R v Zheng (Ruling Nos 4 and 6)
[2013] VSC 561
•18 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0029
| THE QUEEN | |
| v | |
| DE JUN ZHENG | Accused |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 16-18 October 2013 | |
DATE OF RULINGS: | 17 & 18 October 2013 | |
CASE MAY BE CITED AS: | R v Zheng (Ruling Nos 4 & 6) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 561 | |
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CRIMINAL LAW – Ruling No 4: Application to discharge jury – Juror asked tipstaff, “Is there a way we, as jurors, can find out the sentence after the trial is over?” – Alleged pre-judgment or bias in juror – Alleged infection of others on jury – Application refused; Ruling No 6: Application for certification for leave to commence an interlocutory appeal – Criminal Procedure Act 2009 (Vic), s 295 – Certification granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams SC | Office of Public Prosecutions |
| For the Accused | Mr G Georgiou SC | Turnbull Lawyers |
HIS HONOUR:
Introduction
It is now the morning of Friday 18 October 2013. What follows are some very brief reasons for my decision yesterday, Thursday 17 October, to refuse an application to discharge the jury without verdict. When I made the decision, I advised the parties I would provide written reasons at a later date. Since then, an interlocutory appeal (or a review of my refusal to certify an interlocutory appeal) concerning proposed directions to the jury in this matter has been listed for hearing before the Court of Appeal at 2:15 p.m. today. Further, early this morning, an application was made to me by both the Crown and the defence to certify an interlocutory appeal against my decision to refuse to discharge the jury. I granted certification and gave ex tempore reasons for that decision. (I have copied a revised transcript of those ex tempore reasons at the end of this ruling.) I advised the parties that I would provide brief written reasons for my decision to refuse to discharge the jury in order to assist them and the Court of Appeal hearing the matter this afternoon. Accordingly, the reasons are much briefer – and no doubt much less helpful to those concerned – than I would have preferred.
Background
On Monday 30 September 2013, a jury of twelve persons was empanelled to hear the trial of De Jun Zheng on a charge of murder. It is alleged that, on 12 February 2009, Mr Zheng murdered Abraham Marco Papo in South Melbourne. Mr Zheng pleaded not guilty.
The Crown case closed on Tuesday 15 October 2013.
During legal discussions on Wednesday 16 October, my tipstaff advised me that a juror asked him, “Is there any way we, as jurors, can find out the sentence after the trial is over?” My tipstaff responded, “Well, I will have to speak to the judge about that.” The question was asked away from other jurors in the jury room when the jury were being told to go and have a break. My tipstaff advised that, in his view, the juror was really trying to say something like, “In the event that there is a sentence, would I be able to find out after trial.” He also advised that it was only the one juror who asked this question and that the juror was away from the others when he asked the question.
I advised the parties of the foregoing. I expressed the opinion that I would not regard the remark as disclosing pre-judgment on the part of the juror but that I could understand how it might trouble others if construed in a particular way. Ms Williams SC, who appears for the Crown, made a submission consistent with mine. Mr Georgiou SC, who appears for the accused, took a different position. It troubled him greatly. I referred the parties to the decision of the High Court in Webb & Hay v The Queen (1994) 181 CLR 41. (T 1017-1018.)
Application on behalf of accused to discharge jury
After lunch on the Wednesday, Mr Georgiou made an application to discharge the jury without verdict.
In what follows, because of the pressure of time, I shall set out only some – but not all – of the arguments of the parties. They can be found in the transcript (see, e.g., at T 1023-1047, 1055-1081 & 1126-1127).
Mr Georgiou submitted inter alia that the words uttered by the juror disclosed that the juror had pre-judged the matter and had formed a concluded view that the accused was guilty of murder. This, he said, must be so when I had earlier instructed the jury to keep an open mind until the conclusion of the case and in circumstances where I had told the jury at the outset that four possible verdicts or outcomes were open – guilty of murder, manslaughter, or defensive homicide or not guilty of anything – and where I had directed only on the elements of murder in preliminary directions. He submitted, in the alternative, that it must at least pre-judgment as to the possibility of an outright acquittal.
He submitted that the use of the plural “we, the jurors” also indicated that there was also a danger that the jury shared the juror’s view. He pointed out that the juror had not been separated from the other jurors after the remark. That has remained so.
Mr Georgiou objected to the possible course of bringing the juror in and making inquiries of him. He also objected to raising it with the jury as a group without identifying the juror.
Mr Georgiou referred to the judgments of the High Court in Webb & Hay v The Queen (1994) 181 CLR 41. Whilst there was a division in the Court as to whether the trial judge had erred in failing to discharge the jury in circumstances where a juror had asked a person at the court to deliver flowers to the deceased’s mother, the Court essentially agreed on the test to be applied in determining whether an irregular incident involving a juror warrants the discharge of the juror or, in some cases, the jury. That test is whether the incident is such that, notwithstanding any proposed or actual warning of the 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 their task impartially.
