R. v Michael Anthony Ryan (No. 5)

[2012] NSWSC 1159

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R. v. Michael Anthony Ryan (No. 5) [2012] NSWSC 1159
Hearing dates:	18/9/12
Decision date:	18 September 2012
Jurisdiction:	Common Law - Criminal
Before:	S.G. Campbell J
Decision:	The application to discharge the jury is refused
Catchwords:	CRIMINAL LAW - application to discharge jury - possibility the jury may not have fully perceived the evidence as it was given due to difficulty seeing video evidence in court room - whether accused could have a fair trial in the circumstances - application refused.
Cases Cited:	Cesan v The Queen (2008) 236 CLR 358 Crofts v The Queen (1996) 186 CLR 427 R v H [1999] 2 Qd R 283 R v Rohatgi (unreported, NSWCCA, 4 November 1992)
Category:	Interlocutory applications
Parties:	Regina (Crown) Michael Anthony Ryan (Defendant)
Representation:	Counsel: Solicitors:
File Number(s):	2011/141863

Ex tempore Judgment

1. Mr Ryan is standing trial on two counts. The first count relates to the alleged manslaughter of Mr Connan McLeod by an unlawful and dangerous act; that act allegedly occurred in what has been called in the evidence the KFC carpark at Windsor. The second count relates to an event which allegedly occurred a little earlier in time. The allegation is of an assault occasioning actual bodily harm on a Mr Mitchell Poile. That matter allegedly occurred in the George Street mall outside the Fitzroy Hotel at Windsor.

1. Mr McLeod and Mr Poile were related in the sense of being, at least on a de facto basis, brothers-in-law, and they went out together on that evening of 30th April and 1st May 2011. It is unnecessary for me to detail the full circumstances of their evening out or, indeed, of all the surrounding circumstances relating to these two charges.

1. Mr Ryan has pleaded not guilty to both counts and although there have been some interruptions, for legitimate purposes, we are on the afternoon of the Tuesday of the fifth week of the trial. The Crown case has closed and the defence has gone into evidence. As things presently stand, Mr Ryan is giving evidence, some evidence-in-chief being taken yesterday afternoon.

1. At around 3.30pm yesterday afternoon counsel agreed that we adjourn early. Mr Waterstreet for the defence wanted to review his position, to consider whether there was any further evidence he wished to lead from Mr Ryan, and Mr Crown wanted to review his position in order to cross-examine Mr Ryan in the one hit, as it were. I thought this was a sensible application.

1. I should recount that at the close of the prosecution case at about 12:45pm yesterday, Mr Waterstreet applied for a Prasad direction, as it is called. The Crown had no opposition to that application. The application had been foreshadowed a few days ago and I had received some assistance from both counsel about the matter at that time. Accordingly, I acceded to the application and gave the direction before the jury took the usual break for lunch at about 1 o'clock.

1. Just before the resumption at 2 o'clock I received two notes from the jury, which I, in accordance with the usual practise, showed to counsel. Those notes are marked MFI 29 and 30, respectively. MFI 29 informed me, perhaps unnecessarily, that the jury had decided they could not unanimously agree on a not guilty verdict on both counts. When they returned to court, the foreman clarified that 'both' meant, 'either or both'. However, at about the same time, the jury sent MFI 30 which has been read on to the record, and which I will read again for the purpose of these reasons:

The jury has requested clarification on if we will have the opportunity to view CCTV footage in the jury room due to difficulty in seeing clearly due to distance in court.

1. I have read it as it appears in writing. There was some discussion with counsel about this note. At that stage counsel considered that the jury could have the opportunity to view the CCTV footage. When the jury came into court it became apparent, as will appear from the transcript, that after I assured them they would have full access to the footage after they retire to consider their verdicts I received an indication that they preferred to go on with the trial rather than pause at that stage to view it. With no disrespect, no application was made by counsel at that time in relation to the continuation of the trial.

1. I should interpolate before dealing with the application that when discussing the CCTV footage with the jury yesterday afternoon, I gave them a direction that they should exercise care and caution in looking at the CCTV footage, so as not to give it disproportionate weight over other evidence.

