Barber v R; Zraika v R

Background circumstances

1. There were only two issues to be determined by this Court, namely (a) whether the trial judge was wrong to discharge the jury with respect to the charges against the applicants, and (b), if so, whether the Court should set aside the order, or grant other relief.
2. The indictment provided to this Court included four counts. The first charged Daniel Haile and Louise Spiteri-Ahern with murder; the second was an alternative count against Ms Spiteri-Ahern that she "did solicit" Daniel Haile to murder the victim. The third count charged April Barber with inciting Haile and Spiteri-Ahern to murder the victim. The fourth count charged Amin Zraika with concealing a serious indictable offence because he knew of the matters alleged against Ms Barber and failed to report those matters to the authorities.
3. The first issue of significance for present purposes arose from the manner in which the jury were instructed to address the charges. In a report furnished to this Court pursuant to s 11 of the Criminal Appeal Act 1912 (NSW), the trial judge described the course taken in that regard in the following terms: "There was a deal of evidence against Ms Barber and Mr Zraika that was not admissible against Mr Haile and Ms Spiteri-Ahern. I accordingly took the approach that I would sum up generally but not mention that evidence, ask the jury to consider the cases involving Mr Haile and Ms Spiteri-Ahern and then, hopefully after verdicts had been returned in respect of these two, sum up further with particular attention to the cases involving Ms Barber and Mr Haile."
4. The last reference to "Mr Haile" was clearly intended to be a reference to Mr Zraika. It followed that, at the time the jury was discharged, they had neither been instructed by the judge in relation to the particular evidence relevant to the applicants, nor had they been directed to consider the charges against them.
5. After setting out some circumstances relating to the lengthy period of deliberation, the judge explained the final steps taken in the following terms: "The jury could not find Ms Barber or Mr Zraika guilty unless they also found Ms Spiteri-Ahern guilty. I took the view that it was not appropriate to ask them to consider the case against Ms Barber and Mr Zraika when the only result could be a verdict of acquittal or an absence of agreement."
6. The first question is whether the judge was correct in discharging the jury on that basis. However, before considering that question it is necessary to set out some further details in relation to the procedure adopted immediately prior to the discharge of the jury.
7. First, the trial had run, with some short interruptions, from 22 February 2016 until 20 May 2016 when the jury were directed to consider their verdicts with respect to Mr Haile and Ms Spiteri-Ahern. The jury returned its verdict of guilty of murder with respect to Mr Haile on 6 June 2016. They were directed to continue to deliberate with respect to Ms Spiteri-Ahern and did so for three further days before they reported that they were unable to reach agreement.
8. Secondly, over the period of the trial, the jury had been reduced to nine members. It was open for the trial to proceed despite the reduction in numbers, pursuant to s 22 of the Jury Act 1977 (NSW). However, the reduction below 11 members meant that any verdict was required to be unanimous. [1]
9. There was no dispute in this Court that, as a result of the formulation of the charges, the trial judge was correct in saying that, given the failure to agree with respect to Ms Spiteri-Ahern, the only affirmative verdict that could be reached with respect to the applicants was the acquittal of each. Accordingly, the discharge of the jury in circumstances where it had not been required to consider its verdict with respect to the applicants, left open the possibility that they and Ms Spiteri-Ahern could be put on trial again with respect to the unresolved charges.
10. Finally, it should be noted that, although the judge prepared a report for this Court, he did not deliver a judgment with respect to his decision to discharge the jury. Following the discharge of the third juror, he did give reasons for not discharging the remaining members of the jury, pursuant to s 53C(1) of the Jury Act, a judgment delivered on 6 June 2016. With respect to events thereafter, the Court was provided with copies of the transcript of 7, 8 and 9 June 2016. The judge stated to the jury, after receiving the note to the effect that they were unable to reach a unanimous verdict: "In light of the fact that any verdict of guilty against Ms Barber and Mr Zraika depended upon you finding a guilty verdict against Ms Spiteri-Ahern, I'm not going to require you to consider the situation of Ms Barber and Mr Zraika. So I am going now, and I do, discharge you from any further function in this trial."
11. After some further words of explanation in relation to the system and expressing the Court's thanks to the jury for their contribution, the following exchange took place with Ms Francis, counsel for Ms Barber: [2] "FRANCIS: Sorry to interrupt, but I would ask your Honour to stay that decision and for the accused to exercise her rights under s 5G of the Criminal Appeal Act. … It would be a stay until tomorrow morning. … HIS HONOUR: Ms Francis, I think what I have said amounts to a discharge of the jury already. If it does not, I am not going to delay that decision. In my view it is not an appropriate case to stay an order for the discharge of this jury. FRANCIS: … Your Honour, the taxpayer has funded four months of trial on the part of Ms Barber and she is entitled to a verdict. The jury have not indicated any difficulty with considering her case and your Honour hasn't left her case. HIS HONOUR: I understand that. This jury has, however, now been here for the best part of 14 weeks. They have spent a long time deliberating."
12. The prosecutor then objected to the exchange occurring in front of the jury, presumably on the ground that they might not be discharged. The jury was then discharged and the judge made the following further statement: "HIS HONOUR: Ms Francis, I was not going to say this in front of the jury but I will say it now: having regard to the time the jury has already been deliberating, I would think it inappropriate to - with regard to the time at which they were deliberating, having regard to their statement today and the last three days or so they have been deliberating solely on the situation of Ms Spiteri-Ahern, having regard to the discharge of a couple of jurors already on the grounds of stress, and although I haven't acquiesced in them, I am not unconscious of the submissions which have been put to me by defence counsel in reliance upon that discharge, I think it would be not appropriate to effectively retain this jury longer until you have proceeded to the Court of Criminal Appeal and then bring them back here tomorrow or next week to further deal with the matter."
13. Although there was no discussion with counsel immediately prior to the statements set out above, there had been consideration in the morning as to what steps should be taken if the jury were deadlocked. The trial judge noted that they could not convict Ms Barber if they did not convict Ms Spiteri-Ahern, noting with respect to Ms Barber that "they could theoretically acquit her, they could, on the other hand, disagree." The prosecutor agreed with that assessment but said that "to send a jury out where the only verdict they could reach is a verdict of not guilty would be manifestly unfair because the danger that there would be pressure on the jury to produce a result in such a circumstance has in it such a degree of procedural unfairness that it should not be done." [3]
14. Counsel for Ms Barber took issue with the proposed course of action and the reasoning behind it. Counsel for Ms Barber, in a submission adopted on behalf of Mr Zraika, stated: [4] "There is available to the jury, in respect of which your Honour hasn't yet directed, evidence which exculpates her and she has sat at trial for four months, in the charge of the jury, and is entitled to a verdict on the evidence with proper directions attaching to the same. That the jury might be hung on a category of evidence that's admissible in the case of Ms Spiteri is no impediment to the jury reaching an acquittal in respect of that category of evidence which is admissible in the case for and against Ms Barber. … [T]here is no legitimate basis to take away from the jury their deliberation. And to the extent that my friend refers to some procedural unfairness, the jury are entitled to acquit Ms Barber at any point. … The procedural unfairness is taking away from the accused who sat here for four months their entitlement to a jury verdict according to law."
15. The prosecutor's submission in response was merely that the situation was not the same as if the jury had been sent out to consider all four accused at the same time. [5]
16. In the light of these earlier exchanges, it is clear that all counsel had a sufficient opportunity to address the Court in relation to the circumstances that eventuated.

