Webb v The Queen; Hay v The Queen

[1993] HCATrans 369

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A28 of 1993

B e t w e e n -

MICHAEL PETER WEBB

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A29 of 1993

B e t w e e n -

VERONICA JANE HAY

Applicant

and

THE QUEEN

Respondent

Webb(2) 1 8/12/93

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 DECEMBER 1993, AT 10.19.AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR N.M. VADASZ, for the

appellant, Webb, (instructed by Herman Bersee)

MR P.N. WAYE:  May it please the Court, I appear with my

learned friend, MS K.A. WHIMP, for the appellant,

Hay, (instructed by S.D. Saunders, Director,

Aboriginal Legal Rights Movement Inc, South

Australia)

MS A.M. VANSTONE:  May it please the Court, I appear with

MR P.B. SNOPEK, for the respondents. (instructed

by P.J.L. Rofe, QC, Director of Public

Prosecutions)

MASON CJ: Are you presenting your appeal first?

MR TILMOUTH:  Yes, if that is convenient to the Court. If

the Court pleases. Your Honours received this

morning a written outline, and also a chronology.

MASON CJ:  We have received them, Mr Tilmouth, but as yet we

have not read them, so that we will take the

opportunity of reading them now.

MR TILMOUTH:  If the Court pleases, if I could deal with the

chronology first. The chronology is an endeavour

to bring together the brief history of the case

because what happened in the trial below is

scattered throughout the appeal books and is not

always readily evident what happened in the course

of proceedings. If I could fill in, if the Court

pleases, a few details and the bare bones of the

chronology.

The case started originally in early June 1992 when there was a jury panel summonsed. The trial

commenced in the usual way, 12 jurors were

selected, but after the Crown opening in the late

afternoon of 10 June my client, Webb, pleaded

guilty and, since the jury had been empanelled, it

had to return a verdict accordingly, and the whole

jury was discharged even though Hay, of course, had

still not been tried. Her plea was still one of

not guilty.

The situation was at that time, and references

to this are scattered in the books, that Webb

pleaded guilty against legal advice and under some

pressure. There had been some threats, apparently, to him in gaol. At all events, he entered the plea despite those factors and the jury returned the

verdict, as I have said. On 18 June - this is not

in Your Honours' chronology but it is a brief

detail - he applied for leave to appeal to the

Court of Criminal Appeal, virtually on the basis

that his guilty plea was entered when it ought not

Webb(2) 8/12/93

to have been and as a consequence, it seems, that

His Honour the learned trial judge,

Justice Debelle, who was still down at

Mount Gambier on circuit, learned of the appeal and

arranged a telephone conference on 19 June, the day

after the appeal was instituted, and invited an

application to change plea.

That application was heard in Mount Gambier at

the south eastern circuit on 22 June. There was

oral argument about jurisdiction and the
discretion, and in the end result the application

to change the plea was granted. At that time, that

is to say on the 22nd, a fresh jury panel had been

summonsed; not the balance of the old jury panel,

but a completely fresh panel had been summonsed for

the purposes of a new trial, if one was to be

started. I am unable to tell Your Honours what the

number of that panel was, but it was around 30 or

40, but His Honour had arranged for the original

panel of 12 jurors empanelled on the first trial to

be in the court building on 22 June.

Apparently, His Honour had some doubt about

whether the change of plea necessitated a change of
plea before the jury. At all events, it was

decided that jury need not be there and they were

discharged, so to speak, in the afternoon. There

were attempts made to segregate that jury, keep

those 12 jurors separate from the entirely new

panel, and it was on that basis, amongst other

things, that an application was then mounted for a

change of venue.

There had been some pre-trial publicity, there

was a problem with the new and the old jury being

around the building at the same time, and there was

some small amount of evidence that, in fact, there

was a little bit of local knowledge of the earlier

plea of guilty. There was a suggestion, and

His Honour accepted it, that the storekeeper, or

the shopkeeper - deli-keeper - nearby the court

knew about it.

At all events, Your Honours, there was

argument on the afternoon of 22 June about, amongst

other things, applications for separate trials by

Mr Waye for Hay, applications by my learned junior

for a change of venue on the brief basis that I

have outlined. The trial was fixed by His Honour

for the afternoon of 23 June to give Mr Vadasz

enough time to take further instructions.

Your Honours, on the morning of 23 June there

was what has been called in the chronology "a

general address to a new jury panel", and I should

explain what that is. In South Australia until

Webb(2) 3 8/12/93

some time between about five and ten years ago - we

have been unable to pinpoint the exact date - it

was conventional practice at the beginning of the

month for an entire jury panel, whether summonsed

at Adelaide or on one of the two circuits, to be present during the Crown prosecutor's opening in the first trial for the month, and the Crown

prosecutor on that occasion would enlarge the

normal opening to deal with general matters and

matters of decorum relating to jury trials. Such
matters included the onus of proof, presumption of

innocence, the right of silence, the question of

whether a person could give evidence - in the

course of the trial - general procedural matters.

It was customary as well for the Crown prosecutor

to talk a little about jurors' contact with others

around the courtroom. The general effect of that

opening would always be, "Stay away from people

around the courtroom. Don't speak to anybody about

the case. Only speak about it amongst yourselves".

About some time between five or ten years ago

as I have said, the practice changed. Again, I

cannot point to any formal document, but the

practice has become the law of the court.	The
practice is now that a judge sitting in the

criminal sessions in Adelaide, or the judge on

circuit as here, will address before any trial

commences the whole summonsed panel of jurors about

these general matters.

Now, that happened in this case, Your Honours, on two occasions. The first occasion was on

9 June, to the old panel, and the second occasion

was on 23 June in the morning before the trial was

due to commence that afternoon to enable, as I

said, Mr Vasasz to take instructions.

Your Honours, we have not been able to obtain a

copy of the general address which was given to the

new jury panel on the 23rd, but we have been able to obtain a copy of the one that was given by the

same judge, Justice Debelle, on 9 June to the first

jury panel, and I think Your Honours would have a

copy of that in front of you.

