Smith v The Queen
[2015] HCATrans 143
[2015] HCATrans 143
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B18 of 2015
B e t w e e n -
LESLIE GLYN SMITH
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
KIEFEL J
BELL J
GAGELER J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 12 JUNE 2015, AT 10.00 AM
Copyright in the High Court of Australia
MR A. BOE: If your Honours please, I appear with MS P. MORREAU and MS S. McGEE, for the appellant. (instructed by Biggs Fitzgerald Pike Solicitors)
MR A.W. MOYNIHAN, QC: If the Court pleases, I appear with MS S.J. HEDGE, for the respondent. (instructed by Director of Public Prosecutions (Qld))
FRENCH CJ: Yes, Mr Boe.
MR BOE: Your Honours, we have circulated an outline of oral submissions. Would the Court like some time to read it?
FRENCH CJ: Well, let us deal first of all with this proposed amendment. What do you want to say about that? We have read your written submissions in relation to it, but why should we add that ground of appeal?
MR BOE: Our primary position is that leave is not absolutely necessary. We wish to make the three contentions that we have set out in the submissions. We were concerned, however, that the Court might think that it is necessary to have an appeal ground to reflect those contentions. We raise those matters, really, in response to the submission made by the respondent concerning whether or not there is a miscarriage of justice having regard to the way in which trial counsel dealt with matters before the trial judge. That is our position insofar as what we would like to do in terms of the contentions. If we need to obtain leave, we seek it in terms of the written submissions.
FRENCH CJ: Do you say that the matters that you want to agitate are encompassed within the existing ground of appeal in any event? Is that right?
MR BOE: Yes, your Honour.
FRENCH CJ: We will not allow you to amend the notice of appeal. The question whether the matters you wish to argue are relevant or not to the existing ground of appeal is a matter which no doubt can be debated between counsel.
MR BOE: Yes, your Honour.
FRENCH CJ: Please proceed.
MR BOE: Can I just deal with another preliminary matter in terms of material? Insofar as the jury notes that are in the appeal book, one is not, but it is in fact the 4.20 pm note. A copy of it was in fact in the appeal book in the Court of Appeal with the precise numbers redacted, but with the other information in the note still in it. We wish to refer to it and we have advised the respondent of that. Our initial concern about not circulating it earlier is whether or not the Court might be concerned that our disclosing it to the Court could be a breach of the Act in any respect. We would say it does not, for the reasons we have argued in the primary submissions, but we thought we should raise that concern before we ask the Court to actually take possession of a copy of it.
GAGELER J: We have other jury notes in the appeal book.
MR BOE: Yes, your Honour.
GAGELER J: So what is the particular problem with this jury note?
MR BOE: I do not know why it was not included in the application book. There may have been a concern raised given that the original of this document in the full form is in a sealed envelope with an order from the trial judge not to be opened other than by order of the court.
FRENCH CJ: What is your view, Mr Moynihan?
MR MOYNIHAN: Provided there is an order of a court to look at it, then there is no difficulty. I understand this Court has the actual note. It could look at that.
FRENCH CJ: Yes.
BELL J: The note that you propose to hand up is a copy of the redacted jury note sent at 4.20. Is that so?
MR BOE: Yes, your Honour.
BELL J: That was before the Court of Appeal?
MR BOE: Yes, it was.
FRENCH CJ: We will see that.
MR BOE: Thank you, your Honour. Your Honours, there are three issues presented in the appeal. Firstly, the constraints, if any, on the jury in a criminal trial from disclosing jury information to the trial judge. Secondly, the use of this information once disclosed in the trial. Thirdly, the requirements of procedural fairness in the event of such a disclosure. Our primary contention is that the issues are mostly, if not all, resolved by a proper construction of the Jury Act provisions that are in play, and once that is done, to consider what, if any, of the competing public policy considerations are to be taken into account and how they are to be taken into account. Between the parties there does not seem to be great dispute of what those policy considerations are, and I propose only to briefly refer to that later in the submissions. Insofar as the facts in the case, the critical ones have all been set out, but it may be productive if I took your Honours to application book 65 and walked through our contentions as to what is material at this point.
FRENCH CJ: I suppose a question of some significance in this case, and no doubt you will be taking us to the statute in that connection, is the relevance of the so‑called “voting pattern” because, in a sense, the straw votes that a jury might take in the course of their deliberations, or the expressions of opinion that might be offered around the table have no statutory significance. The only thing that, as it were, manifests in an outcome of statutory significance is a vote which gives rise to a verdict. The question then becomes, what is the relevance of evidence of deliberations or particular voting patterns to the decision that the judge has to make, with which you are concerned, that is, whether to discharge under 60 or ask for a majority verdict.
MR BOE: We will deal with that, your Honour. Our preliminary submission is that the bare votes may not of themselves be contemplated as being used in the making of decisions under the Act but the context in which those numbers are given to the trial judge may become relevant and that is why the context within which, including the time at which those matters are disclosed, becomes important, in our submission. We will develop that later if we can, your Honour.
Firstly, if your Honours start at appeal book 65 around line 10 there is the indication from his Honour as to what the note says and the indication that it would not be published any further by his Honour. There is no opposition to that course by either the prosecutor or myself as trial counsel. As one goes to application book 66 around line 15 and follows through right through to application book 67, as we have explained in our note seeking leave, there is, at least, some doubt about what, in fact, his Honour was doing at that stage.
We would submit that it is open to find that his Honour had found that the first precondition in section 59A, which I will take the Court to in a minute, had been met, that is the effluxion of time of eight hours. The critical question is whether or not his Honour had satisfied himself as to the second question in the section and our submission is it is open to read those passages to conclude that his Honour was still uncertain, such that his Honour was proposing to give the jury some information and ask them a question about whether or not it would resolve the situation.
We accept that there is a reasonable argument contrary to that submission, that in fact his Honour in fact did give a form of direction asking the jury to return a majority verdict but as we have said in paragraphs 5, 6, and 7 of the leave submissions filed yesterday, in our submission it is open to find that in fact that had not been done and if it had been purported to be done, it had not been done adequately.
GAGELER J: What did the Court of Criminal Appeal say about that?
MR BOE: This issue was never raised in the Court of Appeal by myself. It is not part of any appeal ground. Sorry, there was an appeal ground to this effect, but these contentions were not raised and the appeal ground that might have covered this ground was only argued in terms of procedural fairness.
GAGELER J: But the Court of Criminal Appeal proceeded on the factual basis that the judge had made an order and had exercised his discretion.
MR BOE: Yes. It is most apparent in Justice Holmes’ recital of events at paragraphs [57] to [59].
GAGELER J: So, what do you want us to do?
MR BOE: To, with respect, understand as to what his Honour was doing in relation to the note and see what in fact the acquiescence by trial counsel was in response to the argument that the conduct of trial counsel means that there is no miscarriage. That is all I need to say at this point.
BELL J: I do not know that I understand that. You say you want the Court to understand what was happening, as is recorded at the transcript on appeal book 67, and that is with a view to persuading us that, correctly understood, the judge did not at any point make a determination under the Act directing the jury that it may now return a majority verdict. Is that the submission?
MR BOE: Yes, whether it is directing the jury, or in terms of the section, asking the jury that they could return a majority verdict.
BELL J: Yes. It is not a question of, as it were, the understanding of this Court. It is a question of taking a point that was not taken below, surely?
