R v Simpson No. Sccrm-84-99 Judgment No. S348

R v SIMPSON
[1999] SASC 348

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ. The appellant appeals against his conviction on two counts of rape. The only ground of appeal is that the judge erred in failing to discharge the jury after publication on television, after the jury was empanelled and before evidence began to be taken, of certain material said to be prejudicial to the appellant.

Facts

At the time of the events in question the appellant was a police officer. He was charged with two counts of rape alleged to have been committed on 13 April 1997 at Whyalla, a country town in South Australia.
He was tried before a judge of the Supreme Court and a jury in March 1998. The appellant admitted having had intercourse at the relevant time with the complainant. The appellant said that the intercourse was consensual. He had met the complainant a few hours earlier at a local hotel.
In August 1998 the Court of Criminal Appeal set aside the conviction, and ordered a retrial. The Court quashed the conviction on several grounds. The complainant had given evidence that the appellant appeared to be drunk at the time of the offence. The appellant denied that he was drunk. The Court held that as the issue of intoxication had been raised, directions had to be given as to the possible effect upon the appellant’s perception of events, even though the appellant placed no reliance on the effects of alcohol. The Court held that the directions on the issue were inadequate. The trial judge’s directions were also held to be inadequate in relation to certain medical evidence about an injury that the complainant claimed to have received, and in relation to certain threats that the complainant alleged the appellant made to her. The Court also said that there was some substance in the complaint of a failure to put the defence case adequately, but the Court did not finally decide that point.
The appellant was re-arraigned on 23 March 1999 before a Supreme Court judge. He again pleaded not guilty. The judge conducted a voir dire relating to the admission of certain evidence, and gave his ruling.
On 24 March 1999, after some short submissions relating to evidence to be led, a jury was empanelled. For reasons that do not matter the trial was adjourned to the following morning, for the taking of evidence to begin then. Although it is not recorded in the transcript, it is clear that either before or after the jury were empanelled the judge told the jury that the appellant had been tried previously, that the trial had miscarried (T70, T79) and that the proceedings before them were a retrial. The judge deliberately avoided telling the jury that the appellant had been convicted at the earlier trial.
On the evening of 24 March, Channel 9, one of five television stations operating in Adelaide, published an item about the trial in its evening news service. The presenter said:
“A former Whyalla police officer is being retried on charges of rape.
Last year, John Gordon Simpson, was gaoled for five years for raping an eighteen year old Noarlunga woman.
The attack took place a year earlier, while he was stationed at Whyalla.
But a retrial was ordered after the Court of Criminal Appeal ruled that the jury should have been told that there was a chance that Simpson was drunk at the time.
Today, he pleaded not guilty to two counts of rape.
He’s due back in court again tomorrow.”
The following morning counsel for the appellant raised the matter with the judge. She summarised the above material. The judge had also received a note from the jury. The note read:
“At least one juror saw the TV report which gave the result of the previous trial. He has told some of us what the result was.”
Counsel for the appellant sought the discharge of the jury on the grounds that the information communicated by the news item contained information prejudicial to the appellant and meant that he could not receive a fair trial. She complained that the jury had been told of the appellant’s previous conviction, and of the five year sentence of imprisonment. She complained in particular that the news item suggested that the appellant had been acquitted on the basis of what is known colloquially, and unfavourably, as the drunk’s defence. Although the news item does not use that expression, it can be read as meaning that the appellant had relied upon drunkenness in some way as a defence.
After hearing submissions, the judge decided to proceed. He had the jury brought in. He told them that counsel had raised with him the subject of the note. He explained that when he told the jury on the previous day that the trial had miscarried, he used that word deliberately, to avoid telling them the result which they now knew. He went on to tell them in emphatic terms that they had to decide the case on what they saw and heard in court, not on what anybody else told them, and not on the basis of anything they saw on television or read in the papers. He told them that they had to put all extraneous matters out of their mind, so that the accused could have a fair trial. The judge then said:
“Having explained that, and put it as strongly as I can to you, I am going to ask you if you will go out and discuss it and I will ask you then to come back, when you are ready, and ask whether any of you feels that he or she, because of what you now know, would not be able to get it out of your mind, and therefore not be able to give this man a fair trial, to say so and not for one moment to be embarrassed to tell me that or I hope be embarrassed to say it amongst yourselves because it’s vital that we know as much as definitely as we can, that this man can get a fair trial before we start.”
He went on to emphasise that there was no need for any of them to feel embarrassed, and that no-one would blame them if they came back and said that they could not put out of their mind what they had heard. The jury then retired.
After about 25 minutes the jury returned, there was then the following brief interchange between the judge and the jury:
“HIS HONOUR:......... Ladies and gentlemen, have you been able to consider the matter? I understand you have had long enough to think it over, both individually and corporately. Is there anybody who feels that he couldn’t he or she couldn’t give unbiased attention to the matter now? You all feel perfectly confident you can put out of your mind what you know about the trial?
JUROR:There was one person who saw the TV show which gave the details. He mentioned it to two other people. The other people on the jury feel they don’t want to know the details and so we have not had it disclosed to them. There are only the three people involved and they feel happy and able to make a judgment which is not biased by what they were told.
HIS HONOUR:.......... Those three ladies and gentlemen, whoever they may be, feel that they are completely unbiased, even though they know the details of what was said last night?
JUROR:That’s correct.
HIS HONOUR:.......... Nobody else want to say anything? All right, in that case we will go on. I must say if any of you said you couldn’t give unbiased attention to the matter, we wouldn’t have gone on with the trial. I just mention that to give one last chance. You all feel you can give attention to it and decide it simply on what you see and hear in court? We will go on.”