1. This morning or, rather, apparently when they went home yesterday afternoon, the jury left a note with the Sheriff's officer for me which became MFI 31. That note is in these terms:

We regret the CCTV request has created the impression that it has undue importance. We were unsure only if we would have the opportunity to view it clearly in the jury room along with all other evidence. We do not ask to see it specifically prior to other evidence.

I have recited it as written.

1. Following this note the jury came into court this morning and a further explanation was given. Before the jury came in, Mr Waterstreet articulated an application to discharge the jury on the basis that it was apparent, having regard to the terms of MFI 30 particularly, that there was a possibility that the jury may not have fully perceived the evidence as it was given, and therefore Mr Ryan could not have a fair trial.

1. During the course of argument I was reminded that as long ago as 24 August 2012, which was the Friday of the first week of the trial, the parties had agreed that the jury could have access in the jury room to the CCTV footage that had by then been shown. At that point in time not all of it, as events transpired, was available because further CCTV footage was produced by the Crown on the following Monday, further enquiries having been made of the Fitzroy Hotel.

1. However, both parties had inspected the laptop that the court could provide to the jury. The Crown had prepared a list of instructions in operating the available CCTV footage, which I marked MFI 9. I informed the jury of this in the following manner at 192T, .5 -10:

Can I say this, that we will, during the first break of the day, equip your jury room with a laptop, as I have already mentioned, with a copy of exhibits we saw yesterday which are contained on discs as well as the ISRAP document. You can look at those when you're all present together in the jury room.

1. I very much regret to say, notwithstanding my assurance to the jury, the laptop was not put in the jury room; nor have I made available the exhibits which are exhibits G, H, K and M, to be viewed by the jurors when they are all present at the one time. This is entirely my responsibility as trial Judge.

1. By way of narrative only, I add that although I have had some communications from the jury over the course of this trial, no request was made of me in relation to these exhibits until I received MFI 30.

1. I should say that the CCTV footage has assumed great evidential importance in this trial. The footage was recorded on three cameras located in and about the Fitzroy Hotel. One camera is affixed to the exterior wall and picks up events in a portion of George Street mall, directly outside the hotel. The second is above and inside the entry doorway. And the third is in the front bar or poolroom, affixed in one corner, but picking up a view of the bar itself, the pool table and a fair proportion of the room, showing the comings and goings of patrons in that area. These are three of many cameras within the hotel, according to the evidence of Ms Sieders.

1. As I said, the evidence has assumed great importance in the trial because it depicts relevant events. In particular it depicts events inside the pool room which are capable of bolstering a line of defence that the first interaction between Mr Ryan and Messrs McLeod and Poile actually happened inside the hotel when, on Mr Ryan's account given to the police and in court yesterday, Mr McLeod and Mr Poile were taking the "rise out of him", to use the vernacular expression, earlier in the evening.

1. Although that is not clearly depicted in the footage, one can deduce enough of certain events in the top right-hand corner of the screen, when one views it, to get a real sense of what Mr Ryan has described.

1. The camera above the door is not really material: it just shows Mr Ryan entering the hotel at a specified time.

1. The camera outside the hotel shows a number of important events that took place in the mall. It shows - I won't describe all of it - Mr Ryan at the door of the hotel remonstrating with security guards about allowing his fiancée, Ms Davey, and a friend, Ms Monish, to enter the hotel to use the toilets. This happened more than once, but on the particular occasion I am describing, it happened to coincide with the ejection of Mr Poile from the hotel for intoxication. Mr McLeod left, according to the evidence, under his own steam at or about the same time and is also shown on this footage. One clearly sees events unfold which are directly relevant to the second count, and indirectly relevant to the first. Those events show the interaction between Mr Ryan on the one hand and Mr McLeod and Mr Poile on the other, leading up to what is shown at the very periphery of the screen as a punch apparently thrown by Mr Ryan which connects with Mr Poile.

