BG v R

[2012] NSWCCA 139

Court of Criminal Appeal (NSW)|2012-06-06|Before: McClellan CJ, McDougall J, Adamson J, Act J, Clellan CJ, Dougall J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2012-06-06

Before

McClellan CJ, McDougall J, Adamson J, Act J, Clellan CJ

Catchwords

CRIMINAL LAW - appeal against conviction - sexual assault offences - assessment of the evidence as a whole - whether jury's verdict was unreasonable

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW - appeal against conviction - sexual assault offences - assessment of the evidence as a whole - whether jury's verdict was unreasonable

Judgment (19 paragraphs)

[1]

Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2McDOUGALL J: I agree with Adamson J. 3ADAMSON J: The applicant (BG) was convicted of three counts of sexual offences against his daughter (K), contrary to the Crimes Act 1900: two counts of aggravated indecent assault against a child under the age of 10 years, (s 61M(2)) and one count of sexual intercourse with a child under the age of 10 years (s 66A) following a trial before the District Court (Payne DCJ and a jury of 11). BG was sentenced to an aggregate non-parole period of six years, with an additional term of three years. 4BG seeks leave to appeal against his conviction on two grounds: first, that the verdicts should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence; and secondly, that there was a miscarriage of justice because the trial judge erroneously discharged a juror and allowed the trial to continue with 11 jurors.

[2]

Ground 1: unreasonable verdict 5The first ground of appeal requires this Court to ask itself whether it considers that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that BG was guilty: M v The Queen [1994] HCA 63; 181 CLR 487 (M) at [7]. The joint judgment in M went on to say, at [24]: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." 6The task is, accordingly, to independently assess the whole of the evidence, both as to sufficiency and quality.

[3]

