APPEAL - criminal - application to discharge juror - application refused - whether misconduct of juror - application for leave to appeal convictions
Source
Original judgment source is linked above.
Catchwords
APPEAL - criminal - application to discharge juror - application refused - whether misconduct of juror - application for leave to appeal convictions
Judgment (3 paragraphs)
[1]
Solicitors:
Zahr & Zahr Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2011/259866
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 29 November 2013
Before: Garling ADCJ
File Number(s): 2011/259866
[2]
Judgment
BASTEN JA: On 15 October 2012, the applicant, Bradley Keith Carr, entered a plea of guilty to three charges in the Burwood Local Court (with two further charges being taken into account on sentence). He went to trial on 10 further charges, being found guilty with respect to eight and not guilty with respect to two of the charges. The trial judge, Garling ADCJ, sentenced the applicant on 29 November 2013 to an aggregate sentence of imprisonment for 15 years with a non-parole period of 9 years and 4 months. The aggregate sentence related to the charges to which he had pleaded and those for which he was convicted following the jury trial.
On 6 February 2015 the applicant sought to appeal with respect to each conviction on three grounds, namely:
(1) The trial judge erred by not discharging a juror (the foreperson) under s 53A(1)(c) of the Jury Act 1977.
(2) The trial judge erred by not discharging the jury under s 53C of the Jury Act 1977.
(3) The trial judge erred by limiting the examination of the foreperson and the jury to whether inquires had been made outside of the jury room, by way of accessing the internet and social media.
The applicant was put on trial with two co-accused (Laurence Glover and Nathan Stuart) who also have applications for leave to appeal from their convictions. In the course of Mr Carr's application, each sought to amend his notice of appeal to include the grounds identified by Mr Carr. Neither had previously sought to do that. Counsel explained that they did not seek to put further submissions in support of the applications to amend, but merely to obtain the benefit of any success which Mr Carr might have on his application: that is, if the jury should have been discharged, the convictions of all those who were accused and convicted together should be set aside. The Court determined that if Mr Carr were successful, then they would be entitled to make the amendments sought; if not, leave to amend would be refused.
For reasons which will appear below, Mr Carr required leave to appeal because none of the grounds raised a question of law only. [1] Further, ground 2 was not an independent ground, but was consequential upon ground 1. That is, relevantly for present purposes, the power relied on to discharge the jury was only engaged where the court had first discharged a juror in the course of a trial. [2] Even in that event, the obligation to discharge the jury is not absolute, but depends upon the judge forming an opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. Because, for the reasons given below, ground 1 should be dismissed, the consequential issues as to how s 53C might apply in this Court do not arise.
Ground 1 invoked s 53A of the Jury Act, which provides:
53A Mandatory discharge of individual juror
(1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest:
(a) it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or
(b) the juror has become excluded from jury service, or
(c) the juror has engaged in misconduct in relation to the trial or coronial inquest.
(2) In this section:
misconduct, in relation to a trial or coronial inquest, means:
(a) conduct that constitutes an offence against this Act, or
Note. For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.
(b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.
There is no suggestion that any juror was mistakenly or irregularly empanelled, nor that any had become "excluded from jury service", for the purposes of pars (a) and (b) of subs (1). Rather, it was said that the foreperson had engaged in misconduct within par (c), as misconduct is defined in the subs (2). The relevant misconduct was said to be a breach of s 68C, which provides as follows:
68C Inquiries by juror about trial matters prohibited
(1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.
(2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings.
(3) This section does not prohibit a juror:
(a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or
(b) from making an inquiry authorised by the court.
(4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.
(5) For the purpose of this section, making an inquiry includes the following:
(a) asking a question of any person,
(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet),
(c) viewing or inspecting any place or object,
(d) conducting an experiment,
(e) causing someone else to make an inquiry.
On the morning of 20 June 2013, well into the trial, the judge noted in the presence of counsel, but not of the jury, that when the jury room had been cleaned on the previous evening, copies of four brief newspaper accounts of events at the trial had been found, three of which referred to the evidence of Mr Justin Hemmes, who had given evidence on 13 June 2013, and one to the opening statement of the prosecutor. Counsel were asked to indicate what course, if any, should be taken.