Nature of appeal

1. The right of appeal to this Court, with leave, arises under s 5G of the Criminal Appeal Act, which reads as follows: 5G Appeal against discharge of whole jury (1) The Attorney General, Director of Public Prosecutions or any other party to a trial of criminal proceedings before a jury may appeal to the Court of Criminal Appeal for review of any decision by the court to discharge the jury, but only with the leave of the Court of Criminal Appeal. (2) The Court of Criminal Appeal is to deal with an appeal as soon as possible after the application for leave to appeal is lodged. (3) The Court of Criminal Appeal: (a) may affirm or vacate the decision appealed against, and (b) if it vacates the decision, may make some other decision instead of the decision appealed against. (4) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. (5) This section does not apply to the discharge of a jury under section 51, 55E, 56 or 58 of the Jury Act 1977.
2. This provision was inserted by the Jury Amendment Act 2008 (NSW), following upon recommendations made by the NSW Law Reform Commission in September 2007. [6] In R v Abdul-Razzak [7] this Court considered an appeal by the Director of Public Prosecutions pursuant to s 5F of the Criminal Appeal Act (providing an appeal against an interlocutory judgment or order) in circumstances where the trial judge had decided to discharge the jury, but had not taken that step pending an indication that the prosecutor intended to appeal. In the event, the Court held there was no error in the approach proposed by the trial judge. However, the Court noted submissions by Mr Game SC for the accused that there had been no judgment or order to appeal and that, once one was made, it would not be an interlocutory order, but a final order bringing the trial to an end. [8] Those circumstances cast doubt on the availability of an appeal under s 5F, which have been resolved by the enactment of s 5G.
3. It was accepted by both parties, in accordance with the established approach to appeals in this jurisdiction, that the applicant was required to establish an error of the kind identified in House v The King [9] including, relevantly, that the judge had acted upon a wrong principle or had made a decision which was unreasonable or plainly unjust.

