(2012) 221 A Crim R 225
Black v The Queen (1993) 179 CLR 44
[1993] HCA 71
Castle v The Queen (2016) 259 CLR 449
[2016] HCA 46
Cleland v The Queen (1982) 151 CLR 1
Source
Original judgment source is linked above.
Catchwords
[1992] HCA 68
BG v R [2012] NSWCCA 139(2012) 221 A Crim R 225
Black v The Queen (1993) 179 CLR 44[1993] HCA 71
Castle v The Queen (2016) 259 CLR 449[2016] HCA 46
Cleland v The Queen (1982) 151 CLR 1[1982] HCA 67
Connelly v Director of Public Prosecutions [1964] AC 1254
Crofts v The Queen (1996) 186 CLR 427[1996] HCA 22
De Pledge v Western Australia [2021] WASCA 1(2021) 95 MVR 37
De Silva v The Queen (2019) 268 CLR 57[2019] HCA 48
Decision Restricted [2021] NSWCCA 227
Dietrich v The Queen (1992) 177 CLR 292[1992] HCA 57
Domican v The Queen (1992) 173 CLR 555[1992] HCA 13
Douglass v The Queen (2012) 290 ALR 699[2012] HCA 34
El-Jalkh v R [2009] NSWCCA 139
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
Jenkins v Director of Public Prosecutions [2013] NSWCA 406
Liberato v The Queen (1985) 159 CLR 507[1985] HCA 66
McKell v The Queen (2019) 264 CLR 307[2019] HCA 5
Murray v The Queen (2002) 211 CLR 193[2002] HCA 26
Phan v R [2018] NSWCCA 225
Popovic & Ors v R [2016] NSWCCA 202
R v Alexander [1974] 1 WLR 422
[2021] NSWCCA 104
Weiss v The Queen (2005) 224 CLR 300
[2005] HCA 81
Wu v The Queen (1999) 199 CLR 99
Judgment (43 paragraphs)
[1]
INTRODUCTION
On 2 February 2016 Daniel Haile (the appellant) pleaded not guilty to an Indictment alleging that on 30 October 2013, at Pendle Hill in the State of New South Wales, he murdered Raymond Pasnin (the deceased). The appellant was jointly indicted with the following co-accused:
1. Louise Catherine Spiteri-Ahern (Spiteri-Ahern), who pleaded not guilty to the murder of the deceased, and not guilty to an alternative count of soliciting the appellant to murder the deceased;
2. April Barber (Barber), who pleaded not guilty to being an accessory before the fact to the murder of the deceased; and
3. Amin Zraika (Zraika), who pleaded not guilty to concealing a serious indictable offence.
Following a trial before R S Hulme AJ and a jury, the appellant was convicted of the deceased's murder. On 9 December 2016 he was sentenced to imprisonment for 32 years with a non-parole period of 24 years. [1] The jury were discharged without being able to deliver verdicts in respect of any of the three co-accused.
The co-accused were subsequently tried before Rothman J, sitting without a jury. On 21 December 2017, Spiteri-Ahern was found guilty of murder, whilst Barber and Zraika were each acquitted. [2] Spiteri-Ahern was subsequently sentenced to 30 years' imprisonment with a non-parole period of 24 years. [3] An appeal by Spiteri-Ahern against her conviction was dismissed by this Court. [4]
The appellant now seeks to appeal against his conviction on the grounds set out below.
[2]
THE APPLICATION FOR AN EXTENSION OF TIME
The appellant requires an extension of time in which to bring his appeal, and in that regard relies on affidavits of Benjamin Goh of 30 July 2021 [5] and Alessandro Albanese of 11 August 2021. [6] Those affidavits set out, in considerable detail, the chronology of events following the appellant's sentence. They establish, amongst other things, that it took those acting for the appellant almost 12 months to obtain the summing-up of the trial judge, and a further 6 months to obtain copies of all of the trial exhibits. Those delays were not the fault of the appellant, nor were they the fault of those acting on his behalf.
In light of the views that I have reached regarding the various grounds of appeal, an extension of time should be granted.
[3]
THE COURSE OF THE TRIAL
Given some of the issues which have been raised in the grounds of appeal, it is appropriate to set out a summary of the course of the trial. The various times and dates of events which I have cited in this judgment, particularly insofar as those events are relevant to my consideration of grounds 3, 4, 5 and 6, have been drawn from an agreed chronology which was provided by the parties, at the Court's request, following the conclusion of the hearing.