It was not submitted by counsel that reading newspaper accounts of the trial constituted misconduct on the part of any juror. However, someone had gone a step further and cut out the four items in the press and brought them into the jury room. It was difficult to make much of those two additional steps, particularly in circumstances where the trial judge, while giving detailed instructions as to what was and was not appropriate conduct (at the opening and during the course of the trial) had told the jury that they were not prohibited from reading newspapers.
With the exception of counsel for Mr Carr, the concerns of the judge, the prosecutor and defence counsel were limited to the possibility that the action of cutting out newspaper articles and bringing them into the jury room might indicate that one or more jurors had engaged in inappropriate inquiries, against which they had been directly and rigorously warned. Subject to one additional matter, it was quite unclear from the discussion recorded in the transcript that there was any firm basis for thinking that inquiries had gone further and included, for example, searches on the internet.
The additional matter was that one of the articles referred to Mr Carr as having been charged with a specific offence for which he was not charged and had never been charged. So far as a juror was concerned, that would have been a simple (and understandable) error on the part of the journalist: nevertheless, there was some concern expressed by counsel for Mr Carr that the jury might speculate that there was more to it and that he had been charged at some stage, but that had not been disclosed to them. However, that issue was addressed directly and forcefully in directions, in terms accepted by counsel at the trial. It is not the subject of a separate ground of appeal.
The judge took two specific steps by way of inquiry. First, he called the foreperson, had him sworn, and noting the fact that the newspaper clippings had been found in the jury room, asked a number of questions: [3]
"Q. … I need to ask you … whether you are aware of any member of the jury having made enquiries outside the jury room including the use of the internet or similar social media in relation to this trial?
A. Not at this point in time. There is no evidence or nothing has happened that anyone has gone any further than what they've heard in this room.
Q. So you are not aware of any such enquiries?
A. That's correct.
Q. Thank you. Are you aware of or do you know who the juror was who brought these articles into the jury room, just yes or no will do?
A. Yes.
Q. All right, now I am going to ask you to go back but I am going to ask you to ask that juror to come with the officer because I need to ask that juror something?
A. You don't have to worry, it was me.
Q. Okay. I take it from your earlier answers then that you have not made any enquiries outside the jury room of that nature I just put to you?
A. That's correct.
Q. So neither you nor anyone to your knowledge?
A. That's correct."
The second step taken by the judge was to have the jury return to the courtroom, at which stage he raised with the whole jury the fact that the copies of the newspaper articles had been found in the jury room and posed to all of them a question as to whether any of them had or were aware of anyone having made inquiries outside the jury room "including the use of the internet or similar social media in relation to this trial." [4] He invited any person who had undertaken or was aware of such events having happened to send him a note.
On being informed by the court officer that no one wished to pass a note to the judge, he then turned to deal with an application by counsel for Mr Carr that he discharge the jury. That application was made before the interrogation of the foreperson and jury members.
The basis for the application was the concern noted above that if one juror had cut out clippings from newspapers about the trial, it might indicate that that juror, or others, had also made inquiries on the internet, which could have revealed prejudicial information in relation to his client. At no stage did counsel ask that the foreperson be discharged. It followed that the basis for the discharge application was not reliance upon s 53A(1)(c) in combination with s 53C.
Having noted the background set out above, and concluded that there was no misconduct on the part of the foreperson in reading the articles and bringing them into the jury room, he addressed the question whether or not the jury should be discharged by reference to the objective test identified in Webb v The Queen. [5] That test is stated in the following terms: "whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases the jury, [depends on] whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
The precise formulation of the test will depend upon the particular circumstances of the case. The conduct in Webb involved a member of the jury in a murder trial giving a bunch of flowers to the mother of the deceased's fiancé. In the circumstances revealed in Regina v Pearson [6] a lawyer involved in the case had attempted to hand an envelope to a juror, in the presence of another juror. The facts of this case are different from each of those matters. On the facts of the present case, the question was whether the conduct of the foreperson in bringing the clippings into the jury room revealed a willingness to make inquiries as to matters involving the case but arising outside the courtroom, in contravention of the judge's specific and oft repeated warnings not to take such steps.
