Ahmed v The Queen [2012] VSCA 76

4 On 29 January 2010, the appellant was sentenced to a total effective sentence of 7 years and 9 months' imprisonment, with a non-parole period of 5 years and 9 months. The details of the individual sentences are not relevant, as the appellant's application for leave to appeal against sentence was dismissed on 11 October 2011, due to his failure to file a written case.

5 On 22 August 2011, Ashley JA granted partial leave to appeal against conviction on the following ground:

The learned trial judge erred in law in failing to uphold the appellant's application to discharge the jury on the basis of the gravely prejudicial and unresponsive evidence given by Mr Ranjibar senior [one of the two victims].

6 Mr Ranjibar's specific evidence will be considered later in these reasons. There is no doubt that it was unresponsive. The dispute on the appeal is as to whether it was prejudicial and, if so, to what degree. The appellant says that the evidence:

(a) revealed that the appellant was then in custody;

(b) asserted that if the appellant left custody, he would kill witnesses or

(c) asserted that the appellant was associated with a group of people who would carry out reprisals against witnesses in the case; and

(d) asserted that witnesses had changed their testimony based on fear of the appellant.

7 The appellant says that the failure to discharge the jury has resulted in a miscarriage of justice.

8 Ashley JA refused to grant leave in respect of two other proposed grounds of appeal. The first challenged the adequacy of the judge's directions on acting in concert. The second asserted that the verdicts on the first six charges were unsafe and unsatisfactory. The appellant filed a notice of election. At the hearing before us, his counsel abandoned the challenge based on those two grounds; that was very sensible, as (in my opinion) they would both have failed.

9 The victims, Bijan Ranjibar and his son, Samko Ranjibar, knew the appellant as a local resident. He had visited their flat in the past, where he had been polite and deferential.

10 Because he did not have his glasses with him one day, the father asked the appellant to read to him the balance of an ATM slip, after he had withdrawn some money. The appellant said there was about $800, and remarked that the father was 'very rich.'

11 A few days later, around 11 pm on 28 December 2007, the appellant visited the Ranjibars' flat. Several other young people were present. The appellant made a number of phone calls and sent SMS messages while he was there. After the other guests had gone, the appellant went to leave the flat. The son went to show him out, as he had to open the security door.

12 At that point, three men wearing masks, and carrying a baseball bat and a machete, forced their way into the flat. The appellant did not leave. Instead, he went into the father's bedroom with one of the other offenders and demanded money. The other man struck the father with the baseball bat, while the appellant held his head. Another man then entered the room and cut the father's head.

13 The father heard the son calling for help, and moved towards the bathroom. The men continued hitting him as he did so. When he reached the bathroom, he saw the son bleeding, and the machete being held to his head. The men demanded money again. The father told the offenders his wallet was under his pillow. It contained $1,180 and was taken from the flat when the offenders left. The Ranjibars were forced to remain in the bathroom, while their home was ransacked.

14 On 29 December 2007, the appellant and two of the other offenders returned to the flat and demanded that the father pay them money every two weeks. They told him that if he did not comply, they would hit and kill him.

15 On 5 January 2008, the appellant made the same demands of the son, and returned the father's empty wallet.

16 As Ashley JA observed, this was a one-issue trial: had the prosecution proved the appellant's complicity in the acts of the other offenders?

17 The defence case was a very simple one. The appellant was in the flat with the Ranjibars' consent. Given the inconsistencies in the evidence of the Ranjibars, it had not been proved beyond a reasonable doubt that the appellant was a party to the attack by the three other men. Further, he did not make any later blackmail demands.

18 As part of a vigorous attack on the Ranjibars' credit, defence counsel put it to them that they were drunk and affected by illegal drugs on the night of the home invasion. He also sought to establish that the son had been dealing in drugs from the flat, a fact which he asserted was well known in the area and might have attracted the other three men to come and rob the flat.

19 The appellant did not give or lead evidence. His 'no-comment' record of interview was not tendered.

20 The appellant was tried separately from the other three co-accused.

21 After some short, preliminary discussion, a jury was empanelled shortly before lunchtime on 3 August 2009.

22 That afternoon, the father was called to give evidence. He did so in fairly broken English, with a heavy accent, and without the aid of an interpreter. He frequently addressed a number of discrete concepts or topics, in the course of answering a simple question. His answers were often unresponsive, even in evidence in chief. Numerous parts of the transcript are marked as 'indistinct.' In fact, having listened to the audio recording of his evidence, it is apparent that his actual evidence was nowhere near as clear as the transcript otherwise suggests; no doubt, the better quality of the transcript reflects the ability of the court reporter to replay the audio recording, in order to prepare it.

