CF v R

The Trial Judge's Reasons

1. The written submissions of the applicant before the trial judge contended that the note reveals that "the juror or jury appears to be satisfied that a sexual offence took place, but … uncertain as to the effect of the finding that the offence took place between 17 December 2008 and 16 January 2009, given the nomination of both the time of the offence by the Crown as occurring prior to 17 December 2008 and the age of the complainant as being under 16 years." It was contended that the terms of the note are such that "a fair-minded and reasonable observer might apprehend that the juror or jury has pre-judged or might pre-judge the issue of guilt" albeit that there was some uncertainty about the date.
2. The Crown's submissions contended that the only conclusion one could draw from the note was that the jury was displaying some degree of confusion, especially as regards to count 4, and was simply seeking assistance. The Crown submitted that the jury note was simply raising a hypothetical issue which was demonstrated by the opening part of the note, i.e. the phrase "what if".
3. In his ex-tempore reasons, the trial judge noted the test for an apprehension of bias stated in Webb v R (1994) 181 CLR 41 at 53 ("Webb") and the effect of the passage from R v Czajkowski [2002] NSWCCA 530 at [19] ("Czajkowski") which restated the "double might" test. After setting out the submissions of the parties, his Honour concluded: "… I do not consider that the note would lead to a conclusion that the fair-minded and informed observer might think that there is a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding. In my opinion, the note is a request for assistance by the jury as to a particular matter. They are seeking the guidance of the Court and directions from the Court with respect to the matters raised in the note. True it is [that] there appears to be a misconception with respect to certain matters in the note and insofar as it does evidence a view that something may have taken placed before 16 January 2009, I do not think that that expression might therefore lead to the reasonable observer to consider that the jury might not otherwise bring an impartial mind to the resolution of the issues in the case including with respect to the counts mentioned in the note once they have heard all of the evidence and the closing addresses of counsel of the Crown and the accused and the summing-up of the Court." (emphasis added)
4. Later in the judgment the trial judge observed as follows in relation to the directions that would be given to the jury: "… the issues in the note can be dealt with by appropriate directions to the jury. I propose to refer the jury to the indictment and the dates in the indictment. I propose to refer the jury to the opening of the Crown that count 1 and counts 2 and 3 occurred, on the Crown case, prior to the Scotts Head camp and that count 4, on the Crown case, occurred after the Scotts Head camp. I propose to say that it will be the task of the jury on the conclusion of all of the evidence, not just what they have heard at the moment, or not just the complainant's evidence but all of the evidence, the closing addresses by counsel and the directions of the Court, to then assess what evidence they accept and to apply the directions of law that the Court gives them …"