The evidence then began.

It is not necessary to say much about the trial itself. The complainant’s evidence was that the appellant was significantly affected by alcohol when she met him, but the appellant said he was only slight affected by alcohol. The accused gave evidence that sexual intercourse took place, but that it was consensual.

Submissions on appeal

The first submission was that the information contained in the news item was so prejudicial to the fair trial of the appellant that the trial could not proceed. Accordingly, there had been a miscarriage of justice.
The next submission was that if the prejudice was capable of being cured, the decision that it was capable of being cured was one to be made by the judge. The complaint was that the judge, in effect, abdicated his function in favour of the jury. Instead of deciding whether a fair trial was possible, he had left it to the jury to decide.
The third submission was that the judge, at the least, should have first established by enquiry what the relevant juror had heard, and what the relevant juror had told other jurors.
There was a further submission that the judge should not have allowed the jury as a group to consider whether they were able to trial the case fairly. The process of the jury discussing the matter amongst themselves would have tainted the view of individual jurors, and would have rendered unsafe their ability to assess their own capacity to decide the matter fairly.

Relevant principles

The Court can set aside a conviction if satisfied that there was a miscarriage of justice: Criminal Law Consolidation Act (1935) (SA) s 353(1). That is the statutory basis upon which the Court can interfere, if at all, in the present case.
A miscarriage of justice occurs if an accused person does not receive a fair trial. A fair trial in this context is a trial conducted according to law, and as fair as the Court can make it. The Court cannot ensure perfect fairness, or fairness in an absolute sense. There are matters that are outside the control of the Court. This is not the occasion to explore the limits of the concept of a fair trial. It is helpful to recall what Brennan J said in The Queen v Glennon (1992) 173 CLR 592 at 615:
“Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the Court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.”
A trial may be rendered unfair by the communication to the jury of information prejudicial to an accused person. If that occurs, the trial judge must decide whether to discharge the jury or whether to proceed with the trial, giving to the jury appropriate instructions and warning relating to the prejudicial material. I do not suggest that these are the only options available, but in the present case they were the only real choices.
If the judge decides to proceed, and the accused is convicted, and the accused appeals on the ground that the judge should not have allowed the trial to proceed, the issue is whether the continuation of the trial despite the communication of prejudicial information to the jury gives rise to a miscarriage of justice, because the communication has meant that the accused did not receive a fair trial. In Glennon Mason CJ and Toohey J said at 605-606:
“And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.”

See also Brennan J at 610. The same point was made by the Court of Criminal Appeal of Victoria in Gallagher (1986) 29 A Crim R 33 at 40-41.

In making the decision to proceed there are a number of matters that require consideration. The importance of securing a fair trial hardly requires emphasis, but it is worthwhile repeating what was said by Deane, Gaudron and McHugh JJ in dissent in Glennon at 623:
“The central prescript of our criminal law that no person shall be convicted of a crime otherwise than after a fair trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial. Ordinarily, that risk will be obviated by appropriate and thorough directions and, if the circumstances also require it, a temporary stay for the minimum period adjudged necessary for the pre-trial publicity to abate. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary.”

