Erich, Ante The Queen [1980] FCA 96

Federal Court of Australia|1980-07-01|Before: Shepperd JJ, Shevpard JJ

Criminal law - appeal against conviction for murder - submission that verdict perverse because on the probabilities injuries causing death not inflicted at time when appellant in victim's presence - submission rejected - challenge to exercise of trial gudge's discretion in refusing to discharge jury on three occasions - challenge rejected - submissions based on various aspects of conduct of trial also rejected -

no question of principle involved - appeal dismissed.

Corat: Blackburn, St.John and Shepperd JJ. Date: 27th March, 1980

On appeal from the Supreme Court of the Australian Capitel Territory

Blackburn, St.John and Shevpard JJ. 27th March, 1980

IN THE FEDERAL CCURT OF AUSTR+LIA ? CANBERRA DISTRICT REGISTRY No. FC 45 of 1979 GENERAL DIVISTCH

On appeal from the Supreme Court of the Australian Capital Territory

The appellant, Ante Erich, apnealed ugeinst his conviction and sentence upon a 'charge of the imura_r of one Stanislawa algas. The date of the appellant's conviction was 14th Decenber, 1979, The trial was a lengthy one, it having commenced on 19th November, 1979. The appeal was neurd on 25th, 26th and 27th March, 1980. At tne conclusion of the heartns of 1t the appeal was dismissed. We announced thet we ould publish our reasons later, what follows are our reasons for dismissing the

There is no question, and there was no issue at tne trial or upon the hearing of the appeal, tiet Mrs. W2 murdered on Monday, 13th March, 1678, at her rome, itto,1?

Limestone Avenue, Bradion, Nor 1s there any amestion that

the appellant entered Mrs. #1ijas' nome at abowl 7,30 a.m. on

the morning of that dsy, tound her to a chair ind peptod her. So much appears from tire stetement no maue et tre traal ond also from statements which ne made to the rolrce durins the course of their investigations into the murder. further common ground 1s provided by the fact thet the apreli?ent again entered Mrs, igas' house at abcut 9 p.m. on tne doy of the murder and moved her fron the chair to wnich he aed tound her on to a bead in a bedroom shown in a vlan as becroow Tio.7, at the time that he did so "rs. wijas was probasly cead, one had been severely beaten, varticularly in the are. of her neck.

She died as the result of multiple fractures o* .nd in une

area of her cervical spine, tnese causing « state of shoe,

from which she did nov recover. It is the ellant's cite that clthour: 18 esrauited

Mrs. Wigas in tne way tnat hes been cescribed he did not

anflict any angury unon her and, h> wat not resions:ble for her death. He was unsitle to exniain how it wes taat che was

angured during the cour.e of the *-y Fun hae cese vas con-

ducted in such a way as to throw 'uspicion upon certrcin other

persons wno resiae in the veiphbourkoad af bre. Sagas! nore, The grounds upor wnich tne arrelisnt appeelet were:-

Tnat the verdict was against tno weight of the evicience.

3, 4, 5. That the learned trial jJudse erre!? in law in failing to accede to three applications for the discharge of the gury rade resnectively on 23th November, 1979, 30th "iove ber, 1972 end let Decenber, 1979.

That the sentence imposed by the le. .rned trizl gudge

In the events th.t hanpene: during the course ena con-

That his Honour's instructions to the gury, cavin u ,

regard to the nature and quality of tne nedic-l evidence, were znadequate.

All grounds other than grouni 6 were prusced, Ground @ (originally referred to us ground 3) was aude. by wey of omend- ment at the commencement of the ieering of the sppeai without obgection from counsel for the resronaent.

During the course of his submissions ccunsel for the appellant said that an alternative way of putting srounds i and 2 was to say that the conviction, ty reasor of certain metters arising from the evidence shortly to be referred to, was unsafe. In his subaission tener2 was no distinetion of sube stance betweer the secona ground anc the treund tnat the conviction ouzsht co te set aside becvuse itowes unbese, We do not agree witn the equation of the tho mrounds, Tue distinction tetween the two is drawn in tne judage™ent of this Court in Luff v. The waueen (Str Leescbor, Love

yet unreporte? (pn.J3-18, esvecially .t .13)). It was the

Court's conclusion that by resson cf tae erserce of whet we

may call criminel appeal legislation in criminal matters brought from the

that a conviction 1s unsafe was not aveilable as a rround

was pointed out to counsel for the appellant ne subnitte:

