Sean Murphy v The Queen
[2020] VSCA 111
•11 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0080
| SEAN MURPHY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, HARGRAVE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 May 2020 |
| DATE OF JUDGMENT: | 11 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 111 |
| JUDGMENT APPEALED FROM: | DPP v Murphy (Unreported, County Court of Victoria, Judge Tinney, 18 December 2018) (Conviction) |
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CRIMINAL LAW — Appeal — Conviction — Applicant convicted of riot — Alleged assistance to and encouragement of prisoner rioters at the Metropolitan Remand Centre — Prosecution case based on inferences to be drawn from closed circuit television and photographic evidence — Whether verdict unsafe and unsatisfactory — Whether trial judge erred in directing the jury in relation to the unavailability of defence of duress — Whether verdict ‘compromised’ due to juror’s ‘bullying’ — Leave to appeal refused — Smith v Western Australia (2014) 250 CLR 473 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Keating | Lethbridges |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA
T FORREST JA:
Introduction
Riot was a crime at common law.[1] In Anderson, McHugh JA remarked:[2]
Despite the antiquity of the offence, the precise elements of the offence of riot are not settled. But there is almost unanimous agreement that an essential element is that the rioters must have an intention mutually to assist one another against any person who opposes them.
[1]By virtue of s 195G of the Crimes Act 1958, introduced by s 8 of the Crimes Legislation Amendment (Public Order) Act 2017 (which came into effect on 13 September 2017), the offences at common law of affray, rout and riot were abolished. Riot has been replaced with the statutory offence of violent disorder, under s 195I.
[2]Anderson & Ors v Attorney-General for New South Wales (1987) 10 NSWLR 198, 209 (‘Anderson’).
And in McCormack, the Court observed:[3]
The definition of this common law misdemeanour in Halsbury's Laws of England 4th ed., vol. 11 pp. 506–7, para. 861 is: ‘A riot is a tumultuous disturbance of the peace by three or more persons assembled together with an intent mutually to assist one another by force if necessary against anyone who opposes them in the execution of a common purpose and who execute or begin to execute that purpose in a violent manner so as to alarm at least one person of reasonable firmness and courage...
‘Any person who takes part in a riot commits an indictable offence at common law, punishable by fine and imprisonment at the discretion of the court.’
[3]R v McCormack [1981] VR 104, 107 (Young CJ, Kaye and McGarvie JJ) (‘McCormack’).
On 30 June 2015, there was a large scale riot by prisoners at the Metropolitan Remand Centre (‘MRC’), a maximum security prison located near Deer Park at Ravenhall.
An indictment filed in the County Court charged three prisoners — the applicant, Adam Connelly and Serkan Sen — with riot, alleging that they
and diverse other persons at Ravenhall in the State of Victoria on the 30th day of June 2015 assembled together with intent to carry out a common purpose namely to disrupt the proper operation of the Metropolitan Remand Centre and to assist one another by force if necessary against anyone who may have opposed them in the execution of that purpose, and who executed that purpose in a forceful or violent manner as to cause alarm to another person of reasonable firmness and courage.
In summarising the elements of the offence in his charge — no criticism of these directions was advanced in this Court — the judge instructed the jury that
the first element is that someone committed the offence of riot and throughout these directions I will call the persons who committed that offence the principle [scil, principal] offenders or maybe the rioters as shorthand. That is the first thing.
Second, the second element, that the accused assisted or encouraged the principal offenders to commit the offence, that is the second element. And finally, the third element, that the accused provided that assistance or encouragement intentionally. And you can see in the checklist what is and is not in dispute. I will come back to that shortly but before you can find any of the accused guilty of riot you must be satisfied of all of those elements, those three elements beyond reasonable doubt.
At trial, the applicant did not dispute that a riot had occurred. Indeed, his case proceeded on the basis that a riot had occurred, but that the second element (that he had assisted or encouraged the principal offenders to commit the offence) and the third element (that he intentionally provided encouragement or assistance to the principal offenders) could not be established. On 18 December 2018, however, the jury empanelled in the applicant’s trial found him guilty.
The applicant sought leave to appeal against his conviction on three grounds:
1. The verdict of the jury is unreasonable or cannot be supported having regard to the evidence because the evidence [sic].
2. The trial judge erred in directing the jury in relation to the defence of duress:
a. The defence was not raised;
b. The direction distracted the jury from consideration of the element of ‘intention’;
c. There is a real danger that in accordance with the directions the jury proceeded to convict on the basis that the Applicant engaged in conduct satisfying element 2; the defence of duress did not excuse it and then failed to properly consider whether the Applicant in fact, intended by that conduct to assist or encourage commission of the offence by the principal offenders.
3. Shortly after verdicts of guilt were returned two jury members complained to the Trial Judge’s Tipstaff that they felt a member of the jury was engaging in bullying and adopting an overpowering stance. There is a real danger that this dysfunctional behaviour commenced prior to return of guilty verdicts, impacted upon the process by which those verdicts were reached and that the verdicts were compromised, resulting in a substantial miscarriage of justice.
In our view, none of these grounds has substance. Leave to appeal against conviction should be refused.
Overview of the evidence
As we have said, the MRC is a maximum security prison located near Deer Park at Ravenhall. At the time of the riot, 30 June 2015, it held 868 prisoners. The prison was divided into different areas, separated by high fences, including Areas 1, 2 and 3 (which included yards and buildings). Day to day operations of the prison — including the movements of prisoners to and from various areas — were controlled by prison officers from the Central Movement Control building (‘CMC’). The Gatehouse was the main entry and exit for the prison.
Routine musters or ‘head counts’ were carried out daily. Prisoners were required to stand outside their allocated cells and be counted. On the day of the riot, there was a muster at 10.45 am, and another at 11.45 am. Both ten minutes before, and five minutes before, the 11.45 am muster, announcements were made over loudspeakers informing prisoners that they were required to return to their Units to attend the muster. As happened every Tuesday, prison staff were to undergo training, so prisoners were to be locked in their cells for a couple of hours following the 11.45 am muster.
A number of prisoners from Areas 1, 2 and 3 did not, however, return to their cells for the 11.45 am muster. Instead, they gathered at the junction between the fences separating the yards of those three Areas. Some of the prisoners yelled, ‘Give us our Ox’ (slang for tobacco), obviously unhappy about the Victorian government’s legislated decision to ban tobacco smoking in prisons from 1 July 2015 (that is, the day after the riot). Indeed, in previous days, prisoners had gathered at the fence-line to carry on non-violent protests against the smoking ban.
Some prisoners then commenced to kick and push the fences separating the three yards. A little after midday, the fence between Areas 2 and 3 was breached. Soon after, the fence between Areas 1 and 2 was also breached. Prisoners from Areas 1 and 3 then gathered in Area 2, before moving into Area 3. They then proceeded to the CMC. Prisoners began to attack the gates into the CMC. Prison officers inside the CMC during this attack evacuated via the rear and made their way to the Gatehouse.
Closed circuit television (‘CCTV’) footage captured what occurred. A gate into the CMC was forced and prisoners flooded into the building. Among other things, they threw chairs at internal windows, and caused a deal of damage. Prisoners made their way through the CMC and towards the side of the building closest to the canteen. They used make-shift weapons to damage that side of the CMC before forcing a gate leading to the canteen.
