R v Zauch

[2019] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ZAUCH

[2019] SASCFC 81

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)

5 July 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IRREGULARITIES IN RELATION TO JURY

CRIMINAL LAW - PROCEDURE - JURIES - COMMUNICATIONS FROM JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

Application for permission to appeal against conviction.

The applicant was charged with eight counts of trafficking in a controlled drug. At the commencement of the second day of the trial, the trial Judge received a note from a juror, advising that the applicant had looked at that juror on the tram the previous day. That juror also reported that he or she had told a second juror about the incident on the tram, who had in turn told a third juror. The first juror reported that he or she felt no difficulty about going on with the trial. The second and third jurors also reported that they were not fazed by the matter.

Counsel for the applicant applied for a mistrial. The trial Judge did not discharge the jury and instead issued a jury direction. The applicant was subsequently convicted of seven counts and acquitted of one further count. 

The sole issue on appeal is whether a miscarriage of justice was caused by the failure of the trial Judge to discharge the jury on the second day of trial after receiving the note from the juror.

Held, per Kelly J (Nicholson and Hinton JJ agreeing), refusing permission to appeal:

1.      No miscarriage of justice was occasioned by the conduct of the juror or the Judge’s handling of the report from the juror of the encounter with the applicant.

Webb v The Queen; Hay v The Queen (1994) 181 CLR 41, applied.

R v ZAUCH
[2019] SASCFC 81

Court of Criminal Appeal:       Kelly, Nicholson and Hinton JJ

KELLY J.

Introduction

1. The applicant, following a trial by jury, was convicted of seven counts of trafficking in a controlled drug.  In relation to six of the seven counts of which the applicant was convicted, he was jointly charged variously with one or other of the three co-defendants, each of whom was also convicted in relation to those particular charges.  The applicant was acquitted of one further count of trafficking, which was a charge involving the applicant alone.

2. The applicant now seeks permission to appeal against his conviction.  The sole issue on appeal is whether a miscarriage of justice was caused by the failure of the trial Judge to discharge the jury on the second day of trial after one juror reported that the applicant had looked at that juror on a tram on the previous day.

3. On 25 March 2019, a single Judge of this Court refused permission to appeal.  I, too, would refuse permission to appeal.  My reasons follow.

   Background

4. On Thursday, 11 October 2018, the jury was empanelled and the trial proper commenced.  

5. It is important to set out some of the events which transpired on the first day of the trial.  After the prosecution presented its opening, and before the trial Judge had administered the usual directions concerning the avoidance of outside influences, a juror sent a message to the Judge during the morning break indicating that he or she recognised the Judge’s associate.

6. The Judge consulted with counsel about the note and everyone agreed that there was no problem.  The Judge then addressed the jury in open court and commended the juror for very properly sending him a note about the matter.

7. Prior to the lunch break, the Judge administered the usual directions to the jury about avoiding external influences.  The Judge directed the jury not to speak to anyone outside of the jury about the trial, not to speak to anyone unfamiliar in the precincts of the Court, to avoid conversation amongst themselves in public where they could be overheard, to make no enquiries of their own about the trial, and to report it to the Sheriff’s Officer if they became aware that any other juror had made enquiries.

8. At the commencement of the second day of the trial, the Judge raised with counsel that he had received a message from a juror which the trial Judge interpreted as follows:

   Yesterday when we had finished, I hopped on the tram to go to the railway station.  One of the defendants I believe to be Ronald John Zauch hopped on the tram, stood in front of me and looked.  He didn’t say anything but looked.  He must have known who I was.  It may be a coincidence but it unnerved me a bit.

9. The Judge then enquired of counsel “what do I do about that”.

10. I pause to mention that both counsel, prior to the hearing of the appeal, seemed to have been under the misapprehension that the original juror note included the question “what do I do about that”.

11. After all parties on appeal inspected the note, it became apparent that there has been a transcription error; the question which was asked by the Judge after he had read out the note, “what do I do about that”, had been incorrectly transcribed as part of the juror’s note.