The evidence 7K's parents began their relationship in Scone in 1994. BG subsequently moved to Mackay with K's mother and her four children. K, her mother's fifth child, was born in Mackay on 6 April 1995. In about 1997, the relationship between K's parents deteriorated and BG moved back to the Scone area. K remained with her mother and half-siblings in Mackay. 8In early 2002, K's mother had begun another relationship. K told her mother that she wanted to live with BG in Scone. In February 2002, K, at the age of 6, flew to Brisbane. On her arrival, BG met her and drove her to Scone, where he was then living with his mother. His sister, Julie, lived nearby in Aberdeen. Subsequently BG formed a relationship with a woman, Melissa, who had a son who was about three or four. K got on well with Melissa. 9BG and Melissa then set up a household together, with the two children, K and Melissa's son, in Barton Street, Scone. In February 2002, K was enrolled at the local school. 10At some time in 2002, BG took Melissa, K and Melissa's son to visit Julie. This was the first Julie knew that her brother had returned to the area. 11From the time of the first visit, K visited Julie's about once a month to play with her cousins, three girls, one of whom was close in age to K. Sometimes K would stay overnight and on one occasion, in the summer holidays at the end of 2002, K went to Port Macquarie on a holiday with Julie's family. When K was at Julie's place, K would often telephone her mother because Julie allowed her to talk as long as she liked. By contrast, when she tried to telephone from BG's house, he would object to the conversations. 12Just before Christmas 2002, BG, Melissa and the two children moved to a single storey brick veneer house in Satur Road, Scone. 13K gave evidence that in about the first half of 2003, she found a note in her father's handwriting on the kitchen table "in the blue house" in which he said that he wanted to hurt himself. She showed the note, which she interpreted as a suicide note, to Melissa. 14K gave evidence that at some time in June or July 2003, BG sexually assaulted her. K said that from the time her father came home from work on the relevant day, he started drinking beer with a male friend, who had come over to watch a football match on television with him. According to K, BG was drinking because he was both happy and excited by what he was watching. 15K put herself to bed at about 9 pm. She had been to school that day. From her bedroom she could hear Melissa and BG arguing about BG's drinking. She heard Melissa ask him to turn down the television. She also heard Melissa ask BG's friend to leave. K's evidence was that BG and Melissa often argued about his drinking and, on occasions, Melissa would leave the house because of it, taking her son with her. 16On this occasion Melissa took her son with her in her car and drove away. BG's friend also left. 17K's evidence was that BG then came into K's bedroom and started rubbing her arms. He smelled of beer. K recalled him wearing jeans and a Broncos football shirt. When he tried to unbutton her pyjama top, she resisted by hitting and kicking him. BG became angry. He pushed down the blankets that were covering her body. He undid some of the buttons on her pyjama top and started touching her breasts. He then pulled down her pyjama boxer shorts, unzipped his trousers and rubbed his penis against her. K hit BG even harder. BG then turned her over so that she lay on her stomach and inserted his finger into her vagina. K was crying because it hurt. She tried to kick him but he held her legs down. He rubbed his penis against her vagina. 18K then heard a car horn outside. She recognised the car as Melissa's. BG pulled his pants up and said to her, "Don't tell anyone." He then left the room and shut the door. K lay on her bed crying. She felt "disgusting". She realised at the time that what had happened was wrong. 19When K saw Melissa the following morning, she did not tell her what occurred because she was too scared. 20The following weekend, K went to her aunt Julie's place. Julie noticed that K was a lot quieter than usual and also withdrawn. K volunteered that she missed her mother, whom she had not seen since she went to Scone in February 2002, and that she wanted to go home to live with her. K asked Julie to ring her mother to ask if she could return to Queensland to live with her. K was concerned that her mother's boyfriend, Denny, would not want her to come and live with them. 21Julie telephoned K's mother to pass on K's request. Because Julie was concerned about K, she offered to have K continue to stay with her for a while rather than return to live with BG if it was difficult for K's mother to have her back at that time. K's mother agreed to have K back and BG agreed that she could return to Mackay. 22While K was staying with Julie at that time, she was taken to Australia's Wonderland with Julie's family. 23Julie went to BG's house to collect K's clothes from the house at Satur Road and helped pack them up for her. She described the house as a single storey brick veneer house. 24On about 23 July 2003, BG and a male friend drove K back home to Mackay. According to K, "there was not enough money for a plane". When they arrived, BG had a short conversation with K's mother, to which K was not privy, and then left. K's mother corroborated K's evidence that BG and a male friend had delivered K. 25Although K described herself as getting on well with her mother she did not tell her mother what had happened because: "I did not want her to feel disgusted in me or anything like that." 26K started school in Dysart, Queensland, on 4 August 2003. 27K said that she saw her father twice between 2003 and 2008; on each occasion he had a different woman with him. On one of those occasions, when K was still in primary school, K stayed with BG and BG's then girlfriend in a hotel room. K said that she did not want to go but her mother, who then did not know about the incident, persuaded her to go with them. At about that time K told her mother that she did not want to go on holiday with BG again. 28K's mother gave evidence that she made K see BG in April 2007, although she was unwilling. 29In early 2008, K's mother decided to finalise a property settlement with BG. There was correspondence between them. On 13 March 2008, BG wrote to K's mother, who showed K the letter. When K learned that her father wanted a property settlement she became concerned that he might apply for custody of her. K's mother's evidence was: "I just showed her that and yeah, it didn't say anything about for custody or that but all she said she didn't want to go with him." 30In mid 2008, K's mother applied for a divorce but K did not learn of it until later. 31At some time in October 1988, there was a discussion in K's class at school about suicide. K mentioned the note which her father had written and which she had found on the kitchen table some years earlier when she was living with him in Scone. 32By 2008, K, who "kept feeling sick about it", felt that she needed to talk to someone about what her father had done to her in mid-2003. In about October 2008, she decided to tell her best friend, Meg, because she "thought she could trust" her and they were "really close". She told Meg that when she was young her father had sexually abused her. She did not give Meg any details about what had occurred. K impressed on Meg the need to keep this in strict confidence and told her that it was "very private and personal". Meg gave evidence that when K confided in her K "had tears in her eyes", "was kind of shaking a lot", "very distraught" and "it was very hard for her to tell me". 33Other children in the school became aware that something secret had been imparted and put "pressure" on Meg to tell them what K had told her. Finally, Meg succumbed. K was very upset at what she saw as Meg's breach of confidence. 34A teacher at K's school collected those children who had been told by Meg, Meg herself and K, and spoke to them about the matter. The school then referred the matter to the police. 35K's mother was first informed of the allegations in November 2008. As a result she applied for formal custody of K. Although K was then living just with her mother, the relationship with Denny having ended, she did not tell, and had not at the date of trial, told her mother of the details of what had happened. Nor did she want her mother to be present at either of the interviews conducted by the police referred to below. 36The police first interviewed K on 21 November 2008. This was the first time she had disclosed to anyone the details of what had happened in mid-2003. Police interviewed K again on 20 October 2009.

[5]