MR BOE: It is, yes, your Honour. The other issue, perhaps, that comes from what is said in open court and what is in the note, the copy of which I just handed up, is to what extent the contents of the note were disclosed and what part was not. It would seem, in my submission, that the note, as I hand it up, still does in fact include jury information in that it is information about the votes cast. What is before the Court now does not include the precise numbers, but it does include jury information within the terms of the statute. It was not precisely communicated to counsel in terms of explaining that there had been two sets of votes taken by the jury, and presumably knowledge of the numbers at each stage indicated a movement of some kind that the jury was communicating to the judge.
FRENCH CJ: Just before we leave 67 – I am probably a bit slow here – but at line 25, his Honour said:
All right. Well, I’ll get you to retire again then, thanks. And as I say, it’s got to be 11:1 and there’s an actual procedure in taking the verdict.
Is there any doubt that that was a direction to the jury that they could bring back a majority verdict?
MR BOE: Your Honour, there are two parts to it. I would accept that what your Honour has read out summarises ‑ ‑ ‑
FRENCH CJ: Well, I was reading the actual words.
MR BOE: Sorry, I meant to say summarises what might be said – what your Honour read out stated what his Honour summarised as to be the requirements of section 59A. But what it did not do in the lead‑up to it, or in that passage, was express his Honour’s satisfaction as to the second statutory precondition, and nor did it reveal that the information available to her Honour reached that satisfaction, and thirdly, in directing the jury at that stage, there was not a complete direction in terms of what should ordinarily be said to the jury at the time of asking them to return a majority verdict.
GORDON J: Can we unpack that? What is it you would expect the trial judge to do?
MR BOE: One, to ensure that the jury appreciate that there is a desirability, even at that stage, to reach unanimity if at all possible, but that they were permitted – that his Honour was permitted to accept a majority verdict from them. That was not done. It may not be of great weight, but the ordinary Bench book direction includes that requirement in it.
FRENCH CJ: Well, the Bench book direction does not have any statutory force, does it?
MR BOE: No, it does not.
KIEFEL J: This was the second note that the trial judge had received, saying that they were deadlocked.
MR BOE: Yes.
GAGELER J: What does this have to do with your existing grounds of appeal?
MR BOE: It provides a complete factual basis for our complaint that the totality of the jury note should have been given to trial counsel.
GAGELER J: It is on a factual on which the court from which the appeal with which we are concerned was based.
MR BOE: That is true. If I can leave that and take your Honours to the statutory provisions, they are next to the written submissions of the appellant. Subsections (2), (3) and (4) are the provisions which prohibit conduct concerning jury information. They are said to be subject to a number of provisions following from (6) through to (16). However, it seems that only subsection (6) is relevant to the issue raised in this appeal. Our submission is that, whilst the note clearly contained jury information, the provision of it in the manner in which it was done does not amount to any offence. I do not think that is disputed by the respondent.
GAGELER J: What about section 50?
MR BOE: Section 50 is an obligation:
not to disclose anything about the jury’s deliberations except as allowed or required by law.
In our submission, the fact that his Honour, when charging the jury and asking them to retire to consider their verdict, told them that they could ask for directions in writing - and we say that is what allowed them to do what they did in terms of putting matters into a note - that is amplified in our written submission, paragraph 17. In our submission we say that the trial judge allowed them, indeed encouraged them to write any questions or further directions needed down and did not warn them in any way or qualify that request in any way about what not to include in the note.
The critical subsection in terms of the issue of disclosure is of course the meaning of subsection (6). The respondent seems to accept that what happened did not amount to a breach of subsection (2), but in terms of subsection (4), the submission made against us is that by the time the note was given there had been two earlier notes provided to the judge, and the jury’s awareness of how those notes had been handled – namely, read out in court – was such that they had reason to believe that the note, the 4.20 note, was likely to be published to the public.
In our submission, firstly, that factual premise should not be accepted. The matters that we ask the Court to consider in responding to or considering that submission is that one matter not included in the respondent’s submission is that the jury were also told firstly that one of the purposes of putting it into a note was for the court to consider what to do with it before they came back in. In fact, that did happen, to their knowledge, because the note is given and they were aware that matters were occurring considering any matters they raised with them, in their absence.
FRENCH CJ: Can I just understand this. The primary aspect of your ground of appeal, set out in 2a, is that:
The Court of Appeal erred in concluding that:
a.The voting information in the jury’s note to the trial judge was neither relevant nor capable of influencing the trial judge’s exercise of discretion to permit a majority verdict.
Now, if you fail on that element, you cannot succeed on any other aspect of the ground, can you?
MR BOE: No, but what informs relevance might include whether or not the conduct was prohibited under section 70. The submissions from the respondent in supporting Justice Holmes’ treatment of the matter was that because part of it was it was not a matter which should have been disclosed. In our submission, it is necessary to look at whether or not section 70 actually prohibits its disclosure or not first.
BELL J: Justice Holmes did not – as I read her Honour’s reasons – proceed upon a view that the members of the jury committed an offence under section 70 by the note, but rather to view section 70 in the context of the statutory scheme as supporting a conclusion that the information respecting voting patterns was not relevant to the exercise of the section 59A discretion.
MR BOE: We accept that, your Honour. But, the respondent goes further, and contends that there is a breach of subsection (4). Hence why I go to that question and see whether or not, in our submission, if the respondent is right about that, that gives further force to the submission as to lack of relevance. In our submission, properly viewed, it did not amount to a breach of that provision.
KIEFEL J: The other matter that her Honour seemed to take from the Act itself was that it was part of the purpose of the Act that this information remained confidential.
MR BOE: Yes.
KIEFEL J: And that that should inform the trial judge’s decision.
MR BOE: Yes, yes. But all of that, in our respectful submission, still has to be informed of what the statute actually prohibits and permits.
KIEFEL J: But you do not need to go that far. If you can discern the purpose that this information remained confidential, you do not need to go so far as to say that there is an actual prohibition. That is sufficient, is it not, to inform a trial judge’s exercise of discretion?
MR BOE: We would say, yes, of course, it is. Our position is better if the Act does not do what the respondent contends that it does but I am happy to leave what we have ‑ ‑ ‑
FRENCH CJ: Sorry, breach or no breach? How does the voting pattern inform the trial judge’s discretion to determine whether or not to ask the jury for a majority verdict?
MR BOE: I will go immediately to that, your Honour.
FRENCH CJ: That seems to me to be the core question.
MR BOE: Yes, your Honour. It is covered mostly in our reply submissions in paragraphs 15 and following through to 20. First and foremost, rightly or wrongly, we sought to depart from the way in which her Honour Justice Holmes used the words “relevance” and “capacity to influence” to go towards issues of permitted use and the circumstances in which use could occur.
Now, I am happy to leave that all aside to what has been put in writing but, in our submission, there is a possibility for confusion, certainly by me, as to when we are talking about relevance of being by reference to the administrative law concept of relevant factors in the exercise of discretion. In our submission, that analogy only works so far when something happens that is not anticipated in the course of the trial.
KIEFEL J: But voting patterns – what one gets from the mere fact of voting numbers and, as you say, patterns if there was more than one vote would be pure speculation because one cannot know the dynamics in a jury room about what factor or factors are affecting the jury’s approach, individual jury members, because they are coming to the matter differently, perhaps. There might be one person in the room and that is probably what the statute for a majority verdict is directed to, the one person who is affecting this. When the chance of a majority verdict is then given, the dynamic can probably shift again so having the numbers tells you almost nothing without knowing all of that context.
MR BOE: Yes, your Honour. Having the numbers per se may only do that, but in our submission it is necessary to look at what happens in the course of the deliberations as is published to the parties up to the point of these numbers being given. In this case, we have a situation where the jury had sought within a short period of time as to the meaning of “reasonable doubt”. After that, they communicated a deadlock sufficient to warrant a Black direction. After that they said they were still deadlocked and they thought it necessary to communicate their voting pattern presumably with a request for a further direction as to what they should do.