Prisoners then forced entry to the canteen and looted it, taking items such soft drinks, ice-cream, sunglasses and cigarettes. They then made their way back through the CMC and into the Area 3 yard, carrying their looted items.
Prison Officers were able once more to secure the CMC. A number of prisoners then returned to the CMC. Some threw objects at the CMC, and some found a metal cart and rammed the CMC gates.
At about 12.44 pm, members of the Security and Emergency Services Group (‘SESG’) advanced through the raceway fences separating Areas 3 and 4 toward a group of prisoners congregating around the outdoor shelters in Area 3. Prisoners — some armed — ran towards the SESG, who responded by deploying tear gas into the Area 3 yard. As a result of the tear gas, prisoners retreated from the Area 3 yard into Area 2.
Shortly afterward, at about 12.49 pm, prisoners — some armed and many disguised — forced their way into the Ballan Unit in Area 2; and, at about 12.55 pm, a group of prisoners gathered on the basketball court in Area 2. Prisoners placed metal carts at the end of the raceway where the fences to Areas 1, 2 and 3 joined, creating a make-shift barricade. Soon after, at about 1.00 pm, prisoners broke into the Attwood Unit and then the Albion Unit. At about 1.16 pm, prisoners broke into the Burnside Unit in Area 3; at about 1.19 pm, broke into the Bellbridge Unit; and, at about 1.40 pm, broke into the Billingham Unit in Area 2.
By 1.48 pm, prisoners had written the words ‘OX’ and ‘WE WANT SMOKES’ in large white letters on the basketball courts in Areas 2 and 3, and a number of fires had been lit in different areas.
Not long afterward, by approximately 2.00 pm, prisoners had managed to start prison ‘tugs’ (a kind of low suspension truck) and a prison tractor in the Horticultural Area. These were used repeatedly to ram the fences separating Area 3 from Area 4. The prisoner on the tractor broke down fences and then rode it through the Area 4 yard and rammed the gates of the CMC.
By approximately 3.18 pm, prison officers had taken up a position between the Albion and Attwood Units in Area 1. A group of prisoners gathered together in the Area 1 yard near the prison officers. Soon after, a prison buggy (similar to a golf cart) pulling a trailer filled with rocks and debris was driven into the Area 1 yard, near to the prison officers, and prisoners threw the rocks and debris at the prison officers, who deployed tear gas in response.
Ground 1: An unsafe and unsatisfactory verdict?
At trial, the prosecution contended that, once fence lines were breached and prisoners traversed areas they were forbidden entry, the riot had commenced. Throughout the afternoon of 30 June 2015, prisoners engaged in violent and threatening conduct, including destroying and damaging property; driving vehicles, and using them as rams; throwing objects; chanting; painting graffiti; and looting the canteen. This conduct, the prosecution argued, demonstrated a common purpose by those who engaged in it, to commit the offence of riot, whereby force or violence was used to cause fear or alarm to persons of reasonable firmness and courage.
In his final address, the prosecutor — relying almost exclusively on the evidence of the CCTV footage and various photographs, and the inferences to be drawn from those two sources — put the case against the applicant in the following way:
· although he was due to be locked down at midday, the applicant instead walked out of the Billingham Unit at 11.45 am and joined the prisoners at the junction of the Area 1, 2 and 3 fences;
· after the fences were breached, and after the gathering on the basketball court in Area 2, the applicant was among the prisoners who moved into Area 3 (he being depicted in tendered photographs in Area 3 between 12.16 pm and 12.18 pm);
· when he moved into Area 3 — where he was not entitled to be — the applicant had attempted to disguise himself by pulling his top up to cover the lower part of his face (as was depicted in CCTV footage);
· the applicant’s attempt to disguise himself by covering his face — other prisoners were also disguised — was ‘not just a matter of avoiding the consequences’, but ‘would send an unmistakable signal to other prisoners that [the applicant] was prepared to do things of which the authorities would not approve’, and ‘sends a clear message to those around you about your intent’;
· in moving through the breached fences the applicant ‘was lending his support to the mob that was approaching the CMC’;
· the applicant entered the CMC ‘and he can be seen amongst … some prisoners who are wrecking furniture and fittings’, at the time ‘still with his hand, holding his top up over the bottom half of his face’;
· the applicant may not himself have ‘wrecked’ anything, but ‘he is assisting or encouraging others, and he does that by joining the mob and moving with them, lending moral support to them and safety in numbers’;
· together with ‘the general mob’ — some disguised and some with weapons — the applicant went through the CMC to the canteen;
· at the canteen door, CCTV footage showed the applicant wrap clothing around his head while another prisoner struck the door with a pole;
· further footage showed that, after he had entered, the applicant was ‘looting’ the canteen, with a piece of clothing still wrapped around his head;
· the looting of the canteen clearly was a disruption of the proper operation of the MRC, and, by taking part in that looting, the applicant was assisting in disrupting the proper operation of the prison, and was ’assisting and encouraging others by his acts’, the ‘comfort’ that comes from ‘acting in numbers [being] obvious’;
· as the applicant made his way back to the Area 3 yard carrying looted items, he is depicted in CCTV footage wearing purple gloves, so as not to leave fingerprints or DNA;
· at 12.33 pm the applicant was photographed with other prisoners in the Area 3 yard with clothing still wrapped around his head, before retreating with other prisoners after the SESG deployed teargas;
· subsequently, footage depicts the applicant joining a group of prisoners — some disguised and some armed with poles — congregating in the Area 3 yard;
· at 1.40 pm a long pole was used to break into the Billingham Unit, and video footage shows the applicant and other prisoners jumping over the counter into the officers’ post, demonstrating that the applicant ‘is prepared to enter areas that he is usually forbidden to enter’;
· later, around 3.25 pm, the applicant — still disguised and wearing gloves, and ‘twirling’ something in his hand — is seen following a buggy loaded with pieces of brick and concrete, and is part of a mob throwing debris at prison officers (who respond with teargas); and
· at 3.37 pm, the applicant is seen in the vicinity of where water is being sprayed to alleviate the effects of teargas.
Under cover of the first ground, counsel for the applicant submitted that the evidence adduced against the applicant to establish the third element of the offence — that he intentionally provided encouragement or assistance to the principal offenders — is solely contained in CCTV footage and six photographs. The jury therefore did not enjoy any advantage over this Court when assessing the evidence. Counsel submitted in writing that, properly evaluated, ‘the evidence is so lacking in probative force in relation to the applicant’s subjective state of mind, that the jury should have entertained a doubt about its capacity to positively establish that the applicant in fact intended to assist or encourage the riot’. It followed ‘that there is a significant possibility that an innocent person has been convicted and the verdict must be set aside’.
