Supreme Court of SA|1995-10-20|Before: Mr P, Perry J

GWENDOLINE CECILY DEEMAL-HALL v DPP (CWTH) No. SCCRM 95/254 Judgment No. 5308 Number of pages - 16 Criminal law - forgery - criminal law and procedure - juries (1995) 65 SASR 495 [1995] SASC 5308 (20 October 1995)

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA COX(2), PERRY(1) AND LANDER(3) JJ

CWDS Criminal law

forgery - appellant, a member of an Aboriginal community in Queensland, appealed against her conviction in the District Court for forging and uttering a letter which facilitated an application by twelve members of the community for Commonwealth financial assistance to attend a university course in Adelaide - held on the facts that the trial judge correctly ruled against a submission of no case to answer, and further that the conviction was not unsafe and unsatisfactory.

Criminal law and procedure - juries - Note given to trial judge by foreperson of the jury during the course of their deliberations, which inter alia disclosed their voting figures at that stage - note given by the judge to counsel - subsequent "Black" direction and conviction by unanimous verdict - held that although irregular, the disclosure of the voting figures to counsel did not result in a miscarriage of justice - observations as to the confidentiality of the deliberations of the jury and the procedure to be followed when the trial judge is made aware of the voting figures.

Crimes Act 1914 Cwth s67b, referred to. Black v R [1993] HCA 71; (1993) 179 CLR 44; Cheattle v R [1993] HCA 44; (1993) 177 CLR 541; Ellis v Deheer (1922) 2 KB 113; R v Bean (1991) Crim LR 843; R v Gormah (1987) 1 WLR 545; R v Green (1950) 34 Cr App R 33; R v Furlong (1950) 34 Cr App R 79; R v Townsend (1982) 1 All ER 509; R v Yuill (1994) 34 NSWLR 179, considered.

HRNG ADELAIDE, 21 September 1995 #DATE 20:10:1995 #ADD 27:11:1995

Solicitors for appellant: Aboriginal Legal Rights Movement

JUDGE1 PERRY J The appellant appeals against her conviction following a trial before a Judge and jury in the District Court on an information charging her with forging and uttering, contrary to s67b of the Crimes Act 1914 (Cwth). Particulars of the charges were as follows: Forgery

"(The appellant) between about the 1st day of November and

the 12th day of December 1992 at Adelaide in the State of South Australia forged a document deliverable to the Department of Employment, Education and Training, namely a letter purporting to be a letter of acceptance for pre-selection to certain courses at the University of Adelaide, Roseworthy Campus, in that she made the said document which was false, knowing it to be false, by addressing the purported letter of acceptance to John Walker of Cooktown, Queensland, with the intent that the false document be acted upon as genuine, to the prejudice of the Commonwealth."

"(The appellant) on about the 7th day of December 1992 at Adelaide in the State of South Australia uttered the purported letter of acceptance referred to in the first count knowing it to be forged, by using the said document in that she caused that document to be sent by facsimile transmission to the Department of Employment, Education and Training at Cairns in the State of Queensland."

The information also charged another person, Derek Mitchell, with aiding and abetting the appellant in the commission of each of the offences alleged against her.

At the conclusion of the Crown case, the learned trial Judge acceded to a submission that there was no case to answer as against Mr Mitchell, and directed a verdict of acquittal as against him, which was duly returned. At the same time, the learned trial Judge rejected a similar submission made on behalf of the appellant. When the trial proceeded as against her, she did not call any evidence, and the case went to the jury as it then stood.

The appellant is a member of the Hope Vale Aboriginal Community which is centred in the Cape York area of North Queensland. The Roseworthy Campus of the University of Adelaide has within it a division known as the Aboriginal Unit, which conducts courses for Aboriginal and Torres Strait Islander students in various aspects of land management. At the relevant time, Mr Mitchell was co-ordinator of the Aboriginal Unit.