The jury were empanelled on 22 February 2016. The evidence in the trial concluded on 22 April 2016. Within that period there were, for varying reasons (including illness of members of the jury and public holidays) a total of 13 days on which the Court did not sit and hear evidence.
Closing addresses of counsel commenced on 26 April 2016 and continued for five days. However, the Court did not sit at all during the following week commencing 2 May 2016, in order to accommodate a juror's pre-arranged holiday. Closing addresses resumed on 9 May 2016 and ended on 13 May 2016 (the Court not sitting on 10 May due to illness of Spiteri-Ahern).
The summing-up of the trial judge commenced on 16 May 2016 and continued over the following five days. Jury deliberations commenced at 10:47am on 20 May 2016 and a verdict of guilty was returned in respect of the appellant at 11.19am on 6 June 2016.
I have made further reference to specific events which occurred in the course of the jury's deliberations when addressing grounds 3, 4, 5 and 6 below. However, it follows from that short summary that on any view, the trial was a protracted one, and was punctuated by a large number of days on which the Court did not sit and hear evidence.
[4]
AN OVERVIEW OF THE RESPECTIVE CASES
The various grounds of appeal relied upon by the appellant centre upon issues arising firstly from the summing-up of the trial judge, and secondly from the deliberations of the jury. Given that the appellant does not assert that the verdict of the jury was not open, it is sufficient, for the purposes of considering the various grounds of appeal, to summarise the competing cases at trial. In doing so I have been greatly assisted by the comprehensive written submissions filed on behalf of the appellant.
[5]
The Crown case
At approximately 11:55pm on 30 October 2013, the deceased was shot and killed in the car park of a unit block in Pendle Hill (the unit block). At the time of his death, he was in the company of his then partner, Lyndal Archbold (Archbold). There was no dispute at the trial that the shot which killed the deceased was fired by the appellant. Although there were other witnesses who gave evidence of hearing gunshots and seeing the deceased at or about the time that he was killed, Archbold and the appellant were the only eyewitnesses to the shooting.
Spiteri-Ahern was a former partner of the deceased who was said to harbour some animosity towards him as a consequence of the breakdown in their relationship. On the Crown case, Spiteri-Ahern and the appellant were acting pursuant to a joint criminal enterprise in which they had agreed that the appellant would kill the deceased in return for the payment, from Spiteri-Ahern, of $4,000.00. The evidence which was relied upon by the Crown at the trial included mobile telephone records establishing communications between Spiteri-Ahern and the appellant. On the Crown case, those communications had escalated in the period leading up to the deceased's murder.
The Crown asserted that the appellant and Spiteri-Ahern were assisted in the joint criminal enterprise by Barber. Barber was also a former partner of the deceased, with whom she shared a daughter. On the Crown case, Barber assisted the appellant and Spiteri-Ahern by arranging for the deceased to have access to his daughter on the day of his murder, the details of which were passed on to the appellant to allow him to locate the deceased in order to kill him. Archbold gave evidence that it was unusual for access arrangements to involve the deceased's daughter being collected from the unit block, and that Barber had insisted that this occur on the night of the shooting. The Crown relied on mobile telephone records to establish communications between Barber and Spiteri-Ahern in the lead-up to the deceased being killed, from which it sought to infer that Barber was corresponding with Spiteri-Ahern about the arrangements which had been put in place for the deceased to be with his daughter. On the Crown case Spiteri-Ahern then updated the appellant about those arrangements.
The Crown also adduced evidence from an associate of the appellant who was referred to in the proceedings as "Tom Jones" (Jones). Jones gave evidence that on 29 October 2013, the day prior to the shooting, the appellant had called asking that Jones collect him. The appellant later cancelled that request, telling Jones that he would "leave it for another night". On the Crown case, this was because the arrangements for the deceased to have access to his daughter had not yet been settled with Barber.
[6]
THE APPELLANT'S CASE
The appellant did not deny that he had fired the shot that killed the deceased, but asserted, in the course of sworn evidence before the jury, that he had acted in self-defence.
The appellant gave evidence that he was involved in the supply of drugs, and that he had come to know the deceased as a consequence of having sold him significant quantities of ice. The appellant said that on one particular occasion on which he had supplied drugs to the deceased, the deceased had offered a firearm as a form of payment.
Generally speaking, the appellant took no issue with the evidence of Jones regarding the arrangements which had been made to drive to the unit block on the night of the deceased's murder. However, it was the appellant's case that he had gone there, not to kill the deceased, but to recover money owed to him by the deceased from a recent drug transaction. The appellant's case was that when he first arrived, he saw the deceased returning his daughter to Barber, following which the deceased signalled him (i.e. the appellant) to wait. The appellant said that after Barber and his daughter had left, the deceased came and spoke with him, assured him that he would have the outstanding money within 40 minutes, and requested that he supply him with 2 ounces of ice.