Counsel for the respondent submitted — relying upon the ‘united force’ of the following — that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt:
· rather than occupying his cell in anticipation of the routine Tuesday midday lockdown, the applicant defied that direction and instead congregated with a group of other prisoners at the junction of the Areas 1, 2 and 3 fences;
· the applicant can be seen towards the front of the group of prisoners when the CMC was breached, and among the first to flow through that area;
· the applicant then disguised himself by wrapping an item of clothing around his head and covering his face;
· wearing gloves, and with his face still disguised, the applicant participated with the rioting group in looting the canteen;
· later, still disguised, the applicant made his way freely around the prison yards and buildings as part of the rioting group;
· the applicant was the third prisoner through the broken glass doors in the Billingham Unit breach, and then, while still disguised, jumped the counter and into the guards’ station;
· more than three hours after the commencement of the riot, the applicant can be seen in the yards, still disguised, travelling in a group with the rioting prisoners; and
· while rocks, broken bricks, pieces of concrete and other debris was thrown at prison officers by rioting prisoners, the applicant can be seen amongst their number, holding and swinging an item in his right hand.
When it is contended that a verdict is unsafe and unsatisfactory, this Court must ask itself ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[4]
[4]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
On the evidence in the present case, the answer to that question, clearly must be ‘yes’. In our opinion, the objective evidence captured by the CCTV footage and photographs compelled the conclusion that the applicant intentionally encouraged or assisted rioting prisoners in their pursuit of their violent disturbance. Indeed, notwithstanding the length of the jury’s retirement, we consider that for the jury to have arrived at another conclusion would have been to deny the combined force of the evidence.
Self-evidently, the applicant’s intention could only be inferred from his acts. His acts needed to be capable of founding the inference, beyond reasonable doubt, that the applicant intentionally provided encouragement or assistance to the principal offenders. Plainly they were capable of doing so.
It was not disputed that, in defiance of the direction to muster, the applicant instead joined other prisoners in refusing to submit to the required head count. Thereafter, it is plain that at different times he was part of a ‘mob’, the members of which acted together in an obvious (although, perhaps, unspoken) joint purpose. When he moved into areas where he was not entitled to be, the applicant — in an apparent attempt to hide his misdeeds from authorities — disguised himself, as did others in the mob. Further, in what can only have been an attempt to prevent his fingerprints or DNA being left behind at the scene of his (and others’) wrongdoing, the applicant kitted himself out with gloves. Moreover, he joined with others in looting the canteen, and he invaded the post reserved for prison officers in the Billingham Unit. Finally, he was in the vicinity of rioting prisoners — he did not seek to distance himself from them — swinging an item in his hand at the time that rioting prisoners were attempting to pelt prison officers with debris from a buggy.
In our view, these acts established unmistakably that the applicant intentionally encouraged and assisted other rioting prisoners. Quite clearly, he was part of the mob, and an enthusiastic participant in the riot. More to the point, perhaps, it was well-open to the jury — based on what could be discerned of the applicant’s activities from the CCTV footage and photographs — that the third element of the offence was established beyond reasonable doubt.
Ground 1 cannot be sustained.
Ground 2: Directions on duress
At the close of the prosecution case, and prior to final addresses and charge, the judge and counsel took part in the exercise contemplated by s 11 of the Jury Directions Act 2015. The prosecutor sought a direction
to the effect that duress is not being relied upon as a defence in this case. It’s been raised to some extent both in records of interview[[5]] and in cross-examination, in my submission, about influential people in a prison and people being told what to do. In my submission there is a real risk that a jury might start misleading themselves effectively in relation to what conclusions they can properly draw in relation to that.
So just something relatively straight forward. And I intend myself to make reference to it myself in closing. But nothing more complex than that effectively.
[5]The applicant did not participate in a record of interview with police. Records of Interview conducted by police with Connelly (Exhibit G, conducted on 23 September 2015) and Sen (Exhibit H, conducted on 30 November 2015) were tendered as part of the prosecution case.
There was then the following exchange between the judge and the applicant’s counsel:[6]
HIS HONOUR: All right. There has been I guess some aspect of the concept of duress, not that that word has been employed, that’s been introduced. I’m not saying improperly or anything like it. It’s not relied upon as a defence in this case at all is it?
…
[COUNSEL]: Not duress in the true sense but not to ignore completely the prison environment. Not duress as a defence but certainly the prison environment is relevant so it would have to be a direction specifically.
HIS HONOUR: What would I say though? I mean, there is a defence of duress, it doesn’t apply here, because it doesn’t. If it was it would have been pleaded essentially, and it isn’t.
[COUNSEL]: No, it’s not being used as a defence, but you can’t ignore the environment, and there was evidence given about particular aspects of that environment.
[6]Emphasis added.
After further discussion involving counsel for a co-accused on the topic, counsel for the applicant submitted that ‘this discussion might be better had at the end of the closings, when if that becomes a live issue it can be addressed through a direction’. Lunch then intervened, following which the judge indicated that he was minded to inform the jury that a defence of duress exists, but that ‘it doesn’t apply here’. The judge then outlined what he intended to tell the jury.
There was then a further exchange with the applicant’s counsel:
HIS HONOUR: Is there any particular problem with that or not?
[COUNSEL]: I still maintain my position it’s not necessary. It almost suggests that because we didn’t raise it there’s some issue. Almost like we could have raised it, we should have raised it. It’s just introducing something that isn’t actually live in the trial.
HIS HONOUR: Well, I think that’s the problem. It is live, at least potentially in a couple of the interviews, isn’t it? And it may become even liver [sic.]. Who knows. But, it’s been raised, in terms of cross-examination. Not using that precise term. But implying that people had no choice. Well, the defence doesn’t exist. We all know there are about five or six different steps that can be undertaken, not even the defence, the Crown have to negate it, and there are all sorts of things that have to be established. But none of those are raised here at all. There’s no issue of this defence at all. So, what’s the problem of me simply telling them that?
[COUNSEL]: Your Honour, I maintain my resistance to it, but I won’t seek to continue to make submissions about it. I’m effectively just going around in circles.
HIS HONOUR: But, what harm is there?
[COUNSEL]: Because it’s an unnecessary direction that puts an idea in the jury’s head that they need to somehow scrutinise why this defence didn’t raise the defence of duress.
HIS HONOUR: I would have thought it more removes the vice that the prosecutor is considered to have. But, anyway, that’s what you say. …
As will be noticed from the immediately preceding exchange, counsel for the applicant in effect submitted that for the judge to tell the jury that the defence of duress was unavailable was to introduce something that was not a live issue in the trial. Significantly, however, in the course of her final address to the jury, counsel for the applicant advanced the following arguments:
To give you a context when you’re assessing his state of mind. You’re in a prison and it gets locked-down. You can’t just leave the area and catch a cab home, remove yourself. You’re literally a captive audience. If you didn’t immediately go inside the unit, then you were locked outside. Even the prison officers were not really that sure what was going on at the start. By the time the code grey was called, the fences were already breached and the units were locked down. You’re effectively locked out in the yard. The staff were then evacuated and once the fences were down and the gates were breached, prisoners had access to all areas of the prison. Safety was no longer protected by prison officers. The prison was no longer regulated by rules.
Once the violence escalates, where do you go? If you don’t want to be part of the riot, how do you protect yourself? Is it safer to walk around or hide? But where do you hide? Amber Stabek [a prison officer] describes it as extremely volatile and threatening. Doesn’t that description equally apply to anyone who might be in the yards and not part of the riot? Think about how you might handle that situation. A fair bit was made of the prisoners surrendering and you heard that some were able to surrender. But you also heard evidence of prisoners who were assaulted if they did try to surrender.