In our submission, at that point, the vote is cast or the voting pattern becomes entwined with the course of deliberations in a way in which two matters can still be obtained from them. One is whether or not it is likely that the jury could reach a unanimous verdict and secondly ‑ ‑ ‑
KIEFEL J: But is that not best answered by what the speaker tells the trial judge because it is the speaker who knows all that has occurred in the jury room. The trial judge is given such little information it could not possibly determine that. The trial judge is necessarily rather dependent upon what the speaker tells him or her.
MR BOE: That is true, with respect, your Honour - I did not mean to cut you off. It is true but the speaker in this case is handing over a note with the numbers and an explanation surrounding it and that is why ‑ ‑ ‑
KIEFEL J: But it is nevertheless then afterwards telling the trial judge that half an hour might be sufficient ‑ ‑ ‑
MR BOE: Well, I know that ‑ ‑ ‑
KIEFEL J: ‑ ‑ ‑ because that could be quite persuasive to a trial judge. It tells you quite a lot. It tells you a lot more ‑ ‑ ‑
MR BOE: Your Honour, just on that ‑ ‑ ‑
KIEFEL J: ‑ ‑ ‑ than numbers.
MR BOE: Justice Holmes said that even though the words that follow at the end are not transcribed, that her Honour thought that it was likely to suggest that a verdict could be reached within that period, at appeal book 97, paragraph [58], where the words are recorded - at line 22 - and the fact that the balance of what the speaker said was indistinct. In our submission, that is not the only thing that the speaker may have said because the nature of the questions leading up to that could have been interpreted by him or her, I just do not recall, to whether more time would assist them and it may have been that the speaker was saying you could probably give us about half an hour and we can tell your Honour whether or not it is productive to continue deliberating. It is not only what Justice Holmes suggested that that response indicated.
BELL J: What are the features that you identify as bearing relevantly on the exercise of the discretion under 59A(2) to ask the jury to reach a majority verdict?
MR BOE: Well, your Honour, first and foremost, it would be determined by what the numbers were. Just say the numbers were 6:6. It may ‑ ‑ ‑
BELL J: But, Mr Boe, I think we are on common ground in that it would not be usual to expect that the judge would know what the numbers are.
MR BOE: Yes.
BELL J: My question is directed to the considerations that properly bear on the exercise of the discretion, putting to one side for the moment whether the judge happens to have a disclosure made respecting voting numbers.
MR BOE: I now understand your Honour’s question. In that situation, it could not be argued that one needs to know the numbers to be able to make a submission concerning that consideration in section 59A. I have to accept that. The Act does not contemplate knowledge of the numbers to ordinarily exercise the discretion.
BELL J: But on what basis does the judge exercise the discretion?
MR BOE: That is a little opaque in terms of the section. Subsection (2) speaks about likelihood of reaching a unanimous verdict, and that involves determining the duration that is needed to get to that point. The further discretion of “whether or not to” is not circumscribed in the statute, so one would think that it is a very wide discretion of matters that a trial judge could contemplate. It could be informed by the trial judge’s view about the complexity of the trial. It could be informed by any particular events that occurred in the trial process, it being a very fluid exercise and usually unique in terms of how a criminal trial unfolds.
That is a point of, with respect, some importance for us, that a criminal trial takes a wayward path to the end result, and it can be disturbed in many ways by events that occur in the atmosphere of the trial, and bearing in mind that the purpose of unanimity was historically, prior to statute, to achieve reasonable doubt or disturb reasonable doubt or determine whether or not there is reasonable doubt, we have to accept that the statute has now confined or restricted the usage of that premise in terms of the statute now permitting a verdict in respect of which one person who has heard all the evidence disagrees with the other 11.
So whilst it is weakened, the concept is not removed. In our submission, that is why there is a wide discretion, why, even though the two conditions precedent having been met, there remains a residual discretion to determine in the circumstances of this case whether or not the majority verdict should be permitted.
Now, that is why we say that it is hard to divorce what happens irregularly from what should ordinarily be done in the exercise of discretion under section 59A and why, co‑existent with that exercise of discretion, is a discretion to discharge the jury at any time because of its agreement. In our respectful submission, once you put the point in time in which this particular note came to bear, the trial judge had four effective discretions to be exercised. It would be wrong simply to look at “did this note inform the due exercise of the section 59A discretion?” In our submission, the proper question to be asked is, given what the trial judge could do at that point in time, namely these four alternatives – discharge, majority, continue to deliberate, and there is a fourth in our submission of which I will be reminded, but they are set out in the submissions – then does knowledge of the votes cast per se, or does the fact that the trial judge knows those votes cast and nobody else does, inform the discretion of what to do. The “may” in subsection (2) would include taking into account the point in time in the trial that this is happening, past the Black direction, et cetera.
BELL J: In this trial at the time the judge came to give the request to the jury respecting the return of a majority verdict, the prescribed period had passed, so that the judge was required to consider whether it was unlikely that the jury would reach a unanimous verdict.
MR BOE: Yes.
BELL J: The judge was informed, as were the parties, that following the expiration of the prescribed period in a trial that had been of relatively short duration and that did not involve issues of particular complexity, the jury were still not in total agreement. How did knowledge of the precise numbers affect the determination of whether to exercise the discretion under 59A(2)? Perhaps putting it another way, Mr Boe, what considerations based upon the numbers would have made it appropriate for the judge to determine not to exercise the discretion that his Honour exercised?
MR BOE: Your Honour, the words in subsection (2) of “is unlikely to reach a unanimous verdict” could well be informed by what information was in any communication as to the movement that may have occurred in the deliberations at a particular point in time. So true it is ‑ ‑ ‑
BELL J: How could that be without inquiry of the jury about the detail of their deliberations? Simply knowing that the jury at one point had had a straw poll and had produced a certain voting pattern and at a later point another straw poll had produced another voting pattern, how could ‑ ‑ ‑
MR BOE: It could not be a precise source of information but ‑ ‑ ‑
FRENCH CJ: Well, what more information do you get from that than you get from the first sentence in the note, “The jury is still not in total agreeance”?
MR BOE: But that is not all of what the note said.
FRENCH CJ: I know, I am just wondering what the rest of it adds in any real sense.
MR BOE: It adds without all the necessary detail that Justice Bell posited – but it does add that there was a change when “formal” votes had been taken of the jury.
FRENCH CJ: Well, the word “formal” vote has no particular significance, does it?
MR BOE: It does not, but it is laypersons communicating with the judge.
FRENCH CJ: Yes, I understand that, but from a statutory point of view it does not have any ‑ ‑ ‑
MR BOE: It does not, but that is, with respect, why we are embracing the – having to make the submission that it is not just the pure votes cast that could inform the discretion; it is the context in the sequence of events leading up to that point and the point in time in the trial that might, and that is why in many respects the discretion is probably very case‑specific. In many trials it may be that the votes cast being informed to the trial judge could not inform the discretion. In our submission, it is difficult to exclude the possibility that the way in which votes case are provided could not affect the exercise of the discretion in 59(2).
It may go to only matters of degree and weight, and we have sought to amplify or answer the proposition your Honour raised in our reply submissions at paragraph 19. That is why, for example, if the numbers were 10:2 – with respect, that is terribly close, or closer, to a particular verdict than say 7:5 or 6:6, and they are matters of degree, I accept that, but they do inform ‑ ‑ ‑
BELL J: Mr Boe, does not that submission depend upon a view that the voting pattern carries with it the notion of entrenchment. It may well be that where the jury on a straw poll divides 10:2, the two who are in the minority position do not hold that position firmly, or that they do. Where there is a greater degree of division, the position may be held by those in the majority more or less firmly. It is the impression that the speaker gives in answer to the question – Mr or Madam Speaker, do you believe, if given further time, you would be able to reach a unanimous verdict or, alternatively, do you believe if given greater time you would be able to reach a majority verdict that surely informs the judge’s exercise of the discretions under 59A and 60, and not some speculation about what the numbers might mean.
