the case.  It was not yet evident that the defence case was that Sergeant Devey retrieved the shotgun from the back of the appellant’s car and placed it by him.

22. The appellant further submits that when the juror was asked whether she had discussed this concern with any other jurors, and she replied she had discussed it with one, no inquiry was made into the nature of this discussion. Further, no direction was given to the juror not to discuss the matter with the other jurors.  At the time that the juror disclosed that she had told another juror, counsel were asked whether they had any further questions, and neither raised further questions nor concerns.

23. The trial Judge was able to assess the juror and make a judgment as to her ability to continue as a fair-minded juror.  When refusing the application, the trial Judge described the juror as being “an intelligent, sensible, mature lady who is conscious of her obligations as a juror”.

24. While there were no specific directions given to the jury regarding this particular incident, the trial Judge on several occasions in the summing up and throughout the trial directed the jury that they may act only on the evidence.  In his summing up the trial Judge said:

    I emphasise to you again that you should decide this case upon what you see and hear in this court and nothing else.  You should ignore any feelings of sympathy or emotional reactions.  In essence you must be clinical, dispassionate, and assess the evidence with complete impartiality.

25. He further said:

    In arriving at your verdicts you are required, as your duty, to be guided only by the evidence given in this court … Your duty is to give verdicts according to the evidence and nothing else.  You should not allow yourself to be affected by sympathy or any other emotions from a dispassionate consideration in this case or from your duty to deliver verdicts according to the evidence.

26. In directing the jury in this way, the Judge made it clear that the jury must not have regard to extrinsic material.  In the circumstances, having concluded that the juror would bring an impartial mind to her assessment of the witnesses, there was no need for a specific direction to the jury relating to the person’s suspected knowledge of the witness.

27. I am satisfied that, in the circumstances, a fair-minded person with the knowledge of the facts would not reasonably apprehend that the juror and jury might not bring an impartial consideration to the issues.

28. I would refuse this ground of appeal.

    Ground 2 – The written memorandum

29. The appellant sought permission to appeal on the ground that the trial Judge erred in providing the jury with a written memorandum.

30. The appellant submits that the charges and the law are not sufficiently complex to warrant a written memorandum.  Counsel submits the memorandum had the effect of reducing the Crown case to writing which was then made available to the jury when deliberating.  The submission is that, as a consequence, the case as presented was unfairly balanced towards the prosecution, resulting in a miscarriage of justice.

31. Written memoranda are increasingly being used by judges.  There is some debate about their utility.  In my view, the provision of a written aide memoire setting out the various elements of each offence charged can be of assistance to a jury.  Oral directions are paramount, but we are asking much of jurors in requiring them to recall each element of a charge, particularly in cases in which there is more than one charge, without providing them with some assistance, except in the most straightforward case.  Here, the jury was required to consider multiple charges.

32. Written directions are not a replacement for oral directions.  They are used to assist the jury to remember and understand the oral directions.[5]  When determining whether the written memorandum focussed on the prosecution case and did not adequately address the defence case, it must be considered in the context of the summing up as a whole, including oral directions.  If the written directions go beyond a mere direction of the elements of an offence there is a danger that, if the direction is not balanced, this may lead to a miscarriage of justice.

    [5]    See R v Tulisi [2008] SASC 306 and R v Muir [2009] SASC 94.

33. In considering the written directions I have had regard to the observations of King CJ in R v Radford:[6]

    … it is for the trial Judge, not the appellate court, to decide how the direction should be given and, so long as there is no inaccuracy and no tendency to produce a miscarriage of justice, an appellate court will not interfere.

    [6] (1986) 133 LSJS 110, 117.

34. The trial Judge in his summing up said:

    The important thing for you to remember is that it is what I say, that is verbally now, that is to be regarded by you as the summing up in respect of the ingredients of the offence with which the accused is charged … so it is what I say that is important.  And if there is any difference between what I say now verbally and what is in the written document, it is what I say verbally that you must have regard to.

35. The trial Judge set out the elements of each offence relied upon to prove the charge.  It summarised some of the issues the jury was required to consider.  The memorandum does not deal with the evidence.  The memorandum is consistent with the oral directions.  It is not balanced towards the prosecution case.  It simply informs the jury of the elements of each charge and the facts upon which the prosecution rely.

36. I would refuse permission to appeal on this ground.

    Ground 3 – Directions to jury

37. The third ground of appeal is that the trial Judge erred in directing the jury that they should not consider the credibility of the STAR Force officers.

38. The trial Judge in summing up said:

    She [the prosecution] submitted to you that the defence approach was to suggest that all of these officers were lying and had concocted a false story to unjustly charge the accused.  Ms Wildman’s response was to pose the question whether they struck you as barefaced liars.  Now, that is a topic and an argument that has been raised by both counsel and should be given consideration by you.   However, I direct you not to become diverted down the path of whether the police officers would jeopardise their careers by lying and manufacturing a false story and bring the focus back to whether the charges have been proved by the prosecution.