Initially, Ms Williams opposed the application. She submitted that the question was open to different interpretations. She submitted that it would not be appropriate to raise the matter before the whole jury but that it would be appropriate to bring the individual juror in and make inquiries of him.
The Crown (belatedly) joins in the application
The next morning (i.e. on Thursday 17 October), Ms Williams advised that she now supported the application to discharge the jury. She said that, on reflection, she was wrong to have opposed it earlier. She had spoken to colleagues about the matter, who had an instinctive reaction to the effect that discharge would be appropriate; and she was now concerned that, were there to be a conviction, the matter might be overturned on appeal on this point. In effect, she adopted Mr Georgiou’s submission from the previous day. Ms Williams added that, because an interlocutory appeal would be pursued by the Crown against my proposed directions, and that that appeal would be pursued whether or not I certified (which I was still considering that morning) and that such an appeal would not get on until Friday at best, the likelihood was that at least three days would be lost (i.e. the Wednesday that had already been lost plus the Thursday and Friday of this week as well), which would mean the jury would have had a relatively large break in a relatively short trial. To be added to this was the fact three days had been lost in the previous week because of the illness of a juror who ultimately was discharged.
Refusal to discharge the jury
Having considered the parties’ submissions on the Wednesday, having considered the matter overnight and then having heard Ms Williams’ change of heart and further submissions from her and Mr Georgiou on the Thursday morning, for reasons that follow, I concluded that the jury should not be discharged.
I confess that my initial reaction was that, taken purely literally, the question might be thought to disclose pre-judgment and that it could give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror would not discharge his task impartially. However, upon closer analysis of the circumstances and the law, when regard is had to my findings as to what the juror meant, the stage of the trial we have reached and my proposed directions to the jury, I did not think that the question 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 for that matter, all other members of the jury – will not discharge his or their task impartially. Nor do I consider that there is a high degree of need to discharge this jury.
First, I am not satisfied that the juror’s question indicates pre-judgment. Rather, I take the question as meaning no more than that, were there to be a sentence in this case, would the juror be able to find out about it. I would take that view of the remark without my tipstaff’s opinion about the juror’s intentions, but I am fortified in my conclusion given that my tipstaff has that opinion.
Secondly, I considered having the juror in to ask him questions, but decided against that course. There are three reasons. First, I was satisfied on the material before me that there was no pre-judgment of the matter. Secondly, it is a rather exceptional course to question a juror; and I was fearful that it may only embarrass the juror for no good reason in the end. Thirdly, Mr Georgiou was against that course.
Thirdly, I consider that the juror’s question was a reasonable question to ask. The jury were told they were not to research anything connected with this case. This juror was simply being true to that instruction by inquiring what might be his position after the trial. It is understandable that a juror would wish to know what might happen when he has had a part in whatever the decision turns out to be.
Fourthly, we are at a stage in the trial where the evidence is concluded. The jury has not yet heard counsel’s final addresses or my charge. On the one hand, if the question is to be taken as disclosing a view that a sentence will follow, which in turn is to be taken as meaning that a guilty verdict has to occur first, that is neither surprising nor of concern. Having heard the prosecution opening and the defence response, and all the evidence, and given that the accused does not dispute that his actions caused the death of the deceased, a juror may well think that some sort of verdict of guilty and a sentence would follow. It is also natural to form views about evidence as it is given, despite being told to form no conclusive views about the case until all of the evidence has been heard, counsel have delivered their final addresses and I have delivered my instructions, and to keep an open mind. To have formed some view along the lines that a sentence might follow is not to have ignored my instructions.
Fifthly, if I am wrong about that, I am confident that firm directions will ensure that all jurors understand that they are not to form any concluded view about the matter until they have heard not just the evidence but also counsel’s addresses and my charge. The test in Webb & Hay is not simply whether some incident is such that 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 or will not discharge his (or their) task impartially. Rather, the test is whether the incident is such that, notwithstanding any proposed or actual warning of the 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 their task impartially. I propose to direct the jury that, while they have heard the evidence, they have not yet heard counsel’s final addresses or my charge and to reiterate to them the importance of deferring any conclusions about the case until those further steps in the process have occurred and they are deliberating.
Sixthly, whilst the Crown case closed on Tuesday afternoon and whilst the intervention of the Crown’s interlocutory appeal on another matter means that this jury will not be hearing addresses until at least Monday next, I do not consider that having to wait until then is such a long wait as to fragment this trial to the point that there is a high degree of need to discharge this jury, even allowing for the fact that they had three days off last week because of a juror’s illness. The same is true of the fact that jurors were told that this was a trial of two to three weeks’ duration. Next week will be the fourth week. But all of these jurors came from a pool that was prepared to sit on a five-week case. In any event, delays happen.