development of the argument we would not be prepared

to do otherwise than follow a considered @ecisicsn of anotner

atisfied that the some unspecifiea time address, however, tne gury as one where had anflicted the 123th Maren at the time Counsel for the called in the cas

rt. In the view that we take of the hat respect 33 of nu con- were onen to this Court to interfere conviction was unsafe we would be of to stana. We do not corsicer it to be concider it to te agstnet the cvidence

put to the jury ought not have been accepted Lecanse 1% was established upon a balance of probabilities that the injuries were not inflicted before 1 p.m., some five or more hours after the appellant's first visit to the 'house, Accordingly, the gury could not have been satisfied beyond reasonable doubt that the appellant was guilty.

The relevant medical evidence was given by a pathologist, Dr. Jankus, who examined the body of the deceased not long after 1t was discovered on the evening of Tuesday, 14th March, 1978. A reading of tne doctor's

in expressing any precise view of tbo tire of death let alone the time of infliction of tne injuries. In enswer to questions asked by tn2 learned trial jutre ta.erds tre

two or three days". The period of 18 hours was calculated from the time of his examination at about 1 a.m. on '15th March, an@ leaas back to 7 a.m. on 14th March. Tne period of two gsys would lead back to 1 a.m, on 13th March and the period of tnree days to l a.m. on Sunday, 12th March,

In his cross-examninetion counsel for the wzpellsat

enaeavoure'l to nersuade the doctor to say tnat the tame at

which death had occurred was within 3 very mucn nerrower

time span than was indicated by the doctor's ovidence in chief. Counsel] cuestioned Dr. Jana«us upen fictors which he would take inte account in determinine the time of deatnr, These were the extent to which rivor mortis } iad set in, the fact tnat there was no 'lecomnocitzo0n of tne body anc the temperatures,at tne tine of Dr, Jankus! eyarination,¢ £ 30te of the internal organs of the bey. De. Jurkuct avi ience that was/there was a degree of rigor mortis in ti.e bolw bul taet that was of no assistance in determining [tne tim> of Jeatn, Tne doctor said that he could not tell whether 17 was setting in or receding or whether 1ts onsst nad been interrupted Sy reason of movement of the cody after it had set in. Tne fact tnet there was a depree of risor "ortis in the body was tnerefore of no signif2ceance in determining the tive oi deatn. /. reading of tho entirety of Dr. cankus!t evidence indicates tnet he ard not think tuat the abrence of decomposition was cf substanti:] siirpnificance eivner althougn, upon tne bacis of a cnar* (prepared for -nvl:an climatic conditions) amongst his papers, he eapressed tae

view th. t desth had sunervened not less tnin 1% Lovers aria ne

bee fe) Tbm + Pag o io im examination. Tharty-six hours prior *9 lo avi. or Leth

more after tne corning vis>t of the anpeatlans. boirs, '2 hone. Tne otaer fectur relied upon ty U.e aoeter in orter

to establich tre time of death wa. not reslly heloiel] we

determining the earliest point of tare af wai '1 one had nelpirs . died but rather in/to ffx tne latest roint of tire at which death may neve taken plac. Ghe Areas, tae temperature of wnich was texen, vere ct room termerr dire at the time of the doctor's exemrination, He card that the test was not helptul efter a neriog wf 12 hours fran death.

In supmary whst counsel for the appellant sou:nt to do during the trial and at the hearing of the enveal was to take as the probable limits of the period witnin whic death had occurred, 7 a.m. on 14th Marcn (1@ hours before

Dr. Jankus' examination) and 1 p.m. on 13th ierch (26 nours

a prior to the exan rination). The submission was oased entirely upon the fact tnat there was nu deco7potition of the bocy at the tire of Dr, Jenks! erumin tion,