The accused's challenge to K's evidence and the accused's evidence in the trial 40Apart from putting that the incident had not happened, and that K had fabricated the allegations in order to resist any application BG might make for custody of her, the challenges to K's evidence were confined to matters of detail extraneous to the incident itself. 41For example, it was put to K that she had a doona with a Barbie doll on it. This was presumably to impugn her recollection that there were blankets on her bed on the relevant night. Julie recalled that K had had a doona with a Barbie doll on it, but K could not recall it. 42It was also put to K that her father did not own a Broncos shirt, but K was insistent that he did. When it was put to her that her father supported the Eels in the NRL, K said "I don't know" and added, "It was his choice". BG gave evidence that he supported the Eels and that he never had a Broncos shirt. He was not however, asked whether he had an Eels shirt. 43It was put to K that BG and Melissa and Melissa's son had driven her back to Mackay in July 2003, but K said that Melissa did not come and that the only other person in the vehicle was a male friend of BG's. BG gave evidence to support what was put to K in cross-examination. K's mother corroborated K. 44BG's counsel put to K that BG had visited her three times, rather than two, in the period between her return to Mackay in July 2003 and 2008. K could only recall two. BG gave evidence that K was "excited" to see him in 2003. 45K was extensively cross-examined about the houses she had lived in with BG at Scone. She could remember three; it was put that there were two. She recalled there being two dogs but could not recall one dying. 46BG's counsel also put to K in cross-examination that BG had never taken her to Julie's place but K said that she had visited there quite frequently. Julie corroborated K's evidence. In his own evidence, BG said that he could not recall K spending time at Julie's house but conceded that it may have happened. 47BG gave evidence that K had left in July 2003 because Melissa, who was then pregnant, had given him an ultimatum to choose between her and K. He said he had given K the choice and that she had chosen to return to her mother. When cross-examined, BG could not recall when Melissa's child was born because he had only seen him once. He admitted that he and Melissa had separated in August 2003. 48BG gave evidence that he never drank in the period that K was living with him because he was on call as a truck driver. He denied that he and Melissa had ever fought. 49Although BG denied writing a suicide note, when it was put to him that he had written a note that said that he would hurt himself, his first response was: "It couldn't have [occurred], because she said it was in a big blue house, a two storey house and we didn't live in a two storey house, so the note mustn't have been there at all."

[6]

Assessment of the evidence as a whole 50BG's case at trial was that K returned to Queensland to live with her mother in mid-2003 because of an ultimatum given to him by Melissa, who was then pregnant and that K had fabricated the allegations against him because she did not want to live with him in the event that he applied for custody. 51The principal difficulty with this hypothesis is that K did not disclose what had happened either generally or in detail to her mother. Indeed, the only person to whom K chose to reveal what happened was Meg, her best friend. The revelation was obviously distressing to K, who made it in strictest secrecy because she wanted to unburden herself and thought she could trust Meg to tell no one. If K had had her way, the disclosure she made to Meg would never have come to light and could, accordingly, never have affected whether she would have to live with her father again. 52BG relied on the circumstance that the disclosure was made over five years after the event at a time when K harboured what may have been an unfounded fear that there might be an issue between her parents as to her custody. It is difficult to see how this assists BG's defence. That K was fearful of having to reside with her father may explain why the incident in 2003 was so much on her mind in 2008 that she felt that she had to tell someone. But it tells in favour of K's credibility that she chose a source whom she believed, mistakenly, would keep her secret safe. 53Although K gave evidence that she was fearful of having to reside with her father, there is no positive evidence that it played any part in her need to disclose the incident to Meg. Furthermore, although she did not want to be with her father, she had no particular reason to believe that he would seek custody of her. He had not indicated that he would in the letter he sent to her mother in March 2008, which her mother showed her. K's experience was that her parents abided by her wishes as to where she would live. In 2002, when she told her mother that she wanted to live with her father, they agreed. In 2003, when she told her mother that she wanted to return, her mother was prepared to take her back and BG delivered K to her mother's home. 54In my view the delay in disclosure can be readily explained by reference to K's shame about what had happened and her fear that others would find her "disgusting" if they knew. Although the incident was not reported at the time, its occurrence is, in my view, corroborated by K's desire to leave BG's house and take refuge with Julie until she could move back home to her mother. Julie's description of K's altered countenance and K's refusal to disclose the reason for it are consistent with the nature of the incident. If K had wanted to return to live with her mother because of Melissa's ultimatum to BG, it is difficult to see why she would have felt it necessary to conceal the reason for her departure to Julie, particularly as she was fond of her aunt and was a regular visitor to her house. 55It is well-known that it cannot be assumed that child victims of sexual assault by a person who has the child's trust and confidence will complain at the first reasonable opportunity: M at 515, per Gaudron J; Jones v The Queen [1997] HCA 12; 191 CLR 439 at 463, per Kirby J. 56I regard K's inaccuracies about what house she was living in when the incident occurred as peripheral and not adversely affecting her credit. At the age of seven, she had moved several times both with her mother, and also with BG. She could not necessarily be expected, when asked five years after the event, to remember such extraneous details, or to reliably report the location at which a particular event had occurred. 57A similar argument was put in M, when it was submitted that aspects of the complainant's evidence were unsatisfactory because she could not give details of the movie her father was watching at the relevant time and on an apparent inconsistency between her description of the movie as a "cowboy and Indian" one and the movies actually shown on that night. Gaudron J said, at 515 - 516: "These matters must be assessed in the light of her evidence overall, the effect of which was that it was her father who was watching the movie and that he began touching her almost as soon as she sat down near him and concluded his assault by sending her to bed. In such circumstances, imprecision and even inconsistency is readily understood." 58Although the distinction between the Broncos and the Eels is undoubtedly of significance to some, including presumably BG himself, it is hardly surprising that K was mistaken about the identity of the team whose shirt BG was wearing at the time of the offences. One can infer that BG and his friend were watching a sporting match on the relevant night, that BG was happy because his team was winning, and he was drinking to excess as a result, but that K was neither interested, nor aware of the details. That BG did not give evidence that he did not own an Eels shirt is some indication that his answer would not have assisted his case. 59It was put by BG's counsel on appeal that there was an issue of transference by reason of the presence, in the house that night, of another male, BG's friend; accordingly, the verdict was unreasonable. No such case was ever put at trial. It was never suggested to K that the man who interfered with her was not, in fact, BG but another man. In these circumstances, such a submission cannot conceivably found a doubt as to BG's guilt. 60To a substantial extent, K's evidence was corroborated by her mother, Meg and Julie. Melissa was, at the time of trial, not in a mental state which enabled her to be called. In my view the Crown has amply excluded the hypothesis consistent with innocence, that K fabricated the incident, beyond reasonable doubt. 61I do not have any doubt that BG was guilty of the offences charged. In those circumstances there is no reason for me to consider that a jury ought to have entertained any doubt.

