Tipping v The King (No 2)

Case [2023] SASCA 17

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TIPPING v THE KING (No 2)

[2023] SASCA 17

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)

23 February 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM

The appellant appeared before two different juries for two separate and unrelated incursions into crime. These trials occurred close in time to one another. The appellant was found guilty by both juries and was sentenced for both criminal incursions at the same hearing.

The appellant appeals against conviction on the ground of a miscarriage of justice. The appellant contended that the trials occurred so close together that there was an appreciable risk the jury for the second trial would become aware of the appellant’s first trial and the subject offending.

The appellant also appeals against sentence on the ground of manifest excess.

Held, per the Court, granting permission to appeal against both conviction and sentence, dismissing the appeal against conviction but allowing the appeal against sentence:

1.   The proximity of the trials does not amount to a miscarriage of justice.

2.   The sentencing judge erred in setting a non-parole period.

3.   The sentence imposed in the District Court is set aside and the appellant is re-sentenced.

Criminal Law Consolidation Act 1935 (SA) ss 19(2), 19AB(2), 20(4) and 23(3); Criminal Procedure Act 1921 (SA) s 158; Sentencing Act 2017 (SA) s 47(1)(b), referred to.
Brawn v The King [2022] SASCA 96; Dupas v The Queen (2010) 241 CLR 237; Filippou v The Queen (2015) 256 CLR 47; Hofer v The Queen (2021) 395 ALR 1; House v The King (1936) 55 CLR 499; Jago v District Court of New South Wales (1989) 168 CLR 23; JGS v The Queen (No 2) [2022] SASCA 72; Kentwell v R (2014) 252 CLR 601; Nudd v R (2006) 80 ALJR 614; Pateras v The Queen [2021] SASCA 107; R v Glennon (1992) 106 ALR 177; R v McNamara (2009) 105 SASR 38; R v Qaumi and Qaumi (2016) NSWSC 1473; R v Riccardi (2017) 128 SASR 571; R v Roberts [2016] SASCFC 41; R v Shepperbottom (2001) 121 A Crim R 69; R v Wright [2019] SASCFC 128; Stock v The Queen [2021] SASCA 116; Weiss v the Queen (2005) 224 CLR 300; Wilde v The Queen (1987-1988) 164 CLR, considered.

TIPPING v THE KING (No 2)
[2023] SASCA 17

Court of Appeal – Criminal: Livesey P, Lovell and David JJA

  1. THE COURT: In September 2021 the appellant was tried before a jury in the District Court of…

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Tipping v The King (No 2) [2023] SASCA 17
Case
[2023] SASCA 17
Decision Date

CaseChat Overview and Summary

The appellant, Tipping, appealed his convictions for offences committed in 2015 and 2019. The appeal against conviction concerned the 2019 offending, where the appellant argued that the jury's verdict was unsafe due to the proximity of his trial to an earlier trial in which he was found guilty of aggravated assault. The appellant contended that this proximity created a risk of jury contamination and a consequential miscarriage of justice. The appeal against sentence concerned the sentences imposed for both the 2015 and 2019 offending. The matter was heard by Livesey P, Lovell and David JJ of the Supreme Court of South Australia.

The primary legal issue before the Court was whether the appellant had suffered a miscarriage of justice due to the risk of jury contamination arising from the close timing of his two trials. Specifically, the Court had to determine if the jury in the second trial could have been influenced by knowledge of the first trial, and if such influence could have realistically affected the guilty verdict. The Court also considered the adequacy of the jury directions given in the second trial and whether special precautions should have been implemented.