The appellant took no issue with Jones' evidence as to what he had said when he returned to Jones' vehicle. However, he maintained that this statement was a reference to the deceased's failure to settle the existing debt. The appellant said that he then directed Jones to drive to a location that he (i.e. the appellant) used to store drugs, from which he retrieved the quantity of ice requested by the deceased, before returning to the unit block. The appellant agreed that he was in possession of a change of clothes at that time, and said that he adopted that practice to allow him to change his appearance so as to limit the risk of police attention during his drug dealing activities.
When the appellant returned to the unit block, the deceased came outside in the company of Archbold. When they reached the car park, the deceased took the appellant aside to talk to him, with Archbold going in a different direction. At that point, the appellant asked the deceased whether he had the money, and the deceased sought to confirm that the appellant had the drugs that he had requested. When the appellant confirmed that he had the drugs, the deceased produced a firearm and pointed it at him. Fearing that he was to be shot, the appellant reacted by grabbing the firearm and twisting it from the deceased. He ran from the deceased, at which time Archbold entered the deceased's car. The deceased then moved towards the car, whilst the appellant attempted to flee. On the appellant's case, the deceased pursued him, lunging towards him and acting aggressively. The deceased then started punching the appellant, during which time the appellant raised the firearm and pulled the trigger. The deceased then came towards the appellant as though to tackle him. The appellant responded by striking the deceased to the head with the butt of the firearm. At that point, the deceased fell back and the appellant then tried to secure a firmer grip on the firearm which resulted in further shots being fired. The appellant then fled the area.
[7]
HIS HONOUR ERRED IN DIRECTING THE JURY AS TO THEIR ASSESSMENT OF CONFLICT BETWEEN THE EVIDENCE OF LYNDAL ARCHBOLD AND THE EVIDENCE OF THE APPELLANT
[8]
The summing-up of the trial judge
At the commencement of his summing-up, following a series of introductory remarks, the trial judge gave the jury what he described as "fundamental directions that apply in every criminal trial". [7] In the course of doing so, his Honour said: [8]
Now, let me make it clear that nothing I say, in any later part of this summing-up, is in any way whatsoever a qualification of these fundamental principles.
Amongst those "fundamental principles" were the following: [9]
Sixthly, each accused is presumed to be innocent. He or she does not have to prove anything.
Seventhly, you cannot find an accused guilty unless the Crown satisfies you of that person's guilt to the high standard embodied in the words "beyond reasonable doubt". Now, allow me to emphasise those words "beyond reasonable doubt" and this is a much higher standard than that which applies in civil trials where the standard is simply on "the balance of probabilities".
His Honour then said: [10]
Now, because of their importance, let me just summarise those fundamental principles.…… Six, each accused is presumed to be innocent. He or she does not have to prove anything. Seven, you cannot find an accused guilty unless the Crown satisfies you of that person's guilt beyond reasonable doubt.
His Honour returned to the subject of the standard of proof a short time later and said: [11]
The seventh direction was that before you could convict you had to be satisfied beyond reasonable doubt. Now that is the ultimate test. It does not mean that as you go through you cannot use evidence because it is not as strong as that test requires. In many trials, one piece of evidence will support another. One witness will support the evidence another witness has given. You can use any evidence you think is good enough to rely on so long as at the end of the day you apply the test embodied in the words "beyond reasonable doubt".
After further oral directions, his Honour provided written directions to the jury regarding the elements of the offences [12] which included a number of references to the onus of proof. Subsequently, and specifically in the context of the issue of self-defence which had been raised by the appellant, his Honour said: [13]
When a person is charged, as [the appellant] is, the onus of showing that the killing did not occur in self-defence is on the Crown. So do not be misled by the reference "self-defence". Throughout the Crown has the onus of proving beyond reasonable doubt that the killing did not occur in self-defence.
[9]
The application for a Liberato direction
Following these directions, counsel for the appellant (who was not senior counsel for the appellant before this Court) sought a specific direction from the trial judge, the nature of which he articulated in the following exchange with the trial judge: [23]
COUNSEL: When your Honour took this jury to the events of the car park, your Honour gave them directions or suggested ways they might decide between the two versions. I say that that is an incorrect direction at law, with respect, and that the jury should be told it is not merely a matter of choosing between witnesses. This is obviously crucial to their determination of [the appellant's] guilt or innocence and, indeed, I was going to submit your Honour that, in the event that your Honour hadn't considered doing it, that your Honour would be giving this jury a Liberato direction because, so far as the immediate events around the shooting, there is only two people who can give evidence about that and they have given evidence about it and, very clearly, this jury should be told it is not a matter of simple choice between the two.
