R v Pp - [2002] VSC 521

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1489 of 2001

THE QUEEN

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2002
DATE OF RULING:	21 November 2002
CASE MAY BE CITED AS:	R v PP
MEDIUM NEUTRAL CITATION:	[2002] VSC 521

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Solicitor for Public Prosecutions
For the Accused	Mr B.J. Bourke with Ms A.C. Fox	Haines & Polites

HIS HONOUR:

On the morning of the third day of this trial I received from my tipstaff a message in his hand that he has been informed by the foreman of the jury that the foreman has in turn been informed by one of the jurors that that juror's grandchild knew both the accused and the deceased. The message continued that the juror's daughter had spoken to a relative of the accused yesterday, which is to say the second day of the trial, and indicated that the juror was on jury duty. The message concluded that the juror was confident that a breach had not occurred, which I take to be a reference to a breach of the duty which I explained to the jury on the first day of the trial, to keep their own counsel and not discuss with anyone other than jury members the matters, the subject of the trial.

Application was then made by Mr Bourke on behalf of the accused that I discharge the jury as the result of the report. He submitted in support of that application:

§ first, that based upon the report, there must be a reasonable assumption that the grand-daughter, to whom the message refers, must have conveyed information to the juror;
§ secondly, that it was not known what was said by the grand-daughter, but there must be at least some possibility that what was said reflected in some way on either or both of the accused and the deceased;
§ thirdly, that the message necessarily implies that there had been some discussion between the juror and her daughter;
§ fourthly, there is a possibility, to put it at its lowest, of a perception in the mind of the juror, and perhaps therefore in the minds of other jurors, as to the character or attributes or other factors affecting the accused;
§ and finally, that the only way to ensure that there is no possibility of stain upon the process of deliberation to be engaged in by the jury, is to discharge the jury.

Mr Bourke added that the problems to which he adverts are so serious as to be incapable of cure by direction to the juror concerned, or to the jury generally.

The application was opposed by Mr Ryan on behalf of the Crown. He referred to the strong warning which I gave to the jury at the outset of the trial (as to the need to keep their own counsel and thus not to discuss with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pp

Details

AGLC: R v Pp [2002] VSC 521
Case: [2002] VSC 521
Decision Date: 21 November 2002

CaseChat Overview and Summary

In the Supreme Court of Victoria, The Queen brought proceedings against the defendant, PP, for a crime under the Criminal Code. The case was heard in the Criminal Division at Melbourne. The issue before the court was whether the jury should be discharged after it was discovered that one of the jurors had been informed by her daughter that she was serving on the jury. The accused argued that this breach of the jury's duty to keep their deliberations private could prejudice the fairness of the trial, and thus the jury should be discharged. The Crown opposed the application, relying on the warning given to the jury at the beginning of the trial, and the oath taken by the jurors to observe their duty and follow the directions of the court.

The court considered the test for discharging a jury, which requires a high degree of need for such discharge. The seriousness of the occasion, the stage at which the mishap occurred, the deliberateness of the conduct, and the effectiveness of a judicial direction to overcome the impact of the event must be considered. The court found that there was no significant risk that the juror had communicated anything prejudicial to the trial, as she had only confirmed to her daughter that she was serving on a jury, without disclosing any details of the case. The court also considered the progress of the trial, which had already advanced significantly, and the risk of distraction to the other jurors was minimal. The court concluded that the appropriate exercise of its discretion was to refuse the application and continue with the trial, but would give a warning to the jury to remind them of their obligations.

The court refused the application to discharge the jury and ordered that a warning be given to the jury upon their return.

Orders