TOOHEY J:  Mr Tilmouth, when you say that the practice

became law, do you mean it became incorporated in

the Juries Act or in some statutory provision?

MR TILMOUTH:  No. I meant to say that the practice of the

court has become the law of the court. There is

nothing that we can find in the Juries Act, in

regulations, proclamations or, indeed, even in

practice directions. We have made inquiries

through the Clerk of Arraigns and we can find no formal documentation, but all counsel at the bar

Webb(2) 4 8/12/93

table, I am sure, will agree that is the standard

practice.

By the way, the jury panel is addressed by the

trial judge, or the circuit judge, without the

presence of any counsel involved in any case for

that sittings, although you can obtain a copy of

the address, which is given on payment of the fee. But it not the practice for anybody to be present, apart from the judge, the sheriff probably, and a

few officials and the entire summons panel, and

that invariably occurs before any trial is

commenced. Indeed, in Adelaide, Your Honours, the
summons jurors are in the order, I think, 160

to 180 people and it is conventional to divide them

into two; a district court gives the general

directions to one group and a supreme court judge

gives directions to the other. That may vary

according to availability, but that is generally

what happens.

But in the south eastern circuit and the northern circuit of Port Augusta, the circuit judge

gives the general directions on a convenient day,

usually the day the jurors are summonsed, in the afternoon. They are processed in the morning by the sheriff; in the afternoon, the directions are

given.

MASON CJ: What is the significance of this in this case?

MR TILMOUTH:  The significance of this is, if the Court

pleases, that although we cannot say categorically

that the second jury panel received these precise

directions, all factors indicate to the fact that

they were given general directions more or less
along the lines of these. These are fairly

standardized directions in a fairly common form.

It is true to say that some judges occasionally

vary a little and certainly, when on circuit, there

are occasionally slightly different factors. But

in the end result, our contention is that in fact a

direction along the lines contained in this

document was almost certainly given to the jury. In fact, as Your Honours will see when I come

to the question of this juror, she did say when she

handed the flowers to the woman outside the court,

"I'm not allowed to speak to you. These flowers

are for Mrs Patrick". That indicates

intrinsically, of course, that she realized she

should not be speaking with people in the courtroom

or around the courtroom.

In particular, Your Honours, it seems almost

certain that directions were given to this second

jury panel about jury decorum along the lines

Webb(2) 8/12/93

commencing at page 15 of this document, and if I

could read it, Your Honours. It is slightly

lengthy but it is important, in our submission,

because this juror gave over the flowers having had

a direction along these lines, on our submission.

Your Honours, at line 25, on page 15, the general direction continued.

I stress the importance of impartiality

and objectivity in the course of your

deliberations. You must not be affected by

feelings of sympathy or prejudice one way or

the other. Any such feelings must be

completely put to one side. So, too, your

deliberations must not be affected by what you

might have read in the press or by what you

might have heard or might hear on television,

but what you have been told by the man in the

street or by any rumours that you might have

heard. You must, as I have said earlier,

harken unto the evidence and to the evidence

alone. If you adhere to this advice, there

will be no risk of a miscarriage of justice in

any particular case. A verdict according to

prejudices, idiosyncrasies or any external
influences, such as what you might read in the

media, would inevitably lead to a miscarriage of justice, and because justice must not only

be done, but to be seen to be done.

But I add a couple of little warnings about how you might conduct yourselves in the

next month. First, I warn you against

speaking to, or having any conversation with

anyone other than your fellow jurors while you

are engaged in a trial. Do not speak to

counsel, do not speak to any witness, do not

speak to any other member of the public in and

about the courtroom.

And I leave a short passage, and go down to

line 19:

The design of this building is such that

it is very easy for you to come into contact

with other jurors not involved in the case,
members of the public, witnesses, friends or

persons involved in the case, any manner of

persons attending the court. You must be

careful not to get into conversations with

anyone, apart from jurors sitting in the case

with you. You must not allow them to get into

conversation with you. If you say 'Sorry, I

am a juror, and the judge told me not to talk

to people' they will understand.

Webb(2) 6 8/12/93

And that, of course, on our case seems to be what happened here.

I mention this warning because you may find

yourself talking to someone who turns out to

have a special interest in the case. And if

you are only talking about something quite as

inconsequential as the weather, I might have

to discharge the jury and start all over

again, because, as I have said earlier,

justice must not only be done, but be seen to

be done. And if you were seen speaking, if a juror was seen speaking to a witness, someone

might get the wrong impression as to what they

were talking about.

And, there is a similar direction on the top of

page 17, Your Honours, and similarly in the middle

of page 18.

Now, if the Court pleases, as I have said we

cannot ascertain that this was precisely given by

His Honour. There is simply no record of what
His Honour said. It could even be the case that

His Honour simply reread this to the second jury panel. But, it seems inevitable, if the Court

pleases, a direction along those lines must have

been given in this case because it customarily is,

and the juror's response, when questioned by

His Honour, conveyed the knowledge that she was not

supposed to speak to others apart from the jury.

So, Your Honours, moving from the chronology,

the situation was, as you can see, the trial

started on 24 and 25 June. There was some early

evidence, and then a voir dire was embarked upon.

It could not be begun, apparently, because a doctor

was called on the voir dire who was not available

early. Then after the voir dire intervened,

recommenced on 3 July and sat right through to

31 July and, indeed, to verdict on Saturday,

1 August.

Your Honours, the Crown case concluded on

24 July. Hay's case went from 24 to 28 July, I

think there was an intervening weekend. She gave

evidence in her own case. Webb, my client, did

not. The Crown addressed on 28 and 29 July,

counsel for Webb, my learned junior, addressed on

29 and 30, and Hay's address was on 30 and 31 July,

and the summing up commenced on the latter day, the

31st, late in the afternoon.

