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

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.
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.
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
On Thursday, 11 October…

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.

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Details

Case: [2019] SASCFC 81
Decision Date: 5 July 2019

CaseChat Overview and Summary

This matter concerned an application for leave to appeal against a conviction. The applicant, Ronald John Zauch, was a defendant in a criminal trial. The dispute arose from communications between a juror and the trial judge during the trial, and the subsequent handling of these communications by the judge and counsel. The application was heard by Kelly, Nicholson and Hinton JJ of the Court.

The legal issues before the Court were whether there had been an irregularity in relation to the jury and whether this irregularity constituted a miscarriage of justice. Specifically, the Court had to consider the implications of a juror's note to the judge, which suggested the applicant had intentionally looked at the juror on public transport, causing the juror to feel unnerved. The Court also had to determine the effect of a transcription error concerning the juror's note and the judge's subsequent inquiry.

The Court reasoned that the initial communication from the juror, regarding recognising the judge's associate, was properly handled by the trial judge, who addressed the matter in open court and commended the juror. The subsequent note from the juror, expressing concern about being looked at by the applicant on a tram, was also considered. The Court noted a transcription error where the judge's question, "what do I do about that," had been mistakenly included as part of the juror's note. The applicant's counsel maintained that the applicant had been on the tram but did not recognise anyone and had not approached anyone, suggesting any encounter was coincidental. Counsel also argued that the juror did not appear intimidated, though raised a concern about the impression formed by the juror. The Court ultimately found that permission to appeal should be refused.

Orders

Orders of the court

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Background

Background to the litigation

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 On Thursday, 11 October 2018, the jury was empanelled and the trial proper commenced. 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. 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. 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. 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. The Judge then enquired of counsel “what do I do about that”. 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”. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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