I think [Nicholas Fisher, a prison officer] told you about at least two groups from kitchen and horticulture, who were workers in the area, prisoners who were workers in the area successfully surrendering. But the ones in the yard, that appeared to be a different story. He said a couple got out, but then objects were thrown at them. Imagine if you tried to surrender and you were unsuccessful. Does wandering around the periphery, keeping a low-profile sound like a good way to hide in plain sight? The best way to blend in is to put your shirt on your head, maybe send a message to others that you’re not a threat, draw no attention to yourself.
Amber Stabek also said that the level of aggression and electricity in the air was traumatising, at one stage. That’s the sort of environment experienced by prisoners in the yard who also weren’t participating in the riot. Nowhere to go, very limited options. If you didn’t want anything to do with the riot, wouldn’t you want to do anything you could, to keep a low profile? And not attract attention to yourself, the best way that you could?
You also heard there’s heavies in the prison. There’s no separation once the fences and gates are breached. There was a need for separation. The prison was designed so as prisoners could be separated. You have limited options. Maybe hiding in plain sight with a T-shirt on your head, is the best option you have. Context is important. Keep this context in mind when you are assessing what Sean Murphy does and does not do over the course of that day.
The final address of counsel for the applicant had, of course, followed that of the prosecutor, who had told the jury that, although Connelly and Sen had indicated in their records of interview that they had acted the way that they did in the course of the riot at the direction of other prisoners, this did not provide them with a defence (albeit that the expression ‘duress’ was not used).
In his charge, the judge directed the jury that the defence of duress was not available. He said:
There are some very rare circumstances, very rare, in which a person may act and say that he had no choice at all but to so act. So, very rarely, in our law at least, the defence of duress is available. That defence of duress recognises that sometimes people will be compelled to commit crimes to avoid threatened harm and when that defence of duress applies, well, the law excuses the actor from responsibility, given the circumstances.
Now, there is a lot more I can say but I do not need to here. That defence has no operation or application in this case at all, all right? It has none. No one is suggesting it does apply and it does not. That is not to say that the prison setting is irrelevant to your consideration, of course it is not and the parties have made submissions to that effect. As long as you understand though that there is no defence of duress available here.
Notwithstanding these simple and straightforward — and, it might be thought, easily understood — directions, in the late afternoon of their the fifth day of deliberations, Friday, 14 December 2018, the jury asked the following question:
Your Honour, you have asked us to disregard duress as a defence. Is duress necessarily a physical/verbal act, or can it be asserted via reputation/status/pull, i.e. if a prisoner acts out of respect for another prisoner who wants to riot, has duress being applied?
At 3.28 pm the judge told the jury that he would more fully answer their question on Monday morning, and said:
You’ll recall I said something about duress, and it wasn’t a matter of asking you to disregard duress as a defence. I told you it had no operation at all as a defence in this case, all right? I’ll come back and deal with that aspect, because of course, as you know, the setting is relevant for your consideration, and maybe you’re asking about that, I don’t know. But in terms of the legal defence of duress, it has no application in this case at all. If it did, you would have been told as much by the defence counsel.
But as I say, the setting is perhaps a different thing, and I’ll come back and try to answer your question more completely on Monday morning. …
On Monday morning, 17 December 2018, the judge gave the following directions. So that their effect may properly be appreciated, it is necessary to set them out in full:
All right, well let me now try to deal with your questions from Friday again, I think I read it to you on Friday. I don’t need to do it again. But just to make it plain, I’m breaking it down into three parts. The first is, ‘Your Honour, you’ve asked us to disregard duress as a defence’, that’s part 1. Part 2, ‘Is duress necessarily a physical/verbal act or can it be asserted via reputation, status (pull)’. That’s the second part of the question. And third part I’ll treat as this: ‘i.e. if a prisoner acts out of respect for another prisoner who wants to riot, has duress been applied?’
So that was the note that you sent on Friday. Let me then try to deal with those aspects. Firstly, can I tell you, I am worried that you are getting caught up on or distracted by issues of duress, all right? Your question on three occasions mentions that very word. The first mention of that word repeats back some of what I told you, and the first part of your question says by way of statement that I asked you to disregard duress as a defence. As I said late on Friday afternoon, I didn’t just ask you to disregard duress as a defence, I told you. I directed you as a matter of law that duress was not a defence available in this case.
As I told you on Monday of last week, that’s when I was giving you my final directions, there are some very rare circumstances in which a person may act and say that he had no choice at all but to so act, so I told you that very, very rarely indeed, the defence of duress is available. That defence recognises that sometimes people will be compelled to commit crimes to avoid threatened harm. When the defence of duress applies, the law excuses them from responsibility, given the circumstances.
There’s much more to it than that, and much more I could have told you, and I said on Monday that I didn’t need to here. I say again, the defence has no operation or application in this case. None. No one is suggesting it does apply, and it doesn’t. That’s because the defence of duress is bound up in the concepts of actual threats of harm, and the compulsion, therefore, to act in a certain way with no reasonable alternative, all right? No one is saying that any of the accused was actually compelled to do what they did on this day in circumstances which would bring into play the defence of duress.
Let me then go to the second part of your question, that is, ‘Is duress necessarily a physical/verbal act, or can it be asserted via reputation, status or pull?’ The second part of your question suggests that you are distracted, and considering matters you need not consider.
Why is it, then, that I say that? Because it raises that same word ‘duress’, and you ask me whether it can be a physical or verbal act, or asserted by way of reputation or status or pull. The issue for you to determine is, did the particular accused intentionally assist or encourage the rioters, not whether there may have been some feelings of obligation or pressure to do so produced by respect or status or influence or pull, or some explanation for why they intentionally assisted or encouraged.
Do not confuse motivation or reason with intention. No doubt virtually every person involved in the event had some motivation or reason for doing so, and the motivations or reasons could be many and varied, ranging from opposition to the smoking ban or wanting to go with the flow, or having some fun, or even buckling down or falling into line owing to a sense of obligation or respect, or even a fear. But the reason or motivation is not the critical thing.
What you must determine is whether the acts assisted or encouraged the rioters as I have defined those words, and if the particular accused intended to assist or encourage the rioters. There is no obligation to prove the reason for being involved, whether it was a good one or a bad one or a middling one. Rather, (1) did the particular accused assist or encourage the rioters; (2) did he intentionally assist and encourage the rioters. That’s what is critical. They are the two elements that must be proved beyond reasonable doubt.
So then, let me go to the third of your question, and to remind you, ‘i.e. if a prisoner acts out of respect for another prisoner who wants to riot, has duress been applied?’ Frankly to answer it and make any sense, I must alter it, for in its present form it is unanswerable by me, as it draws again on that concept of duress.
‘If a prisoner acts out of respect for another prisoner who wants to riot’, your question says, ‘has duress been applied?’ Well, put aside that word ‘duress’ and whether it’s been applied or not. If a person acts out of respect for another prisoner who wants to riot, has such a person intentionally assisted or encouraged the rioters? Well, that will depend on what you determine they have actually done and whether they intentionally assisted or encouraged the rioters.