    So members of the jury, they are arguments and matters that have been raised by counsel and you should give them some consideration, but you should remember – and this is what I referred to yesterday as to a recurrent theme – namely, has the prosecution proved its case beyond reasonable doubt?  Beware and be aware of not going down the path of looking for reasons whether these officers would or would not jeopardise their careers;  focus, as it were, as to whether the prosecution has, indeed, proved its case.

39. The appellant submits that the trial Judge confused the jury.  Counsel submits that, in directing the jury not to become diverted from the ultimate question of whether they can be satisfied beyond reasonable doubt that the prosecution has proved each element of the charge, the trial Judge removed from their consideration the main thrust of the defence case, being that the STAR Force officers have lied to protect their position.  The appellant submits that, on the one hand, the trial Judge directed the jury to take into consideration whether the STAR Force officers were lying and had concocted a false story, but then removed from the jury’s consideration their motive for lying.

40. Counsel for the prosecution submits that the trial Judge did not misdirect or confuse the jury.  He contends that the Judge was emphasising to the jury that the prosecution must prove its case beyond reasonable doubt.

41. The trial Judge on a number of occasions throughout his summing up addressed the fact that the defence case theory was that the STAR Force officers had lied to cover up a “mistake” and save their jobs:

    Now of course one of the arguments adduced by [defence counsel] was that the police made a big mistake and to cover up their mistake they would indeed be prepared to lie and that is a question, an argument that you will need to deal with in due course.  But just be always aware of that recurrent theme that I have reminded you of.

42. And further:

    He [defence counsel] developed the submission by saying that police soon realised a mistake had been made, that is they had shot an unarmed man, and they set about manufacturing a story to cover up and explain their mistake.  He submitted they would be prepared to risk their careers out of panic and self-preservation.

43. The main thrust of defence counsel’s address was that the STAR Force officers had lied to cover up their mistake in opening fire at the appellant who was not armed with a gun.  The trial Judge reminded the jury of the defence case.

44. The directions do not direct the jury to disregard the credibility of the witnesses.  The trial Judge did not remove from the jury’s consideration the witnesses’ motive for lying.  He simply reminded the jury that the prosecution must prove its case beyond reasonable doubt.

1. I would dismiss the appeal against conviction.

   Appeal against sentence

2. The appellant was sentenced to six years’ imprisonment, with a non-parole period of four years.  The maximum penalty for the offence of threatening life is ten years’ imprisonment, and the maximum penalty for possession of a prescribed firearm is a fine not exceeding $50,000, or ten years’ imprisonment.

3. Counsel for the appellant argues that the sentence does not take into account how the situation unfolded, the appellant’s instability at the time of the offence, the fact that the four counts of threatening life emanated from one action, and the way the matter was handled.

4. Counsel for the DPP submits that, given the serious nature of the offences charged and the need for public and personal deterrence, the sentence is appropriate.

5. The Judge, when sentencing the appellant had regard to the circumstances which gave rise to the four separate counts.  He said:

   Although there are four counts of threatening life, there were not four separate threats, one to each officer.  Rather, you threatened all four of them at the same time by pointing a loaded shotgun at them.

6. The offending was extremely serious.  Threatening police officers with a firearm in highly emotionally charged circumstances has the potential to lead to injury and loss of life.  The police had attempted to convince the appellant to surrender.  He did not, and he then confronted them with a firearm.  Personal and general deterrence are paramount to discourage others from engaging in a siege with police.

7. The appellant has an extensive record of prior offences.  These include offences of dishonesty, theft and assault.  The appellant has spent several periods in custody.  Although he does not have any prior convictions for this type of offending, his prior convictions reflect a disregard for the criminal law.

8. The appellant has had a history of drug use, including heroin and methylamphetamine.  The Judge acknowledged the appellant’s troubled personal and family history, as well as his attempts at drug rehabilitation over the years.

9. The Judge had regard to all relevant factors, both relating to the offending and to the personal circumstances of the appellant.  The offending was serious offending.  The sentence was not manifestly excessive.

10. The appellant further submits that the sentencing Judge failed to take into account the two months the appellant has already served in custody.  The Judge remarked that he took into account the appellant’s time on home detention.  However, he made no mention of the two months served in custody.  The prosecution concedes that there is a risk that the Judge did not take this time into account.  I would, therefore, reduce the head sentence and non-parole period by two months.

11. I would allow the appeal against sentence and reduce the head sentence to fives years and ten months’ imprisonment, with a non-parole period of three years and ten months, to date from 6 October 2010.

12. VANSTONE J:     I agree that the appeal against conviction should be dismissed.  I agree that the appeal against sentence should be allowed;  but only for the purpose of clearly reflecting credit claimed by the appellant for the period of about two months spent in custody prior to trial and not mentioned by the sentencing judge.  I agree with the reasons of Sulan J.

13. PEEK J:   I agree with the orders proposed by Sulan J and with his reasons.