In other words, when the juror brought the

flowers on the morning of 31 July, the summing up

was due to commence some time that day but it was

during the course of the last address for the

Webb(2) 8/12/93

defence, the address by Mr Waye, for his client

Hay. Now, what happened, Your Honours, is

scattered throughout the appeal books but the key

passages commence at 138. The fact that this

happened - and I will explain precisely what

happened in a moment - did not come to the

attention of Mr Snopek who was prosecuting until

the following morning, the Saturday morning,

1 August, when of course His Honour's summing up

was due to continue and the jury due to retire.

DEANE J:	What was the page, again?
MR TILMOUTH: 138, Your Honours.	The summing up, which

precedes page 138, that is to say, from 121 to 138,

was in the late afternoon of Friday, 31 July.

Mr Snopek pointed out at the very beginning, quite

rightly, that he had received information, and I

read it, Your Honours, line 14:

It's been brought to my attention by

Mrs Patrick that she may very well have

received some flowers from one of the jurors
yesterday morning before the court started, in

the sense, although I haven't been able to

confirm this specifically, the person who was

given the flowers by the juror -

and then there is some other material. At line 21:

As I understand the message passed to

Mrs Patrick was in essence the person she

recognized as a juror gave her some flowers

and said would she give them to Mrs Patrick

because she's not allowed to speak or

communicate.

And at line 30, Mr Snopek referred to

Mrs Griffiths. Now what happened, Your Honours -

again this is scattered throughout the transcript

and it is easier to paraphrase it - the juror had,

in fact, picked two bunches of daffodils from her

garden and brought them to court that Friday

morning, while Mr Waye was addressing. Her

intention was, apparently, to give them to a fellow

juror who had a spouse, a wife, in hospital who was

ill. So her original intention was simply that neutral purpose. Apparently - and I will read the

passage in a moment - in a spur of the moment

decision, when she was in the courtroom building

she handed one of the bunches of daffodils to a

Mrs Griffiths - at line 30 - with the message that

I have just read, and I will read the juror's

statement about this in a moment. Now,

Your Honours, Mrs Griffiths was the mother of a

Miss Griffiths, Miss Griffiths being a witness in

the early part of the case.

Webb(2) 8/12/93

Ms Griffiths gave evidence on 25 June, at the

start of the trial. She was the fiance of the

deceased, the man with whom these two appellants

were charged with murdering. During the course of

her evidence, Mrs Griffiths, her mother, the person

to whom the flowers were handed much later, was in
the courtroom and seated with either Mrs Patrick or

both Mr and Mrs Patrick, the parents of the

deceased. Your Honours, a lot of this is either

subtly contained in the transcript, or not at all.

Some of these courtroom dynamics do not appear in

the written word, but what I have said I have

discussed with my learned friends, and unless they

correct me I believe it is an agreed basis.

Ms Griffiths, Your Honours, gave relatively

formal evidence identifying a belt buckle, a coat,

and gave some evidence about boots that the

deceased Patrick might have been wearing. All of

that was relevant, in a way, to identify a

connection between the two appellants and the

deceased man by reason of clothing that they had

with them or was in the scene, associated with him.

Now, Your Honours, this does not appear in the

transcript but it is agreed all around that - - -

BRENNAN J: But was it before the Court of Criminal Appeal?

MR TILMOUTH: What? This relationship?

BRENNAN J: What you are about to say.

MR TILMOUTH:  It was before the Court of Criminal Appeal in

the sense that the question of who Mrs Griffiths
was was discussed and the general relationship of

her being associated with the Griffiths was also

discussed. Your Honours will see, in a moment,

that His Honour the trial judge made a comment

arguendo that was obvious to everybody who the

Patricks were, and there is a similar passage in

His Honour's formal reasons.	The page numbers,
Your Honours, are 148 and 403 to 404 - I may read
those later.	The dynamics of the courtroom were

such that this relationship became quite obvious,

and His Honour reflected that at those pages.

I should add, however, that Mrs Patrick was

never formally identified in any way in the

courtroom to the jurors, and nor, indeed, was

Mrs Griffiths. There is every reason to suppose

that the jury, and this particular juror might have

associated Mrs Griffiths with the Patrick group, so

to speak, but there is nothing to suggest that she

knew her name was Mrs Griffiths or that she was the

mother of the witness Ms Griffiths. It was the

physical relationship which might well have been

Webb(2) 9 8/12/93

way of name. known to the jury, not the precise particulars by

At all events, Your Honours, the juror -

continuing on with the appeal book at 138 - was

brought into the courtroom after this was raised

with the panel, the entire panel, and His Honour at

line 26 mentioned that the matter had been raised,

and the juror at line 35 said on page 139:

I plead guilty. I had beautiful daffodils in

my garden. There was a lady I did not know at the door, I said, "I cannot talk to you, those

are for Mrs Patrick", that is all I said.

And the juror apologized at line 45. Now,

Your Honours, I have already submitted that the

expression, "I cannot talk to you", is an implicit

recognition of the fact that this juror and this

spoken about. jury probably had the general directions I have

The jury returned to the jury room. There was

then discussion about what should occur and, not

surprisingly, with respect, an application was made

for discharge.	Mr Waye put it on the basis at 140,
line 15:

My argument is the jurors are supposed to

be completely impartial, not only impartial in

fact, but, appear to be impartial. It is a

situation, my experience, completely unique.

No accused, if convicted, could be satisfied

they received a fair trial from an unbiased

jury.

And so on. So an immediate application was made

for discharge, in my submission, on proper grounds.

There was further discussion about it. Mr Vadasz,

at 141, between lines 5 and 15, made the point that

the juror's conduct demonstrated that she had been

overwhelmed, line 9, by her feelings of sympathy

and the point I would make there, with respect, was

overwhelmed to the point that she had apparently

not been able to heed the general directions which

must have been given to her. And, at 145,

Your Honours, after some further discussion, the

question rose as to whether or not she had
discussed this with other jurors or they had been

involved. And so the jury again were brought back

into the courtroom, line 26 on 145, the whole

panel, that is to say - and by the way,

Your Honours, there were 11 jurors at this stage -

as Your Honours will see from the chronology one

had been excused, under section 57 of the Juries

Act, due to ill health. There must be a unanimous

verdict of a jury in a murder or treason case,

Webb(2) 10 8/12/93

section 56 of the Juries Act, and a jury cannot be

depleted to any less than 10 members. So, at this

stage, Your Honours, it is important to note that

there were 11 jurors and they had to come in with a

unanimous verdict. At all events the juror again

elaborated on the actual events and said this

at 31:

I had picked flowers yesterday morning

for George's wife who is sick.

