R v Owens

[1993] QCA 168

IN THE COURT OF APPEAL  [1993] QCA 168

SUPREME COURT OF QUEENSLAND

C.A. No. 343 of 1992

Brisbane

[R. v. Owens]

THE QUEEN

- and -

WAYNE GERARD OWENS

Appellant

The President

Mr Justice McPherson

Mr Justice Shepherdson

Judgment delivered 13/05/93

Joint reasons for judgment by the President and McPherson JA.  Shepherdson J. dissenting.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL AGAINST SENTENCE ALLOWED. THE SENTENCE IMPOSED BELOW IS SET ASIDE AND A SENTENCE OF TWO AND A HALF YEARS' IMPRISONMENT SUBSTITUTED.

CATCHWORDS:                APPEAL AND NEW TRIAL - Jury - admissibility of evidence relating to conduct and opinions of jurors - affidavit as to proceedings in jury room - appellant's previous convictions discussed - whether retrial should be ordered.

CRIMINAL LAW - Sentence - 32 year old with criminal history broke and entered at night with intent to commit an indictable offence - sentence of two and a half years' imprisonment imposed.

Counsel:Mr. T. Rafter for the appellant

Mr. P. Ridgway for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date(s):  07/04/93

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 343 of 1992

Brisbane

Before The President

Mr Justice McPherson
Mr Justice Shepherdson

[R. v. Owens]

THE QUEEN

- and -

WAYNE GERARD OWENS

Appellant

REASONS FOR JUDGMENT - THE PRESIDENT and McPHERSON JA.

Judgment delivered 13/05/93

The appellant has appealed against his conviction in the District Court at Stanthorpe on 25 November 1992 of an offence of breaking and entering a dwelling in the nighttime with intent to commit an indictable offence for which he was sentenced to imprisonment for four years.  The appellant was acquitted on a further count of attempted unlawful and indecent assault.  An application was also made by the appellant for leave to appeal against the sentence imposed on him for the offence of which he was convicted.

At the time in question, 8 February 1992, the appellant resided near a residence shared by C and her three daughters, E (aged 6), K (aged 5) and D (aged 1).  For a period in or about December 1991 and January 1992, the appellant and C had shared an intimate relationship for about four weeks until it was terminated by C.  However, the appellant and C remained on friendly terms, and, on 7 February 1992, the appellant called at C’s residence and, that evening, he telephoned C and indicated a desire to resume their relationship to which she replied that they would talk about it on the following day.

At about 1.00 a.m. on 8 February 1992, C discovered the appellant in the kitchen of her residence, dressed only in jeans, holding her daughter K and also holding the panties which K had been wearing when C had put her to bed the previous night.  The panties were not wet or soiled in any way.  The appellant then placed K on her bed.  When challenged by C, the appellant appeared distressed and affected by alcohol.  However, he was not aggressive and the child had not been sexually assaulted.

It was later discovered that louvres had been removed from a bathroom window.  The louvres, which were found outside on the ground near the window, all bore the appellant's fingerprints.  There was expert evidence that the fingerprints were recent.  The appellant's shirt and jumper were also found in the laundry area of C’s residence.

When interviewed by police, the appellant said that he had gone to C’s residence in an attempt to resume his relationship with her, that he gained access to the house by using a key, that he had found the child K in the lounge room of the house and was putting her to bed when discovered by C and that he had not removed K’s panties.  C’s evidence was that the appellant did not have a key, that he had previously had a key for a period during their intimate relationship but that it had been returned.  K’s evidence was that the appellant had removed her panties.

There were a number of grounds of appeal, some of which were not pressed or only faintly pressed and were disposed of in the course of argument.

The only ground of appeal argued relied upon an affidavit by one of the jurors, who said:

"3.I recall during the deliberations of the jury, at a time when two or three separate conversations were taking place simultaneously, my attention was caught by a discussion across the table between two male jurors.  I could identify but cannot name these jurors.  To the best of my recollection, the conversation I heard was as follows:-

"Well, it won't be the first time he's (meaning the defendant) been put away."

"This bloke? Do you know him?"
"No, but he lives next door to (name given, but not recalled by me)."
"What did he do?"
"He beat up his first wife?"

(I cannot be exact about the words used, but am certain that the above accurately conveys the sense of the conversation which I heard).

4.I then said to the two jurors that I believed we were not supposed to know anything of that sort (meaning previous convictions), and there was no further conversation that I heard on this subject.  I cannot say how many other persons overheard this conversation, but I can say that other jurors would have been in a position to do so.

5.For me, this information put a new light on the defendant, and influenced my perception of him adversely."

The respondent objected to the Court receiving the juror's affidavit concerning what had occurred in the jury room, relying on such authorities as Lachlan Nanan v. The State [1986] AC 860; and R. v. Challinger [1989] 2 Qd.R.352. See also Archibold Pleading, Evidence and Practice in Criminal Cases (1992) paras. 4.246 to 4.248; Blackstone's Criminal Practice (1992) para.D15.7; Cross on Evidence (Australian Edition) Vol.1 para.27215; and the annotations to sections 622 and 626 in Carter's Criminal Law of Queensland.

However, we find it unnecessary to decide this point since, even if the evidence were admitted, the appeal would not succeed.

The juror, in his affidavit, stopped short of a statement that he took what he had overheard into account in determining that the appellant was guilty, and we must assume this omission was deliberate.  So far as the evidence goes, although the juror's "perception" of the appellant was "influenced ... adversely", what he had overheard did not affect his decision concerning the appellant's guilt or innocence.

Likewise, there is nothing to indicate that the decision of any other juror was, or even might have been, affected by the statement which the juror overheard.  The juror's own admonition to his colleagues, taken with the instructions and directions which they were given by the trial judge (which were not complained of) and the oath which they took, strongly suggest to the contrary.

Indeed, the information available to at least some of the jurors through the statement which was overheard was no more than was to be  expected  in a relatively small community and by no means sufficient in itself to vitiate the trial: cf R. v. Glennon (1992) 173 CLR 592.

In Gough (1992) 95 Cr.App.R.433, the English Court of Appeal said that the correct test for determining whether a conviction on indictment should be quashed in a case of possible bias on the part of a juror is whether there is a real possibility that the defendant did not have a fair trial.  The affidavit sought to be tendered raises no such possibility on more than a theoretical basis in this strong prosecution case against the appellant.

Accordingly, the appeal should be dismissed.

The applicant was 32 years of age when the offence was committed and his prior criminal history included breaking and entering a dwelling house with intent (1979), breaking and entering a shop and stealing (1986), other offences of dishonesty and offences in 1987 of assault occasioning bodily harm and carnal knowledge against the order of nature for which he was sentenced to a term of imprisonment.

The offence of which he was convicted on this occasion was serious, involving as it did unauthorised entry at night into a dwelling house and touching a young female child.

However, sentences put before us in other cases, such as R v. West (CCA No. 40 of 1986) and R. v. O'Connell (CCA No. 188 of 1991) indicate that the sentence imposed on the appellant was higher than was appropriate.

Accordingly, the application for leave to appeal and the appeal against sentence are allowed and the sentence imposed below is set aside and a sentence of 2½ years imprisonment substituted.  The appeal against conviction is dismissed.