[9]

The facts surrounding the jury's deliberations and the discharge of one juror 67On Friday 5 November 2011, shortly before 4 pm, the jury retired to consider its verdict. The jury deliberated for less than half an hour before retiring for the weekend. 68On Monday 8 November 2011, the jury resumed its deliberations. Some transcript was unavailable and the jury requested that it be permitted to listen to a tape of K's examination in chief. Later, the DVD of the house in Satur Street was played to the jury. Before noon, after it had deliberated for about 40 minutes, the jury sent a note which said: "There is no prospect that the jury will be able to come to an [sic] unanimous verdict." 69Shortly after 2 pm the jury returned. The trial judge responded to the note by telling the jury: "The circumstances in which I may take a verdict which is not a unanimous one have not yet arisen and you should still consider that your verdict of guilty or not guilty in relation to each count must be unanimous." 70The jury then retired. It sent a further note, which was received at 3.45 pm, which said: "Following further deliberations, the Jury is unable to come to a unanimous verdict on any one of the three counts in the indictment." 71 At 4.15 pm, the jury returned to the Court. The trial judge said: "At this point all I am able to do is encourage you to continue with your deliberations. I should say this to you. Circumstances in which I may take a verdict or verdicts which are not unanimous have not yet arisen and you should still consider that your verdict of guilty or not guilty must be unanimous." 72Shortly thereafter, the jury sent a further note which said: "The jury is able to deliberate tonight until 5.20 pm but is unable to continue beyond that time due to the family commitments of some members with small children and medical requirements of one member. Further, other members have significant work/ business commitments that may impact on their availability and ability to attend should the case continue into another day. It is emphasised that the Jury is satisfied that there is no prospect of a unanimous verdict on any count within the indictment based on a thorough review of the evidence presented." 73At 5.20 pm, the jury sent another note which said: "The Jury believes it is important to clarify that one jury member is self-employed and their business will be in jeopardy, as will the ongoing employment of their 5 staff if the case continues tomorrow." 74BG's counsel noted his opposition to the discharge of the juror. 75At 5.25 pm, the jury returned to Court. The trial judge informed the jury that both notes had been received and asked the jury whether any arrangements could be made to alleviate the concerns of the juror and suggested that deliberations could begin at 9.00 am, 10.30 am or 11.00 am. In the absence of the jury, counsel calculated that the jury had deliberated for three hours. 76A further note was sent by the jury: "No, the business owner is the only person authorised to complete aspects of the work due to accreditation requirements on government projects relating to critical infrastructure. The Jury requires access to a phone to make calls relating to children." 77At about 5.45 pm, the trial judge foreshadowed her intention to discharge the juror with business concerns. BG's counsel reiterated his opposition to that course. 78At 5.48 pm, the jury returned to Court to be told that the trial judge ordered the discharge of the juror with business commitments. Her Honour then said: "The jury will therefore continue as a jury of 11." 79In the absence of the jury, the judge said: "I want to note for the transcript that it was not only the unavailability of the juror in terms of work commitments, but the stress also and inability of that juror to be able to concentrate on the issue if indeed required to attend." 80The jury resumed its deliberations at 9.00 am on Tuesday. At 11.30 am the jury sent a further note which said: "Following further deliberations, the Jury is unable to come to a unanimous verdict on any of the three counts of the indictment." 81The jury returned to the Court at 12.17 pm at which time the trial judge encouraged the jury to reach unanimous verdicts. 82Shortly after 3 pm, when the jury had been deliberating for a total of eight hours, the jury was returned to the Court. The foreperson gave sworn evidence that all jurors agreed that a unanimous verdict could not be reached. The trial judge then informed the jury that circumstances had arisen in which a majority verdict may be returned. Her Honour urged the jury to continue its deliberations with a view to returning a unanimous verdict but that if it became "plainly impossible", a verdict of ten out of eleven could be returned. 83The jury retired. It then sent a note which said: "The jury has reached a majority verdict of ten (10) jurors on each of the counts in the indictment." 84The jury returned to the Court at 3.43 pm and returned a majority verdict of 10:1 on all three counts. The jury was discharged at 3.48 pm