GORDON J: Could I add one fact to that – the additional response of the other jurors to the speaker’s answer to those two questions. They themselves can be telling.
MR BOE: They could be, and if that inquiry was made in the abstract, there is probably not much that I could say in response, but this inquiry that was being made was after the jury knew that the judge knew what their numbers were at that point in time when they were saying they were deadlocked. So, it adds a different colour to the question. That is, we are in a situation where they were not asked to give any numbers or to give their current numbers. They came and approached the court and said, we need direction because we are deadlocked, this is the state of our deadlock, and the judge is at that point considering what to do at that point in the trial.
FRENCH CJ: Can I test it this way? Just go the 70(6), supposing the speaker says to the judge, we are having – we are not in agreement. We are divided and so that is all that the speaker says. Could the judge then, on the basis that it was necessary for the proper performance of the jury’s functions that he know, or she know, seek information about the voting pattern?
MR BOE: Some of the cases say clearly no, and that it would be irregular to do that.
FRENCH CJ: Does that not tell you something about the statutory framework within which relevance is to be determined?
MR BOE: Absolutely, your Honour. I have not been clear enough to concede that the statutory framework does not ordinarily contemplate numbers being known. I have to accept that, and I would never ‑ ‑ ‑
FRENCH CJ: And that is within the framework of the words:
the extent necessary for the proper performance of the jury’s functions.
That does allow a relevance judgment to be made, but you concede that the relevance judgment which can be made under subsection (6) does not incorporate or allow a disclosure of voting patterns.
MR BOE: Your Honour, there is a fine point of distinction here and I am going to try to explain it. It is a matter that can cause quite a lot of difficulty given what I have conceded before on this issue. If the question is does the statute contemplate knowledge of numbers for the due exercise of the discretion in section 59A or, indeed, any other discretion in the Act, I have to answer no. Could there be a circumstance during the course of a trial where the trial judge seeks to obtain information from the jury for the proper performance of the jury’s functions to include the numbers, possibly. The possibilities have to be by reference to what may have happened in the circumstances leading to that point. There could be by reference to things that had been said by the jurors to the judge to that point, referable to disagreement. It could be by reference to questions about what is comprised in a majority verdict or things like that. There are – I am never, with respect, going to submit that it could not be sought that the Act does not contemplate that it ordinarily would be sought.
FRENCH CJ: The question on a majority verdict, of course, is, is it not, is that the verdict of at least 11 of you?
MR BOE: Yes, meaning it could be 12, your Honour.
FRENCH CJ: Yes.
MR BOE: Well, they are ordinarily asked whether or not they are unanimous in their verdict and they are firstly asked that, and they would ordinarily answer no to that, and then they would be asked, is 11, so maybe the language of ‑ ‑ ‑
FRENCH CJ: I have got a recollection of there used to be a 10:2 majority verdict in Western Australia and that used to be the form of the question I think.
MR BOE: I am told by Ms Morreau that there is an explanation ordinarily done where – the course of things that they will be asked and I think that did happen briefly in record 67. They are being told – there is an active procedure in taking the verdict, although he does not then explain it. The procedure does get followed at application book 77 and they are asked at line 16:
Speaker, have the members of the jury reached a unanimous verdict?
The answer is “no”. Then, the next question asked:
Speaker, have the members of the jury reached a verdict on which 11 are agreed?
As distinct to what your Honour just put to me. At the risk of covering ground that your Honour Justice Kiefel thought maybe I did not need to do, could I just talk about the fact that subsection (6) has been unpacked differently by both sides. In our submission, in order to give a harmonious result in construing the entire provision requires it necessary to focus on the fact that the section talks about “to the extent necessary” and those words being facilitative of “for the proper performance of the jury’s functions”. Her Honour, Justice Holmes at paragraph 83 when dealing with the way in which the Act should unfold ‑ ‑ ‑
FRENCH CJ: This is page?
MR BOE: Page 104, your Honour – uses the phrase in italics:
it cannot be said that the disclosure is necessary for –
whereas, in our submission, the section is to the extent necessary for the proper performance of a jury’s functions. Her Honour then focuses on the section 59A discretion only as being the focus of attention on whether or not this information was necessary by reference to the finding that it was not relevant. In our submission, that is not the way in which that section should be construed, particularly bearing in mind that we are talking about an exception to an offence provision said arguably to be committed by lay people in turn to what they are doing in asking for directions from the judge.
Again, it may not be still a live question, but we do submit that the judicial consideration of the difference between 11:1 and 10:2 is, with great respect, not convincing in terms of the way in which that is developed in the jurisprudence in Victoria and the way in which it has been adopted or rejected by Justice Holmes in Queensland.
On one hand, the respondent contends that the disclosure is prohibited, but on the other hand submits that a common law exemption should apply if the numbers are 11:1. In our submission, that is not reconcilable as a proposition and should not be accepted. Secondly, the reasoning in MJR as to why 11:1 made a difference in our submission could equally apply to a situation where there is 10:2 in matters of degree only, in terms of the perceptions of justice, et cetera, that are covered in our reply submissions at paragraph 21.
BELL J: The reason identified in MJR for the asserted need to disclose an 11:1 voting pattern was said to be the perception that the trial judge could not dispassionately exercise the discretion to direct as to a majority verdict, in circumstances in which the trial judge knew, but the parties did not, that on a straw poll there was an 11:1 division in the jury. That is the point of distinction, as I apprehend it, between the 11:1 voting pattern and any other voting pattern.
Justice Weinberg in the case of Nguyen suggested it was rather difficult to imagine circumstances in which following a properly conducted trial a judge aware, as in that case, all who were present in the court were aware that the jury were divided 11:1, might nonetheless determine not to exercise the discretion to direct that a majority verdict might be returned.
One might think there was some force to his Honour’s observation in that respect. I raise the matter because, Mr Boe, it may be that you are right and that there is not a principled distinction between knowledge that the split is 11:1 and knowledge that the split is some other combination. But that would not necessarily lead to a conclusion that there was a relevant denial or procedural fairness or other irregularity in not disclosing the numbers.
MR BOE: We accept that, your Honour, and there is an Achilles heel in advancing the submission that we made on that proposition. It was more to the point that there has to be a principled approach to discerning what to do when votes cast are provided, and the way in which the cases have considered it, with respect, do not have a convincing argument on that point, and I accept that. That is why, perhaps feebly, I have to fall back on the proposition that it is not just the numbers, but the context in which that happens.
That is why there has to be a discretion that is not following a checklist because what happens in a criminal trial generally and possibly in relation to the disclosure of jury information is wide and varied. There should not be a principle taken nor an approach taken that it could never be able to be used to inform the exercise of discretion, namely, all the discretions that need to be exercised at that particular point in the criminal trial.
It may be, for example, that if the numbers are made available, albeit irregularly, that the trial judge thinks that I do nothing and not exercise the discretion to discharge, not exercise the discretion to ask the majority verdict and simply allow them to continue to deliberate and that, as your Honours would have picked up in the material, has happened on occasions with the argument that there were no further statutory discretions needing to be exercised at that point.
But it is doing something about it. It is doing something about the numbers by allowing them to continue to deliberate. Short of, for example, just say the numbers were pointing clearly to a conviction and there being a discretion to discharge and that discretion is not exercised, because the numbers indicate that they are going to get there at some point, without any further intervention pursuant to the statute or otherwise.
