[1996] HCA 22
De Silva v The Queen (2019) 268 CLR 57
[2019] HCA 48
Edwards v The Queen (2021) 95 ALJR 808
[2021] HCA 28
GBF v The Queen (2020) 94 ALJR 1037
[2020] HCA 40
Gilbert v R (2000) 201 CLR 414
Source
Original judgment source is linked above.
Catchwords
[1996] HCA 22
De Silva v The Queen (2019) 268 CLR 57[2019] HCA 48
Edwards v The Queen (2021) 95 ALJR 808[2021] HCA 28
GBF v The Queen (2020) 94 ALJR 1037[2020] HCA 40
Gilbert v R (2000) 201 CLR 414[2000] HCA 15
Hamide v R (2019) 101 NSWLR 455[2019] NSWCCA 219
Hamilton v The Queen (2021) 95 ALJR 894[2021] HCA 33
Hofer v R [2021] HCA 36(2021) 95 ALJR 937
Medich v R [2021] NSWCCA 36
Miller v R (2015) 252 A Crim R 486[2015] NSWCCA 206
Rogerson v The QueenMcNamara v The Queen [2021] NSWCCA 160
Tomlinson v R [2022] NSWCCA 16
Weiss v The Queen (2005) 224 CLR 300
Judgment (3 paragraphs)
[1]
The Applicant's Argument
The applicant's submissions identified four forms of prejudice that were occasioned, or at least potentially occasioned, by Mr Cambourne's remarks. The first was that it was said to undermine Mr Cambourne's evidence which it was contended was potentially exculpatory of the applicant. Second, it was submitted that it potentially undermined evidence given by other witnesses. Third, it was contended that it potentially undermined the applicant's own credibility in the evidence he gave in the case. Fourth, it was submitted that the comments "strongly suggested that the applicant may be involved in serious criminality by engaging in a scheme to improperly procure his acquittal by false evidence." It was also submitted that the direction that was given was not only likely to be ineffective but instead had the tendency to heighten the potential prejudice occasioned.
In relation to the first form of alleged prejudice, the applicant's submissions contended that Mr Cambourne's evidence had the potential to be of assistance to his case in that, contrary to the complainant's evidence, he said that he was outside when the applicant struck her and, to an extent, his evidence supported the applicant's evidence that he slapped the complainant rather than striking her with his fist. The applicant's submissions contended that the trial judge's direction undermined Mr Cambourne's evidence by suggesting that he may have been under the influence of some substance and suggested that he was a "loose cannon".
These contentions are inconsistent with the approach taken by the applicant's counsel at the trial. It was the applicant's counsel who raised with the trial judge the potential for Mr Cambourne (and another witness) to be affected by drugs or alcohol. The only potential prejudice that counsel raised with his Honour was for the jury to associate the applicant with Mr Cambourne's comments. As noted above, the reference to Mr Cambourne being a "loose cannon" was responsive to that concern. At no stage did the applicant's counsel ever suggest that either Mr Cambourne's comments or his Honour's references to Mr Cambourne in the direction affected any reliance the applicant wanted to place on Mr Cambourne's evidence. Instead, it is clear that counsel's approach throughout the trial was to minimize any weight to be attached to Mr Cambourne's evidence. Hence in the discharge application counsel implied that Mr Cambourne was affected by something intoxicating and referred to the possibility that the jury might just dismiss him as an "idiot". That counsel was not concerned about the effect of either the comments made by Mr Cambourne or the direction to the jury on the weight to be attached to Mr Cambourne's evidence, is borne out by his not making any submission in relation to the content of the direction that was given and that part of his address to the jury in which he doubted that Mr Cambourne "and the witness who followed him" were "regularly residents of earth".
None of this is surprising. Generally, Mr Cambourne's evidence was of no assistance to the applicant because he described the injury to the complainants' eye in terms that were far more consistent with the complainant's evidence than the applicant's evidence. His description of how her black and swollen eye arose in a ten-minute period coincided with the time during which the applicant and the complainant argued. The fact that he said he was outside the house when the assault occurred, and the complainant said he was inside the house, is not a substantial discrepancy. Generally, assault victims cannot be expected to trace the movements of everyone in their vicinity when they are being either punched or slapped in the eye.