In deciding what course should be followed in the case of prejudicial publicity before or during a trial, the judge must take these matters into account, but must also bear in mind the public interest in the due and expeditious administration of justice: see Murphy v The Queen (1989) 167 CLR 95 at 99 Mason CJ and Toohey J. It is also necessary to bear in mind the observation by Mason CJ and Toohey J in Glennon (at 603), that the possibility of a juror acquiring irrelevant and prejudicial information is inherent in a criminal trial.

Criminal justice is always administered in the public gaze. There is considerable public interest in the administration of criminal justice. Judges are mindful of the fact that the print medium, radio and television regularly feature items relating to particular cases, to the administration of criminal justice generally, and to crime in the community. All sorts of information and attitudes are communicated in this manner. It is pointless and impossible to attempt to isolate a jury from this material. Indeed, it would seem counterproductive to do so, because the jury is drawn from the community and should represent the community. Jurors come to their task with information and attitudes about crime and criminal justice that are influenced by the sources to which I have referred, and the administration of criminal justice must accommodate that fact. It is at that point that the assessment by the trial judge of the impact on a jury of the relevant prejudicial material becomes critical, as does the trial judge’s assessment of his or her ability to deal with the situation by directions to the jury, and the trial judge’s assessment of the ability of the jury to put the prejudicial material out of their minds. There is nothing new in this, but I make these points because it is important that the courts take a realistic approach to claims that a fair trial has become impossible because of prejudicial publicity, but at the same time not lose sight of the importance of securing a fair trial to the extent that a court can. I respectfully adopt the general approach taken by King CJ in The Queen v Thatcher (1985) 37 SASR 597 at 599-600 and in R v Carbone (1989) 50 SASR 495 at 501-502 (reversed on other grounds, see Carbone v The Queen (1989) 64 ALJR 51.) There is one other point that I should make, because it is pertinent to this case. Cases in which prejudicial material relates to the particular case of the accused person raise considerations which, to some extent, differ from the considerations which arise when the prejudicial material relates more generally to the administration of the criminal law: see Thatcher at 600 King CJ.
The Courts have stressed time and again that in considering the course that should be followed in the face of prejudicial publicity, trial judges and courts of appeal must and do proceed on the basis that jurors are able to and will act in conformity with instructions given by the trial judge to ignore extraneous prejudicial material, and to act only on the evidence given at the trial. It suffices to refer to observations made by members of the High Court to that effect in Glennon (at 603 Mason CJ and Toohey J, at 614-615 Brennan J). Like observations are to be found in the judgments of Courts of Criminal Appeal around Australia. I mention in particular the observations of Street CJ in the Court of Criminal Appeal of New South Wales in Munday (1984) 14 A Crim R 456, Graham (1987) 28 A Crim R 259 and R v George (1987) 9 NSWLR 527.
Finally, it is important to emphasise the very considerable weight that is given to the assessment by the trial judge of the likely impact of the prejudicial material upon the jury, and of the judge’s ability to deal with the matter by appropriate directions to the jury. The issue for a court of appeal is, as I have already said, whether the prejudicial material has given rise to a serious risk that the accused was deprived of a fair trial. But in case after case the approach of the court has been to emphasise that the decision to be taken is one for the trial judge, and to emphasise the importance of giving full weight to the fact that the trial judge is best placed to assess what the interests of justice require. In a number of cases the approach has been to enquire whether it can be said that the trial judge erred in the exercise of the discretion that the judge had to exercise: see, for example, Murphy v The Queen (1989) 167 CLR 94 at 101 Mason CJ and Toohey J, at 124 Brennan J, at 125 Deane J and at 128 Dawson J; R v George (1987) 9 NSWLR 527 at 534; Gallagher (1987) 29 A Crim R 33 at 41-42. I conclude that the effect of these cases is that proper weight must be given to the position of the trial judge, and that a Court of Appeal must bear in mind the factors to be balanced by a trial judge in exercising the discretion whether to proceed with the trial or not. If no error can be found in the approach of the trial judge, it is not easy to see how there can be a miscarriage of justice. But, at the end of the day, the decision for a court of appeal is whether what has occurred has given rise to a miscarriage of justice.

Has there been a miscarriage of justice?