BELL J: In one of the Victorian cases, the jury indicated that they were unanimous on one count and having difficulty on other counts. Subsequently, the jury resiled from unanimity on the count upon which they had earlier agreed.
MR BOE: Yes. Is your Honour talking about ‑ ‑ ‑
BELL J: All your submissions, Mr Boe, continue to focus on the idea that there is something to be drawn from a straw poll – you speak of entrenched positions and the like – and that just seems a difficult position to make good.
MR BOE: Sorry, your Honour. A poll at a particular point in time may not be a reliable piece of information but it is information that the ordinary mind will take into account. We have raised it in the submissions and it is unattractive at one level and I concede that immediately. The trial judge may form a view on the facts in the case, given that the trial judge has a duty to pay attention to the facts in the case, that is at risk of not being implemented by the jury because, just say, the trial judge has considerable doubt about the witness which is critical to conviction but it is moving towards - and the indication is 11:1 or 10:2, a trial judge may take into account that information and discharge the jury because it has affected the way in which the trial judge has viewed the evidence.
That is a human response. I am not saying it is a proper response or improper response but it is a discretion that is to be exercised privately without disclosure and it cannot be said that that information would not impact upon how the trial judge dealt with that specific trial on those facts, at that particular time and that is the danger that is partly, partly addressed by procedural fairness so that as limited as that impact may have on the decision‑maker of what to do, if a decision is going to be made on which that information could in any way inform, then there should be procedural fairness to other parties affected by that discretion.
At the very least there should be the appearance to all involved that there is that fairness, especially when the parties know that the judge has the numbers, especially in a case where, in a very short period of time, after expressing deadlock twice, 19 minutes later, when asked if they need a little bit more time, they reach a verdict and the accused and perhaps others, are entitled to feel a sense of grievance that they do not know all that the judge knew when his Honour exercised that discretion under section 59A.
BELL J: The danger that you identify of the judge giving effect to the judge’s private view that the prosecution case is flawed, to exercise the discretion not to seek a majority verdict in circumstances where the judge is aware of the jury numbers, is a danger that equally, presumably, applies in a case where the jury do not disclose their numbers and the Crown Prosecutor presses for a majority verdict and the judge declines to do so.
MR BOE: Quite so, your Honour, but it is a further piece of knowledge that the party is entitled to know.
BELL J: But it is a question of the submission that the party makes based on the knowledge, Mr Boe.
MR BOE: It is.
BELL J: Now, let us say that at this trial you had known that the jury numbers were divided 8:4, what different submission would you have made?
MR BOE: I found it really easy to criticise the conduct of trial counsel in this case. There are a number of other factors that have to be taken into account in that judgment call. It could be the first trial. It was not in this case, it was the third trial. There might be a perception as to whether or not another trial would be brought if the jury was discharged in this trial, for example. A discharge may well be more attractive than the risk of going further towards a result, as much as a result is something that is an acquittal, which is something the client may well wish to have. So it is a mixed bag of information from which that position is taken, of which this piece of information could affect whether or not to mount any submission.
How forcefully that might be done other than procedurally ‑ perhaps the need to take some instructions from the person who is mostly affected by it by reference to matters of cost even, of whether or not applying for a discharge now is more favourable than running the cost of a fourth trial. It could also turn on the question of the likely outcome on the liberty if the person has already been in custody for a particular period of time.
BELL J: These are considerations that do not bear on the exercise of the discretion, but bear on ‑ ‑ ‑
MR BOE: Whether to make a ‑ ‑ ‑
BELL J: ‑ ‑ ‑ tactical considerations about whether, to put it crudely, one rolls the dice or urges for a discharge. Is that ‑ that is the forensic disadvantage that you say the accused faces in a case where the jury happens wrongly to disclose to the judge their voting numbers.
MR BOE: Yes, and it could be said against us, well, all those factors that you have said were apparent whether or not you knew the numbers, and that is fair. The other hindrance that occurred at record at 66, 67, was trial counsel’s ignorance of forceful jurisprudence in Victoria which entitled procedural fairness, or which purported to say that in these circumstances the judge had a duty to disclose, and the corresponding jurisprudence in Queensland which had come to a point in saying you could not get them even if you asked.
So there are a number of factors that would inform whether you did something, the force with which you did it, and trial counsel should have slowed the process down at that point, but did not, and thought about – and it would bear on to what extent submissions would be made as to the numbers, and it could involve a calculation which is informed or simply rolling the dice, but there are a myriad of matters that are being weighed in a very short period of time.
BELL J: But procedural fairness can only be engaged in this context in relation to the loss of the opportunity to persuade the judge of the soundness of a particular way in which to exercise the discretion.
MR BOE: Coupled with the fact that the advocate knows that the judge does know those numbers. So, it is not just counsel not having those numbers. It is the fact that the judge does, in fact, have those numbers and may possibly be taking them into account and, secondly, knowing that the jury, as in this case we are told, either judge know the numbers, counsel do not. At that point, that is why I say the context within which this disclosure occurred in this case may well be an exception to a principle that this Court has to come to but that is why it cannot be an absolute answer to say that they are never likely to have an impact or never could have an impact.
For example, in the dissenting judgment of Appeal Justice Priest in Nguyen, his Honour talked about that proposition of the jury knowing that the judge knows the numbers and that the numbers were 11:1 and had invited them to come a majority verdict of which 11:1 was needed such that the jury might think that the judge agreed with their verdict. So, it is a pressure on the jury as well. Thirdly, that the sole dissenters at that point might feel that the judge is disagreeing with the position they are holding in that position. So, it does come down to issues of perception, not just procedural fairness.
BELL J: Does that lead to the correctness of the suggestion that where a jury wrongly informs the judge of a voting pattern which discloses an 11:1 split, the correct decision is to discharge the jury?
MR BOE: Yes, it could be. That is why both at special leave and in our submissions here it may well be that the circumstances of disclosure leave inevitably to a concept that something quite irregular has occurred, something a jury, if you like, should have been discouraged from doing, should not have done, they did do, and now have put the trial at jeopardy of being exercised in a way that is unfair if it is allowed to continue to both parties.
BELL J: Is one countervailing view, Mr Boe, that if the judge is required to disclose the voting numbers when the jury wrongly informs the judge of the division that that material might then inform forensic choices of the kind you referred to in your earlier submission?
MR BOE: Yes, your Honour.
BELL J: Do you accept that that would be a reason against disclosure?
MR BOE: I just got distracted in my mind, would your Honour be willing just to repeat the proposition?
BELL J: The point I am raising with you, Mr Boe, is if the jury wrongly informed the judge that, say, they are 8:4 at the present time and disclose they are 8:4 for conviction, it might be said that it would be undesirable that that knowledge informs the tactical decision to apply for a discharge.
MR BOE: Yes, and in those circumstances, if the judge feels that he or she should not disclose then and there are further matters to be done in the trial, the jury should be discharged. It may inform the requirement not to disclose but because procedural fairness will be disturbed at that point for the myriad of the 3 or 4 points I made about that, not just fairness in the way in which opponents can make submissions but fairness in the way a number of pieces of information are being held by jurors who are hearing this process, the judge who knows what he or she knows and what counsel are deprived of by a decision not to disclose.