HIS HONOUR: … [M]y initial instructions to the jury included considerable reference to the obligation on the Crown to prove beyond reasonable doubt. It is contained on every single page of the written directions and in a statement to the jury that nothing I said thereafter was to be regarded as a qualification of those remarks.
Now, I don't regard myself as obliged in every issue in the case to keep constantly going back, saying, "The Crown has to prove, the Crown has to prove, the Crown has to prove".
COUNSEL: But when your Honour gives them a direction to the effect that they have to decide between the two - -
HIS HONOUR: Well, they do.
COUNSEL: - - it leads them into what I say is the very real potential that they will erroneously conclude that it is a mere choice between which they prefer.
HIS HONOUR: I don't believe that is a reasonable possibility.
COUNSEL: As your Honour pleases.
Towards the end of the summing-up, counsel for the appellant renewed his application for a Liberato direction in the following exchange: [24]
COUNSEL: … Your Honour, firstly, a query I raised with you a couple of days ago, a direction sometimes described as a Liberato direction. I take it, now your Honour has come to the conclusion of your directions for this jury that, having considered the matter - -
HIS HONOUR: What's the direction you want?
COUNSEL: The direction I want, your Honour, is to the effect that in this case, the jury is faced with two very different versions of what occurred in the car park. It would be wrong to approach the consideration of whether [the appellant] is guilty or not guilty of this - your Honour, perhaps it's better that I just refer your Honour to paragraph 3-610 of the Bench Book.
HIS HONOUR: I don't have it here at the moment.
CROWN PROSECUTOR: It's the Murray direction.
COUNSEL: Yes, and there's also the Liberato direction. In any case, your Honour, any such direction, any formula of words that your Honour employs must, in my submission, convey very clearly to this jury that it is not a choice for them as between [the appellant] and Ms Archbold that, even if they were to reject [the appellant's] evidence entirely about that, that they must still conclude that Ms Archbold's evidence about important matters can be relied upon to reason [the appellant's] guilt beyond reasonable doubt.
The obligation or burden of proof of guilt of the accused never shifts; it is placed squarely on the Crown. The burden never shifts to the accused. It is not for [the appellant] to prove his innocence, but for the Crown to establish his guilt.
Given that the case against [the appellant], your Honour, relies so heavily on the evidence of Ms Archbold, I do say that in this case some direction in the nature of a Murray direction cautioning this jury that, before they relied on Ms Archbold's evidence, that they needed to scrutinise it with great care before they reasoned to a guilty verdict based on her evidence would be appropriate.
HIS HONOUR: Very well.
COUNSEL: I did do that in a rather shorthand fashion a couple of days ago, but at that stage I think your Honour had indicated it wasn't the appropriate time to discuss directions.
HIS HONOUR: I may well have. I'm not taking exception to your raising it now.
COUNSEL: So I say that at the very least some form of those words that conveys that should be said to the jury.
HIS HONOUR: All right. Is that all you wanted to raise?
[10]
The further directions of the trial judge
Having determined that a Liberato direction should not be given, his Honour concluded the summing-up with the following final directions: [27]
Now, during the course of my address, I said that the accounts of Ms Archbold and [the appellant] as to what occurred in the car park, were very substantially different and you had to choose between them; you do.
I also suggested, on one or two occasions, I think in relation to parts of Ms Archbold's evidence, that you ask yourself: Why would she lie about that? That remains a proper question for you to ask yourselves. However, in respect of both of these matters, choosing, why did she lie and, indeed, all issues in the case, do not allow yourselves to lose sight of the fact that, at the end of the day, the onus of proof remains on the Crown to prove the cases it brings beyond reasonable doubt.
As I said, you can use any piece of evidence you think is reliable enough to rely on in trying to reach your ultimate conclusion. But, at the end of the day, you have got to ask yourself, accepting all that: Am I persuaded to the requisite standard? (my emphasis).
At that point the jury retired to commence deliberations.