The Commonwealth Department of Employment, Education and Training ("DEET") provides financial assistance to Aboriginal and Torres Strait Islander students through a scheme known as Abstudy. Through the scheme, funding may be provided for fees, travelling and accommodation expenses.

In order to qualify for Abstudy assistance, the course of study which a student wishes to undertake must be approved by DEET.

If such approval has been given to a course, a student seeking assistance for the course submits an application form to DEET which must be accompanied by documentation proving that the student has been accepted to undertake the course. Although that documentation may take different forms, it was common ground in the present case that evidence acceptable to DEET of acceptance for a course offered by the Aboriginal Unit at Roseworthy was constituted by a letter from Roseworthy to the student confirming the student's acceptance into the course.

Towards the end of each year, Roseworthy organises pre-selection courses for the following year. It is from the aspiring students attending the pre-selection course that a selection is made of persons to be admitted to particular courses in the following year.

A pre-selection course was organised for 8-10 December 1992. The pre-selection course was approved by DEET as a course eligible for Abstudy funding. In November 1992, Roseworthy forwarded to DEET a list of those who had been accepted for the pre-selection. No-one from the Hope Vale Aboriginal Community was named in the list.

The appellant came to Adelaide for a period between September and November 1992. She gave a series of lectures at Adelaide University, and during the same period participated in a review of the Aboriginal Unit conducted by Roseworthy, that review being co-ordinated by Mr Mitchell. While in Adelaide, the appellant raised with Mr Mitchell and others the possibility that a party of twelve members of the Hope Vale community might visit Roseworthy to discuss the question whether the Hope Vale Council might in some way contribute to the funding of the Aboriginal Unit.

It was the Crown case that Mr Morrissey, the director of Aboriginal programs in the University of Adelaide, expressly informed the appellant that DEET funding was not to be used to pay for the attendance of any members of the Hope Vale community should they wish to come to Adelaide for that purpose.

On the Crown case, the appellant told Mr Morrissey that a group would be attending from Hope Vale community but that another source of funding had been found.

It was common ground at the trial that the appellant sent by fax from Adelaide to the Cairns office of DEET on 7 December 1992 twelve copies of a letter on Roseworthy's letterhead over the signature of Ms Wendy Johnston, Mr Mitchell's secretary. Each copy of the letter was addressed to a different person, the name and address of that person having been inserted by the appellant. The letters purported to confirm that the addressees had been accepted for pre-selection, that is, to attend the course to be run between 8 and 10 December 1992.

The letters were married up by DEET with applications for Abstudy assistance which had previously been lodged by the twelve addressees. The applications were successful. As a result, the twelve addresses who were from the Hope Vale Community, obtained assistance to come to Adelaide where they stayed between 9 and 12 December 1992.

In fact they had not been chosen for pre-selection. No approval had been given for them to attend the pre-selection course. There was no evidence as to whether in fact they attended the pre-selection course. It had, of course, already started by the time they arrived. Just what they did in Adelaide was not proved. None of the twelve was called to give evidence.

It was the prosecution case that Mr Mitchell had given to the appellant the letter in blank, that is, without the name of any addressee written on it, shortly before it was faxed by her to the DEET office in Cairns. One of those addressees was John Walker, the person named in the forgery count. That and the uttering count were said to be representative counts.

At the trial the similar letters addressed to the other eleven members of the group were tendered.

As I have said, the appellant did not give evidence at the trial, but the Crown tendered a video recording of an interview with her conducted by federal police officers at Cairns, together with a transcript of the interview. She told the police officers, and this was her case at the trial, that Mr Mitchell had brought the blank letters to her, or one such letter which she copied (the evidence was not clear as to which); that at his suggestion she had filled out the names of the people to attend; and that he assisted her to have access to a fax machine at Adelaide University from which the transmissions in question were made.

During the course of the prosecution case, a signed statement given by Mr Mitchell to an Australian Federal Police officer at a time when it was intended that Mr Mitchell might be a witness for the prosecution against the appellant, was tendered against him. It was not, of course, evidence against the appellant.