23 The father appeared to have trouble understanding a number of the questions which were asked of him, particularly in cross-examination. He acknowledged that he had problems with spoken and written English. The father was Iranian, and his native language was Persian.

24 When the court resumed next morning, the jury asked whether it was possible for the father to have an interpreter. Accordingly, the son and another witness were interposed, while arrangements were made for an interpreter to attend.

25 The son's evidence occupied most of the morning of the 4th. His spoken English was also accented, although not as heavily as the father's. His sentence construction was also much better, and he did not demonstrate problems understanding the questions. He gave a reasonably clear and consistent account of the events of the home invasion, and the threats which were made to him later.

26 After lunch, a Persian interpreter was sworn in, and the father's cross-examination continued. Thereafter, the father gave most of his evidence through the interpreter, although he did answer directly from time to time. His evidence concluded around 3.40 pm that day. It was during this part of his evidence that the father gave the evidence of which the appellant complains.

27 After the jury left the court, defence counsel said he would like to reflect on the transcript overnight, to enable him to decide whether he would make an application arising from 'the unresponsive answers of the witness to do with the threats and such like.' The judge's only response was to ask 'Unresponsive answers?', which suggests that, at this stage, even the judge was not aware of what the perceived problem with the father's evidence was.

28 First thing next morning, being 5 August, defence counsel applied to have the jury discharged. He argued that the relevant parts of the father's evidence, in combination with something said by the son, would be understood by the jury as meaning that the appellant was associated with a group of violent, threatening people, and that witnesses might not be truthful for fear of the appellant. He argued that the first passage would also be understood as being a threat to the jury, that the appellant would hit or kill them. A further vice was said to be references to the appellant being in custody.

29 The prosecution opposed the discharge of the jury. Apart from doubting that the words would have been heard or understood to have the meaning ascribed to them by defence counsel, the prosecutor said that defence counsel had to accept some responsibility for asking open-ended questions to, and not trying to control, a clearly non-responsive witness.

30 After hearing both counsel's submissions, the judge gave a short, oral ruling, in which he refused to discharge the jury. His Honour described the father as 'a garrulous old man who attempted to give evidence in a very disjointed way in English'. He questioned what weight any juror would give to the particular expressions and opinions offered by the father. In particular, he questioned whether any juror might feel threatened. He considered there was no high degree of necessity for a discharge of the jury.

31 In so far as the trial judge criticised defence counsel for not raising the possibility of a discharge application until the end of the day's proceeding, that criticism was, with respect, misplaced. The relevant evidence was only given towards the end of the father's evidence, late in the afternoon. Defence counsel raised the matter reasonably promptly thereafter, once the jury had left the court. It was also not unreasonable for him to want to examine the transcript overnight, before deciding whether or not to make a discharge application.

32 After the ruling, the prosecution called further witnesses on the 5th.

33 During the course of his charge on 6 August, the judge did not repeat or refer to any of the evidence about which the appellant complains. It seems to have been accepted by the parties, from earlier discussions, that the judge should not draw attention to that evidence by giving a specific direction to ignore it.

34 His Honour did give a standard direction to the effect that, in assessing the evidence, the jury might take into account the fact that some of the witnesses were not native speakers of English, and may have had difficulty understanding and answering questions.

35 The judge sent the jury out to start deliberating around 12.30 pm on 6 August. Verdicts were returned just after 4 pm that afternoon.

36 There is no general, inflexible rule that a jury must be discharged whenever evidence of the accused's bad character has inadvertently been placed before the jury. The question to be considered in such circumstances is whether there was 'a high degree of necessity to do so.' [1]

37 As the High Court observed in Crofts v The Queen:[2]

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effect of a judicial direction designed to overcome its apprehended impact.[3]

38 Counsel also drew our attention to two decisions of the NSW Court of Criminal Appeal, in which the prejudicial information which was disclosed was the fact that the accused was in custody during the trial.

39 In R v Gover,[4] the accused had been on bail for the start of the trial, but his bail was revoked when he failed to appear on the sixth day. Two days later, the jury asked the judge: 'Why is the defendant now under correctional services guard?' No application was made to discharge the jury, and, after discussion with counsel, the judge informed the jury on two occasions that it was a matter of no relevance and something on which they ought not to speculate. On appeal, it was argued that the appearance of the accused in court, apparently in corrective services custody, was tantamount to evidence of bad character, which was inadmissible, incapable of remedy, and required the discharge of the jury. The court described the argument as 'completely without merit', and said one could not assume that the jury or any member of it would infer guilt as a result of seeing the accused in custody.[5]