Both the content of Mr Cambourne's evidence and the course of the trial suggest that counsel for the complainant was not intending to place reliance on his evidence. To the extent that his conduct and the trial judge's direction might be said to reflect adversely on Mr Cambourne's credit, that was not prejudicial to the applicant.
In relation to the second form of alleged prejudice, it was submitted that the use of the phrase "we" by Mr Cambourne suggested that any "plan" to ensure the acquittal of the applicant "might well exist among other witnesses to be called in the case". The submissions noted that the trial judge stated that the "last three witnesses have not been star Crown witnesses" being a reference to Mr Cambourne, Mr McPherson and Ms O'Connor and noted that his Honour also said that Ms O'Conner appeared to be seeking to assist the applicant by deviating in her evidence from her statement. The submissions contended that there was an "appreciable risk [from Mr Cambourne's comments] that the jurors may not have given the evidence given by the witnesses appropriate weight".
Again, this contention does not find any support in the conduct of counsel for the applicant at the trial. Counsel heard the remark made by Mr Cambourne including his use of the word "we". Counsel was in the best position to assess whether there was realistically any likelihood that the comments might suggest some form of conspiracy or plan between some of the Crown witnesses to assist the applicant. No such concern was raised by counsel for the applicant before the trial judge in support of the discharge application and, after that was refused, no application was made for the direction to extend to the jury's consideration of the evidence of other witnesses. This is not an issue directed to the application of rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021. Instead, consistent with the authorities noted above, the conduct of counsel supports the conclusion that there was no realistic prospect of this form of prejudice arising. As noted, counsel heard the comments and was in a position to judge their potential effect on the applicant's case.
The applicant's submissions in relation to this form of prejudice pointed to the evidence of Mr Parmenter as potentially exculpatory evidence that was unfairly undermined by Mr Cambourne's comments and the trial judge's direction. As noted, Mr Parmenter lived in a caravan that was parked approximately five metres from the applicant's caravan. His statement was read to the jury by a police officer. In the statement he said he recalled the complainant staying with the applicant and that he would regularly hear them "yelling at each other". He recalled noticing bruising to the complainant's face and on one occasion the applicant complaining that the complaint gave him herpes. He also stated that "I didn't know [the applicant] had assaulted [the complainant] in any way" and "I hardly ever saw her".
The Crown Prosecutor did not mention Mr Parmenter in his address to the jury. Counsel for the applicant made a brief reference to the last part of this statement as inconsistent with the complainant's evidence. I do not accept that the jury could attribute Mr Cambourne's comments as embracing a witness whose statement was read to the jury and barely mentioned by either counsel.
The third and fourth forms of prejudice referred to on appeal are both aspects of the prejudice identified by the applicant's counsel and addressed by the trial judge in the judgment on the discharge application and the direction to the jury. The applicant accepted that, as a general rule, it can be assumed that juries understand and follow the directions they are given (Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [13] per Gleeson CJ and Gummow J). However, he contended that that was not always true and, in this case, the potential effectiveness of the direction "must be significantly limited by the gravity of the impropriety" and, in some cases, the direction may draw attention to the relevant "incident" rather than ameliorating the risk of prejudice.
In that context the applicant contended that the direction confirmed that Mr Cambourne did say something "and what it was". It was submitted that "[t]o the jury members who had not heard the remark, it now meant that they knew what it was." It was contended that "[t]he direction also had the potential to suggest that the trial judge had engaged in [an] investigatory exercise as to whether there was in fact a plan formed by the witnesses to pervert the course of justice."
I do not accept these submissions. The direction did not repeat Mr Cambourne's statement or imply what he said. To the contrary, it studiously avoided advising the jury what was said or the effect of the statement. Instead, the direction informed the jury that, if they had heard what Mr Cambourne said, they should ignore it, concentrate on the evidence and certainly not hold it against the applicant. The direction was more than sufficient to address any potential prejudice that arose in respect of those jurors who heard Mr Cambourne's comment. Otherwise, the balance of the submissions contend that the direction did not address the second form of prejudice identified above. I have already not accepted that there was any risk of that prejudice arising.