In that statement Mr Mitchell said that he had had several conversations with the appellant while she was in Adelaide, when she raised with him the possibility of a visit to the Roseworthy campus by a group of Aboriginal leaders from the Hope Vale Community. He said that she asked him for a letter "to the effect that Roseworthy was inviting the group to participate in the December 1992 pre-selection program". He told the appellant that this was not possible as "the Hope Vale Community members were not being assessed for undergraduate awards, which is the purpose of pre-selection". He told the police officer that he repeated this advice during several conversations with the appellant.

In the statement Mr Mitchell said that he had confirmed with his immediate supervisor, Mr Morrissey, that the Hope Vale Community group would not be invited to the pre-selection program in December 1992, and that no letter of approval would be sent to the Abstudy section of DEET. He remembered that the appellant asked him to provide her with a letter saying that the group was invited for the pre-selection program, but he did not do so. When confronted with the letters which eventually found their way to DEET, he denied any knowledge of them, and said that he had not given anyone permission to send the letters.

Ms Johnston gave evidence for the Crown. She spoke of some contact she had had with the appellant while the appellant was in Adelaide. She said that the appellant wanted a letter so that some "students" could come to the pre-selection course from Hope Vale, and said that she would be asking Mr Mitchell for such a letter. She remembered that the letter which was sought was described as a "pre-selection letter" which she understood to be the particular form of letter that was furnished for students to pass on to DEET when applying for funding to attend a pre-selection course.

She identified the letter addressed to John Walker as a letter which she had signed, but said that when she signed the letter it was in blank and was intended for use in facilitating the applications for funding by students genuinely accepted for the course. She put the letter in a basket, being a basket to which Mr Mitchell had access, where she expected that it would be collected by another employee in the office whose function, apparently, was to address copies of the letter and furnish them to students accepted for the course.

Before putting it out for collection by that other employee, she faxed the blank letter to DEET so that DEET would be familiar with the form of the letter which they could expect to receive from approved students applying for funding.

Mr Morrissey's evidence was to the effect that he had explained to the appellant that DEET funding was not to be sought or used with respect to the attendance of a group from Hope Vale Aboriginal Community, and that when he became aware of the possibility that such a group might attend, he had received from the appellant an assurance that DEET funding would not be used for it.

A Ms Geary, an officer employed by DEET, gave evidence of the receipt by the department of the proforma pre-selection approval letter, and the subsequent receipt of application forms from Mr Walker and the other members of the group. She processed the applications and approved them after she subsequently received the individual letters which the appellant had addressed to the members of the group.

The Crown case as it was put to the jury was that, having regard to the evidence, and in particular the evidence of Mr Morrissey, the appellant must be taken to have been well aware at the time she inserted the names and addresses of the twelve members of the group on the letters before faxing them to the DEET office that funding from that source had not been and would not be approved. The gist of the Crown case was that she forged the names and addresses on the blank letters, and uttered them when she faxed them to the DEET office knowing that she had no authority either to put the names and addresses on the letters or to transmit them to the DEET office in aid of the applications for funding.

It was put to the jury by counsel for the Crown that the appellant's assurance to Mr Morrissey that DEET funding would not be used for the attendance of the group was "simply a bare faced lie", having regard to her action in faxing the allegedly forged approval letters.

Counsel for the appellant put it to the jury that the "defence case in a nutshell" was that the appellant was "authorised by Mitchell to do what she did". In his summing up, the learned trial Judge suggested to the jury that what he described as the "critical question" was whether the prosecution had excluded beyond reasonable doubt the possibility that the appellant "believed that DEET funding could properly be used by virtue, in essence, of Mitchell's intervention".

The notice of appeal challenges the conviction on three grounds. They are that the verdict is unsafe and unsatisfactory, that the learned trial Judge was in error in ruling that there was a case to answer, and that he erred in failing to discharge the jury when, after they had retired and before the verdict was reached, the foreperson of the jury disclosed the voting numbers at that stage.