40 In R v Sinanovic,[6] when the lift doors opened, as the jury were heading off to lunch, some of the jurors saw the accused standing in an interview room in the cell complex. Defence counsel sought to have the jury discharged, due to the prejudice said to flow from the jury learning that the accused was in custody. The trial judge refused to discharge the jury. The Court of Criminal Appeal agreed with the decision. In delivering the lead judgment, Hulme J observed:

Many accused persons are in custody at the time of their trials. While, to reduce or eliminate the possibility or suggestion that a jury may be influenced by extraneous factors, it is preferable that it not occur, often the fact of such custody must be obvious to a jury. Not infrequently, this will arise in consequence of the presence or actions, sometimes necessary, of officers of the Corrective Services Department. If the fact such custody becomes known to a jury is to be treated as entitling an accused to a discharge, many of society's worst offenders would never be tried. For my part, I have more confidence in the jury system, than to think that persons will be convicted because they are seen to be in custody prior to a jury's verdict.[7]

41 In Victoria, accused persons routinely sit in the dock, surrounded by uniformed corrections officers, in the presence of the jury. And since those two decisions were handed down in 2000, it has become even more commonplace for television and newspaper coverage of criminal trials to show accused persons being brought into court by corrections officers, often from a prison van. In this day and age, and given the vast amount of media coverage of criminal trials, I think it probable that many, if not most, jurors would assume that a person facing a jury trial ordinarily would be in custody during the trial. The fact of being in custody would be perceived to be a feature of the modern criminal justice system, not a reflection of the accused's bad character.

42 Like Hulme J, I have more confidence in the jury system than to think that persons will be assumed to be guilty, or will be convicted, simply because the jury is aware that they are in custody prior to the jury's verdict.

43 Of course, if a jury became aware that the accused was in custody for having committed a prior offence, or because of specific concerns about their bad character, that may be sufficiently prejudicial to require a discharge of the jury, depending on the precise circumstances. Each case obviously requires careful, individual consideration of its own facts.

44 Finally, it should be noted that where - as here - a trial judge has refused an application to discharge a jury, and the accused has been convicted, any appeal to the Court of Appeal is not against the failure to discharge the jury, but against the conviction.[8] The issue for the appeal court is whether it is satisfied that the irregularity has not affected the verdict, and the jury would have come to the same conclusion had the irregularity not occurred.[9]

45 The appellant complains about two passages in the father's evidence given on 4 August. He says that they were particularly prejudicial, having regard to evidence given earlier that day by the son.

46 When cross-examined on the morning of the 4th about his past convictions, including for trafficking heroin and cultivating a narcotic plant, the son became rather defensive and reluctant to answer questions. The transcript records the following exchange:

DEFENCE COUNSEL: So you say in September 2006 that you can't remember going to court or you didn't go to court at that time. Which is it? --- Like I said, I don't like to answer the question because I will incriminate myself. I don't like to incriminate myself.

It doesn't matter what you like, I'm asking you the question.

HIS HONOUR: You can (indistinct)? --- No, I'm not answering you that question.

DEFENCE COUNSEL: ... Do you remember going to court, the Melbourne Magistrates' Court in August 2006, pleading guilty to possession of a controlled weapon?

HIS HONOUR: How does that go to credit? --- I don't like to answer that question either.

Mr [defence counsel] how does it go to credit? --- If you talk about his history, in past history ---

DEFENCE COUNSEL: Sir, it goes to his character on (indistinct)? --- and then I'll answer you.

HIS HONOUR: To his character but not to his credit.

DEFENCE COUNSEL: Yes, I'm entitled to ask him questions as to his character and particularly his inability to answer up to his priors. It's, in my submission, of significance.

47 Defence counsel then put several other alleged convictions to the son, who either denied them, or said he 'did not like to' answer the question.

48 The appellant says that the italicised words in the son's evidence would have been clearly understood by the jury to be an allegation that the appellant had a criminal history. I disagree, for the following reasons.

49 The transcript suggests that this exchange had a clarity which it did not in fact have. The audio recording discloses that the portion of the evidence which I have marked in bold text involved the judge, defence counsel and the witness all interrupting and talking over each other to some degree. I have listened to this portion of the recording at least half a dozen times. I expect the court reporter would also have had to replay the audio recording a number of times, just to comprehend and transcribe this part of the exchange. Even then, the reporter has got several parts of the exchange out of order - something which is perfectly understandable, given that several people were talking at once.

