R v Hornby

[1996] QCA 179

IN THE COURT OF APPEAL	[1996] QCA 179
SUPREME COURT OF QUEENSLAND

C.A. No. 45 of 1996

Brisbane

[R. v. Hornby]

THE QUEEN

v.

JEFFREY JOHN HORNBY

Appellant

Macrossan C.J.
Davies J.A.

Byrne J.

Judgment delivered 04/06/1996

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS: CRIMINAL - appeal against conviction - rape - assault occasioning bodily harm - indecent assault - indecent treatment of a child under 16 - administering a stupefying drug with intent to rape - robbery - stealing - assault - prejudicial newspaper article - statement suggesting unrelated criminal activity made in the course of a witness' evidence-in-chief - effect of statement on jury's ability to discharge its task impartially - effect of directions to jury to disregard newspaper article and reference to unrelated criminal activity.

Counsel:	Ms. J. Dick for the appellant Mr. M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	3 May 1996
REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 4th day of June 1996

The appellant was convicted after a trial in the District Court of seven counts of rape, three of abduction, five of assault occasioning bodily harm, one of indecent assault with a circumstance of aggravation, one of indecent assault, one of indecent treatment of a child under 16, one of administering a stupefying drug with intent to rape, two of robbery, one of stealing and one of assault. All counts relate to offences against three women in February and March 1995.

The appellant appeals against his conviction on three grounds all involving the failure of the learned trial Judge to discharge the jury. The first is that the learned trial Judge erred in refusing to discharge the jury on the ground that an article published in the Courier Mail during the trial was prejudicial to the appellant and would give rise to a reasonable apprehension on the part of an informed member of the public that the jury would not discharge its task impartially and that a miscarriage of justice arose from such refusal.

Each of two complainants, G and F, whom the appellant abducted, viciously assaulted and raped, gave evidence that the appellant showed her photographs of a deceased female. Photographs found in the possession of the appellant were identified by each as photographs they had been shown. G, who was 68 years old and the grandmother of the complainant C, said that he told her that they were of a girl he was supposed to have killed and for whose killing he went to gaol; that he didn't do it; and that he got the four blokes that did it when he got out. F, a young girl of 16, gave evidence that the appellant told her that that was what happened to the last girl that went and told the police and that it could be her next if she opened her mouth.

Shortly after each of these witnesses had given evidence and the identified photographs admitted in evidence an article appeared in the Courier Mail which referred to photographs of victims of crimes being used to decorate cells of two prisoners in the Townsville gaol. The prisoners were identified as being one serving eight years for manslaughter and another serving 15 years for armed robbery and unlawful wounding. Plainly neither of these was the appellant. The article stated:

"Criminologists said the photos indicated that prisoners did not appear to feel remorse and had dangerous anti-social tendencies normally associated with serial killers and multiple rapists.

One criminologist, Paul Wilson of Bond University, said: 'It's a pretty dangerous signal regarding the future intentions of the offender.

It's fairly much like serial killers who collect souvenirs of clothing or body parts .... '

Another criminologist, Ross Homel of Griffith University, said it would suggest the actions were those of defiance and not likely to endear them to prison authorities.

'My experience is that many prisoners are remorseful but obviously those
two aren't in this category,' he said."
Both of these opinions appear to be expressed with respect to the two prisoners

referred to earlier in the article. Nevertheless it was submitted to the learned trial Judge and to this Court that the opinions labelled people who kept such photographs as demonstrating no remorse, being dangerous and having anti-social tendencies normally associated with serial killers and multiple rapists; and that the prejudicial effect which reading this article would have on the minds of jurors could only be cured by discharging the jury.

The learned trial Judge rejected this submission and concluded that any prejudice which the appellant might suffer as a result of the publication of the article could be cured by an appropriate direction to the jury. His Honour then directed the jury that they should not speculate as to why the appellant had the photographs other than in relation to the Crown's contention that he showed them to the complainants to terrify them. He emphasised that that was the only use they should make of the photographs. More generally he warned them against any conclusion that the appellant was a person with a propensity or disposition to attack women, from any satisfaction they might have that he was the assailant of one of the complainants.

We do not think that his Honour erred in the exercise of his discretion in refusing to discharge the jury. This was not a case in which the publication referred to the case which the jury had to decide or even to the appellant. The opinions expressed were with respect to two persons neither of whom was the appellant. And though it is possible that jurors may have read the article, and it would be possible for a juror who read the article to conclude that that opinion would also apply to the appellant, those possibilities were adequately dealt with, in our view, by the above directions. In the light of those directions no fair-minded and informed member of the public would have any reasonable apprehension or suspicion that the jury would not discharge its task impartially. The appellant therefore fails on this ground.