Unsafe and unsatisfactory: This ground was advanced by Mr Borick of counsel for the appellant, not by referring to any particular feature of the evidence led by the Crown, but rather having regard to the effect on the proceedings against the appellant by reason of Mr Mitchell's discharge from the trial following the ruling that there was no case to answer with respect to him.

Mr Borick contended that for the prosecution then to be permitted to proceed against the appellant in the absence of Mr Mitchell as a co-accused gave rise to irremediable unfairness from the point of view of the presentation of his client's defence.

In Mr Borick's written submissions, he puts the argument this way: "The finding of no case meant that the prosecution could not prove Mitchell did hand the appellant the proforma letter. It remained the prosecution case that Mitchell did hand her the proforma letter but the jury knew Mitchell denied handing her the letter and the prosecution could not prove that he did, thus the finding of no case against Mitchell must have had a significant and damaging impact in the essential feature of the appellant's case at trial. It also meant that the appellant had no opportunity to cross examine Mitchell, either as a witness for the prosecution or as a co-accused."

As to the first sentence in that submission, it was only as against Mr Mitchell that the prosecution was, according to the ruling of the trial judge, unable to prove that he handed to the appellant the proforma letter. That he had done so was an essential element in the case against Mr Mitchell. But Mr Mitchell denied having done so in his statement to the police, and the appellant's assertion to the contrary in her police statement was not evidence against Mr Mitchell. There was no other evidence available to the prosecution to prove that part of its case against Mr Mitchell. Hence the ruling of no case to answer as against him.

But non constat that the prosecution could not prove that Mr Mitchell handed the appellant the proforma letter in the course of its case against her. Part of that case was the evidence of her police interview in which she said as much. Indeed, it was common ground as between the prosecution and the appellant that in fact she received the letter from Mr Mitchell.

The basis of the finding of no case to answer as against Mr Mitchell was carefully explained to the jury by the learned trial Judge in a direction which he gave at the time he instructed them to enter a verdict of acquittal as against Mr Mitchell. At the same time, he equally clearly explained to them the reason why the case was proceeding against the appellant.

In the course of that direction, he said: "I just want to say something now about Ms Deemal-Hall's position. The case will proceed against her. You are to draw no adverse inference against her at all by virtue of my

ruling. My ruling is based on a consideration of the evidence, the admissible evidence, against Mr Mitchell. What she said to the police is that Mr Mitchell gave her the pro forma, and indeed, that is the prosecution case.

Now although that is not evidence against Mr Mitchell, that does not mean that you will not decide her case on that basis. On the contrary, I am sure that in the case as it

proceeds, that will be common ground, namely, that Mr Mitchell did, in fact, give her the document. She will say that, presumably, or she said that to the police, and presumably her case will continue to be, that that was so and, indeed, that is the prosecution case. Ladies and gentlemen, that might seem to you to be strange, perhaps, or paradoxical, that that is common ground but that I have ruled the way I have in the case of Mr Mitchell.

Ladies and gentlemen, in truth, there is no paradox. The fact of the matter, as I have said from the outset of the case, is that that is just not evidence against him, just not evidence against him and hence that was something that had to be left out of account, or disregarded, in my consideration of the sufficiency of the evidence in the case of Mr Mitchell; and I am sure you will be able to understand or appreciate that; that I have had to decide the question I have had to decide leaving that out of account. That does

not mean that in the case of Ms Deemal-Hall, the case will not proceed on the basis that that, in fact, happened."

When Mr Borick submits "the jury knew Mitchell denied handing her the letter", their knowledge of that could only be derived from Mr Mitchell's statement to the police which they were directed was not admissible against the appellant.

It is true that in situations of that kind it may sometimes be the case that the prejudicial effect of evidence admissible only against one accused might be thought to be so strong that it cannot satisfactorily be erased from the minds of the jury in considering the case against another accused who is jointly charged, notwithstanding an appropriate direction from the trial judge.

But there is nothing to suggest that this case is in that category.