It is important to bear in mind that the material that came to the jury’s attention related to the particular case that they would have to decide. It was not material about an aspect of the general administration of criminal justice that happened to arise in the case before them. Moreover, the reference in the news item to the chance that the appellant was drunk at the time of the alleged offence had the capacity to awaken a hostility towards the appellant because of hostility towards what is colloquially and inaccurately called the drunk’s defence.
Nevertheless, I do not consider that the material was so prejudicial that a fair trial was no longer possible once it came to the jury’s knowledge. Or, to express the matter more accurately, I am not satisfied that there was a likelihood or substantial risk of prejudice arising from the publication, taking into account the content of the publication, the warning that the judge gave and the assurance that he received from the jury.
The fact of the conviction at the appellant’s first trial is something that a juror might well have speculated about, realising that this was a retrial. There might have well been members of the jury who would realise that retrials occur because a conviction has been quashed. The risk of a juror or jurors reasoning that it is easier to convict an accused, because an earlier jury has done so, cannot be ignored. But to conclude that there is an unacceptable risk of that having happened, despite the warning that the judge gave and the reassurance that the jury provided, is to show little faith in the capacity of a jury to decide the case in accordance with its duty. Bearing in mind what I said earlier about the fact that jurors are drawn from the community, and bring to their tasks attitudes and beliefs shaped by what they see and hear in the community, I am satisfied that a judge is entitled to expect a jury to be able to put such prejudicial matter out of their mind. The same applies to the information about the sentence passed. Any juror would realise that a person who has been convicted may well have been sentenced. I do not accept that knowledge that a substantial sentence of imprisonment had been imposed is likely to have influenced a juror adversely towards the accused. In short, I do not consider that this material meant that a fair trial could not be held. During the argument I was concerned about the allusion in the news item to the possibility of the appellant being drunk at the time of the alleged offence. In its context, that was capable of prejudicing the appellant in the eyes of the jury. However, on reflection, I am influenced by the consideration that the jury would go on to hear evidence in which the complainant would say that the appellant was affected by alcohol, they would hear the appellant deny that, they would receive instructions from the judge on the issue (no criticism is made of these instructions), and they would have the issue of suggested intoxication presented to them in its proper context. Bearing that in mind, it is not easy to see how the allusion to drunkenness in the news item could cause prejudice to the appellant that could not be dealt with by the judge. A further possible implication in the news item is the suggestion that the appellant might have succeeded in having his conviction reversed on a technicality. That also is a cause for concern, but once again I consider that it is unrealistic to think that this would have deflected the jury from the task before them.