1. Mr Ryan admits, and has always admitted, this punch. He says, and has always said, that it was thrown in self-defence. And from the line of cross-examination of the eyewitnesses by Mr Waterstreet, one can appreciate an interpretation of what is depicted in the video, understood in the light of the evidence adduced from the witnesses, that contrary to the case presented for the Crown, Mr McLeod and Mr Poile were acting aggressively towards Mr Ryan and, in fact, moving in on him, as I understand the argument, in the moments leading up to the punch being thrown.

1. As I say, this is one interpretation and to make it one has to depend upon not only what one sees on the screen but also on what the eye witnesses have said about those images under the careful and thorough cross-examination of Mr Waterstreet. Certainly that is an interpretation well open to the jury if they ever have to make a decision in this case.

1. Of course, none of that evidence directly shows anything occurring in the KFC carpark but, as I have said, it is indirectly relevant. There may be more than one way of putting it. Suffice for present purposes for me to say that one may interpret those images, in light of the evidence heard in this court, as showing that Mr McLeod and Mr Poile were the aggressors. After the security guards separated - I use this expression neutrally - the combatants, from what is depicted on the screen one might infer that Mr Poile and Mr McLeod evinced a preparedness to "go on with it". One might think then that this material casts some light on what subsequently happened in the car park.

1. In particular, the evidence in the case demonstrates that neither Mr Poile nor Mr McLeod had any business going to the car park on 1st May 2011. It was their intention, according to Mr Poile's evidence and from the inferences one might eventually draw from the other evidence in the case, to proceed south down George Street to Mr Poile's home which was near the Windsor Railway Station. To get to the car park one has to divert from that journey turning left to Fitzroy Street, and turn left again into the carpark driveway. There is no evidence they had a car there, even if one of them had intended to drive in his intoxicated condition. The only plausible explanation for Mr McLeod going there, according to the evidence I heard, and this is entirely a matter for the jury, was to take up his grievances with Mr Ryan - if I can put the matter in that neutral way - whose party had gone down a lane way into the carpark from the mall.

1. In any event, Mr Ryan's evidence is consistent with the evidence of other witnesses that when he entered the car park from the end of the laneway that runs down beside the Commonwealth Bank, Mr McLeod was at the far end, and when he saw Mr Ryan emerge he ran across the car park yelling out abusive language including "I'm going to kill you". Mr Ryan said he acted at all times to protect himself and to protect the others in his group, which included three young women. I will not go into the detail of what Mr Ryan said happened but the men interacted in a physical way. Mr McLeod fell and struck his head heavily on the pavement. He suffered a severe traumatic brain injury from the effects of which he died on 4 May, 2011. On the evidence, and it is for the Crown to negative it, there is ample scope for the tribunal of fact to accept the account given by Mr Ryan that whatever happened occurred in self-defence, leaving aside other issues that will be left to the jury if they are not discharged.

1. The CCTV footage has been used extensively in the examination of witnesses in this trial. It was shown initially in the Crown case. I have seen parts of it on the voir dire and each of the eye witnesses to different parts of the events in question, whom I will name, have been cross-examined extensively by reference to it whilst it was shown to them on the screens in court in the presence of the jury. In particular Mr Jay Willis, Ms. Heidi Sieders, Mr Stuart Miller, Mr Mitchell Moody and Ms Holly Monish have been shown all or part of the CCTV footage during the course of the cross-examination by Mr Waterstreet. The evidence adduced has been adduced by reference to the images shown on the screen as the witness was questioned, and the jury were required to pay close attention to all of the evidence including, necessarily for this purpose, what was then depicted on the screen.

1. Although this is an historic courtroom it is fitted with modern equipment. Relevantly, there are two large video screens on either sidewall of the court. One is directly opposite the jury box and the other is behind the jury box, but a little offset on the wall. During the course of the playing of the videos and the evidence I have described, I have been looking at the CCTV footage on a small monitor with which the Bench is fitted, but at the same time I have been keeping an eye on the jury and I have seen all of them attentively looking at the screen, although it must be said in respect of that second screen on the wall behind them that to see it they have to turn in their seats and crane their necks. However, as I said, there was no suggestion made during the whole course of this trial so far until the receipt of MFI 30 that anyone had any difficulty following what was being depicted on the screen and following the evidence that was being adduced in the cross-examination by Mr Waterstreet.