The question was canvassed in an exchange between counsel for the appellant and the learned trial Judge just before the jury were directed to bring in the verdict of not guilty with respect to Mr Mitchell. Mr Borick, who appeared for the appellant at the trial, then indicated to the learned trial Judge that he (Mr Borick) would have to consider the question whether he might make a submission as to what he described as a possible "mis-trial in the light of the Mitchell .... statement going in, because it is there before them". He intimated that he would obtain instructions as to that.

Having done so, after Mr Mitchell was discharged, he did not pursue the matter further, and his client not electing to give or call evidence, counsel proceeded with their addresses.

There has been no complaint on the hearing of the appeal of any inadequacy in the learned trial Judge's directions to the jury to disregard the statement made by Mr Mitchell to the police, when considering the case against the appellant.

Given the direction which I have quoted in which the learned trial Judge made clear to the jury the basis upon which the case was proceedings against the appellant, the argument that the dismissal of Mr Mitchell from the trial "had a significant and damaging impact" on the appellant's case cannot be sustained.

The further contention that in some way the fact that the appellant had no opportunity to cross-examine Mr Mitchell "either as a witness for the prosecution or as a co-accused" adds strength to that submission, must be rejected. Obviously, Mr Mitchell could not have been called as a witness for the prosecution so long as he was a co-accused, and the prosecution had closed its case before he was dismissed from the trial. Even if he had remained a co-accused, there is no reason for supposing that he would necessarily have given evidence and exposed himself to cross-examination by counsel for the appellant. In any event, even if that course had been followed, there is equally no reason to suppose that, in the result, the appellant would necessarily have derived any benefit from his evidence in advancing her defence.

It is true that the tactical position from the appellant's perspective, altered when Mr Mitchell succeeded in his submission of no case to answer. But it does not follow that this gave rise to any procedural unfairness vis a vis the appellant.

In my opinion, this ground of appeal is not made out.

A Case to Answer: The proposition that the evidence adduced as against the appellant could not, taken at its highest, be sufficient to satisfy the jury beyond reasonable doubt of the guilt of the appellant, does not stand analysis against the body of evidence comprising the case against her. Having regard particularly to the evidence of Mr Morrissey, it was clearly open to the jury to conclude that the appellant was well aware that there was no approval for DEET funding to be used. If she was aware that no approval had been given, or would be forthcoming, her admitted conduct in addressing and faxing the letters could only be regarded as a fraudulent attempt to obtain funding. It was not suggested that in those circumstances the counts of forgery and uttering would not be made out.

Mr Borick submitted in the course of his written submissions: "4. ... because the prosecution positively asserted Mitchell did hand the appellant the pro forma document, this fact, combined with Mitchell's disappearance from the case, made it impossible for the prosecution to eliminate the possibility that the appellant had been authorised by Mitchell to do what she did. Accordingly there was no case for her to answer."

That submission embodies a misconception as to how the evidence might properly have been regarded by the jury. It does not follow from the fact that it was the prosecution case (and indeed, as I have said, common ground between the prosecution and the appellant) that Mitchell handed the appellant the pro forma document, that the jury could not thereafter "eliminate the possibility that the appellant had been authorised by Mitchell to do what she did".

After all, Mr Mitchell was said by the prosecution to have been acting in league with the appellant. It was open for the jury to find that even if Mr Mitchell did hand to her the document, she nonetheless well knew that no authority had been given for her to use it in the way in which she did.

Mr Borick further submitted that because there was no evidence relating to the activities of the group which attended from Hope Vale, and in particular throwing light on whether they attended the pre-selection course, this provided a basis for concluding that there was no case to answer. But proof of the charge against her did not depend upon evidence as to the nature of the activities pursued by the group when they attended in Adelaide. The relevant question was not whether or not they attended the course, but whether the appellant well knew that there was no approval for them to obtain Abstudy assistance.

In my opinion, there was clearly a case to answer against the appellant.