Left out of acceunt so far sronest "mn Peetors fo ce veliarptt> svtmiccdiarn ure tuo amportant metters. As counsel Tor Lie recpondent reinaed us, 1t goes not follow tnat tne decsrsed dred iamediately the wounds were inflicted, Dr. danas! orimion wes the: she died of shock brought about ty the sounds fron whicn she suffered, But there are two time intervels which are unknown. The first ic the tine between injury anc the cnset

of shock and the second the period surins whica tre deceasea

was in shock after the conditicn «et ain. The evidence about these tine periods 18 scant. Indeed, there 15 no

evidence of the time that misht be ~spected to elapse

between jngury end the onset of shock. ire Cocter woe auLle

uncertain of tn2 period wnicn woula be involved between the onset of shock and death. He eculd not siy how Jong it would have taken the deceased to die once sre went into a state of shock. In guestions asked of Ur. Jenkus by counsel] for the appellant at the end of his cross-exeminition, counsel seems to a degree to have confused the three critical times, Those times are the time of injury, the time of the onset of shock and the time of death. The climzex of the cro.3e- examination was reached with the following ~ueszicns and answers: "So dces that mean that in the c:s2 - again 2 lomtan: tae 36 hour nerzod - in the care of this seceased could not neve been ingurej ¢t a point ii ttre earlier than 40 hours of tne tiv> you exarined or took the temperature of ner organ, thot as I oem

on 15 March*--- As far -s coins injurea, I cannet answer that avestion.

Incury prouucing tne shock ?--- herinnines of ascomposcition an a live body are relLitively rar®, %.1 one tan only go on body decomposition after tne verso1 is desd and time it to a certein extent, buh not fram a

Let me put it this way, again usina that wece of evidence that you gave yesterday: 22 you tee Ll a.m, on 15 March 1978 end you move oick 36 hours, any snock thet she sustained would Pave nad to h-ve taken place during those 36 pours? --- Yes,

I think, there 1s confidence in my mathematzeal oralicy, but I think 36 hours earlirr than Marcn 15, Ll a.m - lnm. on 13 March it teens this, does not it, thea

the shock she suffered must hive hapvened nu earlier than Ll r.m, cn Monday, 13 lhoren, 1978% ~-- i cannot really answer that que. tin.

In all probacility® --- In all pronatility. noesitiv, yes.

So we have vot two situstione nev; ner death ow ail probability took vlace Letwoan lo p.7. on donuay, 135 March 1678 and the .ime oon eaamines 1-r, 15 tust rasht? #-- well, Tou. not curkhs wurce bLisit we ore tiring it. lie i scientific evicence we de viv

" The test of decomposition 36 18 60 variaole that whether We take tine nt deeth oF phe time oO» shock y if we are talking acout decommoe1 ber iz is &

T appreciate that but we ers neins the engi eG clamatic conditions wnica alloy for 36 hour. ang You agreed

that in 4 notter climet? it vou? v2 provacly les'? _u- probaoly less.

But what 1 want to, using the mnvli St climatre cona1!10n, 1 want to get from you a5 & patter of prot ability that any shock che suffered ot per do be could aot nave happenec pefore 1 D+" or noendays 13 Merch

1978? --7~ Tf tnet 15 35 nour' mrobably os." , - - -

Yath these questions and answers should re reaa noon on

eurlier than tne la.m, stertins time tict you cnose

for the autopsy calculetion?® --- 1] zm noz eulte sure, really, basically what Moniays and Tuesdays ---

¥ell, you can assume that the !ime cp2n between 12 noon on Monday, 13 Warcn 1978 an? l a.m. on nednercay, 15 March 1978 1s 37 hours' --- 37, ye.

You can assune that is correct? --- 'Vlell she 21287 soamesherr an that veriod of time.

ell no earlier tnan - - -% ---i'o earlior team 4/ wares fter I exemined ner.

No errlier than? --- 37 hours after 1 examin? her, yes. You would agree with tnet? --- Petore rT examine? ner ? yes, sorry."

The doctor's eviaence nas, of caurce, to te re-u -sS "a whole.