If you’re satisfied beyond reasonable doubt that someone intentionally assisted or encouraged the rioters, then it does not matter whether they were acting out of some misguided loyalty or respect for another prisoner, or even by virtue of some pressure or veiled threat. If you’re satisfied beyond reasonable doubt that the particular accused intentionally assisted or encouraged the rioters, you would convict, whatever their reason for doing so. If you are not so satisfied beyond reasonable doubt, well of course you must acquit.
Now, none of this is to say that the nature of that prison setting on that day is irrelevant to your task. After all, you’re being asked to consider the particular acts of the particular accused, and to reach conclusions as to what they intended, and those acts have to be considered in light of their position of the day, whether they were assisted or encouraging the rioters, and whether that was intention. As I’ve said, they’re the critical questions for you. So the prison setting is not irrelevant to your task.
There are aspects to the interviews where mention had been made of threats or influential people, or the consequences to anyone surrendering. You will also recall various counsel cross-examining or making submissions in closing addresses as to the reality of their position once locked out of their unit, not being able to go to their cells, being in a prison with the fences down, having to go somewhere, safety in numbers, the vulnerability of being alone, hiding in plain sight, blending in, so the face covering possibly being connected to being blending in and not drawing attention to one’s self and keeping a low profile. You’ll remember those submissions.
The point counsel were making was not that anyone was compelled to do any of the things you see them do on the footage, but rather when you consider the evidence of a person acting in the way that they were, don’t lose sight of the actual context, as that was relevant to the intention behind an act, to why someone might act in a certain way or move in a certain way whilst not actually intending to assist or encourage the rioters. That is to say the context may bear upon the issue of intent with which an act was performed. They were the submissions, all right?
In any event, I’ve answered your questions as best I can, and I’ll now ask you, ladies and gentlemen, to retire once again and to resume your deliberations, please.
There was no exception to these directions. They are now, however, impugned under cover of ground 2.
Counsel for the applicant submitted that the directions ‘should not have been given at all’. The directions were apt to further mislead the jury. Counsel submitted that the applicant’s ‘reason’ or ‘motive’ for doing as he did on 30 June 2015 — to hide in plain sight and to avoid detection for taking food from the canteen — was relevant to the jury’s consideration of the element of intent in relation to that conduct. The trial judge’s instruction to disregard the reason for so acting, however, would have left the jury with the impression that if the conduct occurred, then regardless of the reason, the jury ought to convict because duress does not apply.
Moreover, so counsel submitted, to have directed the jury that the applicant’s reason for acting was not relevant, and then direct them not to lose sight of the context, conflated aspects of the defence of duress and the element of intention in such a way that there could be no certainty that the jury understood the law that they were to apply to the evidence. In this way, the direction was productive of a substantial miscarriage of justice.
In our view, the criticisms embodied in those submissions are unsound.
We consider that the following may be distilled from the directions.
First, the judge made it plain that a defence of duress — sometimes available to an accused person — was not open to the applicant on the facts of the case. Putting to one side whether the judge should have said anything at all about duress, it was completely accurate to instruct the jury that the defence was not available to the applicant. Indeed, as we have indicated, counsel took no exception (to this or the other impugned directions).
Secondly, the judge made it clear that the issue for the jury to determine was: did the applicant intentionally assist or encourage the rioters? As part of that direction, the judge made plain that it was irrelevant that the applicant may have felt obligation or pressure to assist or encourage. In so doing, the judge made it clear that the jury must not confuse the applicant’s motivation (or reason) for assisting or encouraging with his intention. Therefore, if the jury were satisfied beyond reasonable doubt that the applicant intentionally assisted or encouraged the rioters, then it did not matter whether he was acting out of some misguided loyalty or respect for another prisoner (or other prisoners), or as a result of some pressure or veiled threat. If satisfied beyond reasonable doubt that he intentionally assisted the rioters, the jury should convict. If not, the jury should acquit. Once more, these directions are not open to legitimate criticism.
Thirdly, and very importantly, however, the judge made plain that, in determining whether the applicant had the relevant intention, the jury should not ignore the context. That is, the jury could use the context in determining the intention behind an act: ‘to why someone might act in a certain way or move in a certain way whilst not actually intending to assist or encourage the rioters’. These directions were completely apt.
Fourthly, insofar as there were aspects of Connelly’s and Sen’s police interviews ‘where mention had been made of threats or influential people, or the consequences to anyone surrendering’, and counsel had cross-examined or made submissions in closing addresses as to the reality of the applicant’s position, those things went to context, and whether the applicant had the requisite intention. They were not, however, relevant to any separate defence of duress. Again, these directions were entirely correct.
With the considerable benefit of hindsight, given that it carries some baggage, it might have been better had the judge avoided using the term ‘duress’ when conveying to the jury that, on the available evidence, there were no threats or compulsion operating on the applicant at the relevant time that might have provided him with a lawful justification or excuse for intentionally assisting or encouraging the rioters’ actions.
In the end, however, the jury can have been under no misapprehension as to the proper use, and non-misuse, of the evidence of context. In particular, the jury would well have understood that they could consider the prison context in determining whether the applicant’s actions might not have been a true reflection of his intention.
Ground 2 cannot succeed.
Ground 3: A supposedly bullying juror
In our view, the third ground — which in effect asserts that the jury’s verdict with respect to the applicant’s guilt was ‘compromised’ because two jurors ‘felt a member of the jury was engaging in bullying and adopting an overpowering stance’ — is without substance.
The jury first retired at 1.06 pm on Monday, 10 December 2018, the judge having given them a checklist of the elements of the offence. At 2.28 pm that afternoon, the judge gave the jury further directions in an answer to a question that they asked.[7]
[7]The question, contained in a note, was: ‘If the accused commits one act of intentional encouragement, is that sufficient to convict?’.
The jury’s deliberations continued throughout the succeeding Tuesday, 11 December (when the jury asked to be provided with the video record of the evidence of witnesses given at trial). On Wednesday, 12 December, at 4.10 pm, the jury asked another question.[8] Given the lateness of the day, the judge indicated to the jury that he would give a full answer to their question the next day, after consulting counsel.
[8]The question, once more contained in a note, was: ‘Your Honour, would the jury be able to receive some more legal direction around “intent” and “assist or encourage”?’.
In the result, the judge gave further directions to the jury in the morning of Thursday, 13 December 2018 (including providing them with a written direction), in answer to their question of the previous day. At 4.10 pm, the judge received a note with another question: ‘What is the procedure if we the jury cannot reach a unanimous decision?’; and, at 4.19 pm, the judge gave a perseverance direction modelled on Black.[9]
[9]Black v The Queen (1993) 179 CLR 44 (‘Black’).
On Friday, 14 December 2018, towards the end of the day, the jury asked the question about duress to which we have earlier referred.[10] The trial judge gave some brief directions, and then gave full directions in the morning of Monday, 17 December 2018 (the weekend having intervened).[11] The jury continued to deliberate throughout that day.
[10]See [38] above.
[11]See [39]–[40] above.
At 12.29 pm the next day, Tuesday, 18 December 2018, the judge informed counsel that the following note had been received from the jury:
Your Honour, despite our best efforts with countless different approaches and discussions we are unable to reach a unanimous decision on one of the accused. The main problem we have is on element number three, intent. We understand you have given us a redirection on this area of the law, but we still cannot agree on this point.