The Court applied the principle that a miscarriage of justice occurs if an error or irregularity is of a nature and degree that could realistically have affected the jury's verdict. The Court commenced from the presumption that jurors approach their tasks conscientiously and are capable of rendering verdicts based solely on admissible evidence, uninfluenced by extraneous considerations. While acknowledging the appellant's submission regarding the potential for contamination through overlapping jury panels, the Court found that the risk presented was speculative and not supported by evidence. Relying on established legal precedent, the Court held that the mere possibility of a juror acquiring irrelevant or prejudicial information is inherent in criminal trials, and the law presumes that juries will act in accordance with judicial instructions. The Court found that the jury directions provided were adequate and that the appellant, despite being advised of the risks, had elected to proceed with a jury trial.

The Court dismissed the appeal against conviction, finding no miscarriage of justice. The appeal against sentence was also dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant also appealed the sentences imposed for the offending.BackgroundThe 2015 offending On 8 July 2015, Senior Constable Jelfs (‘Jelfs’) attended the appellant’s home at which the appellant and Jelfs engaged in conversation. Jelfs proceeded to arrest the appellant due to an outstanding warrant. The appellant resisted, grabbed Jelfs and punched him twice to the head. They grappled and the appellant and Jelfs fell with the appellant landing on top. The appellant stood over Jelfs, punched and kicked him and then threatened that he was going to get Jelfs’ gun and shoot him. Jelfs felt tugging on his belt adjacent to his gun. The appellant was arrested following the arrival of other officers. Jelfs suffered from both physical and psychological injuries as a result of the altercation. The appellant was found guilty of, and sentenced for, the offences of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act (1935) (SA) (‘CLCA’) and aggravated threatening to cause harm contrary to s 19(2) of the CLCA.The 2019 offending The appellant and the victim frequently engaged in arguments due to a break down in a tenancy relationship. On 22 September 2019, the appellant, while driving, was arguing with the victim who was riding his bicycle. The appellant lost his temper and deliberately turned his vehicle into the victim. The victim was run over by both the appellant’s vehicle and the attached trailer and dragged for 4 to 5 metres. Having stopped his vehicle, the appellant got out and moved the victim to the side of the road. He called ‘000’ but gave limited information to the operator. Despite being told to stay on the phone, the appellant hung up and left before the arrival of emergency services. The victim suffered from life threatening injuries. The appellant was found guilty of, and sentenced for, the offences of recklessly causing serious harm contrary to s 23(3) of the CLCA and with leaving an accident scene after causing harm by careless driving contrary to s 19AB(2) of the CLCA.Appeal Against ConvictionAppeal ground The ground of appeal against conviction for the 2019 offending is:The verdict of the jury is unsafe in circumstances where the trial at bar was conducted in the same week, and in the same court house, as another, earlier trial in which the jury found this [appellant] guilty on a charge of aggravated causing harm resulting in an unfair trial and a consequential miscarriage of justice. Permission to appeal and an extension of time are required. Procedural history The appellant alleged a miscarriage of justice due to the proximity of the two trials. The appellant submits there was a risk that the jury for the second trial would become aware of his first trial. It is necessary to set out the procedural history of both jury trials. The trial for the 2015 offending commenced on 28 September 2021. The prosecution made an application to suppress the identity of the appellant before the jury were empanelled to protect the appellant’s right to a fair trial for the 2019 offending. This application was granted, and an order was made supressing the appellant’s identity until the completion of the second trial which was due to commence on 13 October 2021.