50 The jury had neither the transcript, nor the ability to listen to a recording of the evidence. Even if any members of the jury actually heard the nine words spoken by the son, in the midst of that fleeting, garbled exchange, I am not persuaded they would have understood them as being a reference to the appellant, or to the appellant having a criminal history.[10]

51 I agree with the trial judge's observation, made during the course of the discharge application, that even if the jury had heard those few words, it is likely they would have understood them to be a reference to the son's history (that being the very topic under discussion at the time).

52 In my opinion, the impact of the relevant parts of the father's evidence needs to be assessed without regard to this part of the son's evidence.

53 The father was cross-examined about his account of going to the bathroom to help the son. The appellant complains about the italicised words in the following exchange (the 'first passage'):

DEFENCE COUNSEL: In front of the bathroom you were trying to defend yourself? --- (Direct) ladies and gentlemen, four young and strong people - I am 42 kilograms - and if you see my son is very, very small and he's scared that blood. When he see the blood, get yellow face and fall down (indistinct) the policeman - four young people, strong, with baseball wood around 15 minutes hit me. Ladies and gentlemen, if I bring him from the gaol, tomorrow hit you, hit your son, hit yourself, kill maybe some people. Do you like it? Do you like? Which people say to you sorry, which people, is that my son there at the time, which one? Did you tell me sorry to me?

54 Defence counsel made no attempt to stop what was - like many of the father's answers - a clearly non-responsive answer. Instead, he subsequently asked the father - several times - to answer the question. The father kept being non-responsive. The following exchange then occurred, with the father still giving evidence directly:

DEFENCE COUNSEL: It's not responsive, Your Honour? --- I want to show him ---

HIS HONOUR: Mr [defence counsel], he wants to say something and I think you should permit that to be said.

DEFENCE COUNSEL: As Your Honour pleases? --- Yes, thank you so much. I swear to God I am not his enemy. I like him like my son. Still I am upset for him. I have clean heart, but my son is better than me. He have clean heart. Police, no. Police Flemington, no. My son have a very, very clean heart. Unfortunately he made a mistake a few years ago, he used a drug (indistinct) just if, as I put myself in gaol, I put myself my son in the gaol because judge, he has judge, said, you know, that find it drug underneath the car, it was for four person they have got reason for my son. I ask him please to judge, I told him please put him in gaol. I right it wrong (indistinct) for my son. I told him he got (indistinct) people to whom (indistinct) for going to gaol for (indistinct) stop the drug. I was upset for myself, but I did because gaol was better than drug.

HIS HONOUR: Yes all right. Thank you? --- Thank you. Thank you so much sir.

55 When listened to, rather than read, the relevant part of the first passage simply sounds like a lament or complaint by the father that he and his son had been assaulted by four strong young men, and nobody had apologised. He effectively asks the rhetorical question: 'How would you like it if you were treated the way we were'?

56 Before the trial judge, and in the written case, the appellant complained that the first passage involved some sort of threat of violence to the jurors themselves. That suggestion was, quite sensibly, not seriously pursued before us.

57 In so far as the first passage refers to bringing an unidentified 'him' from gaol, it is not entirely clear to whom the father is referring. Even if a juror might, at that stage, have thought the father was referring to the appellant being in gaol, when the judge finally allowed the father to say what he wanted to say, a few answers later, the father went on at some length, and in a garbled fashion, about the part he played in having his own son put in gaol, because of his involvement with drugs. So, even if a juror had heard the single reference to 'gaol' in the first passage, they would have been likely to have been confused about what the earlier reference to gaol was all about, once they heard the father's later evidence.

58 Alternatively, even if a juror understood the father to be asserting that the appellant was currently in gaol, for the reasons given earlier, the mere fact that jurors may be aware that the accused is in custody during his or her trial, is unlikely to be prejudicial, or sufficiently prejudicial, without more.

59 The cross-examination moved onto some other topics for about 10 minutes. Defence counsel then asked some questions about the occasion on which the appellant allegedly returned the father's wallet to the flat. The appellant objects to the italicised text in the following exchange which occurred next ('the second passage'):

DEFENCE COUNSEL: You didn't go to the front door? --- (Through interpreter) I didn't open the security door, just open the other door.

I suggest you didn't go to the door at all? --- Yes, I did, I went to the door. I think my son was at home as well and there's another person present at the time, Billy, name. (Direct) I said to Billy, I said 'Why you didn't say he wants Jafar?' He said 'I scare him. He have a big group. If he come from the gaol he will kill me.' Billy said to me, he said 'I just - I saw.' (Through interpreter) I ask Billy, 'How come you didn't say that you saw Jafar?' He said, 'I heard from him - I heard of him from other places, that if he comes out of gaol he will kill me.'