Whether error established

1. The underlying circumstances which gave rise to the discharge of the jury with respect to two accused as to whose guilt the jury had not deliberated, did not themselves reveal error. In Smith v The Queen [10] a jury in a conspiracy case had been sent out to consider their verdict with respect to a particular accused who was alleged to have conspired with each of the other accused. They returned a verdict of guilty. The judge then summed up specifically in relation to each of the other accused persons, guilty verdicts being returned by the jury. On an appeal to the High Court the validity of that course was challenged. Menzies J (with whom other members of the Court agreed) stated: [11] "The fundamental strength of the objection to the course taken at the trial, is, that the jury, upon a summing up which was complete as to Mitchell only, had to decide whether or not there was a conspiracy between Mitchell and at least one of the other persons charged as parties to the alleged conspiracy. … His conviction, therefore, involved an affirmation by the jury that at least one of the other accused was a conspirator with him. If it had turned out otherwise, it would, of course, have been necessary for the jury to have been instructed to acquit Mitchell too, notwithstanding its earlier verdict against him."
2. That objection was rejected on the basis that a person could be tried for, and convicted of, conspiracy alone. [12] Otherwise, the Court concluded that the trial judge "had a discretion to conduct the trial as he did, and that, in choosing the course which was followed, there was no error of law." [13] Whilst agreeing that the course taken was not wrong in law, Walsh J continued: [14] "But I think that I should say that in my opinion the course which should be regarded as the normal course is that of inviting the jury to consider, at the same time and after a summing up which has dealt with the whole trial and with the cases for and against each of the accused, all the verdicts which need to be returned. A departure from that procedure should be made only if it appears to the trial judge that there are substantial reasons for doing so. … I think that the practice of asking the jury to return verdicts only after there has been placed before the jury everything which they will be required to consider, including the complete charge of the presiding judge, ought still to be followed as a general rule in conspiracy trials as well as in other joint trials."
3. This was not a conspiracy trial, nor was the Court invited to conclude that the approach adopted in separating the accused for the purpose of the jury considering their verdicts, was erroneous. There was no material before this Court to suggest that that course should not have been taken.
4. Nevertheless, the result that the jury was unable to agree in relation to Ms Spiteri-Ahern was seen to give rise to a dilemma as to what course should be taken with respect to the two accused whose cases had not been addressed by the jury.
5. There is much to be said for the position taken by the applicants in this Court, namely that, having been charged and tried with serious offences which, at least with respect to Ms Barber, could have led to a conviction for being an accessory to a murder, they were entitled to have verdicts unless the trial had miscarried.
6. There are a number of ways in which a jury trial might not reach a final verdict. One possibility is that, where jurors are discharged in the course of a trial, so that, by a process of attrition, there is no longer an adequate number to allow the trial to continue, in accordance with s 22 of the Jury Act. That had not occurred in this case, but it appears that the trial judge was concerned about the length of the trial (which had exceeded expectations). [15] The jury had retired to consider the charges against Mr Haile and Ms Spiteri-Ahern at about 11am on May 20 and had concluded that they could not agree with respect to Ms Spiteri-Ahern at 3pm on 9 June, a period of some 15 days.
7. The judge stated in his report: "While I cannot point to any concrete evidence to this effect, and recognising the possibility in error in making such a judgment or that what I saw may only have been frustration, I also had the impression from the demeanour and long pause by the foreman yesterday morning when called to the witness box and answering my questions as to the likelihood of agreement and also from the demeanour of the jury itself when in court yesterday that they had had enough."
8. Whether such circumstances could have warranted the discharge of the jury, over the objection of an accused, was not addressed specifically in submissions before this Court. It is sufficient to say that the material which was before the Court did not warrant the discharge of the jury over the objection of two of the accused. That factor justifies a grant of leave to appeal.
9. It should be added that it was not appropriate for the prosecutor to complain of "unfairness" if the charges against the applicants were to be left to the jury.