[11]

Whether the discretion to continue with a jury of eleven miscarried 90Section 53C requires the Court to consider, once it has discharged a juror in the course of a trial, whether to continue the trial with a reduced number or discharge the whole jury. If the Court is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, it is obliged to discharge the jury. However, if the Court is of the opinion that there is no such risk, it is obliged to order that the trial continue with a reduced number of jurors as long as the numbers do not fall below the statutory minimum provided for in s 22. 91As the High Court said in Wu v The Queen [1999] HCA 52; 199 CLR 99 (Wu), there are relevantly two decisions to be made: first, whether a juror should be discharged, and secondly, whether the trial should continue with fewer jurors, or whether the whole jury ought be discharged. Gleeson CJ and Hayne J said, at [6]: "The decision to discharge a juror and the decision to proceed with a jury of less than 12 are distinct steps and often will be affected by different considerations. The conduct of, or circumstances affecting, a single juror may require that juror's discharge. That conduct or those circumstances may not affect the other members of the jury or suggest that they cannot perform their task satisfactorily." 92Statements to similar effect were made by McHugh J at [28] - [30] and Kirby J at [67]. 93In Wu, the trial judge discharged a juror on the tenth day of a trial after a report was received that the juror was unwell and would probably not be able to attend court for two days. The trial proceeded to verdict by a jury constituted by the remaining eleven jurors. The accused contended that the trial had miscarried on the basis that an order for discharge ought not have been made. Unlike in the instant case, there was no challenge to the decision to continue the trial with the remaining jurors. The High Court affirmed the decision of this Court to dismiss the appeal against conviction. The Act was in different terms when Wu was decided in that Part 7A, which contains s 53A - s 53C, had not been enacted. However the relevant powers to discharge a juror and discharge the whole jury, or continue the trial with a fewer number were said to arise by implication from s 22 of the Act. 94McHugh J emphasised the importance of the common law right to be tried by a jury of twelve and the associated right not to be convicted unless the twelve were unanimous. Although the common law right had been abrogated by the Act, McHugh J said, at [28]: "... no one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors." 95McHugh J said that there must be a positive reason, beyond the discharge of a juror, for continuing the trial with a fewer number and said, at [29]: "The usual reason for exercising the power under s 22 is that the trial has proceeded for some time and that it would cause significant expense to begin again with a new jury. No doubt the circumstances of individual trials will throw up other valid reasons. And there may be countervailing reasons. It may be a case dealing with matters upon which the opinion of the community is deeply divided. In such a case, despite the time that the trial has already taken, the proper exercise of the discretion may require that the accused be retried before a jury of 12. Or the case may be one where the community has strong feelings against the crime in question and the risk of prejudice against the accused may be strong. In such a case, depriving the accused of the chance to obtain the vote of the twelfth juror may be a step that should not be taken." 96Kirby J said, of the factors involved in the decision whether to discharge the whole jury or to continue with a fewer number, at [66]: "Involved in that decision are considerations quite separate from a decision to discharge an individual juror. For example, a different decision on such a question might be made at a very early stage of a long trial from that which would be appropriate at a late stage. A different decision might be made where, having regard to the circumstances of the discharge, an apprehension could arise that the entire jury could have been contaminated or their verdict cast into doubt by the events occasioning the discharge. A different decision might follow from an earlier discharge of other jurors and the complexity or fine balance of the evidence." 97In the instant case, the Court did not make a separate order under s 53C; nor was there any explicit consideration of the issues that the provision required to be considered. No submissions were made as to whether, or on what basis, the Court should be of the opinion that to continue would give rise to the relevant risk or that it would not. No reasons were given. 98BG submitted that these omissions have the effect that the discretion to continue the trial with a reduced number miscarried and that the verdict ought accordingly be quashed. BG submitted that the inference was available that the juror with commitments was the one who was holding out and preventing a unanimous verdict. He submitted that because there had not been any verification required of such commitments, there was at least the appearance that the reasons given were not valid. 99The Crown submitted that no such inference fairly arises. It would amount to no more than speculation to suppose that the juror with commitments was a factor in the jury being unable to reach a unanimous verdict. All that can be said with confidence is that some jurors change their minds in deliberations and some do not. 100The Crown submitted that the lack of reasons, though regrettable, was not fatal to the continuation of the trial since a s 53C order is an interlocutory one. Therefore, the test is not whether the reasons were adequate or otherwise, but rather whether the decision was correct. It relied on what Heydon J, with whom Kiefel J agreed, said in Evans v The Queen [2007] HCA 59; 235 CLR 521 at [246] - [247]. Heydon J said, at [247]: "It was contended for the accused that the Court of Criminal Appeal erred in failing to uphold the appeal on grounds of procedural fairness and erred in inferring the reasons for the rulings from what was said in argument. One thing that matters is whether the rulings were correct: they were. Another thing that matters is that miscarriages of justice be avoided, as distinct from procedural errors which are regrettable but do not cause any miscarriage of justice. The failure to give reasons can be procedurally unfair, but procedural unfairness is not to be looked for in the air: counsel for the accused in this Court failed to demonstrate how either his predecessor or their client was in any way worse off because of the failure to give reasons in this case." 101In the light of Evans, the lack of reasons is not determinative. It falls to this Court to decide whether it is of the opinion that for the trial judge to continue the trial with the remaining jurors gave rise to a risk of a substantial miscarriage of justice.