Just in order to give the Court the reference in Nguyen, it is paragraph 91 of Appeal Justice Priest. His Honour wrote:
From the manner in which events evolved – the judge asking the question, the jury revealing the division was 11 to 1, and the judge telling the jury he was ‘satisfied’ he should permit a majority verdict ‘in view of what was said’ – two things would have been plain to the jury. First, the jury would have inferred that the judge’s opinion was that a majority verdict was appropriate. Secondly, the jury already having reached the stage of being divided 11 to 1, the majority would have concluded that the views of the one would not be an impediment to a verdict, and the one would have known that a verdict would be taken no matter his or her view. Thus the chances that the jury would thus strive for unanimous consensus, or, indeed, indulge in any meaningful exchange of views, were, in my opinion, significantly reduced.
Your Honours, I think that takes me through what we had proposed to say in terms of the primary procedural matters. Just two brief points before I go to the issue of miscarriage. Your Honour Justice Kiefel, with respect, spoke about the purpose of the Act and the need for secrecy. In our submission, the course that we had suggested that could be adopted in a disclosure by the judge after there had been irregular disclosure to him or her by the jury is not thwarted by the options that we have suggested that could have occurred and ordinarily do occur in a trial, namely a disclosure in a closed court, or in chambers, which may be the same thing in practical terms, or thirdly, merely by handing the note to counsel with directions as to what could or could not be said about that in line with the prohibition to the Act.
Secondly, the dilemma that arises in the factual circumstances that this appeal raises is that the Act just simply does not address what should happen if something impermissible or irregular occurs. In those circumstances, with respect, there is great force in the course taken by the Victorian cases – or at least some of them – that we are dealing with a criminal trial, so there is a great need to prioritise the requirement that the trial should be conducted as best as possible fairly in his or her favour.
That is why notions of procedural fairness, as they form part of the “fair trial” requirement, should exceed or be in front of the notions in the Act which are beyond dispute which require secrecy in order to protect the integrity of the jury’s verdict. None of the facts in this case would warrant any concern that that second proposition, or propositions, is disturbed by following a course in line with the Act to ensure procedural fairness.
Your Honours, we just simply maintain that if we are right about the primary contentions, anything – any failings in the conduct of trial counsel in this trial do not bear on the question of whether or not there has been a miscarriage of justice in line with the approach taken by the majority in HM, as set out in paragraph 15 of our summary of oral submissions. That is all that we have proposed to say in oral address.
FRENCH CJ: Thank you, Mr Boe. Yes, Mr Moynihan.
MR MOYNIHAN: Your Honours, this case concerns what the judge should do to ensure a fair trial when the jury, in the ordinary course of a trial, discloses information intrinsic to their deliberations to the judge. In this case, the jury whilst deliberating disclosed in a note to the judge they were unable to unanimously agree on a verdict. That is a very common happening in criminal trials. They went further to disclose their voting pattern. That is an uncommon and unnecessary happening in criminal trials. The Court of Appeal found that the pattern in this case, or the votes cast, were not 11:1 – that is, a statutory majority. That finding, as I understand it, is not challenged.
The common law recognises the importance of secrecy in the jury’s deliberations, both before verdict, and by virtue of the exclusionary rule, after verdict, to ensure they are free and frank, produce true verdicts, ensure finality of the verdict and maintain public confidence. Justice Holmes correctly observed at paragraphs 79 and 80 that the Court of Appeal in England in Townsend, Oduro and Gorman, and the intermediate Courts of Appeal around this country in cases such as Black in Victoria, Yuill in New South Wales, Deemal‑Hall in South Australia, Kashani‑Malaki in Queensland, have accepted as a general rule the judge must disclose in open court all communications of the jury, except that information that the jury should not or need not have disclosed. That includes the votes cast.
That is what the judge did in this case. The judge informed the appellant of the effect of the note, but not the votes cast. Justice Holmes then went on, at paragraph 81, to consider whether that general rule or practice was displaced by the Act in Queensland. Justice Holmes was correct to find at paragraph 84 that it was not. The votes cast by the jury are intrinsic to their deliberations.
The reports and the explanatory notes that inform the reformation of the Jury Act in 1995 make in plain that a purpose of the Jury Act is to ensure the confidentiality of jury deliberations. That takes one immediately to section 50 of the Act. There, it is made clear by the fact that the jurors were required to take an oath that they were not to disclose anything about their deliberations which was not authorised or required by law.
That then directs one’s attention to section 70 of the Act. Section 70 of the Act is headed “Confidentiality of jury deliberations”. Perhaps before I take your Honours to the particular subparagraphs in section 70, I should say incidentally section 129 of the District Court Act provides for the punishment for any contempt or breach of undertaking that would relate to section 50 of the Jury Act. In any event, if I could take your Honours to section 70(3), that subsection prohibits any person, including the judge, ordinarily seeking from the jury the votes cast during deliberations. A submission that at law the judge could do so was emphatically rejected in the Victorian decisions of HM and Nguyen.
Can I take your Honours then to section 70(4)? Justice Holmes was correct to say at paragraphs [82] and [83] of her judgment that section 70(4) reinforced the time‑honoured view and the longstanding practice that the jury should not – and I would add do not – ordinarily disclose the votes cast. Her Honour was correct to find that section 70(4) prohibits disclosure of jury information including the votes cast because the jury has reason to believe it is likely to be published to the public.
That is consistent, one should immediately add, with what the majority in HM held at paragraph 5 of the reasons. I will just take your Honours to that because there is consistency there between what is the statutory prohibition and what is the effect at law. At the top of the page, paragraph 5:
The second proposition — that jury numbers of “votes” should not be disclosed to the judge by the jury — is based upon the principle that the jury deliberations should remain, so far as possible, confidential. That principle is of the highest significance in our justice system. It was zealously guarded by the common law, and is reflected and reinforced by s 78 of the Juries Act 2000 –
which has a cognate provision to the one I have just referred to.
GAGELER J: Mr Moynihan, this submission will go ultimately to the point that the voting patterns of the jury are not relevant to the discretion under section 59A(2).
MR MOYNIHAN: Yes.
GAGELER J: Does your submission go so far as to say that jury information as defined in section 70(17) will never be relevant to that discretion?
MR MOYNIHAN: It does not have to for present purposes, your Honour.
GAGELER J: It is possible to imagine circumstances in which intransigence expressed by one or more jurors might be disclosed.
MR MOYNIHAN: But that would probably be picked up by section 70(7) where the judge can investigate issues of bias or influence. So that type of information would be disclosed under that – under a different ‑ ‑ ‑
GAGELER J: If the jury note had said “Juror X has said, I do not care what you say, I am not changing my position ‑ ‑ ‑
MR MOYNIHAN: I will not partake ‑ ‑ ‑
GAGELER J: How would that be treated in the exercise of the discretion under section 59A(2)?
MR MOYNIHAN: Well, that may be an instance where it would be necessary for the judge to inquire because the jury cannot function if one of the members says I will not be part of it. But that is not this case, when the jury is performing its duty and function quite correctly, but discloses information.
GAGELER J: So, insofar as your submission is a legal submission as to relevance, what is it that is legally irrelevant?
MR MOYNIHAN: The votes cast are legally irrelevant.
GAGELER J: Right.
MR MOYNIHAN: I was going to take your Honours to an important passage in relation to the issue of whether the jury would have believed that it was likely that the information they were disclosing would be published to the public and that is at page 9 of the book. This is a passage from the learned trial judge’s introductory instruction to the jury and your Honours will see about line 40 it starts. His Honour could not have made it any clearer.
BELL J: I am sorry, what page was that?
MR MOYNIHAN: Page 9, starting at line 40. His Honour could not have made it any clearer to the jury that anything they put in a note and sent to him would be read in open court and in fact that is what happened with the notes and other notes or redirections in the matter, prior to the note in question. So when one reads what his Honour says there, and over the page, I should add, page 10 down to the end of line 8, his Honour makes clear that all that takes place between him and the jury will ordinarily be in open court.