George was a jury member, Your Honours.

I had two bunches of daffodils, one fully out and one that were not out, which I intended

keeping. At the last moment I thought, I'll

take the lot. As I left the car I saw a grey

headed lady, who I had not seen before -

Mrs Griffiths -

outside the door of the court. It was a

purely impulsive action, for which I really
sincerely apologize for, and I thought, oh
they won't keep that long in hospital in air

conditioning, I whipped them out the jar and

just handed them to her, innocently, and said,

'could you give these to Mrs Patrick I cannot

talk to you', and I do apologize.t

And His Honours asked whether it was an action

alone, or in conjunction with other jury, and at

146 she said:

No one knew, I hadn't even told my husband

last night. The jury have just said, why did

I not tell them yesterday and they could have

told you yesterday. I didn't consider it of

importance, I'm afraid I'm an impulsive

person.

And the jury retired.

So Your Honours can see that it was not in any

way done with the concurrence of the other jurors.

The significance perhaps of the expression at

line 3 that they did ask - this is obviously

apparently between the first time the jury was
appraised of the situation and when they had been

out while counsel had been discussing it, between

pages 139 and 145 that they had obviously discussed

it briefly - and apparently the other jurors, or

some of them had asked why she did not tell them

yesterday. Perhaps that is also an intrinsic clue, general direction in the terms I have suggested,

because Your Honours may remember that at page 17

Webb(2) 11 8/12/93

of that general direction, His Honour said to the jury, in effect, that any incident, no matter how apparently innocent, you should report it to me.

The other jurors' comments at line 3 may reflect that consideration.

Your Honours, I do not deal with the detailed

argument. At the bottom of page 146 the matter His Honour regarded as of very great moment and

caused him serious concern which, of course, with

respect, is obvious, His Honour discussed some

principles at page 147 referring to an English case

of Bliss, which is on our respective lists of

authorities, and posed this question, may it please

the Court, at 147 at line 11:

Is not the question that I have to consider

this:  The question is, whether the act of the

juror in giving the flowers shows such a

degree of prejudice as would suggest some

expression of bias either towards the
prosecution or the defence and would impinge

upon her proper consideration of the evidence?

And there is further discussion. His Honour asked

at lines 26 and 27 whether anyone would dissent.

Mr Waye submitted that the word "may" instead of

"would" should be inserted, and His Honour applied

the less demanding "may" test in the end result.

His Honour then considered at 148 whether an

alternative course might be to discharge this juror

under section 56 of the Juries Act - that is at

line 21. It has been held, Your Honours, that in

South Australia the Court of Criminal Appeal in the

case of McDonald, 21 SASR 205 and 206, mentioned at

line 27, that it is proper to excuse a juror in

these circumstances even though the Juries Act has

an expression, "ill health or special urgency".

The Court of Criminal Appeal has held in McDonald

that that power under the Juries Act is very wide

and could be used in cases like this. Suffice it

to say His Honour was therefore considering both an

application to discharge the whole jury which, of
course, was the primary submission of counsel, and

the alternative of discharging this juror. In the

end result he did neither.

There were further submissions, Your Honours,

in detail at 149 and in 150. At 149 at line 28,

His Honour said:

The fact that she knew that she should not

communicate with Mrs Patrick indicates that

she is alive to her obligations -

Webb(2) 12 8/12/93

again a suggestion, in my submission, that she had

the general direction as I have suggested.

At 150 His Honour said, at line 11:

I believe that she will be able to put expressions of sympathy to one side -

His Honour said it was:

a spur of the moment decision -

and considered at lines 30 to 35 applying the

earlier test that he had suggested at 147, that she
would be able to put her feelings aside and it

would not:

impair her proper consideration of the

evidence.

That is at lines 34 and 35 of 150. His Honour then

determined at 151 that he would not discharge the

jury or the juror, and at lines 13, 14, and 15

Your Honours can see that the reasons he had

expressed arguendo were his reasons for not doing

so, and he would:

publish more formal reasons later -

which, of course, he did, and those reasons are in the appeal book. I will come to those in a moment.

It is sufficient, if the Court pleases, for the current purpose to mention that His Honour gave

a relatively lengthy direction when the jury

returned, at 161. After speaking about the

incident at the bottom of 161, line 44, he said

this, at line 46:

As you all know and as indicated by what was

said by you when you did that, you were not

permitted to communicate with other persons -

again, the expression, as you all know, is an

intrinsic reference to the general directions which

must have been given:

particularly relatives of the deceased.

page 162:

I appreciate that the flowers were given to

that person in that knowledge and with an

understanding that that is what had to be the

position.

Webb(2) 13 8/12/93

Again, an intrinsic reference to the fact that

general directions must have been given:

The difficulty that follows from you having

done that, is that it might appear that in

some way you had formed a view about the

issues in this case and were displaying some
kind, perhaps, bias towards the Crown case,

or, alternatively the demonstration of your

sympathy in that way might cloud your proper

consideration of all of the evidence.

And, His Honour went on to talk about sympathy, at

line 30. He repeated a direction that he had given

earlier in the general directions earlier, they are

at pages 122 and 123 in conventional terms, to put

sympathy aside. He continued with that direction

at 163, exhorting the jury at line 2:

you must consider the issues without any

feelings of sympathy or emotion towards the

relatives of either of the accused.

And so on. At line 19, the whole is important but

this is the gist of it:

Sift and weight each of the witnesses, all of the witnesses including Ms Hay without any feelings of emotion, any feelings of sympathy.