The Application for Leave to Appeal

1. Three proposed grounds of appeal are raised by the applicant which will be addressed in turn. However, at the outset, four matters should be noted.
2. First, as the decision of the trial judge was an interlocutory judgment or order, a grant of leave to appeal is required. Two factors militate against a grant of leave. A grant of leave to appeal during the course of the trial has the potential to significantly disrupt those proceedings. Further, a refusal of a grant of leave to appeal from the decision not to discharge will not affect the applicant's substantive rights in that, if he is convicted, any complaint about the failure of the trial judge to discharge the jury can still form the basis for an appeal against conviction.
3. Second, the discharge of an individual juror is dealt with by s 53B of the Jury Act 1977 (NSW) and the discharge of the entire jury is dealt with by s 53C. Section 53B(b) of the Jury Act enables a court to discharge an individual juror if, inter alia, it appears "that the juror might not be able to give impartial consideration to the case because of … any reasonable apprehension of bias". Section 53C(1)(a) of the Jury Act provides that, if a juror is discharged in the course of a trial, then a court must discharge the whole jury if it 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."
4. In this case, it appears that the application to discharge was directed at the whole of the jury, rather than any particular juror. I accept for the sake of argument that, if the jury note evidences a reasonable apprehension of bias on the part of one juror, then the entire jury had to be discharged. In any event, it is clear that the subject-matter of the application concerns a discretionary judgment and thus it is necessary for the applicant to demonstrate an error on the part of the trial judge of the kind stated in House v The King (1936) 55 CLR 499.
5. Third, as noted by the trial judge, the appropriate test is ultimately one that involves the so-called "double might" test. In Czajkowski at [19] this Court described the relevant test as whether "the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceedings." To the extent that that formulation refers to two "mights" it accords with established authority (Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; "Johnson"). To the extent that Czajkowski refers to the "parties or the public", it must be taken as being a reference to the perception of a fair-minded and informed member of the public and not the subjective opinion of a party to the litigation (see Johnson at [11]; Webb at 53).
6. Fourth, in oral submissions, counsel for the applicant accepted that the application turned upon the interpretation of the jury note. I agree. However, I also agree with the assessment of the trial judge that there is no risk of the relevant apprehension arising from the terms of the jury's note. It is clear that the note contains a misapprehension about the time span for count 4, but that does not suggest any form of prejudgment. Otherwise, the crucial matter to note about the note is the fact that it is prefaced by the words "what if". Hence, the note does not convey, and is not capable of conveying, to the fair-minded and informed member of the public that any member of the jury has formed any conclusion about a matter of fact or the effect of the evidence. Instead, the note is simply asking how, if a member of the jury were to form a conclusion that something took place "between 17 December 2008 and 16 January 2009", the jury would then assess the applicant's guilt or innocence in respect of counts 1, 2 and 3 (and wrongly count 4) which concerns conduct between 31 August 2007 and 17 December 2008. While it might be considered an early stage of the trial to ask such a question, there was nothing impermissible, or improper, in the question, or anything in its contents that was capable of suggesting pre-judgment.
7. The first proposed ground of appeal asserted that the trial judge erred in applying the test for apprehended bias by considering his Honour's view of the "purpose" of the jury note, rather than the apprehension of the reasonably informed observer. The written submissions in support of this ground seize upon a statement made by the trial judge during argument to the effect that "it's an open interpretation" as to what the note conveys and compared that with a passage in his Honour's judgment in which his Honour concluded that the note is a request for assistance by the jury as to a particular matter (see [15]).
8. There is no substance to this ground. Similar to the approach of the jury in sending the note, the passage from the transcript that is relied upon merely involved his Honour testing arguments with counsel. As noted, His Honour's construction of the note and conclusion about its effect were, with respect, entirely correct. Otherwise, the first sentence of the extract from the judgment set out in [15] confirms that His Honour applied the correct test.
9. The second proposed ground of appeal asserts that the trial judge erred by construing the phrase "whether a reasonable observer might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceedings" in an impermissibly narrow way.
10. The written submissions in support of this ground referred to the emphasised words in the passage from his Honour's judgment set out in [15] above; i.e. "insofar as [the note] does evidence a view that something may have taken place before 16 January 2009". The submissions contend that his Honour accepted that that was a possible interpretation of the note and this meant that the "double might" test was satisfied.
11. This contention is without substance. In the emphasised passage, His Honour simply accepted that the note "does evidence a view that something may have taken place before 16 January 2009". Self-evidently JF's evidence meant that that something "may", i.e. "might, have taken place before 16 January 2009. However, what the note does not do is convey any acceptance by the jury, or any individual juror, that something did happen before 16 January 2009.
12. The third proposed ground of appeal contends that "his Honour erred by failing to consider whether, despite the directions his Honour proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror."
13. This ground is misconceived. In the passage from his Honour's judgment set out in [15] His Honour concluded that the note did not give rise to any relevant apprehension without having any regard to the effect of any directions that might be given to the jury. In the passage from his Honour's judgment set out at [16], his Honour indicated that directions would be given to the jury to address its misconception about the date range of count 4 and to reinforce the necessity to consider the whole of the evidence as well as the addresses and the summing up before making any conclusion or forming any judgment. This was nothing more than a sensible precaution.

Conclusion

1. I do not consider that there is an arguable basis for demonstrating error on the part of the trial judge. It follows from that and the matters noted in [18] that leave to appeal had to be refused.
2. GARLING J: I joined in with the order which the Court made on 5 December 2022 because I concluded that the proposed grounds of appeal were doomed to fail.
3. The judgment of Beech-Jones CJ at CL, with which I entirely agree, sets out comprehensively the reasons underlying my conclusion.

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: 09 December 2022