David Syme & Co v Swinburne [1909] HCA 92

David Syme & Co v Swinburne [1909] HCA 92 - HCA 1909 case summary — Zoe

[68]

a new trial, but the granting of a new trial on that ground is discretionary : Morris vy. Vivian (1): and a new trial is granted only because there is reason to believe that the course of justice has been substantially affected. Stopping here for a moment, I will suppose that nothing more had happened and the case had gone on to a conclusion and a verdict had been given for the plaintiff. It is quite clear that the defendants could not have taken any objection on this ground, because they themselves had expressed a desire not to take advantage of it. They thought the matter was not of such a nature that the case should not go to its ordinary conclusion. So that, if the conversation really occurred and if it amounted to such misconduct as would constitute ground for a new trial - as to which I do not express an opinion and am not to be taken as assenting to the proposition that it would

still the defendants could not have taken advantage of it per se as misconduct of the jury. They must therefore now rely upon something subsequent, some additional facts which, added to that which was innocent, would make a mistrial. If all that happened subsequently was innocent, to add together two things which are innocent would not make guilt. Now what is this subsequent conduct on the part of someone which, added to what had previ- ously happened, is said to have constituted a mistrial? Just before going into Court on Monday morning Mr. Duffy said to counsel for the defendants, "Do you propose to get up and men- tion the matter ?" and the defendants' counsel said "No." Then, when the Court opened, Mr. Duffy, conceiving it to be his duty, rose and said that he had received information that there had been a conversation between a juryman and a clerk of the de- fendants' solicitors, and that there had been a conversation between himself (Mr. Duffy) and counsel for the defendants in reference to the matter. Amongst other things Mr. Duffy said: - "Tt is suggested by my learned friends that they would mention the matter to the Court if we would be willing to say to the Court that we thought the trial should not go on and if we would not suggest that the trial should go on with a less number of jurymen, Acting on behalf of my client, I could be no party to that. I cannot stand in the position of going on with this case

[69]

without your Honor knowing about it. If this matter does come - to such a stage that your Honor thinks that one of the jurymen has done wrong, I shall certainly ask that this trial go on with a less number of jurymen. I shall publicly ask that the defendants consent to that course. It has cost an enormous expense to get this far, and then to have the whole thing re-opened and all this - gone through again would be too much." For myself I see no objection whatever to anything in Mr. Duffy's conduct so far, What followed after that is this: - Mr. Duffy was willing that one juryman should retire and that the case should go on in - order to save the expense of starting afresh. The other side wanted to get rid of the jury altogether and make a fresh start. Thereupon the learned Judge said he felt unable to act without more information - he wanted to know the facts. Mr. McArthur said he thought it might be advisable that either the Judge or the defendants should ask the clerk to go into the box and make - a statement. The learned Judge agreed. Thereupon the clerk went into the box, was sworn, and made a statement. He gave his evidence, as the Judge thought, in a very hesitating manner, even when relating that part of the conversation which I have described as being trivial, and when he came to the portion which is alleged to contain a suggestion on the part of the juryman that he was willing to take a bribe, the clerk's memory failed. He had to be pressed, and leading questions were put to him. At last he concluded by saying "I think he said 'Some one from The Age ought to see me.'" That evidence having been given, the learned Judge asked what application counsel made, and thereupon Mr. McArthur applied that the jury should be dis- charged. Mr. Duffy again said that he had no objection to going on with eleven jurymen, but that he did object to the whole of the jury being discharged, and he gave what I think was a very sound reason for asking that the defendants should consent to the course he suggested. The defendants, however, were not bound to consent, and did not do so. The learned Judge had then to make up his mind as to what he should do. Before doing so he left the Bench and consulted his colleagues. When he returned he said to the juryman: - *"I want you to understand that you are under no obligation to say one single word, but, if

[85]

The passages objected to are, in substance, that the defendants crept out of Court so as to be able to say that there was no trial. Mr. Duffy called it a " theatrical display," and said that the jury must not be led away by their "tricks and machinations." That was comment on the behaviour of the defendants and their coun- sel, and I certainly am not prepared to say that it was unfair. It certainly could not be said to have prejudiced the defendants. Then it was said that the damages are excessive on a ground that would rather go to misdirection. The objection is put in this way, "that the charge of the learned Judge to the jury was unfair to the appellants in that he directed the jury to consider a matter arising out of a personal altercation between the junior counsel for the appellants and himself as evidence of malice or improper conduct on the part of the appellants." The first answer is that there is no foundation in the report of the proceedings for the allegation that the Judge did anything of the kind. In the course of the trial a witness for the plaintiff was being cross- examined, and the cross-examination was apparently tending to show that the plaintiff was dishonest. The Judge asked the cross-examining counsel, " Do you or do you not dispute that the transaction with regard to Koondrook or Swan Hill, whatever may have been the tendency of the tendering, and so forth, was in all honor and honesty, and that the persons connected with it were free from any moral blame?" In the course of a case of this sort it is important to know what is the case intended to be set up by the defendants, because, if the defendants do not impute dishonesty to the plaintiff, the line of evidence is likely to be very different. The Judge was entitled to ask on the fifth day of the trial whether the charge of dishonesty were persisted in. The answer counsel gave was, " Your Honor will hear our case when we submit it to the jury." The Judge in his summing up pointed out that under the circumstances it appeared that the defendants, so far from being sorry for what they had said, intended to persist up to the last possible moment in making the worst charges against the plaintiff. That certainly was a circumstance to which the Judge was right in calling the jury's attention. For all these reasons I think there was no mis-

