Smith v The Queen

[2015] HCATrans 84

[2015] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B50 of 2014

B e t w e e n -

LESLIE GLYN SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 APRIL 2015, AT 11.06 AM

Copyright in the High Court of Australia

MR A. BOE:   If your Honours please, I appear with MR B.P. DIGHTON, for the applicant.  (instructed by Biggs Fitzgerald Pike Solicitors)

MR A.W. MOYNIHAN, QC:   I appear with MS. S.J. HEDGE on behalf of the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Thank you, Mr Boe. 

MR BOE:   Your Honours, this case turns on events that occurred - at pages 48 and 49 of the application book, if your Honours could turn to ‑ ‑ ‑

KIEFEL J:   Would you mind speaking up just a little, Mr Boe.

MR BOE:   Yes, your Honour.  At line 11 on page 48, there was a disclosure by the jury to the trial judge of the voting pattern; at least his Honour records that.  Shortly thereafter at page 49, his Honour indicated that his Honour had assessed that the statutory period in section 59A of the Jury Act (Qld) had also passed and his Honour proposed to give what is called the majority direction. 

At that stage of the proceeding there were six matters that had accumulated:  one, the jury had been deliberating for more than eight hours; two, around 12.23 pm, application book 42, a further direction had been sought as to an explanation for beyond reasonable doubt and had been given by his Honour; three, the jury had by then been twice deadlocked, firstly at 2.30 and next at 4.20; fourthly a Black direction had been given at 2.30 pm and we get to the point at application book 48 when they disclosed impermissibly the voting pattern. 

I should immediately accept the proposition made against us by the respondent that I as trial counsel did not oppose the course being foreshadowed by his Honour.  I will address that at the end if I have time.  Our submission is that the approach taken by the Queensland Court of Appeal in finding the majority approach taken in HM by Appeal Justices Redlich and Kaye is wrong in the sense that the Queensland Court of Appeal has too narrowly approached the question by reference to notions of what is ordinarily relevant to the exercise of discretions under section 59A and section 60(1).

KIEFEL J:   Well, your strongest argument for special leave is that there is a divergence of approach.  Is that not right?

MR BOE:   Yes.

KIEFEL J:   That requires consideration of the extent to which MJR is reflective of the approach taken in the Victorian Supreme Court.

MR BOE:   Yes.

KIEFEL J:   Could you just summarise for me - MJR has been accepted by the Victorian Court of Appeal in, I think, two following decisions.

MR BOE:   Yes.

KIEFEL J:   But, I think that is ISL and LLW, but query Nguyen, where there seems to be a different of approach by Justice of Appeal Priest.

MR BOE:   Yes, but Nguyen factually was so different in the sense that the disclosure was to the open court.  There is, with respect, a lot of complexity as to what to do with quite a simple event.  Very reasonable minds have disagreed about whether or not the disclosure should in fact immediately result in a discharge because of the taint that has already occurred.

The approach taken by Appeal Justice Ashley in MJR indicated that there is possibly a reason to immediately discharge, if one knows that one has to exercise discretions that could be affected by this information and that no amount of procedural fairness would ordinarily disturb that function at that point, and whilst we do not abandon the ultimate approach taken in HM, it is a live question of whether or not a decision‑maker or a discretion exerciser can exclude from consideration such a material matter such as where the jury is at a critical point in time.

So whilst there is complexity in the way in which the majorities and the dissenters have taken the approach in the Victorian cases, ultimately it will come down to a simple question of what should a trial judge do when given information that critically informs an aspect of the discretion, that is, the correctness of departing from the common law protection of a unanimous verdict with a statutorily permitted discretion.

For that reason, whilst the Victorian cases greatly support our ultimate argument, in our submission, special leave ought to be granted simply because the disagreement right across Queensland and Victoria does need resolution to ensure that an event that does not – it is not rare that this occurs so that there is in fact a clear approach to be taken by the courts.

Now, the fact of the failing to object, your Honour, on the part of trial counsel, if I can address it in this way and only briefly, by the time the event occurred at application book 48 and his Honour proceeded to indicate what his Honour proposed to do, the trial had by then become irregular.  The refraining on my part was simply in line with the authorities in

Queensland and the practice in Queensland and does not change the fact that this case remains factually a proper vehicle to determine the questions raised.