His answer to the third of tho suestioms ourtt quote lin im line with the answer ne save tne learned trizsi guiee to wich reference wes made at tne outset ot this discussion, certainly

it would appear tnzt the doctor there-fter recrme core certain that tne time of death was witnin tes pereoc of ao acurs sPLor to his exemination, Lut we do not think 1t w9oubll ce correct, as a result of :nis sceminse divergence in ~.c dcctor's evi terce

to trezt nim aS mavine relincuisned the vositien ne wel twice

taken up vnen he said thet tne exercise . +63 one mwWolvineg "more an art then sclence" ami was "Quit Intolligeny pusss s.or or more likely than not. It 18 our yiew that 12 comeel eni: upon such en exercise ana wish eventu diy to ure arevers that something 1s probable upon ;nicn te found 2 rub ™ission, they are under an obligition to make sure that tio witness understands tne wora "probable" in tne sence of mere nrcoable

or more likely than not. if tney do not so define their

terms the Court, whether dealing witn the matter es,/question

of fact or law, will be Jeft wonderin: whether tne +itness understood the expression in the sense contended for vy counsel, No douct that 1s why wnen e cudve suns up in a civil case he tells the gury thict tad stendara arf rroor is upon the balance of protabilitiert art vweds thet 1t 1s for the party bearing the onus of preof to chow tict wht he hes to prove 1s more probiole or more likely tian nol to te the

In seying what, we have, we nave ror overlocked the tact

that in tne seccna series of questions wstec fron counceits ereose-cxX.minutilor »2 in to he otsersol chat aa ure more than once the expression "strong -ror tility". Une WG ligAas

in Youfos (supra) were concerned with wecr es or trope lity

by tonem, but ance one wytoretance FU. the wore' "omorcLiel ,

necessarily ina lay mind a real distinction between something which is a strong probability and somethine which is a serious or distinct possibility or wnicn is "on the cards", some of the phrases used in tne Keufos judgments in an endeavour to expl=in wrat was meant hy the word "probable" where used in the guipment of tne Court in Hadley v. Baxendale (supra).

Finally, even if the evidence 1s to be read as counsel for the appellant would have it read, namely, that it indicates that it was, in tne doctor's opinion, more probable than not that the injuries were inflicted not earlier than 1 p.m. on 13th March, the fact that the appellant was admittedly in the home of the decessed at 7.30 a.m. on 13th March means that notwithstanding the probabilities he may have inflicted the injuries at that time. The aoctor was not dealing in any more than probabilities. His possible range of time within which death and certeinly the injuries may have occurred was much wider then the period between l p.m. on 13th March and 7 a.m. on 14th Tierch. The range really spanned 4 hours - 1 a.m. on Sundoy, 12'n Tiarcn, to 7 a.m. on Tuesday, 14th March, Certainly 1t allowed ror ingury and death at 7.30 a.m. on i3tn March.

For the reasons given we are of onin'on thut tne substratum of the submission made in support of the rropes- ition that the verdict was against tne eviuence 2nd the weight of evidence has itself no proper rasis. The matters

relied upon by counsel were matters tor tne gury. No doubt

they were earnestly pressed in nic submissions *c che jury but the verdict indicates th t tne jury re .ecteu them, It is not for us to substitute our view of the facts (assuming we had a different one} for aA view wich

respect we refer to what was said by Jordan, C.J. in R. v. Cable 47 S.R.(N.S.4.) 183. what his Honour sid was approved by Fenzies, J. in Plonmm v. Tne 'ueen, lle C.L.R. 234 at 9,245. Jordan, C.J. said (po. ia@4-5):

"Tf I have correctly understood Tir, «windeyer's argument, it 2s that the apmroecn of tne Court to an appeal in a case 1m wnicn tie conviction has been obtained on circunstentieal evausence should be quite ¢citferent from woit no 3 cen held to be appropriate wnere the evidence 15 direct, in the iatter type £

guide itself by what was said in Ross v. The Kang ((1922) there be evidence on whic'. re find a verdict of pullty, tu: dete the euilt or innocence of tid vr: 1 matter for the gury ard fer unem alonc, ars *71h tneir decision vased on sien evid - -ncee no Court or Judge hus any risht or nower Lo interfere.

It is of the highest importance thet tne crave responsibility which rests on gurors in this respect snould te thorou niy understoo one always maintained! (30 C.L.R. at op.75' FF}, or as 1t nas been sometimes put, s.6 (of cue Criminal Appeel act of 1912 (N.o.6.)) an net intended to substitute for trial by twelve purywen sno hive seen anc heard the witnesses tri.i bt tnree vuuves vwno have not,"

His Honour went on to bay th tT case ynere Ths evicearce

was entirely carcumstunti. 1 were no wn*feront Prev t:

whica there wes direct evidence uuctire tase ot tected

what bc gedd ton ante account "ico orvevi. cons ef bhe Crain

éAprperl Act in force 1p few touth «» ose yricn fave to Commer

part in this cage, ZuT inat surciccte nse ct ko. wh + pe

said more, rather then Jess, apt for present purposes than would be the cese if there were criminal anpeal lepislation in force in relation to appeals crou-ht from the Lunrene Court of the Australian Capital Territory.