Availability of relief

1. On the basis that there was error in failing to put the charges against the applicants to the jury, it is necessary to consider whether relief should now be granted under s 5G of the Criminal Appeal Act.
2. The difficulty at the heart of the application arose from the fact that the trial judge declined to stay his decision to discharge the jury. As a result, the jury separated on the understanding that their functions had been completed.
3. The directions subsequently given by this Court, and transmitted to the members of the jury by the Sheriff, were that they should continue to act in accordance with the directions given by the trial judge, namely that they should disregard media publicity, not make inquiries about matters outside the courtroom and not discuss the case with others. That communication was conveyed to all members of the jury, but not until about 24 hours after the order discharging them. In these circumstances, the prosecutor submitted that the Court should be satisfied as to what he called "presumptive prejudice". That expression appeared to cover the likelihood that jurors would have had extraneous discussions about the case, examined material on the internet and had regard to publicity from other sources.
4. In response, counsel for the applicants submitted that the case should not be disposed of on such presumptions, and that there were powers available under the Jury Act which would allow the judge to determine whether there had in fact been extraneous communications, the effect of which could not be dissipated by appropriate directions.
5. Counsel for Ms Barber also referred the Court to the consideration given to such issues by the Supreme Court of the United States in Dietz v Bouldin, [16] a decision handed down on 9 June 2016.
6. The case involved a civil trial in which the jurors had delivered a verdict and were discharged. The trial judge, immediately realising that the verdict was not legally available, ordered the clerk to bring the jurors back, a direction which was effected before they left the building. (One had left the building, but only to obtain a receipt for expenses and had returned immediately.) The first question considered by the Court was whether, in the absence of a specific rule, the judge had an inherent power to reassemble a jury after discharge. The opinion of the Court, delivered by Sotomayor J, upheld that power but noted that it should be "exercised with restraint" and subject to careful consideration of discretionary limits. [17] The Court noted: "The inherent power to rescind a discharge order and recall a dismissed jury, therefore, must be carefully circumscribed, especially in light of the guarantee of an impartial jury that is vital to the fair administration of justice. This Court's precedents implementing this guarantee have noted various external influences that can taint a juror. … The potential for taint looms even larger when a jury is reassembled after being discharged. While discharged, jurors are freed from instructions from the court requiring them not to discuss the case with others outside the jury room and to avoid external prejudicial information. … Any suggestion of prejudice in recalling a discharged jury should counsel a district court not to exercise its inherent power."
7. The reasons of the Court [18] stated that the trial judge in considering whether to rescind a discharge order should determine whether any juror has been "directly tainted", for example by discussing the case with others and the judge should also take into account "factors that can indirectly create prejudice in this context, any of which standing alone could be dispositive in a particular case." Three particular factors were identified: [19] "First, the length of delay between discharge and recall. The longer the jury has been discharged, the greater the likelihood of prejudice. Freed from the crucible of the jury's group decisionmaking enterprise, discharged jurors may begin to forget key facts, arguments, or instructions from the court. … And they are more likely to be exposed to potentially prejudicial sources of information or discuss the case with others, even if they do not realise they have done so or forget when questioned after being recalled by the court. … Second, whether the jurors have spoken to anyone about the case after discharge. … Third, the reaction to the verdict. Trials are society's way of channelling disputes into fair and impartial resolutions. But these disputes can be bitter and emotional. And, depending on the case, those emotions may be broadcasted to the jury in response to their verdict. … In such a case, there is a high risk that emotional reactions will cause jurors to begin to reconsider their decision and ask themselves, 'Did I make the right call?' Of course, this concern would be present even in a decision to reinstruct the jury to fix an error after the verdict is announced but before they are discharged."
8. Although the Court held there was no abuse of power in the case before it, the Court emphasised that it was dealing with a civil case and not a criminal trial. (Indeed it was a very small claim, arising out of a motor vehicle accident.) The court referred to its own decision in Remmer v United States [20] in which it had said: "In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial." [21]
9. Similar considerations arise in this jurisdiction, although due regard must be paid to constitutional differences and differences in the relevant statutory schemes governing trials. Nevertheless, the factors to be considered are common.
10. The first consideration is that the jurors in the present case were discharged, and were entitled to consider themselves free of the immediate obligations imposed on them and applicable during the trial, for a period of some 24 hours. Secondly, there was before this Court some evidence of pre-trial publicity which suggested that the initial crime had received considerable coverage in the media, both at the time of the offence in 2013 and again on 6 June 2016, following Mr Haile's conviction. There was, therefore, a very real prospect that members of the jury would have considered extraneous material, discussed the case with friends and family and, away from the "crucible of the jury's group decisionmaking enterprise", [22] reassessed the material they had heard at the trial, free from the effect of the directions given by the trial judge.
11. The suggestion that the effect of actual prejudice could be assessed by the trial judge raises additional difficulties. While it is an offence for a juror to make inquiries about matters relevant to the trial, except in the proper exercise of his or her functions as a juror, pursuant to s 68C of the Jury Act, any such inquiries made in the present case would not have been made whilst the person was a juror for the trial of the matter and hence would not have constituted any offence under that provision. Importantly, the power of the judge to examine a juror on oath to determine whether such conduct has occurred, pursuant to s 55DA of the Jury Act, would be unavailable.
12. The judge also has power to examine a juror to determine whether the juror has read, seen or heard alleged prejudicial material "published or broadcast during the trial" and whether such juror has been influenced by the material. [23] However, the present hypothesis concerns material which may have been published after the trial was understood to have concluded. There would be a live issue as to whether jurors could properly be examined pursuant to that provision on the basis that the trial had not been completed once the order discharging the jury was revoked.
13. There may be other powers of inquiry vested in a trial judge, but this possibility was not explored. There are other difficulties in belatedly recalling the jurors. The matters referred to by the trial judge in his report, set out at [31] above, are not to be disregarded. Although the judge was careful to state the limitations on his opinion, the circumstances of the trial give them a significant degree of plausibility.
14. Pursuant to s 5G of the Criminal Appeal Act, this Court is required to act expeditiously in determining such appeals. Although, as in Abdul-Razzak and other matters, the Court has been able to address the application for leave and the appeal within three working days of the decision of the trial judge, the fact that a long weekend intervened is also not to be disregarded.
15. A combination of the circumstances set out above satisfied the Court that, the jury having in fact been discharged, it was not an appropriate case in which to intervene. Accordingly, the appeal was dismissed.