In short, having reflected carefully on the information to which some members of the jury were exposed, and taking into account the circumstances in which criminal justice is administered, the need to give proper weight to a capacity of a jury to perform its task properly, while at the same time being sensitive to the risk of prejudice and to the fundamental importance of the Court securing a fair trial, I am not satisfied that the risk of prejudice was such that it was not open to the judge to proceed, having given the warning that he gave and having received the assurance from the jury that he did receive.
In other words, I am not satisfied that the case was one in which the prospect of a fair trial was irretrievably prejudiced by the publication of the material in question, and its communication to the jury. That means that it was open to the judge to proceed, and that the conviction must stand unless there is some defect in the manner in which he decided to do so.
There is no reason to think that the judge did not make his own assessment of the situation. He heard submissions from counsel, and was referred to some of the main cases. He did not give reasons for his decision, but that is because he dealt with the matter as it unfolded. The obvious explanation for the events is that the judge was satisfied that a fair trial could still be had, provided that he gave an appropriate warning, but that the judge decided, as a further precaution, to enquire whether any member of the jury considered whether he or she might be unable to put any prejudicial material out of his or her mind. It was open to the judge to take that approach.
It was open to the judge to allow the jury to consider the matter collectively. He made it clear, in what he said to the jury, that he was asking them to consider whether any one of them felt that he or she would not be able to get the material out of his or her mind, and not able to give the appellant a fair trial. He emphasised that there was no need for any juror to be embarrassed if that was the case. There was a slight risk of further communication of prejudicial material among the jurors, as a result of the course that the judge followed. Some judges might have questioned the particular jurors involved in the communication of the information. But there was also something to be said for allowing the jurors the opportunity to reflect on the matter in the privacy of the jury room rather than in the public gaze and under questioning from the judge. The fact that the jury had brought the matter to the attention of the judge, and the response that the juror gave on their behalf, suggest to me that the jury were well alive to their duty, and would consider the matter carefully and conscientiously.
The judge was entitled to seek a response from the jury to the question that he posed to them. That was permissible, assuming that the judge had already decided that it was proper to proceed, subject to there being no juror who felt unable to put the prejudicial material out of his or her mind. There are observations in the cases expressing reservations about the ability of a juror to recognise his or her own prejudice or bias: see Murphy v The Queen (1989) 167 CLR 94 at 103 Mason CJ and Toohey J, at 123 Brennan J; Webb v The Queen (1994) 181 CLR 41 at 52-53 Mason CJ and McHugh J. But there are plenty of cases in which a trial judge, asked to discharge a jury because prejudicial information has come to the knowledge of the jury, has received and relied upon a response from an individual juror or from the jury as a whole in relation to the possible effect of that material upon the juror or the jury: see Webb at 53-54 Mason CJ and McHugh J, at 88 Toohey J; R v Karounos (1995) 63 SASR 451 at 463 King CJ, cf at 490 Olsson J; R v Vollmer [1996] 1 VR 95 at 137. In some cases the material may be so prejudicial that there is no point in making enquiry of the jury. In other cases, making an enquiry of the jury might raise an unacceptable risk of the judge intruding into matters that should be protected by the secrecy of the jury room. However, I consider that this was a case in which it was appropriate for the judge to do what he did.
I do not accept the submission that the judge was obliged, first of all, to establish what the juror in question had heard on the television news. That was self-evident. Nor do I consider that the judge was obliged to enquire about the terms of the communication made by that juror to the other jurors to whom the information was communicated. I do not suggest that it would have been improper to do so, merely that I do not consider that the judge was obliged to do so, in case some adverse observation were made by the juror who communicated the information to the other jurors. I consider that the judge’s request to the jurors, collectively and individually, that they consider whether they were able to put the matter out of their mind, grappled sufficiently with the problem that had arisen.
Reviewing the matter as a whole, I do not agree that the impact of the material was such that there was a likelihood of a substantial risk of prejudice, despite the warning the judge gave to the jury and despite the assurance given by the jury collectively and individually. It was open to the judge to proceed in the manner in which he did proceed. I agree that there was little to be lost by adjourning the trial. Evidence had not begun, and it was a relatively short trial. But the judge was entitled to put in the balance the fact that this was a second trial, and the risk that with a second trial there is always a chance of a previous conviction coming to the attention of a jury in one way or another. I do not consider the material contained in the news item to be as prejudicial to the appellant as counsel for the appellant suggested. I consider that it is the sort of material that the jury can be relied upon to disregard.
For all those reasons I would dismiss the appeal.
The facts of the case highlight the importance of journalists and others involved in the dissemination of information about the workings of the Courts being alert to their own responsibility to avoid the publication of information that can prejudice a fair trial or the administration of justice. The news item gave a quite inaccurate impression of the basis of the decision of the Court of Criminal Appeal to quash the conviction recorded at the first trial. The danger of publicising the previous conviction, on the very day on which a jury was empanelled for a retrial, should have been evident. One can understand the appellant and his legal advisers being concerned about the impact of the material upon the jury. No doubt the appellant will continue to feel aggrieved. The community has incurred the cost of an appeal. I can only hope that those involved in this publication will reflect on the problems that they caused and will take more care in the future.