The objective nature of the test was not in issue, because the conduct in question did not give rise to the relevant concern: rather, it raised a further question, as to whether an inference should be drawn that other steps had been taken. In the event that steps (such as searching the internet) had occurred, there was no doubt in the judge's mind that prejudicial material could be revealed. However, as he further noted, unless the conduct in question gave rise to the relevant inference, one was left with the risk of prejudice which was ever present. He concluded: [7]
"Since raising this matter with the foreperson and the members of the jury, I am confident that they have not accessed material outside of the jury room and I propose to reinforce that with them and to do so on a regular basis. I have therefore concluded that the trial should proceed with this jury."
The submissions in this Court took a rather different direction from those before the trial judge. Counsel submitted that the "collation and apparent dissemination to other jurors of extracts from newspapers" constituted misconduct within the non-exhaustive definition of "making an inquiry" in s 68C(5). However, whatever rhetorical benefit may be obtained by describing the presence of four clippings in the jury room as "collation and dissemination", that language was not appropriate to the circumstances revealed in the transcript. It is unsurprising that the matter was not presented to the trial judge in that way.
Nor should the statutory language be given a meaning which would encompass conduct involved in reading newspaper reports of the trial and bringing a newspaper (or a clipping from the paper) into the jury room. Something more would be required. Of course, there is a risk that a journalist may have made a mistake, which is a good reason for a juror not to make reference to a press clipping. On the other hand, unless the article revealed extraneous information, that is information not the subject of evidence in the trial, reading the article would not constitute making an inquiry in the sense in which that phrase is used in s 68C. That is because the focus of the prohibition is upon obtaining, or attempting to obtain, extraneous information about the accused or some other matter relevant to the trial. [8]
In the alternative, the applicant submitted that bringing the newspaper clippings into the jury room constituted "misconduct" within s 53A(2), being conduct which "gives rise to the risk of a substantial miscarriage of justice". However, for the reasons set out above, neither reading the newspaper reports, nor bringing the clippings into the jury room had that effect, in the opinion of the trial judge. Nor did any counsel at trial treat the conduct as having such an effect. It is not apparent from any material before this Court that the judge ought to have formed such an opinion.
As noted above, a realistic concern as to the risk of a miscarriage of justice could only arise from the inference that one or more of the jurors had taken a further step, namely to search the internet. The foreperson was asked on oath whether he had done that and denied it. He readily admitted, however, that he was the person who brought the newspaper clippings to the court. That inquiry having been made, and the judge being satisfied that he had obtained a truthful answer (and the transcript gives no hint to the contrary), the basis for the necessary inference was missing. The risk was, as the judge accepted, ever present. If it materialized, there was no doubt that a substantial miscarriage could and probably would occur. Nevertheless, the applicant's claim falls at the first hurdle, that of establishing relevant misconduct.
Ground 3 suggests that the judge erred in restricting the questioning of the juror to the matters noted above. However, no further inquiries were requested at trial; nor suggested in this Court. The ground takes the case no further.
Because the issues sought to be raised by the grounds of appeal involve questions of fact and inference as well as law, the applicant requires leave to appeal. [9] The issue of possible jury misconduct is, if arguable, a matter going to the foundation of a lawful trial. Although the way the matter was presented to this Court differed from the issues raised before the trial judge, it is nevertheless appropriate to grant leave to appeal. The appeal must, however, be dismissed.
MCCALLUM J: I agree with Basten J.
R A HULME J: I also agree.
BASTEN JA: Accordingly, leave to appeal is granted but the appeal is dismissed. The applications to amend by the other applicants (the co-accused Glover and Stuart) are also dismissed.
[3]
Endnotes
Criminal Appeal Act 1912 (NSW), s 5(1).
Jury Act 1977 (NSW), s 53C(1).
Tcpt, p 1034.
Tcpt, p 1036.
(1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).
[2000] NSWCCA 149; 114 A Crim R 80.
Judgment on application to discharge jury, 20.06.2013, p 4.
Jury Act, s 68C(1).
Criminal Appeal Act, s 5(1)(b).
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Decision last updated: 10 July 2015