60 The transcript does not show what is apparent from listening to the recording, namely that the father continued speaking in Persian for a few more seconds, after the last of the italicised words were spoken. Before that could be translated, the judge interrupted him and said 'Thank you, please wait for a question.'

61 Given that the witness was speaking slowly, and there was interpreting going on for some of this exchange, there was certainly plenty of opportunity for defence counsel to interrupt the father, once it became apparent where his non-responsive, hearsay evidence was going. In particular, once the father started mentioning what he had spoken to Billy about, defence counsel could easily have objected to the witness continuing his evidence. Defence counsel was well aware that 'Billy' was somebody who the father said had been at the flat, but who was not going to be called as a prosecution witness.

62 We do not know why defence counsel made no attempt to control the witness at this stage. The appellant's current counsel speculated that perhaps defence counsel had thought he would not get support from the judge, had he tried to do so. He pointed to the exchange mentioned in paragraph 54 above, in which the judge allowed the father to give non-responsive evidence about helping put his own son in gaol to get him off drugs; he suggested that ruling might have discouraged defence counsel from objecting. But, it seems improbable that counsel would have been deterred by that single ruling from stopping an adverse witness, who was clearly straying into potentially dangerous territory. That is particularly so given that the judge had upheld defence counsel on the previous day, when he had sought to limit the father's evidence about Billy's presence on the later occasion. And, as mentioned in paragraph 60 above, the judge himself took steps to try to limit this particular, non-responsive evidence in the second passage.

63 In so far as the second passage asserts that the appellant was in gaol at the time of his trial, it is not sufficiently prejudicial, for the reasons given earlier.

64 The appellant argues that the jury would have understood the part of the second passage which deals with Billy to be making the following assertions:

(a) if the appellant left custody, he would kill witnesses or commit acts of violence;

(b) the appellant was associated with a group of people who would carry out reprisals against witnesses in the case; and

(c) witnesses had changed their testimony based on fear of the appellant.

65 The father's words, in so far as they were capable of being heard and understood by the jury, certainly did not go that far. At their highest, they concerned what a person called Billy - whose surname was apparently unknown by the father - had told the father that he had heard about the appellant, from other unidentified people.

66 It is necessary to consider those words in context.

67 By the time the relevant evidence was given, towards the end of the second day of the trial, the jury had heard all of the son's evidence, and almost all of the father's evidence. Most of the father's evidence that afternoon had been given through the interpreter, which made it much easier to comprehend. There was plenty of evidence on which the jury could convict the appellant, without having regard to the first or second passages.

68 The jury would have been all too aware that when the father became upset or excited, he had a tendency to make long, disjointed, non-responsive speeches in English, which were difficult to follow. It may be doubted whether, by this stage of the trial, they were carefully listening to his every word, when he went off on another of those verbal excursions.

69 We also know - from the fact that the jury asked for an interpreter at the end of the first day - that the jury had real trouble understanding the father when he spoke English. The first part of the 'Billy' evidence was given in English.

70 Why defence counsel did not interrupt the father at that stage, and try to control him, is a mystery. Perhaps, like the jury, he had trouble understanding what the witness had actually said in English. Or, perhaps he heard and understood it, but was not troubled, because he did not think the jury would have heard it or would have regard to it. Defence counsel certainly had plenty of time to stop somebody who was a frequently unresponsive witness, from giving any hearsay evidence about his discussion with Billy.

71 The trial judge was in a far better position than this court, to assess what impact, if any, the father's words may have had on the jury. His Honour expressed doubt that any juror would give weight to the expressions and opinions which formed the basis of the discharge application. We have not had the undoubted advantage, which the trial judge had, of observing the jury's facial expressions and demeanour, as the father gave evidence. But, having listened to the recording of the father's evidence, his Honour's scepticism seems perfectly understandable.

72 In all the circumstances, I am not persuaded that there has been any miscarriage of justice. I would dismiss the appeal.

[1] R v Halliday [2009] VSCA 195; (2009) 23 VR 419, [71] ('Halliday'); Maric v The Queen (1978) 20 ALR 513, 520 ('Maric').

[2] [1996] HCA 22; (1996) 186 CLR 427.

[3] Ibid 440 (Toohey, Gaudron, Gummow and Kirby JJ).

[4] [2000] NSWCCA 303.

[6] [2000] NSWCCA 397.

[8] Halliday [2009] VSCA 195; (2009) 23 VR 419, [71]; Maric (1978) 20 ALR 513, 520.

[9] Halliday [2009] VSCA 195; (2009) 23 VR 419, [66].

[10] While not probative of what the jury heard, I note that the prosecutor said that neither he nor his instructor had heard the words spoken by the son in the midst of the exchange between the judge and defence counsel.