Stonebridge v The Queen

[1993] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S148 of 1992

B e t w e e n -

PAUL RONALD ANTHONY STONEBRIDGE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Stonebridge 1 20/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1993, AT 12.21 PM

Copyright in the High Court of Australia

MR A.J. PHILPOT: If the Court pleases, I appear for the

applicant. (instructed by D.H. Cohen & Co)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR F.D.L. HOLLES, for the Crown.

(instructed by S.E. O'Connor, Solicitor to Director

of Public Prosecutions (New South Wales))

MASON CJ:	Mr Philpot.
MR PHILPOT:	Your Honours, this application also raises the question of an exhortation to the jury. There is a
summary of argument in the application book and I
shall seek to take that a little further, and I
have prepared a further outline of argument, if I
might hand that up.

MASON CJ: Yes.

MR PHILPOT:  I would hand to Your Honours, also, photocopies

of Reg v Watson, (1988) 1 QB 690.

MASON CJ:  We were taken to Reg v Watson in the earlier

case.	Mr Philpot, the same point was argued in an
earlier case, Black, this morning.	You are aware
of that?

MR PHILPOT:  Yes, Your Honour.

MASON CJ: And we were taken to Watson's case in connection

with that.

MR PHILPOT: Yes, I heard that, Your Honours. I shall take

Your Honours, perhaps, a little further in Watson's

case than was done in ~hat case. But if I might

come to the direction that His Honour gave in this

case. It appears at pages 5 and 6 of the

application books, and it begins at the second

paragraph. The salient point begins at line 20

and, particularly, at line 24 where His Honour

says: 

We all hope that that will not happen and

involve the time and expense and trouble to

other jurors that would entail -

His Honour then went on to the jury:

be able honestly and conscientiously to come

to an agreement one way or the other, if that

is possible, within the terms of oath -

and the direction continued over the following

page, Your Honours. But what appears at the bottom

of page 5 seems to be about as far as His Honour

Stonebridge 2 20/5/93

adverted to the need to adhere to the individual

oaths.

If I might mention the time span in this case,

Your Honours. The jury delivered a note indicating

difficulty in agreeing in three of the four counts

before them at 12.35 pm. They were brought back

into court at 12.45 pm where they handed a note

which disclosed numbers in the jury room, and then

they returned with a verdict of guilty at 2.05.

They returned a verdict of guilty 1 hour and

20 minutes after the exhortation was given, and

that hour including the lunch hour.

Your Honours, the Walhein direction is

cited in full at page 694 of Watson at the top of

the page. There is reference to the creation of:

public inconvenience and expense if jurors

cannot agree owing to the unwillingness of one
of their numbers to listen to the arguments of

the rest.

And it appears from this citation and, indeed, from

the report of Walhein itself that apparently one

juror told the court that he could _not, in his own

mind, find the accused guilty.

The court in Reg v Watson apparently had

before it some information which I cannot examine

any further, but there was apparently some

suspicion at the time of Walhein of improper

pressure being put upon jurors. That appears at

694G. Your Honours, in Watson the court examined a

number of instances in which the direction in

Walhein had been judicially considered in England.

At the bottom of 693, Their Honours indicated that

there had:

been divergent views expressed by different

divisions of -

that court. At 69SC, it is said:  With the benefit of hindsight it is

possible, even at that early stage, to detect

signs of danger.

Then at page 696F and, particularly, G, the Walhein

direction is analysed as having two halves, one of

which is unobjectionable but the second part

containing -

the warning that it may cause great public

inconvenience and expense if jurors cannot

agree -

Stonebridge 3 20/5/93

as being far from harmless. Again, at the bottom

of the page, Their Honours go on to express further

disquiet at the Walhein direction, and that is

continued at 697.

Your Honours, might I at this stage submit

that what appears to have prompted concern over

Walhein in England was initially the advent of

majority verdicts and the appropriateness of such a

direction to it. But it would appear that the

concern over Walhein has moved into other bases,

two of which, I submit, are relevant in Australia.

The court continued to review judicial

consideration of Walhein at 697, 698 and 699 in

which - and I shall not take Your Honours in detail

to all of them - they examine a number of cited

cases in which convictions were quashed,

particularly where the Walhein direction was given
either at too early a stage of the jury's

deliberations or before a direction as to the

availability of a majority verdict.

That continues right through to 699~

Your Honours, and then at G on that page, the court evaluates what appears to have emerged and says

that:

The result of these more recent decisions

seems to be this: there is or may be a

material irregularity if the Walhein direction

is given either (a) at too early a

stage ..... or (b) before the majority direction

or (c) whenever it is given, if given in terms

which may have had the effect of placing

improper pressure on the dissentient minority

of the jury.

At 700, to which Your Honours were taken in detail

this morning, there is the model direction, and at

Bon that page, Your Honours, the court held that reappraisal of the situation was overdue. And it

is said that a jury:

must not be made to feel that it is incumbent

upon them to express agreement with a view
they do not truly hold simply because it might

be inconvenient or tiresome or expensive for

the prosecution, the defendant, the victim or
the public in general if they do not do so.