Disclosure of the Jury's Voting Numbers: The jury retired at 12.12 pm. The learned trial Judge returned to the bench at 2.21 pm when he informed counsel that the jury had handed a note to the Sheriff's officer and that it had been passed on to him by the Clerk of Arraigns. He said that he had looked at the note, but before proceeding further, he handed it to counsel to read.

At his suggestion, the contents were not read into the transcript and were not disclosed in open court, except that discussion then ensued as to whether or not, having regard to the content of the note, the conclusion should be drawn that the jury was deadlocked and whether a direction commonly described as a "Black" direction (see Black v The Queen [1993] HCA 71; (1993) 179 CLR 44) should be given.

In fact, after the matter had been canvassed with counsel, the learned trial Judge went on to give a direction of the kind suggested in that case, following which the jury retired again at 2.31 pm. They delivered unanimous verdicts of guilty on both counts at 3.23 pm.

It was necessary that the verdict be unanimous (see Cheattle v The Queen [1993] HCA 44; (1993) 177 CLR 541).

I return to the note. It read as follows: "2 pm

The jury is unable to reach a majority decision. 10 guilty

Please give further direction. Jury foreperson (signed)."

In the note the word "majority" is obviously a mistake and should be read as "unanimous".

The ground of appeal relating to the note is as follows: "3. The learned trial judge erred in that he ought to have discharged the jury after the foreperson of the jury, during the jury's deliberations, informed the learned trial Judge:- (a) they were deadlocked as to their verdict, (b) that they were ten to two in favour of a verdict of guilty, and (c) that they sought a direction from the learned trial judge thereto."

As to 3(a), an intimation by the foreperson of the jury that the jury is unable to reach a decision does not, standing alone, give rise to a ground of appeal. When something of that kind occurs, it is a matter of judgment for the trial Judge to decide whether or not to give the jury further time, and if so, whether a Black direction should be given.

Obviously, cases may arise where a decision to give a further direction, or the terms of it, might be thought to have given rise to unfairness.

But that is not the complaint here. It does not seem to me that the mere fact that the jury informed the learned trial Judge of their inability at that stage to reach a decision, and that he then proceeded to give a further direction in terms which have not been challenged on the appeal, could be regarded as giving rise to procedural unfairness.

Likewise as to 3(c), the mere fact that the jury sought a direction from the learned trial Judge as to their position could not be regarded as giving rise to procedural unfairness.

It is ground 3(b) which might be thought to give greater cause for concern.

The Court was referred to a number of authorities in which the propriety of disclosure of what occurred in the jury room during the course of the jury's deliberations has been considered.

In Ellis v Deheer (1922) 2 KB 113, which was a civil case, an affidavit was furnished by one of the jurors who deposed to the fact that owing to his position in open court at the time when the foreman delivered the verdict of the jury, he was not able to hear the foreman announce the verdict as one to which all the jury had assented. He stated that if he had heard that, he would have protested. While holding the affidavit, and two other affidavits by other jurors who also stated that they had not heard the verdict delivered, to be admissible, Bankes LJ, with whom Warrington and Atkin LJJ agreed, took the occasion to emphasise the confidentiality of the deliberations which take place in the jury room. He said (117): "... the court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself."

That case and other cases such as R v Bean (1991) Crim LR 843 are illustrations of the well-established rule that generally speaking an appeal court will not entertain evidence of what occurred in the jury room, the point in Ellis v Deheer (supra) being whether or not that rule was of application to matters concerning the jury which occur in open court.

This case concerns a different question, namely, whether, given that the communication in question was made by the jury to the learned trial Judge, the manner in which he dealt with that situation gives rise to appealable error or a miscarriage of justice.

The question as to how a trial Judge should deal with a communication from the jury after they have retired to consider their verdict but before it has been returned, was considered by the United Kingdom Court of Appeal in R v Gorman (1987) 1 WLR 545. The case is unusual in that the verdict there under appeal was reached following a re-trial. But the sole issue sought to be agitated on the appeal was as to the propriety of the manner in which the trial Judge presiding over the first aborted trial had dealt with a note from the jury in consequence of which he discharged the jury.