Ground 2 asserts that the learned trial Judge erred in refusing to discharge the jury on the ground that admissible and prejudicial evidence was placed before them, namely a reference in the evidence of C to "the laundering of money" in the context of a statement to her by the appellant concerning his de facto wife Kathleen Joyce Hanley who subsequently gave alibi evidence for the appellant and that a miscarriage of justice arose from such refusal. Ground 3 asserts that he erred in refusing to discharge the jury on the ground that subsequent to the giving of that evidence a member of the jury approached and spoke to a clerk in the employ of the Director of Public Prosecutions about the trial and made particular reference to inadmissible and prejudicial evidence of the appellant's misconduct, namely that he had taken money in the past, when this communication would give rise to a reasonable apprehension on the part of an informed member of the public that the juror and/or the jury would not discharge its task impartially and that a miscarriage of justice arose from that refusal.

The third complainant, C, gave evidence that the appellant, having told her that Kathy, his de facto wife, would take her to a restaurant, drove her to his house on Russell Island. Whilst there he told her that Kathy was coming over with someone, that he did not want her to see who it was and that they were going for a drive. In cross- examination she was asked whether that statement made sense to her and she answered "Sort of". When asked whether she asked him any questions about that she replied:

"No, I just put it to the laundering of money."

No further questions were asked on that topic.

The appellant's counsel then applied again for discharge of the jury. On this occasion he submitted that the answer tended to suggest that the witness knew that the appellant was involved in some form of criminal activity involving money laundering and that Katherine Hanley was also involved in money laundering. The relevance of the reference to Katherine Hanley lay in the fact that the appellant's counsel indicated that, the Crown having decided not to call her, he would be calling her as to alibi and that this evidence might impugn her credit. The learned trial Judge refused to discharge the jury.

After the jury had retired the trial Judge was informed of a conversation which had taken place between a member of the jury and an employee of the Director of Public Prosecutions during the second week of the trial which lasted three weeks. The juror and the employee knew one another socially. During that week the juror called at the employee's house to return a game which he had borrowed. After some social conversation the juror mentioned that he was on a jury of a case which was in its second week and had another week to go. There then ensued some discussion about the employee's income whilst on jury service; that initially his employer was not going to make up the difference between his salary and his fee for jury service but that eventually he had agreed to do so. The juror then said he was depressed with the case, mentioning that it was an unpleasant one. We interpose to say that that is something of an understatement. It would be hard to imagine a case of greater depravity and consequently more likely to make a juror depressed than this one.

The juror and the employee then had a drink together and during the course of further conversation in which the juror said something further about the accused which the employee can no longer now recall the juror made reference to the fact that the accused had taken money in the past. The employee did not understand the context of this and the juror did not explain further. The juror went on to say that when a witness had said these things the defence stopped asking questions along those lines. He asked the employee if that was unusual and the employee said that he did not know and that he could not give him his opinions. The juror then went on to say that the witness had been very upset and had left the courtroom and that the jury had been given video evidence of that witness. The employee then said that he didn't think that they should talk about the matter any further and they continued their conversation on other topics.

The precise time of the conversation between the juror and the employee of the Director of Public Prosecutions, in relation to the progress of the case, was not identified but it was plainly after the cross-examination which elicited the answer complained of and before addresses by counsel and summing up by the Judge. In the course of the latter the learned trial Judge told the jury that the law applicable to the case was entirely a matter for him and that they must accept his directions on the law without question. And later in his summing up he told them that the answer about money laundering was completely irrelevant to the case; that it had nothing to do with the case and that they should put it from their minds in deciding the issues before them. This last direction was given at a time when, it appears, the jury had indicated that they had reached verdicts. Nevertheless no verdict was taken, the direction was given and the jury retired once again before returning their verdicts.

There is no reason to think that the jury had any regard to this evidence. In the context of evidence over a period of nearly three weeks of physical and sexual abuse of three women by the appellant it was of minimal significance. Nor is there anything in the conversation as related in the statement of the employee, which would indicate that the juror to whom he spoke thought it to be of any significance in that context. His depression about the case was plainly related to the evidence about the appellant's cruel and depraved sexual conduct. His later query about the appellant having taken money in the past appears to be one about the conduct of the case by the defence; that when the witness said these things the defence stopped asking questions about it. He was interested in knowing whether this was unusual. It appears to be unrelated to the question of guilt or innocence in respect of the sexual offences.

We do not think that any informed and fair-minded observer would have any apprehension other than that, in the light of the directions which were given, the jury would have been impartial. The learned trial Judge was correct in refusing to discharge the jury either because of the answer which was given in cross-examination or because of the statement made by the juror to the employee of the Director of Public Prosecutions. These grounds therefore also fail and the appeal must be dismissed.