BELL J: Mr Moynihan, where are we going with this? Whether or not the members of a jury may commit an offence under section 70 is hardly central to the resolution of this appeal, surely.
MR MOYNIHAN: No. I take your Honours through this because I say there is no error in the reasons of her Honour Justice Holmes or the Court of Appeal.
BELL J: Well, her Honour did not go that far, did she? Her Honour’s conclusion was that section 70 in the context of this statutory scheme supported a view that the revelation publicly of the voting pattern of the jury was not a relevant consideration under 59A(1).
MR MOYNIHAN: Quite, and importantly though, her Honour went on to look at section 70(6) to make the important findings in relation to that section as well, that the only exemption to the prohibitions in section 70(3) and subsection (4), and one could probably add section 50, could be section 70(6), that it only applied to the extent it was necessary for the jury to properly perform their function and that it did not apply because the jury could properly perform its function without disclosing the votes cast and the judge, importantly, and this is really critical to the whole of her Honour’s reasoning, is that the statute by section 70(6) and section 70(3) and (4), meant that under the statute, it was not contemplated that the jury would disclose their votes cast or that the judge would ever seek them from the jury and that was the statutory intent and the contemplation of the judge and parties.
BELL J: As I understand it, Mr Boe accepts that. He says when it happens there are consequences.
MR MOYNIHAN: I will go directly to that position because we would say whether under the statute or at law -and it must be remembered that in the Victorian cases which engage the procedural fairness rule it was also universally accepted that the judge should not seek and the jury should not disclose the votes. So, having found, as her Honour Justice Kiefel did, that the jury should not have disclosed the votes, then the information or the votes cast, under the general principle, should not have been disclosed.
So her Honour had got to the point where she had considered the general principle. There was no displacement of that general principle under the Act. If Mr Boe accepts that, that is well and good because it is consistent with it not being disclosable under the Act or at law. Then her Honour considered the submission that the primary judge was wrong to apply the general principle or rule because in HM v The Queen it was held by the majority that for the jury to disclose the votes cast for the judge when they were not a statutory majority would be a denial of procedural fairness because it enabled counsel to make informed submissions and it can influence the decision for the judge.
Critically, to that line of authority based on procedural fairness is first that the judge must take into account, so there must be a taking into account of a matter and, secondly, that matter must be relevant and, thirdly, there must be a denial of the ability to make a submission in relation to that matter.
FRENCH CJ: The criterion is the judge may take it into account, is it not? That has to be established.
MR MOYNIHAN: If the judge indicates they are not taking it into account, there can be no denial of procedural fairness. One does not get to make submissions on matters the judge is not taking into account. That was in a point that was made very clear, in my submission, in HM v The Queen. There, at paragraph 5, the court said that the judge would have to have taken those matters into account. Then, of course, the court went on in the latter part of the reasons, I think it is paragraph 35, to make clear there was no indication in that case that the judge had not done so.
In my submission, I will take your Honours to it in a moment, in this case it is very plain that the judge had made it clear that it was not a relevant consideration for him. He was interested to learn whether the jury could resolve the matter by way of a majority verdict but there is much content to this submission before one gets to that ultimate point.
So the Court of Appeal dealt first with the issue of relevance. Her Honour Justice Holmes was correct to observe at paragraph [80] that where the votes are not a statutory majority, whether the voting numbers are relevant under the principle in HM v The Queen depends whether:
that information could properly feature in the trial judge’s considerations under s 59A(2) (and, correspondingly, in counsel’s submissions).
Of course, that is entirely correct. The court had correctly already later then construed section 70 of the Act to mean that it was not something that was ordinarily sought by the judge or taken into account by the judge, or disclosed by the jury, for that matter. Therefore, her Honour was entirely correct to find at [84] that it is not a proper consideration for the judge. Any submission based on that information would concern an irrelevant consideration, and the inadvertent or wrong disclosure does not make it a proper or relevant consideration. In my submission, if that is right, then that is the end of this matter.
GORDON J: Can I come at it from a probably more basic point, which is this? When one looks at relevance, can we put the Act to one side? It seems to be predicated on a fact which, at least from my perspective at the moment, I do not understand to be a certain fact, and that is that the disclosed voting pattern is fixed. If it is not fixed, and we know from cases in Victoria that it changes, one wonders how it can be relevant at any point in time until there is a delivery of a verdict. I had thought that the better way of looking at it may be to ask oneself is it not, in a sense – and I think you deal with it in paragraph 9 of your outline here – it is no rational bearing at the time because it may very well have changed between the delivery of the note and the point at which the jury are brought back and asked their relevant question.
MR MOYNIHAN: It is just not the time of the delivery of the note. The vote that has been spoken of may have taken place well before it was written down and delivered. But your Honour is right, that is my ‑ ‑ ‑
GORDON J: You tie it to the Act, but can we just step back and think about it from a reality perspective?
MR MOYNIHAN: I was going to go on and deal with why those findings that are made at [84] are not only correct in terms of the statutory construction, but are also consistent with principle, because firstly, they are consistent with the common law policy or concern around the protection of secrecy of the jury’s deliberations, because the votes, if they were disclosed after verdict, could not under the exclusionary rule be used to impugn the decision.
GORDON J: There is authority to that - if that is in dispute.
MR MOYNIHAN: But if that is right, and it is beyond dispute that it is, then they cannot be used to impugn the decision of how the trial is going to proceed. Secondly, it also recognises that a statement that what the votes were at a point in time cannot be relevant to the discretion, because the strength – to use the Victorian word – that can be attributed to the votes dissolves to a banishing point when one takes into account that the jury, pursuant to this Court’s direction in Black, are told they can, and they often do, change their mind.
FRENCH CJ: That is a proposition that says effectively that when the probative value of the disclosure is zero that then takes you into the area of no relevance. If it has no probative value because of the protean and changeable character of it, it has no relevance.
MR MOYNIHAN: That is right and because the jury can, after calm and objective consideration, arrive at the view they were wrong and change their view it could not be unfair, uncommon or improper for them to do so. Any submission based on that is ‑ ‑ ‑
GORDON J: Could we tease that out just so that we are clear about this procedural fairness point? If the argument is that the information has no probative value and therefore is not relevant, and the judge discloses to counsel that the note is – there is no agreement, I have been told of the voting pattern, but I do not propose to disclose it – is the, in a sense, removal of the information as part of that, in terms of completing the process, effected by the asking of the questions in front of the jury? In other words, it seems to me that the actual asking of the questions themselves, i.e., is it you have not reached a unanimous verdict, is it possible, in a sense brings a trial to a different point where there are then different considerations and different questions being asked both by the judge and therefore what counsel might do with that information.
MR MOYNIHAN: It demonstrates – the questions asked – and his Honour mentioned it about three times, and he told the jury what I need to know from you is whether you can reach a majority verdict, that is, is it possible. That was what was relevant, in his Honour’s mind, not the note, and the votes that he was known. So, your Honour is entirely correct. What we know from what happened is that his Honour was not taking into account the votes cast.
Probably a secondary point to the one I was making around how the jury’s votes do change, quite properly, is that we know nothing of how and when that vote was taken. It is a statement with no content. That point is made succinctly by her Honour Justice Philippides at paragraph [99] of her additional reasons, agreeing with Justice Holmes, at page 107 of the book, starting at about line 48. Her Honour says:
Further, one may question the extent to which the precise voting figures may provide a useful basis for submissions. Individual jurors do not necessarily reach a particular conclusion by the same route and thus the jury figures may present a misleading picture of the extent and nature of the division of the jury. They may not reflect the true complexity of the jury’s reasoning, and lead to a type of second‑guessing of the jury’s deliberations.