1. Mr Waterstreet's application, of course, is that from MFI 30 and to some extent MFI 31, it must be said that the jury had difficulty clearly viewing the CCTV footage. As I have said, Mr Waterstreet argues that if they had difficulty in viewing it they would have had difficulty following the evidence and, accordingly, given the length of this trial, Mr Ryan may have been deprived his opportunity of having a fair trial according to law.

1. With the consent of counsel the court provided the laptop, and provided the exhibits to the jury and requested them to take the time this morning to view the CCTV footage in the privacy of the jury-room notwithstanding their stated preference for hearing further evidence, expressed yesterday afternoon. When that was done the jury returned to court this afternoon. Following discussion with counsel in the absence of the jury and with their consent, I asked four jurors three questions. Following further discussion with counsel I asked all of the jury the third question again, asking any juror who wished to give a different answer to that expressed by the four questioned individually to raise his or her hand. None of the jury raised a hand.

1. My questioning of the jury proceeded in the following way (1327 - 1330T):

HIS HONOUR: Good afternoon, members of the jury. Just before we continue, I'd just like to ask some of you some questions about the notes you sent through yesterday and this morning which are MFI 30 and MFI 31 in these proceedings. It is not practicable for me to ask you all questions, but I propose to ask three or four of you some questions just so I can better understand what it is you were saying to me in the notes that you sent. This happens sometimes. And only because you're the foreman, Mr Foreman, I might start with you, if I may. Although, as I said at the outset, you're the spokesperson, your vote carries the same weight as everyone else. Don't worry, I will include you all in some way in the process.

My first question, Mr Foreman, is this: Having seen the CCTV footage at close range, are you still of the view that any difficulty in seeing it clearly was due to the distance in court?

FOREPERSON: I think that was one of the major problems is the distance for some of the members.

HIS HONOUR: Two more questions for you and I will ask some of the others in a moment the same questions but think about your answers as I'm asking the foreman.

My next question was, having seen it at close range did you think any difficulty rather was due to the quality of the footage?

FOREMAN: Well the main thing we were looking at is the conflict. It is a bit out of range of the camera so it is a bit difficult but I believe now we have got a better look.

HIS HONOUR: All right. My next and final question is, having seen it now at close range do you feel you were at any disadvantage in following the evidence and particularly the evidence adduced by Mr Waterstreet in crossexamination of the witnesses because of the distance you were from the screen?

FOREMAN: I don't think that is the case, personally.

HIS HONOUR: I am asking you personally. Perhaps I can ask, I won't ask the lady behind you, it looks like I am being geographically prejudiced, perhaps the lady on the end of the second row may I ask you the same questions and I will ask them again so you can hear it afresh; having seen the CCTV footage at close range are you still of the view that any difficulty in seeing it clearly was due to the distance in court?

FEMALE JUROR: Yes.

HIS HONOUR: Do you think any of the difficulty was rather due to the quality of the footage?

FEMALE JUROR: In part yes, some detail was hard to pick up being so far away.

HIS HONOUR: All right, having seen it now at close range do you feel you were at any disadvantage in following the evidence adduced, including the evidence adduced by Mr Waterstreet in crossexamination, because of your distance from the screen?

FEMALE JUROR: Not specifically because I think we were seeing some of the things that were being pointed out.

HIS HONOUR: All right now second from the end in the back row sir if I could ask you the same questions if you would not mind. I will just consult my notes so I ask you in the same form; having seen the CCTV footage at close range are you still of the view that any difficulty in seeing it clearly was due to distance in court?

MALE JUROR: Yes.

HIS HONOUR: Do you think any difficulty was rather due to the quality of the footage?