Just look at it, coldly, dispassionately and

above all, objectively and using your

commonsense. The trial will therefore

continue with you all.

His Honour then went on to another direction which

is the subject of one of Mr Waye's grounds of

appeal, not ours. So, if the Court pleases, that

is what happened and that is the basis upon which

His Honour determined that the trial should go ahead with the jury as currently constituted, and

determined likewise not to discharge that juror or

the whole jury panel.

Your Honours, the formal rulings are at 398. His Honour published a long judgment later - a

number of issues arose in this trial - and, in a

word, His Honour said in more formal language, and

by reference to authority what appears from the

transcript, but could I just point Your Honours to

some passages and reading only so much, or so
little as needs be. At 398 this whole topic is

dealt with. His Honour has summarized at 398 the

circumstances of the giving of the flowers, as I

have explained them. I do not repeat that. He

repeated that the submission was made at 398, at

the bottom, and 399 of the appearance of justice:

Webb(2) 14 8/12/93

must not only be impartial but appear to be

impartial.

The submission of Mr Waye that I referred

Your Honours to, at page 140. He then applied a

test, what might be called in shorthand, a real

danger test, at page 400, line 25, and this is the

essence of the ruling:

The question which I had to determine was

whether there was a real danger that the

position of the accused had been or might have
been prejudiced by what had occurred:

R v Sawyer (1980) 71 Cr App R 283, 285, a test

approved by The House of Lords in R v Spencer
(1987) AC 128, 144. See also R v Williams

(1987) 84 Cr App R 274.

That test, of course, Your Honours, has recently

been approved by the House of Lords in Gough, which

I will come to in a moment. Gough was decided by

the House of Lords after this trial and after the

Court of Criminal Appeal, but it is against us if our primary submission is right, and it supports

the real danger test that His Honour applied.

Your Honours, if I could just briefly point

out some other pages in the formal reasons. If the after dealing with the authorities, whether there

was a real danger in the requisite sense - lines 10

and 11. Your Honours, the passages I mentioned

earlier in answer to Your Honour Justice Brennan

about whether this was before the appellate court
appears at 403, at line 41, and this is a

reflection of what His Honour said, arguendo, at

148 - I did not read that because it - - -

DEANE J:  Mr Tilmouth, there is a change between 400 and

403. At 400, His Honour said:

a real danger that the position of the accused

had been or might have been -

which would make the question, "a real danger might

have been". At page 403, the "might have been"

disappeared. Does it come back in?

MR TILMOUTH: At this stage, it had certainly disappeared.

The test that His Honour was applying here is more

akin to an actual bias rather than imputed bias.

Of course, the test, one might say, at the trial

was slightly different again. But the case of

Bliss, which was available to the trial judge, was

in that line of authorities which it talks about

the real danger. There were different words used

but they came - - -

Webb(2) 15 8/12/93

DEANE J:  I was concentrating on the "might have been".

MR TILMOUTH:  Yes. Your Honour rightly points out, the test is a At this stage, at all events, as

rather more demanding one if, in the end result,

His Honour came to that. His Honour finally ruled

that there was no danger.	I will come to those
passages.

But, Your Honours, at the bottom of page 403

the relationship that I have endeavoured to outline

earlier of Mrs Patrick is dealt with, at 41:

The parents of the deceased Patrick were present for almost all of the trial and it

could be seen that Mrs Patrick was taking

extensive notes of the evidence and addresses.

Throughout the trial, relatives and family of

the accused Hay have also been present. Her

foster father and her uncle had, on occasions,

been identified by her counsel in the course

of the evidence. The members of the jury, as

much as anyone else, would have been aware of

the interested persons present and of the

identity of their particular interest.

So, that supports what I was putting earlier: it

does not go so far as to identify the relationship

of Mrs Griffiths to the Patricks but it is agreed,

Your Honours, that Mrs Griffiths sat with the

Patricks on many occasions throughout the trial.

Now, to complete this cycle, Your Honours, His Honour then dealt with the question of

whether - whatever test should apply. He discussed

the circumstances at page 404, in effect there

saying that the circumstances of the case would

naturally excite sympathy because of the injuries.

This appears to be the essence of what His Honour

held, Your Honours, at the bottom of 404; held in the sense of summed up what the facts came to him.

At line 40 on 404, His Honour said:  What this juror did was overtly to

express what others in the Court and, in

particular, other members of the jury, might

inwardly have felt. The outward and visible

expression of the sympathy was done on the

spur of the moment. The fact that the juror

said that she was not allowed to communicate

with others is an indication that she was

alert to her obligations as a juror,

obligations which had been mentioned to her

earlier in the trial.

And, again, that seems to be a reference to the

general direction.

Webb(2) 16 8/12/93

May it please Your Honours, in the end result, after further analysing the issue, at 405 at the

bottom, His Honour concluded, line 46:

I do not think that an expression of sympathy necessarily points to bias or prejudice or any other incapacity on the part of a juror to

reach a decision with regard only to the

evidence led at the trial and putting feelings of sympathy to one side. The courts recognise

the capacity of juries to do so. Even if

there is a risk of bias or prejudice, I think
that risk can, in this case, be met by an

appropriate warning to the jury.

As Your Honours know, His Honour gave directions at

161 to 163 which I have adverted to.

So, in the end result, if the Court pleases,

in the formal reasons at 400 that there is a real

danger or might have been a prejudiced situation,

the actual finding is - there is the qualification

Your Honour Justice Deane has pointed out at 403,

and the finding is that the overt circumstances of

this situation, because it was just a spontaneous

expression of a natural feeling of sympathy was

excusable and could be met by an appropriate

warning.

Our simple submission is, if the Court

pleases, in the end result, that what, with

respect, was substantially overlooked, although it

was adverted to from time to time, was the

appearance of justice. Quite apart from what the

juror had stated, our submission is the appearance

of justice in this case dictated that this case

could not continue certainly with that juror being

present, if not a discharge of the whole jury

itself. And that, in essence, is our submission of

what went wrong, so to speak, at trial.