The judgment of the court was delivered by Lord Lane CJ who referred to a number of authorities in which the question of the extent to which a trial Judge should disclose, in open court, a communication he or she has received from the jury was considered.

He referred to dicta in R v Green (1950) 34 Cr App R 33 and R v Furlong (1950) 34 Cr App R 79 to the effect that whenever a communication is received by the presiding Judge from the jury, it should be read out and answered in open court.

He went on to refer to R v Townsend (1982) 1 All ER 509, where a note to the trial Judge from the jury disclosed that the jury was 8 votes to 4 in favour of an acquittal. He indicated that the following passage from the judgment of the court delivered by Waller LJ in that case indicated the right approach. That passage reads (511): " ... the judge should have called the jury into court in the presence of the defendant and his counsel and indicated to them without disclosing in public the precise contents of the note (this would be clearly undesirable) that he had received a note showing that there was a division of opinion within the jury and telling them that it was not possible at that stage to accept a majority verdict and asking them to retire again and to endeavour to reach a unanimous verdict."

Lord Lane CJ observed ((1987) 1 WLR 550): "We agree with Waller LJ that it would be clearly undesirable for information as to voting figures to be made public."

He proceeded to offer the following general propositions "as to what should be done by judge who receives a communication from a jury which has retired to consider its verdict": "First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. We have been helpfully referred to a decision of this court, Reg v Connor, The Times 26 June 1985, where that very situation

Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.

Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed."

Townsend and other authorities to the same effect, were cited with approval by the Court of Criminal Appeal of New South Wales in R v Yuill (1994) 34 NSWLR 179 in the joint judgment of Hunt CJ at CL, Abadee and Simpson JJ where the court observed (190): "It has always been the basic rule that the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript ...

There are two exceptions to that basic rule. The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine - for example, a request by a juror to pass on a message to a relative about staying back late: R v Ion ((1950) 34 Cr App R 152 at 154); R v Arthur((1966) 84 WN (Pt 1) (NSW) 121 at 125); R v Townsend (1982) 1 All ER 509 at 511; R v Gorman (at 550; 439). The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge - the most obvious example being a disclosure of the voting figures

when quite properly informing the judge of the existence of a disagreement: R v Townsend (at 511); R v Rose ((1982) AC 822 at 621, 541-542); R v Gorman (at 551; 439-440)."

It follows from these authorities that it has generally been accepted as irregular for the trial Judge to be informed by the jury, while it is still deliberating, of the voting figures at that stage, and further, if the trial Judge is informed of the voting figures, he should keep the actual figures to himself, this being an exception to the general rule that the contents of any communication between the jury and the trial Judge should be disclosed to the parties in open court.

Mr Rice of counsel for the respondent, during the course of his submissions, said: " ... it might be thought desirable for counsel to know the figures simply so that counsel can formulate submissions as to whether or not in this context a Black direction is appropriate ..."

He submitted also that no harm had come from the disclosure.

I would not agree that it is desirable that in a situation such as this, where the voting figures have been disclosed, they should be passed on to counsel in case they might be thought to be relevant to the question whether a Black direction should be given. Almost invariably counsel for the accused opposes the giving of a Black direction, whereas counsel for the prosecution will commonly encourage the trial Judge to give the direction. Whether or not a Black direction should be given is not usually a matter upon which it is helpful for the trial Judge to invite extended submissions. In any event, I would not be prepared to agree with the proposition that the existence of the need to make a decision as to whether or not a Black direction should be given, warrants a departure from the general rule laid down in the cases.

What is more difficult is to discern the evil to which the rule is directed. It seems to have arisen as a corollary to the rule preserving the sanctity of what transpires in the jury room. But it is difficult to see, apart from public policy considerations associated with preserving the confidentiality of the jury's deliberations, what harm necessarily follows from publication of the voting figures in circumstances such as this.