MALE JUROR: No

HIS HONOUR: Having seen it now at close range do you feel you were at any disadvantage in following the evidence including the evidence adduced by Mr Waterstreet in crossexamining because of the distance from the screen?

MALE JUROR: No.

HIS HONOUR: I will ask one more person if I may. I might ask you sir on the end of the front row. Having seen the CCTV footage at close range are you still of the view that any difficulty in seeing it clearly was due to the distance in court?

SECOND MALE JUROR: I think yes but I think those of us who were looking behind us seeing the screen there, there was comments being made you could see it so much more clearly and I think it was just a better case of everyone having an equal opportunity to have that close vantage point.

HIS HONOUR: All right I will ask you the same two additional questions sir if I may; do you think any difficulty was rather due to the quality of the footage?

SECOND MALE JUROR: I don't think so.

HIS HONOUR: Having seen it now at close range do you feel you were at any disadvantage in following the evidence including the evidence adduced by Mr Waterstreet in crossexamination because of your distance from the screen?

SECOND MALE JUROR: I don't think so. Because we saw it a number of times I don't think that is the case.

HIS HONOUR: Ladies and gentlemen I do not want to exclude anybody. I think it is fair to say what I heard from the four people I asked they gave me very, very similar responses but if any of you wish to say anything about the three questions I have asked, in particular if any of you would give me a different response to any one of those three questions would you please identify yourself to me by raising your hand. Well I cannot see any hands raised so I take it you are all of the same view expressed by members of the jury I have asked the specific questions to. All right thank you.

WATERSTREET: May I suggest one thing.

HIS HONOUR: Would you write it out for me Mr Waterstreet.

WATERSTREET: Yes I can write it out.

HIS HONOUR: I am happy to consider any additional questions, is that what you would like me to do?

WATERSTREET: It just arose from the answer the learned foreman gave in relation to the qualification of the third question.

HIS HONOUR: What note did you make?

WATERSTREET: "Not personally"

HIS HONOUR: Yes Mr Foreman when you said to me "not personally" were you using that expression just to make it clear to me that you were speaking purely for yourself?

FOREMAN: That is correct.

WATERSTREET: The query I had was only in relation to the third question and whether anyone felt at a disadvantage.

HIS HONOUR: I will ask the whole jury the third question. Now members of the jury what I am going to ask you is the same question in the same terms which I have asked of four of your members specifically. If any one of you felt you were at a disadvantage of the type that I have asked about in the question I would like you to raise your hand please, do you understand me? All right so I am asking the third question of all of you on that premise I have given you; having seen the CCTV footage now at close range do you feel you were at any disadvantage in following the evidence including the evidence adduced by Mr Waterstreet in crossexamination because of your distance from the screen? If any one would like to give a different answer to those I have heard to that question please raise your hand. Thank you ladies and gentlemen.

No hands were raised gentlemen.

All right I apologise once again for the fact you didn't have what I said you would have and the exhibits have been returned to me. It is normal you will get them all back after my summingup. If in the meantime you wish me to, we may need them in court while the evidence is happening, but if at any other time you would like to see these DVDs or copies of the CCTV footage again please just send me a note making that request. Just while you were out an issue did arise that I have to decide. Would you bear with me one more time and go back to the jury room while I resolve that question. Thank you very much ladies and gentlemen.

1. As may be seen from this excerpt, I asked the jury three questions:

(1)   Having seen the CCTV footage at close range are you still of the view that any difficulty in seeing it clearly was due to the distance in court?

(2)   Do you think any difficulty was rather due to the quality of the footage?

(3)   Having seen it now at close range do you feel you were at any disadvantage in following the evidence, including the evidence adduced by Mr Waterstreet in cross-examination, because of your distance from the screen?"

1. The four jurors I questioned individually - three men and one woman, from a jury of six men and six women - still maintained they had difficulty seeing the CCTV footage clearly due to the distance in court. One of them thought some of the difficulty may have been due to the quality of the footage but the other three answered that question in the negative. All of them answered the third question to the effect that they had no disadvantage of the type described. As I have said I asked the third question of all of the jury and no member of it indicated to me any disadvantage. I should add that the third question was added to two I had prepared myself following discussion with counsel including learned counsel for the defence, at whose suggestion the latter was framed.