After discussion with counsel, the judge had the jury brought into Court. They indicated that they could not agree on a unanimous verdict with respect to Sen, but had unanimous verdicts with respect to the applicant and Connelly. In the result, the jury’s unanimous verdicts of guilty were received with respect to the applicant and Connelly. The judge then gave a majority verdict direction with respect to Sen, and the jury once more retired to consider their remaining verdict. Both the applicant and Connelly were remanded in custody to 22 February 2019 for plea, and were removed.
At 2.56 pm that day, Tuesday, 18 December 2018, the court reconvened. The judge said:
Well it’s not really a question. I raise it in the course of the lunch break by – my tipstaff I should say was taking the jury for a walk at one point. He’s been approached by two jurors. I haven’t bothered to identify them at this stage. I don’t think I need to. They've approached him and told him that they are feeling – that they feel bullied.
There’s one person in the jury who is very overpowering, doesn’t listen to what they have to say and they’ve also said they’re not the only ones who feel that way.
So in the circumstances I'm inclined to go back to the aspect of the perseverance direction …
The judge then gave the jury a perseverance direction (having refused an application by Sen’s counsel to discharge the jury). Later that day the jury indicated that they were unable to reach a majority verdict with respect to Sen, and they were discharged accordingly without verdict in his case.
Notwithstanding that there was no indication that the two unidentified jurors felt ‘bullied’ — so it would seem by a person whom they considered to be ‘overpowering’, and who did not ‘listen to what they have to say’ — in their consideration of the applicant’s case, in the written case as originally formulated, counsel for the applicant made the following submissions:
It is of no small moment that two adult jurors who have been confined in their deliberations with others for a period of six days felt sufficiently oppressed to bring a complaint like this to the attention of the tipstaff. If such conduct was in fact occurring, including before verdicts were returned which now cannot be known, it is wholly inappropriate, presents a threat to the ability of jurors to discharge their duty according to law and would constitute a basis for the discharge of the jury in order to ensure the trial was conducted according to law.
…
In absence of knowing when the dysfunctional behaviour complained of, commenced, what was occurring and how it might have impacted upon a number of the jury members and in view of jury questions resulting in re-directions on elements 2 and 3 and duress, which make quite clear that they were struggling with their task, there is a real prospect that the verdicts were compromised and that a substantial miscarriage of justice has occurred. For the foregoing reasons the verdict should be set aside.
Counsel cited no authority, and no suggestion as to how the Court might proceed was forthcoming.
The respondent’s counsel in the initial written response submitted that ‘there is simply no evidence that the jury were operating in any way which would be productive of a substantial miscarriage of justice while deliberating on the applicant’s case’. It was submitted that at no stage of deliberations ‘before returning a verdict in the applicant’s case did the jury complain of dysfunction in the jury room, nor did they ever state that they were deadlocked or unable to work cohesively on the task of considering the applicant’s case’. Any difficulty in the jury room arose in the context of considering Sen’s case, and that was addressed by judicial direction. The failure to reach a verdict in Sen’s case ‘leads to the conclusion that whatever the dynamic in the jury when the jury were considering the accused Sen it was not sufficient to change the view of individual jurors and a hung jury resulted’.
Given that neither party in their written cases had referred to any authorities relevant to the resolution of ground 3, the Court held a mention in advance of the hearing (on 22 April 2020) for the purpose of informing the applicant of the difficulties this ground faced and directing the parties’ attention to two cases dealing with juror ‘bullying’ — Bahrami[12] and Divine[13] (both of which apply the High Court’s decision in Smith[14]) — and to two related cases from this Court, Portillo[15] and Briffa and Portillo.[16] Further, the Court drew the parties’ attention to the provisions of s 78 of the Juries Act 2000. The Court then gave directions for the filing of supplementary written submissions responsive to the matters that had been raised.
[12]Bahrami v The Queen (2017) 265 A Crim R 11 (‘Bahrami’).
[13]Divine v Western Australia [2019] WASCA 49 (‘Divine’).
[14]Smith v Western Australia (2014) 250 CLR 473 (‘Smith’).
[15]Re Portillo [1997] 2 VR 723 (‘Portillo’).
[16]R v Briffa and Portillo (Unreported, 21 April 1997, Vic CA) (‘Briffa and Portillo’).
In supplementary written submissions, the applicant’s counsel relied on a number of authorities, including Smith, Webb,[17] Bahrami and Portillo. Counsel submitted that events at trial prior to the return of the two guilty verdicts ‘raise a real suspicion that behaviour in the nature of bullying including by one juror overpowering others, was occurring prior to the return of the two guilty verdicts and that the behaviour might well have influenced the process by which those verdicts were returned’. The applicant’s counsel submitted that the question asked in the afternoon of their fourth day of deliberations — ‘What is the procedure if we the jury cannot reach a unanimous decision?’[18] — ‘flagged apprehension on the part of the jurors about their ability to arrive at a unanimous decision’.
[17]Webb and Hay v The Queen (1994) 181 CLR 41.
[18]See [56] above.
The verdict against the applicant was returned at 12.29 pm on Tuesday, 18 December 2018 (after six days’ deliberation); the jury returned to continue deliberating in relation to Sen from 12.43 pm; and the judge left the bench at 1.04 pm. At 2.56 pm the judge convened the court to relate the jurors conversation with his tipstaff. Counsel for the applicant submitted:[19]
It can be assumed that the luncheon adjournment occurred between 12.43pm when the jury left the Court and 215pm. At least between 1 and 2pm, the jury is unlikely to have engaged in deliberations. Particularly where jurors were not kept together, such as going for a walk. It follows that the complaint made to the tipstaff occurred between 15 minutes and less than 1 hour after the first two verdicts were returned, where it is unlikely that the jury will have continued to deliberate in respect of the outstanding verdict, at all. Accordingly, the Court should have a real suspicion that perceived bullying conduct was occurring in the context of deliberations, prior to the guilty verdicts being returned. Further, the Court should have a real suspicion that such conduct, described as bullying and adopting an overpowering stance might well have infected the deliberations and led to compromise in the verdicts.
[19]Emphasis added.
Further, the applicant’s counsel submitted that the
subjective nature of the juror’s [scil, jurors’] complaint should not result in the complaint being waved away as meaningless or part and parcel of ‘robust discussion’. Jurors are required to perform a vital function within the justice system. Behaviour that is disrespectful, rude, intimidating or abusive, whether or not it amounts to bullying, but which has an impact on free deliberation, can give rise to a serious miscarriage of justice. Conduct of that type, by its very nature, discourages those experiencing it from reporting it.
Finally, counsel for the applicant submitted that
should the Court find that the communication from the jury about conduct in the nature of bullying, raises a real suspicion that the process of deliberation and verdicts reached might have been improperly impacted by that conduct, an investigation in this case would commence. This would include obtaining an affidavit from the trial judge’s tipstaff about the identity of the jurors who made the complaint to the tipstaff. Then, affidavits from those two jurors identified about the nature of the conduct so described to the tipstaff, including when it occurred and their self-assessment of what impact, if any, the conduct had on their inclination to return verdicts of guilt in two out of three of the trials.