It could not be said that at that point any decision was made for a tactical reason because by then already the events had occurred which kept me at a disadvantage from that of the trial judge.  Until such time as that disadvantage was evened out, the denial of procedural fairness still existed.  So, it is clearly the case, however, that this Court has the benefit ‑ ‑ ‑

NETTLE J:   When you say it was in accordance with the Queensland procedure, do you mean that it would not be usual for counsel to ask the judge what the numbers were?

MR BOE:   More than that.  The authorities indicated in Queensland that the trial judge should not ‑ ‑ ‑

NETTLE J:   Yes.

MR BOE:   ‑ ‑ ‑ disclose that as part of the jury information.  So, wrong as I was then, it does not ‑ ‑ ‑

NETTLE J:   I understand.

MR BOE:   ‑ ‑ ‑ mean that this does not present as an appropriate vehicle.  We rely on the written submissions, your Honour.

KIEFEL J:   Yes, Mr Moynihan.

MR MOYNIHAN:   Your Honours, there should not be a grant of leave in this case because the Court of Appeal was correct to find that the votes cast by the jury were not, by virtue of section 70 of the Queensland Act, to be taken into account in making the decision under section 59A of the Jury Act.   If that is correct, then the Court of Appeal was also correct to conclude that the majority decision in the Victorian case of HM v The Queen had no practical application in this case.

The statement that the majority in HM was plainly wrong was obiter and that the court preferred the reasoning of Justice Whelan in that case was not necessary to the decision because, as her Honour Justice Holmes makes plain at paragraph [88] when stating the conclusions:

Neither of the statements of principle in HM set out at [80] above has any practical application in this case. 

That is, HM was of no application, in any sense, because of the court’s finding that the jury votes were not to be taken into account in making the decision under section 59A and that picks up the important distinction between the legislation where section 78 of the Victorian legislation permits the jury to disclose that information to the judge whereas the Court found in Queensland, section 70 of the Jury Act does not. 

Can I take your Honours directly to the statute?  Before I go to the individual sections, it is important that one understands what the applicant’s true contention is.  The applicant’s contention is that he was denied procedural fairness when the judge did not disclose the jury’s voting pattern to him and allow submissions as to whether the judge should ask the jury to reach a majority verdict. 

The foundation of that contention is, of course, that votes cast by the jury should be disclosed to the parties and, importantly, the alleged denial of procedural fairness must take into account that the applicant did not – knowing of the existence of the votes cast – ask for the voting pattern to be disclosed – did not seek to or make any submissions against asking for a majority verdict or for the discharge of the jury. 

It is in that context that one then goes to the relevant sections.  They are contained in Part 6 of the Act which concerns jury trials – in Division 5 which is headed, importantly, “Discharge of individual jurors or of the whole jury”.  Pursuant to section 59(3) the verdict must be unanimous.  Then one goes to section 59A(2).  That section is engaged to allow the judge to ask the jury to reach a majority verdict:

If, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation –

it requires satisfaction that unanimity is unlikely but a verdict, a majority verdict, may be reached, that is, importantly, a verdict is possible.  Section 60 is relevantly engaged when a jury cannot agree on a verdict unanimously or by majority to allow discharge, that is, a verdict is not possible.  It is obvious then that the inquiry in each case is fundamentally different. 

In section 59A of the Act the first inquiry is, is a unanimous verdict likely.  The votes cast could only confirm, in that case, the jury’s statement that it is not unless, of course, there was a perverse situation where the jury said they could not be unanimous but the note contained votes that were 12 nil or a majority.

NETTLE J:   I am sorry, I missed that point.  Could you just repeat it a little more loudly, please?

MR MOYNIHAN:   Well, if the jury were to inform the judge, as they did in this case, they were not in total agreement, then the actual votes cast inadvertently also disclosed to the judge could not be against that statement.  There is no submission that could sensibly be made against that. 

NETTLE J:   Would it not be relevant to the judge’s determination whether it was reasonably possible that they might reach either unanimity or the required majority?

MR MOYNIHAN:   That is the second question which – the second inquiry which I was going to take your Honour to now and that is, as your Honour quite rightly identifies, is a majority verdict possible?  Again, in relation to that inquiry, it must be what the jury says to that question by the judge that is important.  If the jury says yes then there could not be a submission that the votes cast could go behind that in light of the Black direction and the vacuum in which the votes cast must be looked at by the court.  The court knows nothing of those votes.  So, in my submission, they are not relevant and could not be relevant in that sense.  It is important that it is what the jury tells the judge they can do. 