Other matters

1. In recommending the provision of a right to appeal, with leave, with respect to the discharge or non-discharge of an individual juror or the whole jury, the Law Reform Commission expressly took into account the ability of this Court to deal with such questions expeditiously. [24] That fact, together with the statutory requirement for a determination "as soon as possible", make it appropriate that, in all but exceptional cases, a judge who is minded to discharge a juror or the jury, over the opposition of one party, should stay his or her decision to allow an application to be made to this Court, if so requested. There will, of course, be circumstances where, because the trial judge is not persuaded that any other course is reasonably available, or for other reasons, the decision should be given effect immediately. However, those cases will be the exception to the rule.
2. A second matter to be noted was an application on behalf of the applicants that there be a permanent stay with respect to the charges laid against them. There were two difficulties in acceding to that course. The first was that the Director had no notice that such an application was to be made. The second was that such an order could properly be made only after the Director had decided whether to present a further indictment involving the applicants. That step may or may not be taken: it involves the independent exercise of the prosecutorial discretion which is not within the control of this Court. If the applicants were to be charged on a fresh indictment, they would have available to them the right to seek relief by way of permanent stay or otherwise, based on the circumstances revealed by the present application. The dismissal by this Court of the appeal under s 5G should not be taken to influence the way in which such an application is determined, if it becomes necessary. It certainly does not preclude such an application, nor any anticipatory application which may now be made to the Director being given independent and unfettered consideration.

Endnotes

1. Jury Act, s 55F.
2. Tcpt, 09/06.16, p 434.
3. Tcpt, 09/06/16, p 423.
4. Tcpt, p 424.
5. Tcpt, p 424.
6. NSW Law Reform Commission, Jury Selection - Report 117, pars 11.52-11.55.
7. [2006] NSWCCA 195.
8. Abdul-Razzak at [6]-[7].
9. (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
10. (1970) 121 CLR 572.
11. Smith at 580.
12. Smith at 581.
13. Smith at 582.
14. Smith at 583.
15. According to the judge's report, the trial had run for a period of almost 14 weeks; allowing for interruptions the jury had been actively engaged for some 12 weeks.
16. 579 US _ (2016); Slip opinion.
17. Slip opinion, p 7, Part IIB.
18. Slip opinion, p 8.
19. Slip opinion, p 9.
20. 347 US 227, 229 (1954); Slip opinion, p 7.
21. The court also referred to Smith v Massachusetts, 543 US 462, 473-474 (2005), Dietz, Slip opinion at p 10.
22. Dietz, Slip opinion, p 9.
23. Jury Act, s 55D.
24. Report 117, par 11.55, referring to R v Cheng (1999) 48 NSWLR 616, where a s 5F appeal was disposed of within three days of the decision to discharge a jury.

Amendments 13 April 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2023