BLEBY J. I will not repeat the facts which have been clearly set out in the reasons for judgment of the Chief Justice. However, for my purposes it is necessary to draw particular attention to some of those facts and to place others in their appropriate context.
In the appellant’s first trial, as was the case in his second, his primary defence was that the intercourse with the complainant was consensual. If a jury was to convict, it had to accept the evidence of the complainant and reject that of the appellant. The appellant’s credibility was very much in issue. Regardless of any defects in the summing‑up of the trial Judge at the first trial, there could not have been a conviction if the jury had not accepted the evidence of the complainant and rejected that of the accused, at least as to the non‑consensual nature of the intercourse.
That that was an issue on which minds could well differ is demonstrated by the verdict in the second trial. The appellant complained of no defects in the trial Judge’s summing‑up in the second trial. He did not rely on any defence associated with consumption of alcohol. The major practical issue which the jury had to resolve was the question of consent. The jury returned a majority verdict, indicating at least some doubt on that question by at least one member of the jury.
It is plain that either before or after empanelment of the jury the trial Judge had made reference in the presence of the jury to the fact of the previous trial and that it had miscarried for an unstated reason. On that day the hearing was adjourned without any opening or the taking of any evidence. It was in the evening of that day that the television broadcast occurred. When the jury entered the court on the following morning the trial Judge, before sending the jury out, gave a direction which included the following:
“Yesterday when I mentioned that there had been a previous trial, I told you merely that it had ‘miscarried’ and I used that word deliberately, so as to avoid telling the result which was published and which you now know. I have to tell you this most definitely; in this trial, this one is the one we are concentrating on, but, in any trial, you as jurors must make up your minds, come to your decision solely on what you see and hear in court, not on what anybody else says to you, not on what you see on television or read in the paper. You have to put all extraneous matters, anything but what you see and hear in court, out of your mind to come to a fair decision so that the accused can have a fair trial.
That is the fundamental principle I think of when explaining the duties of a juror. You’ve got to decide things on what you see and hear in court. Put everything else out of your mind, otherwise it’s not fair to the accused.
Having explained that, and put it as strongly as I can to you, I am going to ask you if you will go out and discuss it and I will ask you then to come back, when you are ready, and ask whether any of you feels that he or she, because of what you now know, would not be able to get it out of your mind, and therefore not be able to give this man a fair trial, to say so and not for one moment to be embarrassed to tell me that or I hope be embarrassed to say it amongst yourselves because it’s vital that we know as much as definitely as we can, that this man can get a fair trial before we start.
I hope that is quite clear to you, I have put it as clearly as I can. I would like you, without any embarrassment or any lack of frankness, amongst yourselves or with me to, to go out and have a chat about it and see whether you can put those things out of your mind. If you can’t, nobody is going to blame you. If you come back and say you can’t put those things out of your mind or you are afraid you can’t, you won’t embarrass yourselves or me or anybody else, and you won’t be blamed by anybody if you feel you can’t. So that is what I would like you to do.” (My emphasis)
It was only after the jury returned and the exchange recorded by the Chief Justice between the trial Judge and the juror had taken place that the Crown then proceeded to open the case for the prosecution and the evidence began. There was no mention of the television broadcast again at any later stage in the trial or during the course of the trial Judge’s summing‑up.
As Mason CJ and Toohey J pointed out in R v Glennon (1992) 173 CLR 592 at 603, the mere possibility of knowledge of a prior conviction acquired by a juror during a trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Whether such has occurred will need to be determined in the light of the evidence as it stands at the time of trial and in the light of the way in which the trial was conducted, including steps taken by the trial Judge with a view to ensuring a fair trial: (Mason CJ and Toohey J supra at 605 - 606).
I also unreservedly accept what Brennan J said in R v Glennon at 614 ‑ 615:
“Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts Reg. V. Vaitos (1981), 4 A. Crim. R. 238; Reg. V. Gallagher (1987), 29 A. Crim. R. 33, at p.41 is that the reliance is not misplaced. In Munday v. The Queen (1984) 14 A. Crim. R. 456, at pp. 457-458, Street C.J. repeated an unreported passage from one of his Honour’s earlier judgments:
‘“.... it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.”’
If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.”
Two questions arise in this case. The first is whether all the safeguards could be provided in respect of a trial that was then to proceed forthwith, or whether it was necessary to adjourn the trial to allow the effect of the television broadcast to dissipate. The second question is, if the safeguards could be provided, whether they were in fact provided.
As will be seen, I have grave doubts as to whether the necessary safeguards could have been provided in a trial at that time. However, in any event I am persuaded that they were not in fact provided and that there was a miscarriage of justice.
There were four matters of importance that were stated in or could have been inferred from the television broadcast. They were:
That the appellant had already been convicted of the rape of the complainant;
That he had been gaoled for a period of five years;
There was a suggestion that the appellant was drunk at the time;
That the conviction had been set aside on a legal technicality.