Your Honours, the Court of Criminal Appeal

simply endorsed and agreed with the approach taken
by His Honour at trial.	The relevant passages

commence at 433, dealing with the question of

change of venue. I have dealt with that earlier.

At 434: the pretrial publicity from the Border

Watch article, and 435, the critical passage so far

as the daffodils incident is concerned, and I

simply paraphrase it, Your Honours; the Court of

Criminal Appeal was of the view - this is per the

Chief Justice, but the other judges agreed,

Justices Cox and Matheson, that His Honour dealt

with it promptly and properly, line 15; that is was

bound to excite natural sympathy, line 25, and at

line 31 to 32:

Webb(2) 17 8/12/93

there was no basis for a reasonable suspicion of bias on the part of the jury or any member of it.

And that statement relates to a submission that was

made by both appellants, in the Court of Criminal

Appeal, that if the circumstances fell short of

actual or imputed demonstration of bias that

objectively viewed, the circumstances in any event

required a discharge of one sort or the other, and

there the Chief Justice is dealing with that

submission by saying that the circumstances were

not such as to raise "a reasonable suspicion of

bias on the part of the jury". So, with respect,

there was really just an endorsement of the

approach taken by the trial judge without any

further analysis.

MASON CJ:  Was this point argued at length before the Court

of Criminal Appeal?

MR TILMOUTH: It was certainly argued, at some length.

MASON CJ: With reference to the authorities?

MR TILMOUTH:  In relation to some of the authorities, yes.

It was not, it is fair to say, argued as lengthily

as it was proposed to be argued here, but the point

was made that if the judges were satisfied that
what happened was excusable, nevertheless the

objective circumstances were such that either the
parties or a reasonably objective observer could
not feel that the jury or the juror could bring an
impartial mind to bear on the resolution of the
case. Our strong argument in the Court of Criminal

Appeal was the objective circumstances also had to be considered. His Honour did not, apparently,

consider those. He considered the more subjective

type of consideration: was this juror

demonstrating bias, or might there have been bias

in the circumstances?

MASON CJ: And you attack the test applied by - - -?

MR TILMOUTH: Yes, we attack both, if the Court pleases. As

I have said, of course, there was not Gough's case

at that time in the House of Lords but that was

against us anyway.	I have to deal with Gough, of
course, in a moment.

Now, Your Honours, the simple submission made

for the appellant is this, and it is dealt with in

the written outline. The submission is, if the

Court pleases, that a long line of authorities,

commencing with Reg v Watson Ex parte Armstrong,

dictate a universal test which is applicable to

trial situations.

Webb(2) 18 8/12/93

It is true, of course, that - this is

paragraph 4.2 of our written outline, Your Honours,

and the cases and the pages are there.	The
authorities would be well known.	I wish to go to

one of them in a moment for a slightly different
reason. But, in our submission, in essence, there

is no reason to propound any different test for

trial judges or, indeed, members of tribunals

sitting in cases than there is for jury trials.

And, indeed, the House of Lords and the Court of

Appeal in Gough said as much, although they

preferred a different test.

Our submission is, when it is reduced to its

simplest form, simply that the long and established

line of authorities commencing in this Court and
detailed in paragraph 4.2 of our written outline,

dictate the test that is to be applied. That test, of course, is where the parties or the public might

entertain a reasonable apprehension that the juror,

or jury in this case, might not bring an impartial

and unprejudiced mind to the resolution of the

case.

Our submission is simply that that is the

legal principle that should have dictated the

result here, and that principle, of course, is one

which is more concerned, for relevant purposes,
with the objective circumstances, apart from the

subjective considerations. The policy lying behind

that test, in our submission is, quite simply, the

Sussex Justices case: that justice must be done,

and must be seen to be done.

The other point to make, if the Court pleases,

if I could go to a brief passage in Watson, an

important passage, is that, of course, the test

propounded in this Court in all of those cases is

one which attaches to the reasonable perspective of

an objective observer and to the parties. In this

case, of course, it is not only a question of what

an objective observer might feel about the

daffodils being given over in sympathy for the
deceased's mother, but there is a very real

consideration in this case about how the accused

would feel.

If these principles apply they should, with

respect, apply with greater force in a criminal
case. The charge, of course, was - treason apart -

the most serious in the criminal calendar and it is

very important, in our submission, in a trial like

this that there be every appearance of fairness

being accorded in the trial.

If the Court pleases, if I could go to

Reg v Watson; Ex parte Armstrong,

Webb(2) 19 8/12/93

(1936) 136 CLR 248, to demonstrate the policy that

underlies the rulings of this Court in that line of

cases. The passage I have in mind is at pages 262

to 263 and this catches the essence of our

point 7:

submission. At 262 in the joint judgment of four about

The view that a judge should not sit to

hear a case if in all the circumstances the
parties or the public might reasonably suspect

that he was not unprejudiced and impartial,

and that if a judge does sit in those

circumstances prohibition will lie, is not

only supported by the balance of authority as

it now stands, but is correct in principle.

It would be wrong to regard the observations

of Lord Hewart CJ in R v Sussex Justices; Ex
parte McCarthy as meaning that the appearance

of justice is of more importance than the

attainment of justice itself. However, his

statement of principle, which was recently

reaffirmed in this Court in Stollery v

Greyhound Racing Control Board does go to the

heart of the matter. It is of fundamental

importance that the public should have

confidence in the administration of justice.

If fair-minded people reasonably apprehend or

suspect that the tribunal has prejudged the

case, they cannot have confidence in the

decision. To repeat the words of

Lord Denning MR which have already been cited,

"Justice must be rooted in confidence: and

confidence is destroyed when right-minded

people go away thinking:	"The judge was
biased".

I make the appropriate adjustments for the fact
that this is a juror and, in my submission, that

test applies for the same policy reasons identified

in that case.

DEANE J:  Mr Tilmouth, why would not any sane person be

biased in favour of the mother of a young man who

had been killed in these circumstances? I mean,

what does it have to do with who is guilty?