In the respondent’s supplementary written submissions, Smith, Webb, Divine, Papazoglou,[20] Briffa and Portillo, Bahrami and Higgins[21] were among the authorities relied upon. The respondent submitted that it is for the applicant to establish that there was relevant misconduct, and that the alleged misconduct was of a kind that might be productive of a substantial miscarriage of justice. In the present case, the respondent submitted, the identified behaviour could not properly be characterised as ‘the type of unlawful pressure and influence that crosses the line between robust debate and unlawful coercion’.
[20]Papazoglou v The Queen (2014) 45 VR 457.
[21]Higgins v The Queen (2018) 275 A Crim R 333.
As we have indicated, both parties sought to rely on Smith to support their respective positions. It provides a convenient starting point for a consideration of the merits of ground 3.
Smith involved convictions for child sex offences in the District Court of Western Australia. After verdict, an anonymous note was found in the jury room in which one juror claimed that another juror had physically coerced the note’s author to change his vote. By virtue s 123 of the Criminal Code (WA) it was an offence for any person to attempt by threat or intimidation to influence any person in his conduct as a juror. The appellant claimed that the trial miscarried ‘due to a juror being physically coerced into changing his verdict to one of guilty’. On appeal to the High Court, it was held that the Court of Appeal (WA) had wrongly dismissed the appellant’s application for an inquiry into the allegation contained in the note.
In Smith the Court acknowledged the long-standing general rule at common law that once a criminal trial has been determined by jury verdict, and the jury discharged, the evidence of a juror (or jurors) as to the jury’s deliberations is not admissible to impugn the verdict.[22] The underlying policy of this exclusionary rule aims to preserve the secrecy of jury deliberations, and to maintain the integrity and finality of a formally expressed verdict.[23] As was made clear by the Court (French CJ, Crennan, Kiefel, Gageler and Keane JJ), however, ‘free and frank deliberation by jurors would not be encouraged or protected by applying the exclusionary rule to a case where the very conduct which a juror seeks to bring to the attention of the court is unlawful harassment by a fellow juror calculated to prevent the conscientious discharge of the juror’s duty’.[24] Physical coercion unlawfully exerted by one juror upon another ‘cannot properly be regarded as a part of the course of free and frank deliberation by the jury’.[25] The Court cautioned that an appellate court should not act precipitately:[26]
[22]See Smith, 476 [1], 477 [10]; Ellis v Deheer [1922] 2 KB 113, 121 (Atkin LJ).
[23]Smith, 481 [30]; R v Minarowska (1995) 83 A Crim R 78, 87; Re Matthews and Ford [1973] VR 199, 209–211; R v Medici (1995) 79 A Crim R 582, 591–3; Nanan v The State [1986] AC 860, 871; R v Pan [2001] 2 SCR 344, 373–5 [49]–[53]; R v Mirza [2004] 1 AC 1118, 1133–4 [13], 1144 [47], 1161–2 [113]–[114].
[24]Smith, 482 [34].
[25]Ibid 482 [36].
[26]Ibid 485 [50]. See also 487 [60].
A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion; but where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation as part of its consideration of whether a miscarriage of justice has occurred.
But the Court went on to observe:[27]
If there is evidence capable of belief which gives rise to reasonable ground for suspicion that one juror has exercised unlawful intimidation over another, then, on the face of things, there has been a serious breach of the presuppositions of the trial. That breach casts a shadow of injustice over the verdict.
[27]Ibid 486 [54].
Ultimately, the Court held that, having regard to the undisputed provenance of the note, the inference was fairly open that it was written by a juror before verdict, and, on that basis, was probative of the state of mind of its author, and of the reason for that state of mind.[28] The juror’s note was capable of creating a reasonable suspicion that criminal conduct influenced the verdict of a juror contrary to s 123 of the Code.[29] An inquiry by the Sheriff under the supervision of the Court of Appeal should therefore have been ordered. The Court observed[30] that the
[28]Ibid 487 [58].
[29]Ibid 487 [61].
[30]Ibid 488 [63].
shadow of injustice cast on the verdict by the note cannot be dismissed on the basis that the note itself and the paucity of evidence of its provenance are insufficient to create a suspicion that, as a matter of fact, the author of the note was overborne in the performance of his duties as a juror. The question is whether it is possible to dispel the shadow of that suspicion.
And the Court added somewhat prophetically:[31]
Any doubt or ambiguity as to the true meaning of the note might be resolved relatively easily by inquiry of the juror who made the note. An inquiry may reveal, either that the ‘physical coercion’ referred to in the note was no more than robust debate, or that whatever pressure was described, it had, in truth, no real effect upon the decision of the juror who wrote the note. It may be, for example, that the juror who wrote the note changed his mind about the verdict — and about sending the note to the judge — after he had written it.
[31]Ibid 488 [65]. Following the inquiry anticipated by the High Court’s decision, the Court of Appeal rejected the juror’s evidence that he was unlawfully and improperly coerced into joining in the verdicts of guilty. See Smith v Western Australia (No 2) (2016) 263 A Crim R 449, 451 [5], 464–5 [348] (Martin CJ); 472 [430] (McLure P); 472 [430], 472–3 [435].
We pause to note that the facts of Smith plainly are very different to those of the present case. In Smith, there was evidence capable of belief, in the form of a note from a juror, which gave rise to reasonable grounds for suspicion that he had been the subject of unlawful physical coercion and intimidation by another juror, in breach of s 123 of the Criminal Code (WA). Hence, on the face of things, there had been a serious breach of the presuppositions of a proper trial.
In Divine, the appellant was convicted by majority verdict of possessing methylamphetamine with intent to sell or supply (count 1), and by unanimous verdict of possessing money that was reasonably suspected to be unlawfully obtained (count 3). She was acquitted by unanimous verdict of a second charge of possessing methylamphetamine with intent to sell or supply (count 2). The appellant challenged her convictions essentially on the ground that matters occurring in the jury room, in the course of the jury’s deliberations, gave rise to a reasonable ground for suspicion that one or more jurors engaged in unlawful intimidation of a juror contrary to s 123 of the Criminal Code (WA), thereby occasioning a miscarriage of justice.
The basic facts of Divine are these. On the day they retired, the jury asked for a redirection on a matter of law, and requested the transcript of the evidence of a witness. The judge responded. Later that day, at 4.27 pm, the judge questioned the jury foreperson to ascertain whether a majority verdict direction should be given. Since the foreperson indicated that the jury had reached a unanimous verdict on at least one of the counts on the indictment and that, given further time, there was a prospect that the jury would be able to reach a unanimous verdict on the remaining count or counts, the judge did not give a majority direction, and the jury again retired at 4.30 pm. A little before 5.45 pm, the jury indicated that they had reached a unanimous verdict on two charges, but could not reach a unanimous decision on a third. The judge then indicated that the court could accept a verdict of at least 10 of the jury, and the jury once more retired. Following retirement, the judge observed that ‘Juror 291’ appeared to be very distressed. At 5.51 pm, the jury delivered a majority verdict on count 1, a unanimous verdict of not guilty on count 2, and a unanimous verdict of guilty on count 3.