1. Naturally what the jury say cannot be determinative but it is clearly, in my opinion, a very relevant consideration.

1. In Crofts v The Queen (1996) 186 CLR 427 at page 440 Toohey, Gaudron, Gummow and Kirby JJ in the joint judgment indicated that the question of discharging the jury is a discretionary one for the trial judge. The criterion for its exercise is the maintenance of the fairness of the trial. The test for discharge of the jury is one of necessity. By that latter criterion I understand their Honours to mean that the power should be exercised whenever it is necessary to do so to ensure that the accused enjoys the right of all members of our community to have a fair trial, particularly in criminal proceedings.

1. Their Honours went on to say at 440-441:

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of contested issues; the stage of which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these things and other considerations relevant to the fairness of the trial, bearing in mind the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading a transcript.

The last sentence of course is more relevant to an appellate court than a trial court.

1. Mr Waterstreet also drew my attention to a decision in R v Rohatgi (unreported, NSWCCA 4 November 1992 No 60328 of 1990). At page 18 of his judgment, Clarke JA (Hunt CJ at CL and Sully J agreeing) said of a trial in which critical expert testimony of three medical practitioners was given irregularly to suit the convenience of the experts, such that examination in chief of each of them was taken before defence counsel had any opportunity to cross-examine:

Arrangements of this nature should never be allowed to prejudice, or give rise to the possibility of prejudice to the accused's case. (emphasis added)

In the circumstances of the case his Honour was left with an uncomfortable feeling that the way the evidence was led may well have disadvantaged the appellant's case in a significant manner.

1. I also think it relevant to refer to the decision of the High Court of Australia in Cesan v The Queen (2008) 236 CLR 358. That case was more about the obligations of a trial judge than of a jury. In that case the capacity of the trial judge to offer the necessary superintendence and control of a jury trial was compromised by an undiagnosed medical condition. However, in the course of dealing with the appeal to the High Court, Hayne, Crennan and Kiefel JJ with whom Gummow and Heydon JJ agreed said at page 393 [119] to [120]:

[119] What is important, in these cases, is that the jury was distracted from paying attention to all of the evidence. And it was upon the assessment of all of the evidence led at trial that the jury's verdict had to be founded. The repeated distraction of the jury from attending to the evidence at various stages of the trial, including when one of the accused was giving his evidence, constituted a miscarriage of justice.

[120] Ensuring that the jury is not distracted from paying full attention to its task is pre-eminently a matter for the trial judge. If trial counsel is concerned members of the jury cannot give, or are not giving, proper attention during the trial, it will be for counsel to raise that issue with the trail judge.

The significance of this passage in the present matter is, of course, to emphasize the importance of the jury paying attention to all of the evidence.

1. The argument of Mr Waterstreet, as I understand it, is that through no fault of their own, the capacity of the jury to pay attention fully to all of the evidence adduced in this trial was interfered with by their inability to see the CCTV footage clearly because of the distance in court.

1. Although Mr Waterstreet did not rely upon it expressly, I think it important to refer to the matter of the slip made by me in relation to providing the CCTV footage and laptop to the jury at an earlier stage in the proceedings. It seems to me on reflection that this matter is not one which has been significant in the present circumstances. I have closely considered the matter, and I say this for these reasons. First, what is important according to what the plurality said in Cesan is the jury pay attention to all of the evidence. The jury should not be distracted from paying full attention to all of the evidence as it is given in court. The review of exhibits is, in my judgment, secondary to that consideration. Secondly, even in regard to access to exhibits, the practice in Australia has been that the jury is not given full and unsupervised access to the exhibits in the jury room until the jury has retired to deliberate and consider its verdict: R v H [1999] 2 Qd R 283 at [7] - [10]. This is so notwithstanding an evolving practice in New South Wales, as occurred in this case, of providing members of the jury with a folder at the outset and giving them copies of some relevant exhibits, mainly photographs, to enable them to follow the evidence as they go.