[96]

Court will grant a new trial on the ground of misconduct of the jury although neither of the parties were to blame. But in most cases the connection of either of the parties with the misconduct complained of is an important circumstance for consideration. Whatever view may be taken of the incident under considera- tion, it is clear that the plaintiff was entirely free from blame. The defendants, therefore, are called upon to establish at least reasonable ground for suspicion that the due course of justice has been interfered with before they can call upon the Court in the exercise of its discretion to set aside a verdict which the plaintiff has obtained without default on his part, and to put him to the expense and risk of a new trial. The juryman incident came before the Full Court in two aspects, as an original application to that Court, and as an appeal against the decision of the Judge at the trial. In view of the course of events at the trial, there is no substantial difference between these two aspects. The defendants were, I think, entitled to place before the Court as in support of an original application the affidavits which the majority of the Court rejected. But there was nothing in those affidavits which the learned Judge at the trial had not already considered on substantially the same issue. His determination could not be left out of consideration by the Full Court. From whichever aspect, therefore, the matter is regarded the question remains the same - ought the Supreme Court to have interfered with the dis- eretion which the learned Judge exercised with reference to the incident at the trial? In the decision of such matters as they arise the presiding Judge must necessarily have a wide discretion, a discretion with the exercise of which the Full Court is always loth to interfere. It is well established that the Full Court will not do so unless satisfied that the determination questioned was clearly erroneous, and that some injustice to the party complain- ing has ensued or is likely to ensue therefrom: Duke of Beaufort y. Crawshwy (1).

[117]

must be exercised judicially and upon evidence judicially received. The learned primary Judge rejected the version given by Davis, so far as it related to a visit from I'he Age, but apparently not otherwise. All the rest is taken, and properly taken, by the Full Court as being admitted by Ransom ; see the judgment of Madden C.J., fols. 1909 and 1910. The following circumstances consequently remain uncontroverted. On Friday evening, about eight o'clock, Ransom accosted Davis in the street and asked how long the case would last, and on learning it would last about a week longer, suggested that it was causing him inconvenience and expense, adding that if he had known that it was going to last so long he would not have come up. He said he had 15 or 16 employés to look after. Ransom's own account breaks off suddenly and does not affirmatively explain how the interview ended. Davis's account is that, after recognizing the danger he was running into, he said, "I think I had better leave you now. There is danger in speaking to you." And twice Davis states that Ranson said "TZ will see you again," and he, Davis, replied " Not while this case is going on." Davis continues that Ransom replied " The Age or some one from The Age ought to see me." I may say that the words "I think" occur in this connection in both statements of Davis, and the position of the quotation marks affecting the meaning of these words may be due to the way the shorthand writer transcribed his notes. I therefore attach no importance to the altered position of the words "I think" in the second statement, relatively to the quotation marks. Now, what does Ransom deny? Avowedly he denied nothing but The Age portion of Davis's account. His silence as to the " statement twice sworn to that Davis pointed out the danger of their conversing, that he, Ransom, declared he would see Davis again, and that Davis refused, is significant in the extreme. All this, as the Full Court points out, is admitted. If this part is true, if Ransom, after stopping Davis and intimating that he was losing time and -money - a pregnant statement in itself I should imagine - also said "I will see you again" - a statement quite in line with his observation as to loss - I can see no real difference between that and the request that someone from The Age should see him. In either case the purpose is identical and unmistake-

[190]

one from The Age ought to see me " - was literally dragged from - the witness by leading questions. First Davis gave his story, and said there was nothing else: and when asked what was said about The Age, and about some one from The Age seeing him, he could recollect nothing. Finally, being much pressed by counsel, Davis added something ; and when asked by the Judge to be more precise, - he said, "I think he (Ransom) said 'Some one from The Age ought to see me." The Judge has stated - and we are bound to accept his Honor's statement - that he did not believe this part of Davis's evidence. With a very proper reticence, in view of possible criminal proceedings, the Judge did not express directly his dis- belief; but he said "I am not quite clear that the evidence will justify me in requiring the jury to leave," and was disposed to go on with the trial, The rest of the conversation, as detailed by Davis, was harmless, I can see that one already suspicious might possibly find a sinister aspect in the words of one friend to another

"All right. I will see you again." But the Judge who saw - and heard the witness did not accept this aspect ; he was entitled to take the innocent view; and I cannot say that he must be wrong. After consulting his colleagues, the Judge told Ransom that he might make an unsworn statement if he chose. I regard his Honor as merely ascertaining whether and how far the state- ments of Davis were admitted - "guilty or not guilty." If admitted, there would be more reason for finding that there was a reasonable ground for suspecting the impartiality of the juror, and for treating the jury as unfit. But the vital statement as to The Age sending some one to him was not admitted; and the Judge held to his first opinion. So far the position is simple enough ; but his Honor says, "I did not believe him (Davis), and I did believe in the unsworn statement of the juryman Ransom." These words, taken by themselves, might be regarded as showing that the Judge treated Ransom's statement as evidence; but, probably, when all the circumstances are considered, the meaning is merely that on Davis's evidence the Judge did not believe the statement of Davis as to The Age, and believed that Ransom's plea of " not guilty" was a true plea. But even if this is not the correct view, I am of opinion that the defendants are precluded from asking for a new trial on the mere ground that Ransom was

At a glance

Court

Decision date

Before

Source

Judgment (206 paragraphs)