My point - that is a very succinct way of putting why they are irrelevant. Justice Holmes was also correct, then to go on at paragraph [86], after saying they were not relevant for the reasons she had already articulated to say that what was relevant – to pick up your Honour Justice Gordon’s point – what was relevant to the exercise of the direction under section 59A is the fact of the jury’s disagreement, that is, is a unanimous verdict unlikely?
The jury had told the judge two things: firstly in the note that a unanimous verdict was unlikely, and secondly, through the interchange with the judge in open court that a majority verdict was possible. The voting pattern could not rationally affect that discretion. It could only confirm that a unanimous verdict was unlikely and it could not go behind the statement that a majority verdict was possible by the jury to the judge.
Then Justice Holmes of course dealt with the second aspect of the procedural fairness argument, that is, that the information had the capacity, or the numbers had the capacity to influence the judge. Her Honour again was correct, in my submission, at paragraphs [88] and [89] to find that the appellant was not denied procedural fairness by the judge adopting the established practice because the information could influence the judge because firstly, the numbers were not 11:1. The judge did not know the outcome of asking for a majority verdict. He did not know that which the appellant did not know. He could, therefore, act dispassionately.
Secondly, leaving aside those matters which are really the subject of the decision in MJR, the judge did not know and did not have information that he was not otherwise entitled to have, that is, that the jury was in a disagreement. That fact alone could not influence the judge. The appellant’s argument really resolves to this, that because of procedural fairness the judge should have disclosed the votes cast, but that requires the appellant to demonstrate three things: firstly, that the judge took into account those matters; secondly, that they were relevant, and thirdly, that he could have made a submission and was denied from doing so.
In my submission, her Honour Justice Holmes was right, whether it be under the statute or under the law to find that those votes cast were irrelevant, so the appellant must fail. Secondly, the appellant must fail for the reason that in this case, because it was never a proper or relevant consideration in the exercise of the discretion under the Act, whether it be wrongly disclosed or not, the judge was not taking those matters into account.
His Honour makes that clear, or at least in the words of HM, gives an indication that he is not taking it into account at page 67 at about line 15. Of course, his Honour is speaking here after giving the jury some direction as to how they may proceed, but he says:
Do you want more time to consider that, or – I’ve got the contents of your note. I haven’t disclosed it, because really your voting is a
matter for yourself. So the parties aren’t aware of your voting, but if you want some more time, then you can have it, certainly.
His Honour is indicating there that the votes were a matter for the jury. They were not a matter that his Honour was taking into account, because his Honour realised that under the statute it was an irrelevant improper consideration, and of course if that is correct, if it is not expressed then it is certainly to be inferred, and if it is not an expressed statement it could be inferred as an indication that his Honour was not taking into account, then that is the second reason that the appellant must fail on a ground relying solely on a denial of procedural fairness.
Then the third reason is whether it is a matter of concern with procedural fairness or whether it really engages the miscarriage of justice point under section 668E of the Criminal Code (Qld) in the sense that there has been an error in the process of the trial. There are a number of factors that militate success in that area as well.
The appellant knew that the votes had been disclosed to the judge. The appellant did not ask the judge to disclose the votes cast. It may be that Mr Boe did not know of the decision of HM v The Queen at the time, but that did not preclude him from making relevant submissions about the exercise of the discretion. Those submissions were made.
So, in terms of HM v The Queen, the critical point is there were no submissions to strengthen. None were made at all. So there has to be a relevant submission. At the time none was identified or articulated. So, importantly, if really the procedural fairness points resolves down to that there are submissions that can be made in relation to the exercise of the discretion that may have more force or can be strengthened by the votes casts then, in my submission, there are two things: firstly, they cannot strengthen or make more forceful any normal vote and, secondly, in this case, there were no submissions to strengthen.
Importantly, the appellant knew the nature of the evidence, the conduct of the trial, how things had proceeded to that point in time and, well aware of all of those matters, made a forensic decision to make no submission at all or not oppose the judge asking the jury to reach a majority verdict. To use a crude term, he rolled the dice. In those circumstances, in my submission, there is certainly no denial of procedural fairness and there is certainly no miscarriage of justice. Those are my submissions, your Honours.
FRENCH CJ: Thank you, Mr Moynihan. Yes, Mr Boe.
MR BOE: Your Honour, there are just four brief matters in reply. On the issue raised by Justice Gordon concerning what we accept is the fluid nature of a voting pattern in a jury, in our submission, in this case, the Court should have regard to the fact that the expression of the votes cast was in a context following a communication - firstly, that they could not reach a consensus of opinion and seeking advice, at appeal book 72, and, secondly, the time at which that communication occurred, namely after a Black direction, and after the statutory time in section 59A had elapsed, and that there was still a need for a discretion to be exercised. So, that is the first point as to the relevance of a voting pattern at a particular time accepting that the process of deliberation is asked to be fluid and to take into account further directions to accommodate matters raised, for example, in a Black direction.
The second matter is that in this case it is not just merely the votes cast that were not disclosed, that is, it is not just what – the trial judge did not only have jury information limited to votes cast that his Honour did not disclose. His Honour paraphrased the effect of the note and informed the parties of what his Honour thought it only communicated. There is no part of the record in which the trial judge informed the parties that the jury informed that while they were still not in total agreement they had, of themselves, followed a procedure of taking formal votes and that there were figures that had moved.
BELL J: Was this submission agitated in the Court of Appeal? I understood the challenge was to the failure to disclose the voting pattern ‑ ‑ ‑
MR BOE: Vote cast.
BELL J: ‑ ‑ ‑ not a discrete challenge that whilst it may have been open to the judge not to disclose the voting pattern, his Honour erred by failing to disclose that there had been more than one vote and an apparent change in numbers between those votes.
MR BOE: The submission was not made and not considered by Justice Holmes or the court, but it is in support of our submission now that the context in which the voting pattern or the votes cast was not given, was not provided to the parties and in that respect, if I could take your Honours to ‑ ‑ ‑
BELL J: Well, that is the same point, is it not?
MR BOE: It is.
BELL J: And it is a point that was not taken.
MR BOE: It is. Insofar as procedural fairness, however, in R v Black, Watts and Black (2007) 15 VR 551 at paragraph 16, Justice Buchanan did say that:
The trial judge was obliged to inform the parties of the precise terms of the questions asked by the jury. In my opinion it was not sufficient to identify the subject matter of the questions in general terms. Not only was complete candour required in order to dispel any impression that the judge had been told of matters concealed from the parties, but also the effectiveness of counsels’ assistance depended upon their being informed precisely of the terms in which the jury had expressed their concerns.
In this case they had expressed the concern that they were unable to reach consensus, they sought advice and this is what had happened so far in the jury room at that point in time. That is our only matter in reply, your Honours.
FRENCH CJ: Thank you, Mr Boe. Yes, Mr Moynihan.
MR MOYNIHAN: Excuse me, your Honours, I do not want a second go, but can I just have leave to give your Honours a reference?
MR BOE: I have no objection to that.
FRENCH CJ: Yes.
MR MOYNIHAN: At paragraph [100] of her Honour Justice Philippides’ reasons on page 108 of the appeal book is a passage that I would rely on in relation to the judge having disregarded the voting in relation to my final point about the votes not being relevant and his Honour having disregarded them.
FRENCH CJ: Mr Boe, did you have anything arising out of that?
MR BOE: No, thank you, your Honour.
FRENCH CJ: All right, the Court will reserve its decision. The Court adjourns until 10.15 on 16 June.
AT 11.45 AM THE MATTER WAS ADJOURNED