[13]

Category 1: no indication that rises above speculation as to how a discharged juror would have voted 106In Arnott, Arnott argued unsuccessfully that, by the discharge of a juror who was ill, he had lost the chance of a dissentient juror. On 3 January 2007, at the conclusion of Arnott's second trial a jury found him guilty of murder on 3 March 1985, He had been arrested and interviewed on 4 August 2004, and had then been remanded in custody. He had been committed for trial in July 2005, and had stood trial in March and April 2006. The jury had been unable to agree upon a verdict, and had been discharged without verdict on 17 April 2006. 107Arnott argued, relevantly, that the judge had placed too much weight on the significance of the cost and expense which had been incurred. The Crown argued that it could not be said that any fault in the exercise of the judge's discretion to discharge the juror had led to a miscarriage of justice and submitted that it was speculative that the applicant lost the chance of a dissentient juror. The Victorian Court of Appeal found the exercise of discretion "unremarkable". Ashley JA, with whom Nettle and Redlich JJA agreed, said, at [134]: "Her Honour focussed upon the speculative matters raised by the applicant's counsel, and rejected them on a logical basis." 108The decision whether a juror's view is sufficiently known to take the case out of the first category is a matter of judgment. For example, in R v Hahn 1995 CarswellBC 1238 (Hahn), the British Columbia Court of Appeal dismissed an appeal against conviction. The jury had begun its deliberations when a note was sent informing the judge that jurors felt that they could not convict on the basis of circumstantial evidence. Further notes were sent and eventually the trial judge decided to question a juror who had expressed a conscientious objection. The juror had difficulty in expressing the basis for the objection but did say: "it's almost like my own personal philosophy is closer to that of the defence counsel versus the counsel for the Crown" 109After lengthy questioning, the trial judge discharged the juror. The remaining jurors were then directed about circumstantial evidence and the meaning of beyond reasonable doubt. The appeal from the trial judge's decision to discharge the juror was rejected. 110The timing of the disclosure of the discharged juror's intention is also significant. In R v Peters 1999 BCCA 406 (Peters) the British Colombia Court of Appeal dismissed an appeal against a conviction for manslaughter. One of the grounds of appeal was the discharge of a juror after two days of deliberations. In that case, the jury sent a note to the judge to the effect that one juror did not feel able to judge his fellow man, since it was a matter for God. The judge then examined the juror. In the course of the examination, the juror said: "I feel that my only conclusion will be acquittal." 111Following the examination, the juror was discharged, contrary to the submissions of defence counsel. A verdict of guilty was returned by the remaining jurors the following morning. McEachern CJBC referred to the juror's plan to acquit the accused and said, at [81]: "In most cases, it is highly desirable that a judge deciding to discharge a juror on any ground does not know how that juror, or any juror, plans to vote. Once the judge knows this important fact, at least the appearance of fairness is open to challenge. ...Applying the foregoing to this case, some might think that justice does not appear to be done when a judge, knowing the juror is committed to acquit, removes that juror from the case. On the other hand, if the juror is not prepared to discharge his responsibility, he should be discharged, particularly when the other ten are prepared to carry on." 112McEachern CJBC distinguished R v Latimer [1990] OJ No. 401 (Latimer) (referred to below) and said that the decision came down to an assessment of fairness. His Honour considered it to be significant that the juror disclosed that he was not prepared to discharge his responsibilities as a juror before he "blurted out" what his verdict would be. In those circumstances, the trial was held not to be unfair. Goldie and Proudfoot JJA concurred with this reasoning and the appeal was dismissed accordingly. 113Although the result in Peters was that the appeal was dismissed, the trial judge's decision appears to have been upheld on the basis that the discharge of the juror was appropriate in light of the note, before the juror was examined and disclosed his intentions. Nonetheless Peters is an apparently anomalous decision, since it appears to fit into the second category and yet the decision to continue after the discharge of the juror was upheld. R v Roberts [2004] QCA 366; (2005) 1 Qd R 408 (Roberts) (see below) is some indication that Peters would be decided differently in Australia. 114The cases from the US are not as relevant since US statutory provisions allow for replacement of discharged jurors by alternates (see Wu footnote 65, per Kirby J). However White (petitioner) v Knowles (warden) 2011 WL 1196053 (ND Cal) is of interest because of its factual similarity to the instant case. 115In White, the petitioner sought habeas corpus in the US District Court, ND California on the ground that his due process right to a fair trial was violated by the trial court's dismissal of "holdout jurors". The District Court referred to authority to the effect that even if a trial court knew an excused juror was the sole dissentient for acquittal, it would not of itself invalidate the decision to discharge the juror, although a court was not entitled to discharge a juror if the request for discharge stemmed from doubts about the sufficiency of the prosecutor's case. 116In White, two jurors asked to be excused during deliberations on the grounds of pressing work commitments. The court questioned the jurors to evaluate the legitimacy and seriousness of their claimed financial hardships. Neither counsel objected, either to the questions or to the discharges. The jurors were discharged and alternates appointed. The petitioner reiterated before the District Court the submissions he had put before the state court that the jurors' notes ought to have put the court on notice that they were "holdouts" on what was going to be a hung jury and that the court was obliged to make an enquiry about the existence of a potential deadlock before discharging the two jurors. 117The state court (in which the petitioner had been convicted) said: "The only basis for this contention is speculative inferences. [The Petitioner] construes the jurors' notes as indicating a deadlock. He further infers that because the reconstituted jury reached a verdict a mere two days later, the deadlock must have been attributable to the dismissed jurors holding out. The concluding part of this reasoning, of course, could not have been known at the time the court dismissed the two jurors. [The Petitioner's] argument assumes an unreasonable amount of clairvoyance and takes no account of other, obvious factors and explanations." 118The District Court agreed with the conclusions of the state court and dismissed the writ.