It 18 convenient next to ceal vith the e1rshta creured of appeal which was the only compleint mrde ty counsel] Tor the appellant of hic Aonour's summing un. jn nis s2bmissien his Honourts directions to the gury, having re nature and cuality of the medical evidence, were snadequate, Welnave taken a different view of tnat evidence from taat which is involved in counsel's submi1ssion. hit Honvur put the appeliant's case fairly ana adeiuately to tne gury. He told them of whet counsel sought to make of tne nedic-l1 evidence, Their verdict indicates,as we tTLve ci the Ivrned tre wl guise to accede to cyplicetions made tc 'iseniurse the Cui, The

first of these was made on 28th Noverser, 1679, It was based upon reference in the evidence of Mr.L.Roso to the mafia or to the appellant's mafi:. On 27th ovenver, 13979, Mr, Roso was being examined by the Crown rresecuter. Re

gave evidence of a conversation tetween himself anu bus

appellant wnich took place not lons after the findin;s of the body. sccording to his evicence be said,"... if you say anything to anybody I shall kill you, your wife ans your child", Mr. Roso was asked whether he Sald anytnins in

reply and his answer, wnich was not responsive, was: "Wnat

am I to say 1f I am tola that he will Kill me, "ny wrfe ana

my child. JI was afraid ana lo am stili afraid ta this dry

that he will k1]1 me or his rafis viii halt cel, mvc honcar directed that tre answer be struc. cut, The neyt Guy, m7

the course of his cress-er manaticn, Vr. wero eslan use.

the word "mifira" in an answer. Therevpor counss) ov lisa

for the discnerge of the cgury. inc Honour prefaced tho

arplication anu said tnat be woulu ceive reas ume "or nis Gecision if rejuired.

cuese uently rave he seid that ne Gid not thirk tnat t2 two ancisents eltner ¢inelv or in company were so ungu. tly pregueireisl io tne accused es to be grounds for tre oecenarze ef tae gory. we

see nothing ercentionatie in tre "st. temenm > scichn 22s Hanuaur

mide, HLS ACTS LON wits a asseretrsanary anc, Is our Orenten there 2 mothare te anmiae fe tear nls ilonour ee persed has izseretion otherwi.e Cano ir eelcordenme 2 ata the lov, nor

WO we think that his decision wes clearly ungust or made

protracted and hard fourht triel,but we anclins to the view that we would ourselves have done as his Honour aid.

The second eannlication to diccsatrpe tye gursys ow «¢ made on 30th November, 1979, as the result of Irs, A050 Losing

control of herself whilst eiving evicence, The Learned trial judge decided that he woule uave to adjourn. 1s Honour left the Benen and the witness, whilst the curv were in the process of leaving the court reom, cantinuel wath a tirade of statements in the Croatian lanruare. It ceems likely that the gury must have heard sore of win:t Tra. Roso said, but the: would not heave understood 21 omless iney coul2 speak the Croaticn language. Tne interpreter aid not pay *ttention to the cd tail sho sald breeese, his donour neving left tne bench, sne was not revuiren to. She did remember one or tio sentence: but they are not material.

After his Honour returned, 2 lon! dascuss2on ensne. with counsel in the absence of tue jury. tis Honour eventually refused the applicaticn raue to hi. to discaarge the gury and again sale tnat he woul: elve reacons l-ter if they were recul1red. Hie Honour concluded his reasons by saying:

"T refused to grant tne anniicetion amy 343% That if it became necessary i would, atter Lhe coneiasien of the triel, sucply written reasors for doin. so. There were Tour or iave counsel and tyu solicitors et tis Dar table. Tnere were two interpreters mi tie acenseda in Court wha could understenc Troitian, one Of tance ton or co

peorle were able to tell me of anythins yrejulier-1 to tne accused which tne witness seid after the Court

"rose. It seems to me hichly unlikely in these circumstances that the witness sald anything prejudicial to tne accused; ard almost fanerful to suggest that, if she did, 1t was heard and understood by a tember of the guryv who w3s5

i act of leaving the cury box ne entering the jury room Lut was not heard or underctoo7t by any of the ten people I have mentioned wno were in the court room throushout the entire incitent",

Again we'are of the view tnet what occurred doer not reveal any error in tne evercise by his Honour of ths discretion vested in him.