Mr Borick submitted that the evil resulting from disclosure is that it subjects the minority to "undue pressure". As he put it: "The smaller the minority the more important it becomes to protect their right to dissent. An individual dissenter must find it more difficult to hold his or her position once the vote is publicly exposed."

Here, of course, the note was not read out in open court, but it was handed down to counsel to read privately.

The note does not, of course, identify the minority by name. I have in any event considerable difficulty in thinking that they would feel pressured by the mere fact that the note, which after all, was intended to be read by the trial Judge, was handed to counsel to read as well.

Even if there might have been some transient feeling of pressure, it seems to me that everything was put into appropriate context by reason of the Black direction.

The same point was made by Mr Borick to the trial Judge. The following exchange took place after the note had been handed to counsel: "HIS HONOUR: ... I am not going to leave them sit out there any longer, but I think I should give them what has become known as a Black direction. I think I should give them that.

MR BORICK: I would be inclined to ask them first whether they are deadlocked into that position. I am a bit worried. It is not often that we get the voting figures.

MR BORICK: So there is an immense pressure on a minority.

HIS HONOUR: I don't know about that. Surely that's the whole point of Black, that the direction endorsed by the High Court doesn't put undue pressure on the minority. It says what is, according to the judgment, appropriate by way of advice to the jury, but that is the whole point, that it doesn't put undue pressure on the jury.

MR BORICK: All right. Well, perhaps if Your Honour brings them back, gives them that direction and says, 'Look, if you're deadlocked into that position, well then, there's no need to keep us waiting around for hours on end'.

Following a further short exchange with counsel for the prosecution, the learned trial Judge then proceeded to give the Black direction.

The terms of that direction clearly avoided putting undue pressure on the jury, and in particular whatever minority there might have been, while at the same time explained to the jury the benefit of further "calm and objective discussion about the evidence". During the course of the direction the learned trial Judge said: "That is not, of course, to suggest that you can consistently with your oath as a juror join in a verdict if you do not honestly and genuinely think that it is the correct one."

Just before asking them to retire again to the jury room, he added: "I make it plain if after having heard what I have said and having gone back into the jury room and considered what I have said, you cannot agree, then, of course, you must come back and tell me so."

In my opinion, looking at the situation as it unfolded, and having regard to the terms of the Black direction, it could not be said that there was any real possibility that any member of the jury was placed under undue pressure.

While it must be conceded that having regard to the authorities, the disclosure to counsel of that part of the communication from the jury which disclosed the voting figures at that stage was an irregularity, it cannot be said to have given rise to a miscarriage of justice.

JUDGE2 COX J The circumstances of this appeal are set out in the reasons of Perry J.

The third ground of appeal includes a complaint that the jury sent a note to the trial Judge in the course of their deliberations to say that they had not been able to reach a "majority decision" - that must be a slip for "unanimous decision" - and disclosing the voting figures. The Judge had the note shown to counsel and then heard argument as to what he should do about it. It was undesirable that the jury include the voting figures in the note and it would have been better had the Judge in these particular circumstances merely told counsel of the substance of the note without any mention of the figures. That would have better accorded with the courts' long-standing policy that there should not be any public disclosure of what goes on in the jury room. However, it is one thing to identify a procedural irregularity in this respect; it is another to say that it could possibly have caused any unfairness to the appellant. In my opinion the appellant's argument in that respect lacked substance.

I agree with what Perry J has written about the other points taken by the appellant.

JUDGE3 LANDER J I agree, for the reasons given by Perry J, that this appeal ought to be dismissed.

GWENDOLINE CECILY DEEMAL-HALL v DPP

At a glance

Court

Decision date

Before

Source

Judgment (120 paragraphs)

GWENDOLINE CECILY DEEMAL-HALL v DPP (CWTH) No. SCCRM 95/254 Judgment No. 5308 Number of pages - 16 Criminal law - forgery - criminal law and procedure - juries (1995) 65 SASR 495 [1995] SASC 5308 (20 October 1995)

Parties

Cases Cited (4)