12. After the trial Judge raised the juror note, counsel for the applicant then requested time to obtain instructions.  Later, counsel for the applicant informed the Court that the applicant had caught the tram the previous day, however, he did not recognise anybody, did not approach anybody and if he had been on the same tram as the juror, it was coincidental.  He could not recall looking at somebody.

13. Counsel for the applicant stated to the trial Judge that it appeared from the note that the juror did not appear to be intimidated.  However, he raised a concern about what ‘impression’ the juror might have had and whether that needed any clarification.

14. Accordingly, the Judge issued four instructions to the Sheriff’s Officer.  First, to explain to the juror that he/she was deliberately not called into court alone so as not to cause any more difficulties; second, to ensure that the juror was happy to continue; third, to ensure that the juror understood that the juror should ask for any help needed; and finally, for the juror not to speak to the rest of the jury.

15. The Sheriff’s Officer duly reported back that “the juror is perfectly happy to continue with the trial, feels no difficulty about going on with the trial”.  The Sheriff’s Officer also reported back that the juror had frankly said to the Sheriff’s Officer that he or she had mentioned it to another juror.

16. The Judge then indicated he would not discharge the jury but would cause a further enquiry to be made concerning what was said to the other (second) juror, and in particular, whether that second juror felt any difficulty about bringing a fair and objective assessment to the issues of the trial.  In due course, the Sheriff’s Officer reported back that the second juror had also spoken to another (third) juror on the topic of the first juror seeing one of the accused on the tram.  The Sheriff’s Officer reported that neither the second nor the third juror were fazed by the matter.

17. The trial Judge then proposed to give an instruction to the jury to report any concern to the Sheriff’s Officer and to advise if at any stage they felt unable to bring a fair and objective assessment to the issues of the trial.

18. The applicant’s counsel responded by applying for a mistrial on the basis that, if the Judge gave such a direction, in effect, that would be perhaps confirmatory that there was some incident where there was a deliberate action by the applicant on the tram of staring, perhaps in an intimidatory fashion.

19. Unfortunately, the Judge seems to have been dissuaded from giving the direction that he intended to give which, in my view, would have been a perfectly proper direction to give in the circumstances.  Instead, over the objection of counsel for the applicant he directed the jury as follows:

    I've got three housekeeping matters. The first is that at the end of the day, everything in this trial is going to have to be moved to another court. This court is now needed for a trial with 13 jurors and eight lawyers, so these bigger courts are only used by the biggest trials and we've been flicked. I'm not 100% sure yet which court we're going to be moved to but at the end of the day, the sheriff's officers are going to have to organise for everything to be moved to another court and you'll come back to a different court on Monday. When I know I'll tell you which court it's going to be.

    The second housekeeping matter, I said yesterday I'd do something about a timetable so we have breaks. I'm playing it a bit by ear, I've discussed it with counsel. It's not clear where we take breaks. I'll try and give you this assurance, we won't sit listening to phone calls for any more than an hour. We might get an early minute at the end of the day. That is perhaps the best I can offer at this stage.

    A final matter which is sort of a housekeeping matter but something also that requires some consideration by me, trials are dynamic matters, things happen during trials and we have to deal with things as they crop up. The important consideration is this: if any juror at any stage feels that they need to raise a matter that's occurred during the trial, they should do that with the sheriff's officer, they should feel free to do that as soon as they come in to court and it's quite a good idea if you raise the matter immediately with the sheriff's officer and best not to discuss the matter with other jurors until the end of the trial. So if any juror has any concerns, raise them with the sheriff's officer, the sheriff's officer comes and tells me and I decide what to do. Unless any juror has any concerns about not being able to proceed with the trial, we'll proceed.

20. The trial then proceeded and the jury eventually returned the verdicts as outlined earlier in these reasons.

    Discussion

21. The test to be applied for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury, is whether the incident is such that, notwithstanding the proposed or actual warning of the trial Judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.[1]

    [1]    Webb v The Queen; Hay v The Queen (1994) 181 CLR 41, 53.