MASON CJ:  Now, the direction in this case, Mr Philpot,

seems to reflect some notions in the model

statement approved in Watson.

MR PHILPOT:  Yes, Your Honour.

Stonebridge 4 20/5/93

MASON CJ: It differs from the statement in the earlier

case, Black's case, today.

MR PHILPOT:  Yes. I have not seen that but as I heard it

this morning, it does contain some elements of the

model direction but it does also contain,

Your Honours, the parts of Walhein which has

attracted the - - -

MASON CJ: It has got expense, for example; expense and

inconvenience.

MR PHILPOT:  Yes, Your Honour:

time and expense and trouble to other jurors

that would entail.

The second way in which I would seek to distinguish

this is that the direction which His Honour gave

does not advert, in what I would submit are

sufficiently clear terms, to the need for jurors to

adhere to their individual oaths. It is only from
line 25, downward, on page 5 that His Honour

adverts to that, that there is the hope ·that they

would:

be able honestly and conscientiously to come

to an agreement one way or the other, if that

is possible, within the terms of -

their oaths.

MASON CJ:	What is insufficient about that?
MR PHILPOT:	Your Honours, I would submit it does not state

in clear terms that at the end of the day each

individual juror must adhere to his oath and if the

jury therefore could not agree, so be it.

DEANE J:  Except when you read that last sentence with what

was said before the two sentences of which you

complain, it goes a very long way towards saying

that.

MR PHILPOT:  I would submit that is going to another issue,

Your Honour, if Your Honour is referring - - -

DEANE J:  He says, "unanimous":

All twelve of you must in the end, agree -

even though the paths to unanimity may vary. Then

he has the two sentences, and then he says, "You've

got to stick within the terms of your oath". What

I am really leading to, in that context, is that

there is great force in Justice Sully's judgment

Stonebridge 20/5/93

where he points out that no objection was taken to the direction.

MR PHILPOT:  On that, I would submit that that, with respect

to His Honour, does miss the point because this

direction can be founded with justification on Reg

v Walhein, and one would be in difficulty

submitting that the direction, as His Honour gave

it, was not sanctioned by the law. It would be my

ultimate submission to Your Honours that it is the

law itself which should be reconsidered in this

country in the light of developments elsewhere.

As to the substance of what His Honour, the

trial judge, said - - -

DEANE J:  I do not want to take time but if all that emerged

from the direction was a direction to the jury that

they had to stay faithful to their oath and

unanimity was required and so on, with a comment

that, "We hope you will reach agreement one way or

the other because if you don't, a lot of expense

will be wasted". Really, the comment objected to

says nothing more than any sensible person would

already know.

MR PHILPOT:  I would submit not, with respect, Your Honour.

I would submit that that adverting to time and

expense has attracted the concern of the courts in

England and in New Zealand.

DEANE J:  I was not suggesting it was desirable, Mr Philpot,

I was suggesting that you would have to really

measure what harm it did by a particular context

and where, as here, it seems to me the context is

not really bad but tends to put it all in a

sensible way, the absence of a request for

redirection does become very significant.

MR PHILPOT:  I would submit, Your Honour, that the direction

that the trial judge gave, where he does advert to

the matters to which Your Honour has just taken me,

are then likely to be swamped, if I might say so,

in the jury's mind by the reference to "time and

trouble and expense".

DEANE J: But what if somebody had asked for a direction?

The likelihood is His Honour would have said to the

jury, "Don't misunderstand what I said to you. You've each taken an oath; you each have to be

loyal to that oath, and everything I said to you

must be understood in the context of that."

MR PHILPOT:  Your Honour, if a direction has been given,

regardless of what the circumstances in which it

has been given, then I submit it does need to be

given with very great care and it is the wording

Stonebridge 6 20/5/93

that is used and, perhaps, the emphasis that is

placed in the particular situation which is

salient.

Your Honours, in Watson, in one place, the

court did advert to the great effect that

apparently the Walhein direction apparently had.

It is at 700C:

Experience has shown that the Walhein

direction, sometimes in its original form,

sometimes amended, may contravene -

the -

cardinal rule.

Referred to above.

In some cases the very short time required by the jury to reach a unanimous or majority decision after the Walhein direction shows the

impact it must have had on a minority who up

to that time had apparently been unmoved by

the argument.

MASON CJ:  Mr Philpot, have you got copies of the New

Zealand decision that is referred to in paragraph 6

of your outline?

MR PHILPOT: Yes, Your Honour.

MASON CJ:	Can we have that?
MR PHILPOT:	I have copies only of the two relevant pages,

Your Honours, pages 58 and 59.	Your Honours, it is
at the bottom of page _58, at line 48.	The court
said that:

a reference to great public inconvenience and

expense -

is best avoided, and they have not been used in New

Zealand for some years.

MASON CJ: Now, what about the cases in 7? Is it worthwhile

looking at them? There is no point in looking at

them if they do not advance our consideration of

the matter.