The third application was made on 14th December, 1979, after the close of the Crown Prosecutor's address to the jury and immediately before his Honour commencec his summing up. The application was made because tiie Crown in its closing speecn confined itself, 75 has been mentioned,

to a case of inguries cauSing destin uwntjicted at or ipcut

7.30 a.m. on 13tr March and not at any other tine during that day. Counsel courht to say to ais Pomour tirt if ne had realised thet the crown case wav ts oe restricted in this way he woulda nave corducted mir own cese some. t differently. But, as hit Aonour 3e11 4n haz reasonc, the Crown case aS Cpenea was thet tue wornine visit vas, emoerect others, an occision wher. tue appeliant nm. int n-ve cn%tacled the fatal inguries with tne result tnat tie defence ves conducted at all times with this 132.2 1n mind. reais rast be correct, particularily in tne Listht of tre fect tnet such

a strenuous 3tteinpt wes mede in che cross-ey-eminition of

Dr, Jankus '+o demonstrate Toat rerlher the death nor tna

unguries causing it could have occurred oe early as 7.36 3.

or thereabouts on tne ay an auestior. Tn some ways 1t may

be thougnt that the Crown's decision raniuercd Lbosiblive assistance to the anvellant. The neea tor hin toth ta

account for his own rovenants anc to ivplicate otner

was not nearly so pressiry once thie Crown case was restricted as it was.

Counsel also sought the eischarge »f toe yury ty reason of what were saic to have beer: eytravagent und emotional statements made by the Crosn Prosecutor in tne course of his address, A list of the statements conplained of was handed in and has been placed with the papers.

Counsel submitted thet the case was a very difficult one to conduct because of the nregudicial position in which the appellant was nlaced. He nhac concedec trut ne was euilty of concuct which involvea ol. an navvine committed

a very serious offence sna whiea was, gn any event, «u21te

disgraceful. Counsel subrittee tnet in those circuyctances

it benoved the Crown to tresent the case at obgectivaly as possible; otnerwise the gury wrizht well Lecone infleme? and prejudiced and taus diverted froyv thear ity to assess the evidence calmly and dispassionoately in order to deter~ mine whether they were satisfirea reyond reasonebie acute tnat the appellant was guilty.

Certeinly the list discloses tnat the Crow Frosecutor presented tne case to the gury in a flarboyant ani colourful way. it also aiscloses that he mate musa 3f evieence which

established th-t the cecensed wes brutally teaten end tnat

the appellant hed admittedly essaulted tne dece:- od on the

morning of 13th "arch, both matters which were not in question. Tawards the end of nis curving ur has tdlonour said to the gury :

"You must not let emotion work against the rccured. You should not say, well, there 15 this poor old lady who has been killed and 1t 13 a dreadful thing and therefore we ere foing to see tnet justice 15s done ani that somebody is convicted in respect of it. That would be quite ¢ wreng approach 4nd I feel I rm almost insulting your intelligence and integrity in even mentioning the possibility that you miszni te swayed by that sort of emotion.

You approach it as an intellectual probler ané you decide first of all, as I told you at the start, whether you are satisfiec beyond reasonable doubt that there 1s an act of the accused which caused the death of the deceased. 'nd if you ere not satis- fied about tnat, you do not so any furtner. Jf vou are satisfied about at, well] then, you have consider the ments1 element wiicn I have & to you."

In our opinion his Honeur's wernin_ ta ibe gury siven in the above terms plainly alerted them to tne neea to Le calm, dispassionate anu orgective in theirs ielice Furthermore, althourh councel nau, orior to tir cemiencarent of the summinzs up, mede an applicttion tant the gurv be discharged upon the sround of tne nregudicizl neture of the Crown Prosecutor's eddress, he did not at tae corelusion of the summing up seek 'any Girection em onasicine tig need for

the gury to apvroacn their ta3x c Jsliy smd in an obgective

manner, NO Girection that tne cgury put oue o1 these anus

rv or 3gnore ine flemboyant langucsge of tre Crouna Procecut or wes sourht, nor wee there soucnt oo» oirpectzon chet tn: sary be efreful "het tnerar mgnde were rat daverte: fren lt. real ssue in th.2 case by eves

Having taken the matters we have mentioned into account

we reached the conclusion that his Honour made no error in

refusing to discharge the gury as 4 result of woat was said by the Crown Prosecutor in nis finel acares:, It tollovs thet the grounds of unpei] based umon the Cerdure of tae learned trial judge to discharge the gury on 28th \ovenber, 30th November and 14th December, 1679, were not rade out.