MR TILMOUTH: With respect, if the Court pleases, a sane

person probably would feel a great deal of

sympathy.

DEANE J:  But you would be overcome with sympathy as you saw

her sitting in court day after day listening to the

condition in which her son's body had been found,

and if you had a bunch of flowers you did not know

what to do with and you gave it to her, it strikes

Webb(2) 20 8/12/93

me as absurd to suggest that somehow you are

prejudiced about the outcome of the case.

MR TILMOUTH:  With respect, one can readily understand being

overcome by sympathy because of the nature of the
injuries, and because the trial went for so long
and the mother and the father at times had to go

through the ordeal of the trial. I accept all of that, of course, and it is, with respect, obvious

and natural. But this jury, after all, was

empanelled to try the case impartially. It was, it

seems, given directions that it had to put - - -

DEANE J:  Do not misunderstand me. I am not suggesting

there is not a problem in terms of communication,
but each time you talk about bias I find it hard to
follow because it seems to me the only bias that

has been displayed is the sort of bias that any

sane, feeling person would experience. I just do

not see how talking about bias you can turn that

into bias against the accused.

MR TILMOUTH:  Yes, perhaps I should have put it better this

way. The juror is, at one sense, overtly

expressing the natural feeling of sympathy,

although in our submission, in an impermissible

way. Now, the point there is, if the Court

pleases, she has not been able to put her feelings
of sympathy aside to the point that she, even

though it was on the spur of the moment, gave the

flowers over. Now, she had been directed to put

her feelings of sympathy aside, "Don't speak with

people", and the point here is that her sympathy

has been engendered to such an extent that she has
not been able to pay regard to those very strong

directions and those directions, of course, showed
that even a small manner of indiscretion could lead

to a miscarriage of justice and discharge of the

jury.

TOOHEY J: Say she had broken down in tears when she saw the

photograph of the deceased, or heard some evidence

relating to the condition of the deceased, what

would you say about that in terms of the principles

upon which you rely?

MR TILMOUTH: That would have been again, perhaps natural,

and it may well have happened, but of course, the

chief feature of that, distinguishing it from this
case, would have been the wholly spontaneous nature
of simply crying when the dreadful details are

being revealed in court. Of course, there are some

attributes of that here and, even though it was not

a considered judgment, the juror still did, in the

end result, the wrong thing. And also, if the

Court pleases, the juror did not speak up about it

either. In the end result, the way it came out,

Webb(2) 21 8/12/93

t~e_juror ~at through that whole day, when Mr Waye

finished his ·address and when His Honour began

summing up, without saying a thing about it, and it

was only revealed because Mrs Patrick had told

Mr Snopek about the situation.

Now, of course, she said that it was innocent.

She did not really think there was much moment in it, but again His Honour had directed the jury, in the general directions, that any minor matter, no matter how apparently inconsequential, should be

brought to his attention. Now, this juror has been

overcome by those natural feelings of sympathy to

the extent that she has put those very serious

directions on protocol to one side, her feelings

have overcome her.

TOOHEY J: But is it spontaneity which, as it were, excuses

the sort of display of emotion which you might wish

to convert into bias?

MR TILMOUTH: It might, with respect. There are other

cases; Your Honour Justice McHugh mentioned one in the special leave application; neither of us could remember the name, it is a case of Giles, 59 VR.

It is on our list but I do not intend to deal with

it, and a juror said, during the course of the
accused's evidence, I think the words were, "You

bastard" or "You dirty bastard", or something like

that. I do not need to go to the case,

Your Honours, because there is no question of

principle there. My submission would be today that

decision would be wrong. The trial judge, in his discretion, refused to discharge and the Court of

Criminal Appeal just said it was a discretionary

matter. There is no discussion of principle in
Giles.

In my submission a spontaneous outpouring of that kind would clearly give rise to and probably

dictate that there should be a discharge.

Something of a lesser degree of culpability, so to

speak, may or may not: but then again, if the Court

pleases, a situation where a juror, in the end

result, cries because of that natural sympathy,

that might be one thing, but doing this in spite of

those directions, even though with a degree of
spontaneity, is quite another, and no objective

person, quite apart from the parties, could feel

comfortable that this juror, in particular, had

brought an impartial mind to bear on the case.

That brings me back to Your Honour

Justice Deane: perhaps I should be focusing, not

on bias, but on the appearance of the fact that

this juror could not possibly, in those

Webb(2) 22 8/12/93

circumstances, bring an impartial mind to bear on

her consideration of the issues.

Your Honours, I am not referring to Giles. I

have mentioned the facts in my submission today at

least, or at least on the test we propound, that

decision could not stand. But, it is a factual
case, there is no discussion of the principles in

Giles. So, if the Court pleases - - -

BRENNAN J: There are a number of cases, are there not,

which deal with communications by jurors with

persons outside the jury?

MR TILMOUTH:  Yes.

BRENNAN J: Are any of those relevant?

MR TILMOUTH:  No, none of them on the facts are relevant. I

am coming to one or two in a moment because they

also deal with policy. The cases generally show,

and are generally unhelpful because they are
usually dealing with the English-type test. This
point really has not arisen in Australia except in

a case of Chaouk, and that supports us, if the

Court pleases, but the case - - -

McHUGH J:  I must say, Mr Tilmouth - I may be right off beam

here, but my impression is that the real issue in this case is the act of communication rather than

what you seek to get out of, or what inferences you

draw about the juror's own feelings about the

matter.

MR TILMOUTH:  Yes. Perhaps I should have made that clearer,

earlier. Although the juror said she did not know

the woman to whom she had given the flowers, it

seemed quite clear that she was associated with the

Patricks, and it seems that in her expression, "I

cannot speak with you, these are for Mrs Patrick,"
that it implies that the person to whom she had

given the flowers was somebody who was likely to

pass them on and, in that sense, it is only one

step removed from a direct dealing with a person

who was obviously involved in the case. As

His Honour mentioned it would have been known to

these jurors after this time who the Patricks were,

although not necessarily Mrs Griffiths, except that

she was associated with them.