1. As I have said the test is one of necessity: is it necessary in the interests of Mr Ryan having a fair trial that the jury be discharged?

1. Turning to some of the factors mentioned by the High Court in Crofts, I these make observations. There is no doubt, as I have said, that the evidence the subject of this application is important to the contested issues. When one considers the stage at which the mishap occurs one would have to say that the difficulty in seeing the CCTV footage clearly occurred some time ago for the first time, because some of it was shown to Mr Willis, a witness for the Crown, during the first week of the trial and the difficulty was only uncovered yesterday at the start of the fifth week of the trial. There is no deliberate conduct involved. It seems to me that the nature of the matter under consideration is unlikely to be overcome by a judicial direction. Although matters such as cost, convenience and the undesirability of a second trial are relevant to the exercise of my discretion, in my view they cannot trump, in any case, the prime consideration of ensuring that the trial is fair according to law. That does not mean, of course, that the trial be perfect or that in every respect the accused be accorded perfection on the scale of the available ideals of justice.

1. As I have said, what the jury have said about the matter is not determinative but to my mind it is highly relevant. One should assume always that jurors individually and the jury together are conscientious in the discharge of their heavy obligation. And it seems to me from my observations that this jury have been very attentive, ever assiduous in following the evidence, and have appeared to appreciate points made in evidence whilst it is being adduced. At least those are my impressions. Also when I consider the answers I received to the three questions that I asked I was impressed by the candour of each of the four jurors whom I questioned individually. Each of them adhered to the view that there was some difficulty in seeing the footage clearly in court. Three of the four said it was due to the distance in court and not due to the quality of the footage, which in the nature of these things is not great. I was equally impressed by the firmness with which they answered the third question, which I included in the list of questions at the request of the defence, that having seen the clear image on the laptop they did not feel that they were at any disadvantage in following the evidence as it was adduced.

1. I also feel it significant that when at the suggestion of Mr Waterstreet I asked that question of all the jurors none of them sought to give an answer or take the opportunity to give an answer which was in any way different from the answer given by the four jurors or who were questioned directly.

1. It must be said that the quality of the footage is not great. The learned Crown Prosecutor in opening his case made a remark along those lines. Although I have the advantage of a personal monitor to view the footage when it is played, because of my obligations in relation to superintendence of the trial I have kept an eye on the jurors during the course of evidence, and I have also looked at the screen while the footage is playing to get an idea of what the witness being questioned - who is closer to me than the jurors - can see.

1. Looking at the screens during the course of the trial has given me some idea of what the jury was likely to have seen as the evidence was adduced. The images are not clear. However, and in the way of evidence of this type, with the added assistance of carefully framed questions from counsel who is familiar with the material, I found that whether I was watching my personal monitor or watching the large screen on the wall, I could follow clearly what counsel was saying about what was depicted in the CCTV footage and, more importantly, follow the ideas he was developing during the course of his cross examination of the witnesses.

1. It seems to me that the equipment in this courtroom is fairly modern. If I was not of the view that I have just expressed, I do not know what could be done to improve the image that the jury would receive in some other courtroom. Mr Waterstreet has said that in the Downing Centre there are courts that are better equipped than this one, and I have no doubt that may be correct. But in the type of exercise in attention required of a jury with regard to evidence of the type I have been discussing, it is essential for the jury's attention to be divided among the witness, the cross-examiner and the video screen, and I cannot think of any better configuration of screens than the configuration in this court to facilitate that process on the part of the jurors.

1. In my opinion the matter raised by the jurors in MFI 30 has not prejudiced, even possibly, the defence in the manner described by Clarke JA in Rohatgi, nor has the criterion of the maintenance of the fairness of this trial been infringed by the substance of the matter the jury has raised.

1. For these reasons I refuse the application to discharge the jury.

**********

Amendments

27 September 2012 - Amended paragraphs: Paragraph 46 the word "criteria" changed to "criterion"

Decision last updated: 27 September 2012