22. At the outset, I note that this is the test postulated in circumstances where there has been an “irregular” incident involving a juror, such as was the case in Webb.  The facts in Webb were that a juror, at a critical stage of a murder trial, was seen to give a bunch of flowers to a person at the courthouse with the request that they be delivered to the mother of the deceased victim.

23. In my view, the events here, which gave rise to the applicant’s request for a mistrial on the second day of trial, have been elevated to a significance which they never warranted.  I would not characterise what occurred as irregular conduct of any juror in the sense contemplated in Webb.

24. During submissions at the trial, the applicant’s counsel sought to characterise the incident as one of “staring the juror down on public transport”.  That is to overstate what actually happened.  The incident on the tram was an intrinsically benign occurrence, which the juror no doubt felt compelled to report after receiving strong directions from the trial Judge the day before as to the avoidance of extraneous influences during the trial.

25. Significantly, as I pointed out earlier in these reasons, and contrary to the common misunderstanding of counsel during submissions on appeal, the juror did not ask the judge “what do I do about that”.  Those words were wrongly transcribed as part of the note.

26. The very nature of the incident described by the juror, being an unexpected encounter of crossing paths on a tram, when viewed together with the juror’s response to the questions asked of that juror via the Sheriff’s Officer – that he/she was perfectly happy to continue and felt no difficulty in doing so – would not lead any fair‑minded and informed observer to apprehend that the juror could not or would not discharge his or her task impartially.  The note, in context, was a communication by a diligent juror who was faithfully complying with the Judge’s general directions given the day before.  The note itself acknowledged the possibility that the incident was nothing more than ‘coincidence’.  The report that the juror was “unnerved a bit” was dispelled by the confirmation received via the Sheriff’s Officer that he/she felt no difficulty in proceeding.

27. In a small community such as Adelaide, these sorts of encounters between participants in a trial are not uncommon.  That is why trial judges frequently give jurors the direction to be careful about what they say and do out of court in the precincts of the court.  It is evident, from the earlier juror note provided the day before regarding the trial Judge’s associate, that this was a jury that paid careful attention to the Judge’s directions.

28. It is unsurprising then, having encountered the applicant on the tram, that the juror felt the need to draw that fact to the Judge’s attention.

29. I consider that the enquiries made of the juror via the Sheriff’s Officer were adequate to satisfy the Judge that there was no difficulty with the juror proceeding to sit.

30. When that juror promptly disclosed that he/she had spoken to another juror, who in turn disclosed that they had also spoken to a third juror, the Judge then sent a further message to the second and third jurors to specifically ask whether they had any difficulty bringing a fair and objective assessment to the issues at the trial.  The response, which was received promptly, was that neither of them were fazed by having been told about the incident.

31. In my view, the Judge was entitled to take a robust approach to the issue which had arisen.  It is unfortunate that the trial Judge seems to have been deflected from giving the direction to the whole jury which he had indicated he intended to.  Nevertheless, I consider the direction which he did give to be adequate, in all of the circumstances, to convey to the jury that they should raise with the trial Judge any problem which arose during the course of the trial.

32. I note that the jury returned verdicts of guilty on seven counts but a verdict of not guilty in respect of the one remaining count with which the applicant was solely charged.  While not determinative of the issue on appeal, this tends to demonstrate that the jury carefully examined all of the evidence, and followed the trial Judge’s directions to consider each charge separately in accordance with the directions they were given.  It is evident from the verdict of not guilty on that count that, where there was evidence in favour of the applicant, the jury were prepared to give the applicant the benefit of the doubt.

33. I also note that there was no complaint made about any other direction given by the trial Judge.

34. For these reasons, I consider that the incident on the tram involving the juror and the applicant and its aftermath has been overstated.  No miscarriage of justice was occasioned by the conduct of the juror or the Judge’s handling of the report from the juror of the encounter with the applicant.

35. I would refuse permission to appeal.

36. NICHOLSON J:  I would refuse permission to appeal for the reasons given by Kelly J.

37. HINTON J: I agree with Kelly J for the reasons she gives that in this matter permission to appeal should be refused.