It is the overt act, no matter how

spontaneously, of doing that which, in our

submission, demonstrates not only that cannot she

put the feeling of sympathy aside, but creates the

appearance, every appearance, that she would not
bring an impartial mind to bear in resolving the

case and, of course, in this case - - -

Webb(2) 23 8/ 12/93

DEANE J: Well, is it not really the same, if you come down

to the essence of it, as if the juror in question
had said to Mrs Patrick, "My heart absolutely

bleeds for you, as you sit there during this

trial."?

MR TILMOUTH: If the Court pleases, I think I am driven to

submit that because of the nature of the jury

system and the importance of keeping the

fact-finding process quite free of any taint, that

jurors have to overcome some quite overwhelming

feelings at times, and appear to be doing all the

right things and, in the end result, anything that

transgresses those rules has the capacity to affect

the fair trial and, in fact, as Your Honours know

from our written outline, one of our prime

submissions, of course, is that a fair trial is an

essential element in the criminal justice process -

Dietrich's case and Jago's, that authority is well

established in this Court - and you cannot have a

fair trial, in our submission, where there is not

the appearance of there being a fair trial. The

process is equally as important as the outcome.

McHUGH J: Well, what is the point at which you look at that

question? Is it in terms of the verdict? Do you

say that there has not been a fair verdict by

reason of the events that occurred over this flower
incident, or do you say that you look at in terms

of the perception that would prevail at the time the flowers were given, or an acknowledge of it?

MR TILMOUTH:	Both, if the Court pleases.
McHUGH J:	You will not get very different answers.

MR TILMOUTH: That is true, because if you look at the

perception at the time it may well be a test which

is more directed to what was the actual consequence

rather than what was the appearance. Whereas, if

you regard the question of the verdict being the

key point in time, then the conduct which is

involved must be something going to the root of the

trial. Now, our submission is, as Your Honours

know from the written outline, that in a case like

this it is not a question of looking at the proviso

as the Court of Criminal Appeal did, it is a

question of viewing the conduct, and if the conduct

is such that it is not excusable, then there is no

question of analysing what the consequence was in

actuality. The simple fact of the matter is

objectively viewed, the circumstances are such that

they go to the root of the trial, and in the end

result we are driven to argue Wilde's case. In

that sense, our submission both relates to the time

that this happened, but also the fact that it

Webb(2) 24 8/12/93

infected the verdict and it relates to that as

well.

In other words, the conduct here, if the Court

pleases, was sufficient for an objective person to

think that there may not have been a fair trial

and, because there must be a fair trial - that is

one of the prime considerations in a criminal

trial - the fact that this juror had acted in this

way vitiates the whole process. It is not quite a

venire de novo but it is akin to it. A venire de

novo is one step further where the trial just does

not get off the ground because somebody has been

denied a right of peremptory challenge, as in Johns
case, or insufficient jurors have been empanelled,
and so on.· It is not quite a venire do novo, but

in our submission, it is akin to it.

BRENNAN J:  What you are saying, in essence, is that the

courtroom is a place of emotional sterility.	The
only thing which produces an infection in that
atmosphere vitiates the fair trail?

MR TILMOUTH:  Yes, driven to our extreme case, yes, and I

can only repeat the jurors were directed to try and

do that. This case is not quite where a juror

might quite, beyond control, cry in the jury-box
because of dreadful circumstances, there is a

little bit more willfulness about this, although it

was fairly spontaneous, on the spur of the moment,

as the juror said. The fact that this had been

done in the open, and there had been an approach to

a person interested in the case, directly

interested in the outcome of the case, namely

Mrs Patrick, which is quite different.

A juror crying might be crying for all sorts

of reasons: the hideous nature of the crime, it

might even be out of sympathy for accused people

getting this drunk and getting involved in these

things.	Your Honours, in this case the parents of
Ms Hay were throughout the trial, and no doubt
there was sympathy for them as well.	But crying in

the box can be quite different. This conduct was,

as I think Your Honour Justice McHugh was

indicating, was rather more specific directed, it

was directed to an interested party in the case,

namely, Mrs Patrick.

Your Honours, before I come to one or two

Australian cases - and I only intend to refer to a

few - I should deal, as promised, with the House of

Lords because it is directly against us, and it is

recent, May of this year: it is (1993) AC 646. In

Gough, Your Honours, as I said, they applied the

real likelihood test of prejudice or bias.

Your Honours, if I can deal with it briefly, the

Webb(2) 8/12/93

case is important. The Court of Appeal, at 652,

was bound by two conflicting lines of authority

which it summarized at 652, just above the letter D:

The test according to the first line of

authorities, when considering whether a

conviction should be quashed on the grounds of

bias is posed in the following question: was

there a real danger that the accused may not

have had a fair trial? If this be the correct

question Mr Hytner concedes that he cannot

disturb this verdict, because the

circumstances of the case are such there there

was not such a danger.

I do not deal with the facts, Your Honours,

they are quite different.

He contends however that the proper test is:

would a reasonable and fair-minded person

sitting in the court and knowing all the

relevant facts have a reasonable suspicion

that a fair trial of the defendant was not

possible?

So there were two competing lines of

authority, one more subjective and more objective,

as it were. Those authorities are discussed in the
pages that follow and in the end result the court

came to perhaps an incongruous conclusion at 655,

line 3, that they were bound to accept the

distinction that there was one test for jury cases,

the real danger test, and a different test for

magistrates and courts and inferior tribunals, and

at line 3 they ruled accordingly:

We feel we must accept this distinction because there is no other way of reconciling

most of the authorities, though it is

difficult to understand why the test of bias

should be any different in considering the

position of a magistrate compared with that of

a juror.

The Court of Appeal certified a question and

decision in these appeals.

AT 3.38 PM THE MATTER WAS ADJOURNED SINE DIE

Webb(2) 76 8/12/93