It was the revealing of that information to which the trial Judge’s remarks were directed before he sent the jury out to consider the position. It was those matters which the trial judge asked the jury to consider whether they could banish from their minds. He was concerned that they were able to banish from their minds any suggestion of hostility or bias on account of what some of them may have learned either directly or indirectly from the broadcast. I agree that with proper directions as to those issues, it was open to the trial judge to conclude that there would be no miscarriage of justice if the trial proceeded.
The direction given by the trial Judge concentrated on anything that members of the jury may have heard or learned about the case through the television broadcast - that they needed to make up their minds on the evidence rather than what they might have seen or heard on television, and that they were to put all those extraneous matters out of their mind. The question they were asked to consider was whether, having ascertained certain information of the type which I have listed above, they might not be able to give the appellant a fair trial. In my opinion the direction was adequate for that purpose and it was not inappropriate to ask the jury to consider the question that they did.
However, the direction overlooked and failed to take account of another crucial fact. At the time they were given the direction, all that the jury knew about the trial was what they had heard recited in the information, namely that it was alleged that an two occasions on 13 April 1997 at Whyalla the appellant had had sexual intercourse with the complainant without her consent, one of the incidents involving an act of fellatio and the other involving vaginal sexual intercourse. There had not been any opening by the prosecutor. The jury was quite unaware of the crucial issue involved in the case to which I have referred, namely whether the acts of intercourse were consensual. The jury was unaware that resolution of that issue would necessarily involve an assessment of the credibility of both the complainant and the appellant in their evidence on that topic. In giving their answer to the trial Judge they were not asked to consider whether some or all of them might have been influenced by the fact that another jury, in convicting the appellant, had obviously rejected his evidence.
In the circumstances of this case, besides the issues addressed by the trial judge, there was another crucial issue, namely whether the jury or some members of it, either consciously or unconsciously, might have been influenced by the fact, in determining a case which turned almost entirely on credibility of witnesses, that another jury had previously rejected the appellant’s evidence. The jury could not possibly have appreciated that issue at the stage of the trial when the direction was given.
The question which the trial Judge had to address was whether, at the end of the evidence, it being likely that there would be a conflict between the evidence of the complainant and that of the appellant, the jury or some members of it might possibly have been influenced by the fact that a previous jury had rejected the evidence of the accused. Three members of the jury would, at that stage of the case, know that that was the position. It is likely that other members of the jury, even if they had not been told the result of the case, would be aware that the most likely cause of a retrial was because of a successful appeal by a person who had been convicted. They too could well have inferred that a previous jury had rejected the evidence of the accused.
It may be that the position could have been cured by the trial Judge reminding the jury of their function in this context during the course of his summing‑up; that they were not to have regard to anything associated with the previous trial and were not to be in any way influenced by the verdict in that trial. However, I have grave reservations as to whether that would have been adequate in this case, in that it would only have served to bring home to the jury that another jury had rejected the appellant’s evidence. The knowledge that twelve of their peers had previously rejected his evidence may well, quite unconsciously, have influenced the decision of the majority to reject his evidence on this occasion.
I appreciate that on any retrial there is a risk that the jury will become aware that there has been a previous trial. They may or may not become aware of the result. If they do, it is incumbent upon the trial Judge in the course of his summing‑up to ensure that the jury concentrates solely on the evidence before them in the case in question, on their own assessment of the witnesses, and that they are not influenced by any aspect or consequence of the previous trial. Such a direction, properly given, will not necessarily result in a miscarriage.
However, in this case, the risk was high of the jury being influenced by a matter the significance of which they could not even have been aware of at the commencement of the trial and at the time when they gave their response. They, or some of them, had been made aware of highly prejudicial information before they even knew anything of the circumstances. That fact had become a feature of the trial right at its outset. The evidence was completed in two days. With knowledge of the previous jury’s verdict fresh in their minds, they were called on to assess the appellant’s veracity. Had they been directed at that stage to banish that from their minds the problem might well have been exacerbated.

There was obviously some inconvenience in the trial being delayed, but in my opinion that was the course which should have been followed. The delay need not have been great - probably until the next month’s sittings if it could then have been heard. It was a problem that was curable with time. But in my opinion the nature of the broadcast and its having been seen by at least one member of the jury dictated that that was the preferable course to follow.
In my opinion the appeal should be allowed, the conviction set aside and a retrial ordered.
This only highlights the irresponsibility of the publication by the television station concerned. It should have been obvious that the publication at that time would affect the proper conduct of the trial. I think the Chief Justice, in his closing remarks, has been kind to the organisation concerned. In my view, given the circumstances, the publication was quite irresponsible. Those concerned should have been alive both to the misleading nature of the information and to the effect of its timing.
WICKS J. For the reasons given by the Chief Justice, I agree that this appeal should be dismissed.

[1999] SASC 348

27 August 1999