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Category 2: indication of how the discharged juror would have voted prior to the return of verdict 119In Roberts, the trial judge was informed that one of the jurors was adamant in his views, would not discuss the evidence and was argumentative and overbearing with the other members of the jury. The judge was also informed that, apart from this dissentient juror, the remaining eleven members of the jury agreed on a verdict. The judge elicited evidence from several jurors, but not the juror complained of. The evidence established that that juror was in a minority of one when it came to the verdict. At that time, majority verdicts were not authorised. 120The relevant provision, s 56 of the Jury Act 1995 (Qld), provided that if it appears to the judge from the juror's own statements or evidence that the juror was not impartial or ought not, for other reasons, be allowed or required to act as a juror, the judge may, without discharging the whole jury, discharge the juror. The judge was persuaded that the juror ought be discharged because he was not impartial. However the judge decided not to discharge the whole jury. The appellant was convicted by unanimous verdict of a jury of eleven. 121On appeal, the Queensland Court of Appeal considered that it was not clear that the juror who was discharged was not impartial, since lack of impartiality could not be inferred from a refusal to discuss evidence. But, more relevantly for present purposes, Cullinane J, with whom McPherson JA and White J agreed, said, at [46] - [48]: "To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict, something which the law of this State does not permit. The public perception includes as well as the general perception of the public that of the accused and the jurors concerned. In my view the course which His Honour took has resulted in a miscarriage of justice. The verdict should be set aside and a new trial ordered." 122White J said, in the context of majority verdicts not being authorised, at [6]: "To discharge only the dissentient, particularly when it was known that the other 11 held an opposing view about the verdict, would suggest a majority verdict was being permitted." 123In R v Fontaine 2002 MBCA 107 (Fontaine) the Manitoba Court of Appeal allowed an appeal from a conviction for murder and ordered a new trial. After the jury had begun its deliberations a note was sent informing the judge that the jury was unable to reach a decision on the charge of murder. The judge urged the jury to seek to reach a unanimous verdict. The jury sent a second note in which it informed the judge that 11 jurors were in agreement but that one juror would not change his or her mind. In different handwriting, there was also an inquiry whether one juror could speak with the judge. 124The following morning a note was sent to the judge that two jurors were ill. The two jurors were called in and summarily discharged by the judge with no investigation as to the nature of their illness or the length of time that they would be absent. Counsel were not heard on the discharge. 125None of the three notes was disclosed to counsel although the substance of the first could be inferred from the judge's exhortation. After four hours, the jury returned a verdict of guilty. The Manitoba Court of Appeal allowed the appeal and ordered a retrial. It applied what was said in Latimer and said, at [73] - [74]: "Applying these comments [Latimer] to the instant case, it is obvious that there was at least one hold-out in the deliberations. For the trial judge to then exclude two jurors (with the possibility that one was the hold-out) as she did, and in the absence of counsel's knowledge of the contents of the two notes, affected the vital interests of the accused to his prejudice. Moreover, and equally as important, it leaves the accused with the perception that his conviction had something to do with the notes, the contents of which he was not allowed to know. This perception inflicts damage on the appearance of justice, a factor which must be taken into account. See R v Laws (1998), 128 C.C.C. (3d) 516 (Ont. C.A.) and Cloutier.