Evidence

Evidence Before The Court

Prior to empanelment, the jury panel for the second trial were directed to excuse themselves if they knew any of the persons involved or something about the facts of the case. Once empanelled, the judge gave further directions that any decision must not be made on information obtained outside the courtroom, that they must avoid situations that may possibly impair their impartiality and that they must avoid conversations with people around or near the court building. The trial judge reminded the jury of their collective responsibility to inform the Court if a fellow juror breaches the instructions. Evidence On appeal, there was a dispute about the advice given to the appellant regarding the risk of contamination and instructions to proceed with a jury for the second trial. The Court heard evidence from the appellant and Mr Moen, counsel for the applicant for both trials. The appellant gave evidence that, for the second trial, he wanted a trial by judge alone but agreed to not pursue the application so that the matter could be dealt with expeditiously. The appellant said there was no discussion with Mr Moen about the risks enlivened by the proximity of the trials. Mr Moen gave evidence that he kept contemporaneous notes of his meetings with the appellant. He referred to these notes when giving evidence. Mr Moen stated that he was concerned about the proximity of the trials and possible contamination. Mr Moen said that he had advised the appellant about the possible risk of jury contamination and that the appellant had instructed him that he wanted the second trial to proceed before a jury. Where the evidence conflicts, the Court prefers Mr Moen’s evidence. We find that the appellant was aware of the risks of conducting the trials in close proximity and instructed Mr Moen that he wanted to proceed with the second trial before a jury, withdrawing an application for a trial by judge alone. Nonetheless, the issue remains as to whether there has been a miscarriage of justice.Submissions The appellant submits that the miscarriage of justice is the broad risk of contamination which is not limited to the physical interactions of the two juries. The October jury pool was divided into panels, with panels 1, 2, 3 and 4 being inducted on 30 September 2021 and panels 5 and 6 being inducted on 1 October 2021. The jury panel for the second trial was panel 5, and it was agreed that it was unlikely those jurors entered the court until empanelment on 14 October 2021. On 5 October 2021, the first trial continued whilst other jury trials, comprised of jurors from October panels 1, 2, 3, 4, and 6, were just commencing. The appellant submitted that, from such overlap, October jury panels 1, 2, 3, 4 and 6 acquired knowledge of the first trial. This, in turn, enlivens the risk that panel 5 jurors would become aware of the first trial by talking with October jury panels 1, 2, 3, 4 and 6. This risk existed until the guilty verdict for the second trial on 20 October 2021. The appellant further submitted that the standard jury directions given in the second trial were inadequate. In these circumstances, the judge for the second trial should have been made aware of the first trial so that specific questions regarding the appellant’s identity could be answered and precautions implemented. The absence of special precautions heightened the risk of contamination.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was submitted that the risk of contamination put forth was speculative given the absence of evidence. As such, this Court should rely on the experience of the law that assumes jurors approach their tasks conscientiously.[6][6] Dupas v The Queen (2010) 241 CLR 237 at [26].Consideration Sub-section 158(1)(c) of the Criminal Procedure Act (1921) (SA) (‘CPA’) authorises this Court to allow an appeal where, on any ground, there was a miscarriage of justice. This provision extends to cases where, whether as a result of an irregularity or otherwise, the defendant had not received a fair trial, being a trial according to law.[7] In Hofer v The Queen, Gaegler J set out the threshold for a miscarriage of justice:[8][7] Brawn v The King [2022] SASCA 96 at [28]; Weiss v the Queen (2005) 224 CLR 300 at [45]; Filippou v The Queen (2015) 256 CLR 47 at [13].[8] Hofer v The Queen (2021) 395 ALR 1 at [123].Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect", an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established.(Citations omitted) Accordingly, the issue in this case is whether the risk of jury contamination due to the proximity of the trials could have realistically affected the guilty verdict delivered by the jury. In deciding this issue, this Court must start from the basis that jurors approach their tasks conscientiously.[9] The Court must consider the capacity of the jury to give verdicts only on admissible evidence, uninfluenced by extraneous considerations.[10] [9] JGS v The Queen (No 2) [2022] SASCA 72 at [183]; Dupas v The Queen (2010) 241 CLR 237 at [26].[10] JGS v The Queen (No 2) [2022] SASCA 72 at [184]; Dupas v The Queen (2010) 241 CLR 237 at [29]. R v Glennon considered an application for a permanent stay due to media publicity of a priest, the accused, charged with sexual offences.[11] The High Court made relevant observations regarding the possibility of external influences on jurors and an unfair trial. Mason CJ and Toohey J said:[12][11] (1992) 106 ALR 177.[12] R v Glennon (1992) 106 ALR 177, 185.The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.