KIEFEL J:   We are just having a little difficulty hearing you, Mr Moynihan. 

MR MOYNIHAN:   I am sorry, your Honour. 

KIEFEL J:   Thank you.

MR MOYNIHAN:   Of course, the inquiry in relation to section 60 - is a verdict possible, if the jury says no then the votes do not matter, the jury is discharged.  Of course, if the jury says yes, they are back in the territory of section 59A of the Act. 

NETTLE J:   What if the jury says no and the judge thinks, well, I want you to have some more time to think about it before I finally accept that answer.

MR MOYNIHAN:   That is really an exercise of the judge allowing them more time to consider their verdict, unanimous or otherwise, before section 59A is engaged or the judge could, at that time, also discharge them under section 64 - any other reason as well but it really is what the jury tells the judge that is the important evidence, not the actual votes cast, if we accept what the jury are told in the Black direction that they can legitimately change a previously held position after further proper consideration of the matter.

NETTLE J:   Yes.

MR MOYNIHAN:   Importantly, in this case, the jury told the judge they were not in total agreement.  That is the standard practice and sufficient certainly to satisfy the condition in section 59A, and the jury also told the judge when he inquired that a majority verdict could be reached.  There is nothing that could be said against that, relying on the votes cast by the jury if they were known in any event.

The court in this case though was correct to find that the votes cast are not by virtue of section 70 of the Act not to be taken into account when making a decision under section 59A.  At law, of course, the judge should not inquire, know or disclose how the jury votes.  Section 50 of the Jury Act prohibits the jury disclosing anything about deliberations except as allowed by law.  The only provision, as the Court of Appeal quite correctly noted, that could be engaged in that sense was section 70 of the Act, and section 70(2) and subsection (4) prohibit disclosure of jury information and, of course, jury information specifically includes the votes cast by the jury.

The Court of Appeal was correct to find that at paragraph [83] that section 70(6) “does not contemplate” the disclosure of votes cast for the purposes of section 59A, that is, their disclosure to the court is not necessary for the proper function of the jury.  That is obviously correct, and if the court was correct to find so much, then they were also correct to find that paragraphs [84] and [88] that the votes cast are not under the statute ordinarily taken into account, that is, they are irrelevant in deciding whether unanimity is unlikely and inadvertent disclosure of them does not make them relevant and submissions about them would be about irrelevant consideration.  Importantly in this ‑ ‑ ‑

KIEFEL J:   Does the Act dealing with juries in Victoria contain similar provisions?

MR MOYNIHAN:   That is the point, your Honour, that section 78 of the Victorian legislation, subsection (3):

Nothing in this section prevents –

(a)       a person who is or has been a juror disclosing to‑

(i)a judge or court;

 . . . 

any information about the deliberations of a jury ‑ ‑ ‑

KIEFEL J:   That would not determine whether or not it was a relevant consideration, of course.  That would just mean whether or not there had been an offence – it goes to that question, but the question that the Court of Appeal was dealing with here about whether or not it was a relevant consideration would still arise in relation to a communication so made in a Victorian court.

MR MOYNIHAN:   Well, it would arise if it were made in a Victorian court because it was committed but the fundamental premise of the court’s reasons in this case was that construing section 59 in the context of the statute, and particularly in the context of section 70, it is clear from the statute that the votes cast by the jury should not be taken into account in making the decision under section 59A in any circumstances. 

That is a critical point of distinction, and that is why her Honour Justice Holmes was clear to say that that is why the decision of HM v The Queen was of no application because it involved a denial of procedural fairness where it was held that the parties did not have an opportunity to make submissions about a relevant consideration.  Here, having properly construed the statute, the court found that it was not a relevant consideration, and if it is not a relevant consideration, then there can be no denial of procedural fairness in not allowing a party to make submissions on it.

KIEFEL J:   Quite.  The question of whether or not it is a relevant consideration has not been considered in the Victorian cases.  Those cases have not approached it in that way.

MR MOYNIHAN:   They have not approached it in that way, and that is really my point, and that is why this case is not a suitable vehicle ‑ ‑ ‑

KIEFEL J:   Are you suggesting that if there is some difference of approach here, as between the Queensland and Victorian approach, it is not entirely explicable by reference to the legislative provisions, but you are saying that the Court would be better awaiting a case from Victoria to determine any divergence in that State?