MR PHILPOT:  Yes. I have copies of the relevant parts of

those, Your Honours. In Judge & McKinney, in the

New South Wales Court of Criminal Appeal,

His Honour Mr Justice Clarke expressed

disquiet - - -

Stonebridge 20/5/93

MASON CJ: While you are getting the cases out, perhaps we

ought to look at the Queensland decision where

Watson and the Accused were disapproved.

MR PHILPOT:  I have that, Your Honour, too.

MASON CJ: Well, they seem to have disapproved of

everything.

MR PHILPOT:  They have disapproved, Your Honour, of Walhein

and they have also disapproved of both Watson and

the Accused.

MASON CJ: Everyone is out of step except Queensland.

MR PHILPOT: Yes, Your Honour. Your Honours, I have

photocopied the whole judgment, but the salient

points are at page -

MASON CJ: They are generally very short in Queensland.

MR PHILPOT:  - - - 341, in the judgment of

Mr Justice Thomas, and it is in the last paragraph.

The matter is also referred to at 345, in the judgment of Mr Justice Derrington. The thrust of the judgment of both of Their Honours seems to be that not to mention the reference to "time and trouble and expense" is to deprive the jury of the

assistance which it ought to be given.

MASON CJ: Yes.

MR PHILPOT:  Your Honours, the other place in which disquiet

has been expressed about - not about the Walhein

decision, but concern about the need to be very
careful in the formation of an exhortation was also

by Mr Justice Clarke in Reg v Heyde. I have copies of the relevant page .. The relevant page is at 249. His Honour there reviewed an exhortation, the terms

of which are not explicit, but His Honour, at E, adverts to the need to formulate any exhortation

"with great care". The trial judge there

apparently had made reference to the making of

inquiries and His Honour - - -

MASON CJ: Well, that is removed from this case.

MR PHILPOT: Yes, Your Honour. Your Honours, the final

decision to which I should take Your Honours is Reg

v Shoukatallie to which I have referred at

paragraph 9. I have copies of the relevant page.

The relevant page is 91. It was in this decision

that Lord Denning reviewed the history of an

exhortation and traced its origins back to the days

when jurors were locked up without water or food

until they reached a verdict. At page 91,

His Honour adverts to the matters which are

Stonebridge 20/5/93

normally contained in an exhortation, and
directions along the lines of Shoukatallie are

frequently given in Australian courts.

I would submit, Your Honours, that this

direction differs from the Walhein form of the
direction in that it emphasizes at the end that if

of the other jurors, it:  a juror cannot move himself to concur in the view

is his duty to differ, and for want of

agreement, there will be no verdict.

I would submit that the direction, when it is given

in that form, does bring home at the very end of

the exhortation the need for each individual juror

to adhere to his oath individually.

Your Honours, at the top of the page, though,

in Shoukatallie there is reference to the history

of these exhortations and Walhein is referred to, and it may be that this decision could be read as

giving at least tacit approval to the direction in

Reg v Wal he in. ·

Your Honours, my submission is that in this

case the jury was divided and they have indicated

their numbers. I do not wish to place any great

reliance on this but they did volunteer their

numbers. They were closely divided on two of the

charges. They then returned a verdict indicating a
great shift within a very short time, I would

submit, of the giving of this exhortation: if they

deliberated during their lunch-hour, an hour and 20
minutes; if they did not, within 20 minutes.

I would submit that what arise in this case are the very circumstances which have caused judges

in different jurisdictions concern over the Walhein

direction in its original form. I would again

submit, Your Honours, that in the form in which

His Honour gave it there is not, at the end of it,

a great emphasis on the need for jurors to adhere

to their individual oaths.

MASON CJ:  We are aware of the submissions you have made

about the particular direction.

MR PHILPOT:  Yes, thank you, Your Honour. Your Honours, I

would submit that there is, in this case, a real

risk of a miscarriage of justice and I would submit

that this is an area of the law which ought,

appropriately, to be considered for Australia in

view of the developments in other jurisdictions and

in view of disagreement among Australian judges.

It is an issue which can arise in any trial at all.

I would submit that in a case such as this where,

Stonebridge 9 20/5/93

in my submission, there is a risk of a miscarriage

of justice and where the issue can be crystallized
very narrowly, that this would be an appropriate

vehicle for Your Honours to consider the issue.

May it please the Court.

MASON CJ: Yes, thank you, Mr Philpot. The Court will

adjourn now and we will resume at 2 o'clock.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MASON CJ:  Mr Blanch, we do not need to trouble you.

In the circumstances of this case, which

include the absence of any application for a

redirection, we are not persuaded that the proposed

appeal would enjoy sufficient prospects of success

to warrant the grant of special leave to appeal.

The application is therefore refused.

MR PHILPOT:  May it please the Court.

MR BLANCH: If it please the Court.

AT 2.03 PM THE MATTER WAS ADJOURNED SINE DIE

Stonebridge 10 20/5/93