About ten days after the verdicts, Juror 291 sent an email the trial judge’s Associate, part of which was in the following terms:[32]
I also feel that I was increasingly bullied and intimidated during the course of the day of deliberations, given I was one of the two jurors who did not agree with the eventual majority verdict of guilt on the first charge. This intimidation reached the point where I became so distressed I was shaking and crying, and so I shut down and stopped contributing to discussions. I am very concerned that the pressures I felt from the sustained and increasing intensity of bullying resulted in my [sic] physically and emotionally unable to continue effectively in the process of deliberations. I am concerned this means I therefore failed to properly execute my role of juror adequately, as I was not able to continue to advocate my viewpoint in the hope that I might be able to persuade another juror.
[32]Divine, [11].
The Court of Appeal determined that the contents of the email provided a sufficient foundation to commence an inquiry. In broad summary, the Court’s orders provided for the Sheriff to appoint a lawyer to assist in the investigation of matters relating to the juror’s email, and for the lawyer to obtain an affidavit from the juror, setting out in full the circumstances of the alleged bullying and intimidation referred to in the juror's email. As a result, an affidavit was obtained from Juror 291, and she gave oral evidence. Having repeated the cautionary observation from Smith earlier referred to,[33] the Court (Buss P, Mazza and Beech JJA) said:[34]
In our view, for the reasons that follow, Juror 291’s evidence as a whole does not reveal anything more than robust, and at times heated, debate, and does not give rise to a reasonable ground for suspicion that one or more jurors may have committed an offence under s 123.
As we have explained, for present purposes the question is whether the evidence gives rise to a reasonable ground for suspicion that one or more jurors used threats or intimidation in an attempt to influence Juror 291 in her conduct as a juror. Thus, the question is not whether optimal standards of civility were maintained at all times in the course of the jury’s deliberations. The task of jurors may often be challenging in many respects, including intellectually, emotionally and personally. Among the challenges are those arising from the process of discussion and debate between 12 unconnected persons with a view to reaching unanimity on a question or questions of importance. In that framework, it cannot be expected that discussion will always be conducted in a polite and civil manner. From time to time, feelings of frustration, or of experiencing significant interpersonal pressure, may be expected. Jurors may be rude, or even offensive, as occurs from time to time in many spheres of life. None of that means any criminal offence has been committed, and none of it is conduct lying outside the exclusionary rule.
[33]See [73] above.
[34]Divine, [48]–[49].
Once more, the facts in Divine are very different from those in the present case. The relevant juror in Divine suggested that she had directly been bullied and intimidated during the course of deliberations, the intimidation reaching the point that she became so distressed that she was shaking and crying. She claimed that the pressures she felt from the ‘sustained and increasing intensity of bullying’ effectively resulted in her being physically and emotionally unable to continue the process of deliberations. It was in those circumstances that the Court of Appeal (WA) ordered the conduct of an inquiry into the juror’s allegations.
As we have said, the applicant’s counsel submitted that events prior to the guilty verdicts raise a real suspicion that ‘bullying’ — including by one juror ‘overpowering’ others — was occurring prior to the guilty verdicts and that the behaviour ‘might well have influenced the process by which those verdicts were returned’.
That submission cannot be accepted. In our view, putting the applicant’s case at its absolute highest, there is no evidence that would raise a reasonable suspicion that, in the course of the jury’s deliberations towards verdict in the applicant’s case, any juror was actually the subject of conduct that might be characterised as ‘bullying’, let alone that any juror was overpowered by another.
It is important to recognise that, upon the assumption that the tipstaff’s report to the judge of what the two jurors had said was an accurate one, and that the judge had accurately recounted what the tipstaff had told him (matters about which we have no reason to feel doubt), the two jurors did not tell the tipstaff that they had in fact been bullied, but simply that they ‘feel’ bullied (whatever their use of that expression was meant to convey). Equally importantly, the two jurors said no more than that there is one person in the jury who is ‘very overpowering’ — an apparent reference to that person’s demeanour and personality — and does not listen to what they have to say. They did not suggest, however, that they were in fact overpowered, or that the particular juror’s failure to listen to them was in any practical way impeding the jury’s deliberations as a body. Significantly, the two jurors did not suggest that they had felt bullied in their consideration of the applicant’s case, or that their feelings of being bullied had influenced them to join in a unanimous verdict in the applicant’s case in which they did not agree.
It will be remembered in that regard that, at 12.29 pm on Tuesday, 18 December 2018, the judge informed counsel of the jury’s note, in which they said that ‘despite [their] best efforts with countless different approaches and discussions [they were] unable to reach a unanimous decision on one of the accused’. With the benefit of now knowing what occurred shortly thereafter, the contents of the note seem to demonstrate that the jury had reached verdicts against the applicant and Connelly, but — despite their best efforts and countless different approaches — could not reach a verdict in the case of Sen. Thus, rather than suggesting dysfunction, taken at face value, the contents of the note bespeaks jurors conscientiously applying themselves to the difficult task of decision.
Further, at no point prior to verdicts being delivered in the applicant’s case had the jury — through the foreman or through individual jurors — given any indication that there may have been something amiss in the jury room. We do not ignore the fact that on Thursday, 13 December 2018, the judge received a note asking the procedure if they could not reach a unanimous decision — thereby prompting the judge to give a Black direction — but there is nothing remarkable in that. Juries frequently make that kind of inquiry of a judge, without that signifying that there is anything improper occurring. Moreover, the judge gave a perseverance direction, which was in conformity with Black. It is unnecessary to set it out in full, but the trial judge reminded the jury that each had sworn an oath or affirmation to give a true verdict according to the evidence, and told them that
you’re expected to judge the evidence fairly and honestly in that light. But you also have a duty to listen carefully, and to do with an open mind to the views of every other juror. You should calmly … weigh up each other’s opinions about the evidence and test them. Test them by discussion.
Absent cogent evidence to the contrary, it must be assumed that the jury will have heeded and applied the judge’s directions.
Although one might (at least for the sake of argument) accept the submission of the applicant’s counsel that behaviour ‘that is disrespectful, rude, intimidating or abusive, whether or not it amounts to bullying, but which has an impact on free deliberation, can give rise to a serious miscarriage of justice’, as we have endeavoured to demonstrate, there simply is no material in the present case capable of raising a real suspicion that there had in fact been any behaviour by a juror which potentially had an impact on free deliberation in the applicant’s case. For a juror to assert that he or she felt bullied, and that another juror was overpowering, falls well short of raising a reasonable suspicion that there was any unlawful or improper behaviour, coercion or intimidation, that resulted in the particular juror joining in a verdict in which he or she did not truly agree. Although there is a line ‘between robust debate and unlawful coercion’,[35] the line is not concerned with the subjective feelings of jurors. Rather, it is concerned with the existence of objectively established unlawful or improper behaviour by a juror (or jurors) towards another (or others).[36]
[35]Smith, 485 [50].
[36]See Higgins, 346 [65] (Schmidt J). See also Smith, 485 [50]–[55].
There is no adequate basis upon which the Court could take the extraordinary (although not unprecedented) step of ordering an inquiry into any matter arising from the statements made by the two jurors to the trial judge’s tipstaff.
Ground 3 cannot be upheld.
Conclusion
The application for leave to appeal against conviction must be refused.
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