The remaining ground to be dealt with as ground 7. In support of it counsel sousht to rely cumulatively on each of the matters reliea upon in support of grounds ], 2, 3. 4 and 5 and upon a further matter to wnicn we shall now shortly refer. Towards the cloze of the Crown care one of the jurors let it be kntwn thet he had a personel yprebinm in that he was "ooaeG t»> "ly to Germany in order te send Christmas with his wite and dausnter. He was concerned that tne trial mint not concluce in time for him to c.tea his aircraft end that he would be unable to obtein } pooling on a later one. Tnere followed from time to tive discussions between the learned trial guise ni the Quror. He was able to obtain an alternative tooking on a later flight and the preblem was overcome in that way. counsel] *or tre

wes firstly thet the tratitional enonpymity cf t-) gar nad been lost in a care aner> tnere wo. eviirrece oF threats ot violence by the aprellant anna test tnere wer, im in, event, a eituation in which it appeared '}at one of tie gury was

under pressure by rec on of a fear tue t anporteut oo

arrongemer.ts might not be abie to be kert, 'a Tor ¢s the

first matter is concerned it is tre thet a gury has 2

degree of anonymity 1n tne decision mekanz precess bec: ure

it is not required to give reasons and 1t 18 tne jury as a wnole who make the decision, That 18, indeec, one of the great benefits of the gury system to which 1¢s prot. genists have pointed. But the gery is really not anon;,mous.

Jury panels containing tne names of the potentzal curors

are furnished to counsel. The accused has a right to challenge, in the Australian Capital Territory, eight gurors without cause. He must do this himself and he is entitled

to know the names of tne potential gurors before any challenge 1s made. After the gury 1S empane]led their nemes are called. The result of all this 1s that it would not be very difficult for anybody connected with a triel to find out, 1 he did not -lready know, the names of the nersons who were

So fer as pressure cn the juror is concernei, the fuct

etory crrangevents were made, There 1s ro indication thal he corcidere* alwnsel F to be under pressure gi Lhe trie progressed, if the learnesa trial pueee ned noc pone ce sucn Jenaetis te ensure satLls- factory arrangements tne rosition ay nave teen very ulfferent. li was oupgested that th. gurorts persone] arrange-enls in some way put pressure upon the appellant éni nar counsel ond also upon tne reréining members of the gyury. Fut councel very promeriy joined in che discussion conecrning ch yurorts

travel erraunserents, nis Jonour dit not sit fer a vey efter

the close of the Crewn case in orcer to sive the defence time

to prepare and there is no evidence otherwise thut tnings were done more quickly than would have been the case if

the juror's problem haa not existed. It was not suggested that the appellant's statement wes any the shorter or that he would have given evidence 1f the guror . had not been going awey, or that counsel's address was any shorter as a result of what was occurring. Some criticis7 was made of the long day which the jury had upon the day

of their verdict. The Court sat at 9 a.m., but his Honour's summing up was concluded by 11.15 a.m. The

time taken thereafter was taken because of tne need the jury had to consider tne metter. During the evening

his Honour called the jury in ang asked whether they were not too tired to continue. The foreman's reply was,

"we would like to continue. We are along the way and i suggest that perhaps if you were to five us a knock

round about 10 o'clock", The jury returned witn its verdict soon afterwards, after a retirement of about

In our opinion each of the matters relicd upon to found the final grounec of appeal must te looked at farstly in isolation anc then in combination, For reasons already given we do not find any of the matters relied

upon in grounds 1 to 5 inclusive to have substance. Nor

do we regard them as having substence if all matters

are put together. Furthermore, we do not regard the

final matter based upon the problem of one of the gjurors

to have any substance, we were therefore of opinion

that the seventh ground of appeal should be rejected. For the reasons riven we were of opinion that the

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)