MR MOYNIHAN:   Quite.  That is my point, in a nutshell.  It should be made clear that her Honour Justice Holmes in paragraph [88] also made it very clear that were no exceptional circumstances in this case that may make the disclosed voting pattern relevant in another sense.  For example, the votes cast are not known and the judge did not know the result of asking for a majority verdict, that is, that there would be a statutory majority, as there was in the first of the Victorian cases.  In my submission, this is not a suitable vehicle for the agitation of the point.  Those are my submissions, your Honours.

KIEFEL J:   Thank you.  Yes, Mr Boe, anything in reply?

MR BOE:   Your Honours, in relation to the differences, if any, in relation to the statutory provisions in Queensland and Victoria, can I take your Honours to application book 77, which is paragraphs [61] and [62] of her Honour Justice Holmes’ judgment.  No part of her Honour’s decision and ruling and finding as to the right course to take turned on any differences in statutory provisions. 

The one part of her Honour’s recitation of the provisions that we would focus attention on is the last two lines.  It seemed that her Honour put the section 60 discretion as following section 59A.  We would submit that it does not necessarily follow that the discretion to discharge follows the discretion to determine whether or not a majority verdict should be permitted.

It is wrong, we would submit, to say that the finding that the majority in HM was wrong, plainly wrong, was obiter.  In our respectful submission, the departure between the two approaches is on that critical question of what is meant by the notion of a relevant consideration in the exercise of either of the discretions.  The Queensland approach is that because information is prohibited from being heard it makes it irrelevant.  That is the approach that Queensland has taken.  It is, with respect, a neat and perfectly arguable approach about that.

The Victorian approach is that accepting that it does not ordinarily inform the exercise of the discretion, it being known factually may affect the discretion and what should be done at that point.  The critical departure is when her Honour says at application book 84 in paragraph [88], starting from the last sentence:

Given his –

that is the trial judge’s –

comments in that regard, there is no basis for thinking that the voting figures could have influenced him in the exercise of his discretion; they told him no more than what he was entitled to ascertain, that the jury was not in agreement.

Now, with respect, that is where the divergence occurs and, in our respectful submission, this remains an appropriate vehicle because there is a fundamental difference in approach to deal with unauthorised but relevant information and the easiest examples of these – and that is why I said earlier that there could be a disagreement about how we resolve the question, but

just say the figures were 6:6, it greatly informs to the likelihood of there being a majority verdict.  But if it was 10:2 either way, both opposing counsel would want to urge a particular course so it may well be that procedural fairness is not any great answer to the problem when it arises.

It may be that the ultimate approach is that which was recommended by Justice Ashley, that once this irregular but pertinent and relevant information is seized and there are more discretions to be exercised…..the jury, the trial judge should discharge the jury.

KIEFEL J:   How do you overcome the problems of the Jury Act, though, in terms of - accept for the moment that it might be moot about whether or not the jury can hand it to a judge without committing an offence, questions of necessity aside, how does the judge, under the Queensland legislation make it available to counsel, given the terms of the prohibition?

MR BOE:   I do not think the terms of the prohibition in fact explicitly mean that counsel are not entitled know the figures.  It is more the approach of the courts in Kashani‑Malaki and Smith that recommends that that jury information should not ordinarily be given to the counsel.  But the Victorian approach is that procedural fairness overrides that when something irregular has happened and, as has been pointed out in submissions, section 70(6) does permit the court to seek information from a jury necessary for the proper performance of the jury’s functions.  So whilst the scheme is intended to not have that information given by the jury, there is a mechanism which does allow it.

KIEFEL J:   Well, you say there is a question about section 70 and its reach in any event.          

MR BOE:   Yes.  Thank you, your Honour.

KIEFEL J:   The Court will adjourn briefly to consider its position.

AT 11.34 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.36 AM:

KIEFEL J:   There will be a grant of special leave in this matter.  What do the parties say about time estimates – a half a day or allow more - not more than a day?

MR BOE:   Not more than a day.

KIEFEL J:   Mr Moynihan.

MR MOYNIHAN:   Your Honour, that would be very generous.

KIEFEL J:   Well, it might go beyond the half‑day point, though, is what I was thinking.

MR MOYNIHAN:   Yes, it could do that, yes.

KIEFEL J:   Yes, all right then.  Would the parties please ensure that they obtain a copy of the directions for the filing of submissions as soon as possible and that they adhere to those times strictly?  Thank you. 

AT 11.37 AM THE MATTER WAS CONCLUDED