I do not accept that a miscarriage of justice was occasioned. I would reject the sole ground of appeal.
[2]
Proposed Orders
I propose the following orders:
(1) The Applicant be granted leave to raise ground 1 of the appeal.
(2) The Appeal be dismissed.
HAMILL J: I agree with Beech-Jones CJ at CL.
CAVANAGH J: I agree with Beech-Jones CJ at CL.
[3]
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: 01 April 2022
Parties
Applicant/Plaintiff:
Cox
Respondent/Defendant:
R
Cases Cited (22)
Principles
As this ground of appeal does not involve a question of law alone, a grant of leave is required to raise it (Criminal Appeal Act, s 5(1)(b)). Although the ground of appeal is framed by reference to the failure of the trial judge to discharge the jury, and the applicant's submissions address the principles applicable when considering an application to discharge a jury, it was accepted that in a case such as this, an appeal to this Court is not against the failure to discharge the jury but against the conviction. Hence this Court must determine whether, in the circumstances of the case, a miscarriage of justice has occurred (Criminal Appeal Act, ss 5 and 6(1)(c); Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22 ("Crofts"); Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [127]; Medich v R [2021] NSWCCA 36 at [87] - [90]; Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160 at [585]).
Four matters should be noted.
First, as the focus is on whether a miscarriage of justice was occasioned, it follows that this Court is not concerned with or constrained by the trial judge's reasons for refusing to discharge the jury (Crofts at 441). Instead, the relevant inquiry is whether the "result of the refusal to discharge the jury occasioned" the miscarriage of justice (Crofts id). That said, in this case it is important to note that the only potential prejudice that was raised by counsel for the applicant with his Honour was the jury forming an adverse view of the applicant, and that prejudice was squarely addressed by his Honour in the judgment refusing the application and in the direction given to the jury.
Second, unlike say Crofts, this is not a case where the matter that occasioned the application for a discharge was the admission of inadmissible evidence. Hence this case did not involve a failure to "strictly comply with the rules of procedure and evidence" (GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40 at [24]; "GBF"), nor did Mr Cambourne's statements occasion a "departure from a trial according to law" (Weiss v The Queen (2005) 224 CLR 300 at 308; [2005] HCA 81 [18]). Although it was not argued, it seems likely that it constituted an "irregularity" in the conduct of the trial (GBF at [24]). Regardless of how it is characterised, to constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act it had to be prejudicial in the sense that there was a "real chance" that it affected the jury's verdict (Hofer v R (2021) 95 ALJR 937; [2021] HCA 36 at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J), "realistically [could] have affected the verdict of guilt" (at [123] per Gageler J), "had the capacity for practical injustice" or was "capable of affecting the result of the trial" (Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 at [74] per Edelman and Steward JJ); (see Tomlinson v R [2022] NSWCCA 16 at [121] to [142] per N Adams J).
Third, to determine whether there was a miscarriage of justice, it is necessary to consider the statement in the context of the entirety of the trial, including the "seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact" (Crofts at 440). In Crofts, Toohey, Gaudron, Gummow and Kirby JJ referred to the fact that "much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript" (at 440-441; Miller v R (2015) 252 A Crim R 631; [2015] NSWCCA 206 at [126]). An analogous principle is that the matters raised by counsel for an accused at the trial in these circumstances are often a sure guide to the true potential prejudice that the relevant event might have caused (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35]; Hamilton v The Queen (2021) 95 ALJR 894; [2021] HCA 33 at [57] per Keifel CJ, Keane and Steward JJ). That is especially the case here as counsel for the applicant heard the comments made by Mr Cambourne. Counsel was in the best position to immediately identify the prejudice to his client's case that they had the potential to cause.
Fourth, as noted by Bell P (as his Honour then was) in Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [115] "[t]rial judges are neither required nor encouraged 'to take an overly sensitive approach to the accidental receipt of prejudicial material"'. His Honour noted that "the authorities are replete with statements expressing the trust that our legal system places in juries to follow judicial directions" (at [119]).