Seventhly, Ms Williams advised that, in so far as I may be concerned about the stress on the deceased’s family in discharging this jury and starting again, I should not be concerned because she conveyed that the family are happy with whatever course the Crown may choose to take. Mr Georgiou made a similar remark about the accused. The system concerns not only the family of the deceased and the accused. There are jurors who have invested their time; the State and therefore the community invests judicial and Court resources in the process; witnesses do the same; and so on.
Eighthly, whilst it may be a brave – some would say unwise – judge who declines to discharge a jury when both parties, represented by Senior Counsel of long experience in criminal law, are urging that course, the fact of the matter is, as much as I have been assisted by counsel and have had regard to all of their submission on the matter, I disagree with them. My function is to make decisions without fear or favour in accordance with what I believe to be the law and the evidence and any other relevant consideration. In my view, this jury should not be discharged.
The decision to certify
As indicated above, this morning I granted certification under s 295 of the Criminal Procedure Act 2009 (Vic). For the convenience of the parties and the Court of Appeal, I shall set out my revised ex tempore reasons for taking that course:
This is an application by both parties for certification for leave to appeal an interlocutory decision, namely my refusal to discharge the jury, the application for which was originally made by Mr Georgiou and opposed by Ms Williams, but which on the second day and yesterday, Thursday, Ms Williams ultimately joined in.
The application to discharge the jury was based on the fact that my tipstaff disclosed to me, which I then disclosed to the parties about midway through Wednesday, that a juror asked my tipstaff, “Is there a way we as jurors can find out the sentence after the trial is over?”
After hearing argument from both parties and thinking about it overnight between Wednesday and Thursday, and hearing further submissions on Thursday, at which time, as I say, Ms Williams changed course and supported the application, I refused the application.
Now both parties, on Friday morning, make application for certification under s 295(3) for leave to appeal against that interlocutory decision.
As discussion has revealed, s 295(3)(c) notionally would be applicable, but simply cannot apply in the circumstances of this case.
The question of certification is determined by paragraph (b), which when read with the preamble to sub‑s.(3), reads this way:
A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies:
…
(b) if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal.
Mr Georgiou, who commenced submissions this morning, rightly pointed out that ordinarily, usually, commonly, there will not be an interlocutory appeal against a discretionary decision which, of course, the application to discharge a jury on the sorts of bases concerned in this case is. In that regard he referred to a document headed “Jurisprudence On Interlocutory Appeals” generated by the Court of Appeal Registry dated December 2012 in which reference is made to Dertilis v The Queen [2010] VSCA 360 at [17] and SD v The Queen [2011] VSCA 76 at [12], cases which are said to stand for the proposition that it would only be in rare circumstances that an interlocutory appeal would be entertained against a discretionary decision.
However, there are some unusual features in play here. First, there is already an application to review my decision to certify for an interlocutory appeal on foot at the instance of the Director concerning proposed directions in this trial. That application for review, or whatever the proper description of that process is, is scheduled for hearing today at 2.15 p.m. It is now five past ten in the morning.
Secondly, this is an application made jointly by the Crown and defence in circumstances where the application to discharge the jury by Mr Georgiou was supported by Ms Williams ultimately (after initially opposing). Both practitioners are Senior Counsel of extensive experience in criminal matters.
Thirdly, Mr Georgiou has indicated, and there was no demur from Ms Williams, so I assume she takes the same view, that, even if certification were refused, there would still be agitation of this point on a review this afternoon before the Court of Appeal.
That, of course, ordinarily should not influence my decision, and perhaps it should not in this case either, but it just seems to me this is an unusual, perhaps exceptional, combination of circumstances. All of this means that, in the end, it is appropriate to certify.
Of course, Mr Georgiou adds to that, that if it turns out that I was wrong to refuse to discharge the jury or that in some way my discretion miscarried and the decision is set aside, then that is a very important thing, because it means that this trial should stop and there should be a new jury struck upon a re‑trial. That is true. Although I am not sure that adds anything to the usual jurisprudence about whether or not certification should occur, of course it is a matter of importance if I am wrong; but, on the other hand, the jurisprudence seems to indicate it would be in rare cases only that a review of a discretionary decision would be entertained on an interlocutory appeal. In the event, I do not need to resolve that difficulty, if there be any such difficulty.
The fact of the matter is that, on balance, having regard factors to which I have referred, the unusual confluence of circumstances in this case, it is appropriate to certify under s 295 in this particular case, and if it needs to be said, because of that combination of circumstances I do consider that s 295(3)(b) is made out, and more particularly, that in the unusual circumstances of this case the interlocutory decision is otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal.
As I say, it seems that I may be applying a test that is somewhat broader than those strict words in s 295(3)(b) but I am dealing with what has turned out to be an exceptional turn of events. If both parties want the point determined, it seems to me that, unless the Court of Appeal thinks otherwise, since the other point is going to be dealt with this afternoon before that court, they should both be dealt with this afternoon.
In the event I so rule.
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