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Category 3: no indication of how the discharged juror would have voted except with the benefit of hindsight following the return of verdict 126In R v Goodson [1975] 1 WLR 549 (Goodson), the appellant was charged with several offences to which he pleaded guilty and was also charged with burglary to which he pleaded not guilty. About an hour after the jury had retired to consider their verdict, one of the jurors was given permission by the jury bailiff to leave the jury room. He was subsequently found making a telephone call. The juror was prevented from returning to the jury room. The jury returned and the court was informed of what had happened. The recorder decided that although the juror's absence was an irregularity, no material prejudice would be suffered by the appellant if the trial continued with a jury of only 11 members, since the remaining jurors were not aware of what had transpired in the course of the telephone call. Accordingly, under the provisions of s 1 of the Criminal Justice Act 1965 (UK), the recorder discharged the juror who had made the telephone call. 127The remaining 11 jurors, who had been present in court listening to arguments on the incidents, then returned verdicts on counts in respect of which they acquitted the accused. They had not reached a verdict on the count which was the subject of the appeal. After a further short direction, they retired again for some five minutes or so before returning a verdict of guilty on the charge of burglary. The appellant appealed against conviction. 128The UK Court of Appeal allowed the appeal and quashed the conviction on the basis that a material irregularity had occurred. The Court said, 762: "In this case when one looks at the facts, as has been pointed out in the course of argument, this is clear: that the appellant was deprived of the voice of one juryman in the jury room in the consideration of the verdict from which the appeal is made. From what has been said in argument it is quite clear that there is abundant room for speculation and where there is room for speculation there is, we think, room for possible injustice, possible injustice to the appellant in respect of this conviction." 129Although in Goodson the Court did not articulate what the "room for speculation" was, it is possible that the Court was referring to the inference the juror who was discharged was the sole dissentient, which arose from the relatively short time between the discharge of the juror and the verdicts being returned. Although the Court in Godson used the word "speculation", I consider that the circumstances in that case gave rise to more than mere speculation, since the inference was fairly open that the discharged juror was the sole dissentient. 130In Latimer the Ontario Court of Appeal set aside a conviction and ordered a new trial. In that case, after eight and a half hours of deliberation, one juror sought a discharge from the jury on the grounds of mental distress. The judge examined the juror in private and excused her. Within 25 minutes, the remaining jurors returned a verdict of guilty. The appeal appears to have been allowed on two bases: first, that there was a denial of natural justice (since the examination occurred in private) and secondly, that the reasonable inference was that the discharged juror was the dissentient and was in favour of an acquittal.

[16]

The instant case 131BG argued that it could be inferred that the reason given by the juror who sought to be discharged was a ruse because the trial judge did not examine the juror and accordingly the legitimacy and seriousness of his asserted business commitments were not tested. 132Although trial judges commonly examine a juror prior to discharge (see, for example, R v Derbas (1993) 66 A Crim R 327), this is not necessary in all cases. In the absence of evidence, I do not consider that it is open for this Court to infer either that the single juror gave a reason that was disingenuous or that either the jury as a whole, or its foreperson collaborated in misleading the Court as to the reason why the juror felt unable to continue. 133BG sought to persuade this Court that there was at least room for speculation that the discharged juror was a dissentient. Accordingly, he argued that he was exposed to a risk of a substantial miscarriage of justice by the trial judge's decision to continue the trial with 11, rather than 12, jurors. 134Unlike in Roberts, Peters or Fontaine, there was no disclosure of either the split, or the views of the discharged juror. Nor did the timing of the verdict or the composition of the majority verdict lead to an inference of how the discharged juror would have voted if not discharged. Unlike in Goodson and Latimer, no inference could be reliably drawn with benefit of hindsight as to these matters. The instant case is similar to the US case of White: it was a matter of speculation how the discharged juror would have voted. It falls within the first category. 135The proposition that it could reasonably be inferred that the discharged juror was a dissentient is the only matter that has been advanced as giving rise to the risk referred to in s 53C. In those circumstances, I am not of the opinion that to continue the trial with the remaining jurors gave rise to a risk of a substantial miscarriage of justice. 136Accordingly I consider that the trial judge's decision to continue the trial with a jury of eleven was within a proper exercise of discretion. Evidence, addresses and the summing up had all concluded. The cost, in financial and personal terms of ordering a retrial was a relevant factor in the decision to continue the trial with fewer than twelve jurors: R v Metius [2009] QCA 3; (2009) 2 Qd R 442. There was no basis for considering that the discharge of one juror compromised the ability of the remaining jurors to carry out their function

BG v R

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