[11]
Submissions of the appellant
Senior counsel for the appellant submitted that in the various passages of the summing-up set out above, the trial judge had, in effect, repeatedly directed the jury that their deliberations required a choice between the evidence of Archbold on the one hand, and the evidence of the appellant on the other. It was submitted that in those circumstances, a "protective warning" had been required, in the form of a direction to the jury that even if they did not positively believe the evidence of the appellant, it was not open to find that the case against him was established if the evidence gave rise to a reasonable doubt.
Senior counsel submitted that the Liberato direction which had been sought by counsel for the appellant constituted the minimum form of such protective warning, and the minimum means of providing the jury with a proper appreciation of the interrelationship between the onus of proof, the standard of proof, the evidence of Archbold, and the evidence of the appellant. Senior counsel acknowledged that the trial judge had directed the jury, on a number of occasions, as to the onus and standard of proof. However, it was submitted that those directions had been given in general terms, and that it was imperative that the jury understood that their task did not involve, as the trial judge had repeatedly directed, deciding or choosing between the accounts of Archbold and the appellant. Senior counsel submitted that if a reference to the jury having to decide, or choose, between those accounts was to be made at all, it should have been in terms which made it clear that even though it might have seemed like a choice was required, that was not the nature of the jury's task.
It was submitted that his Honour had erred, not only in directing the jury in the terms in which he did, but in refusing to give the Liberato direction which had been sought.
[12]
Submissions of the Crown
The Crown submitted that in the circumstances of this case, a direction in the terms which had been proposed by counsel for the appellant was entirely inappropriate. The Crown emphasised that there had been an alternative case brought against the appellant, namely that even on his own evidence he had not believed that he needed to act as he had in self-defence, and was therefore guilty. It was submitted that in these circumstances, a Liberato direction simply could not have been given.
The Crown further submitted that there was a need to view the summing-up as a whole, and not in piecemeal way. Adopting that approach, the Crown pointed to the directions given by the trial judge at an early stage of the summing-up as to the onus and standard of proof, and to his Honour's final directions to the jury which contained an express reference to the importance of the jury not losing sight of the fact that the onus of proof remained on the Crown to prove its case beyond reasonable doubt. It was submitted that the terms of those directions could not have left the jury in any doubt about the nature of their task, or the fact that the onus of proof always remained on the Crown. It was submitted that those directions, which were given to the jury immediately before they retired to commence deliberations, were more than sufficient to address any risk which may have arisen from his Honour's earlier references to the necessity to decide or choose between the accounts of Archbold and the appellant.
[13]
Consideration
In Liberato v The Queen [28] the Crown case against the accused, who had been charged with rape, depended upon the evidence of the victim, MK. MK denied that she had consented to any act of sexual intercourse, and described the relevant events in terms from which it was open to the jury to infer that the accused must have had a guilty state of mind at the relevant time. The accused denied having that state of mind, and described the relevant events in terms from which it was open to the jury to infer that MK may have consented. Against that background, the trial judge, in the course of his summing-up, made reference to the jury having to choose between the evidence of the accused and MK, adding that if the jury were unable to make such a choice it would follow that they were not satisfied beyond reasonable doubt of the accused's guilt.
The South Australian Court of Criminal Appeal concluded that these directions undermined the principle that the onus of proof remained with the Crown throughout, but determined that there had been no substantial miscarriage of justice. A majority of the High Court concluded [29] that special leave to appeal should not be granted, saying:
It is not suggested that the Court of Criminal Appeal fell into any error of law in its consideration of the summing-up, or that it failed to recognise any inaccuracy or insufficiency in the directions given. Nor is it suggested that the Court misconceived the principles governing the application of the proviso.
In a dissenting judgment, Brennan J (with whom Deane J agreed) said: [30]
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is "a gross simplification" .
[14]
GROUND 2 - THE SUMMING-UP WAS UNFAIRLY IMBALANCED IN FAVOUR OF THE CROWN
[15]
The final address to the jury of counsel for the appellant
Counsel for the appellant addressed the jury over a period of two days, in the course of which he advanced a number of propositions in support of the ultimate submission that the appellant should be found not guilty. Amongst the principal submissions that counsel put to the jury were the following:
1. contrary to what had been put by the Crown, the appellant had not tailored his evidence in an effort to "fit" it around objectively provable facts; [46]
2. the fact that the appellant was a drug dealer was not something that should prejudice him, and was not an issue that the jury were required to determine; [47]
3. the absence of any demonstrated animosity between the appellant and the deceased supported a conclusion that the appellant had no motive to kill the deceased; [48]
4. accepting the Crown case required accepting the unlikely proposition that Barber had taken part in a plan to have the deceased killed, in circumstances that placed her own child in danger; [49]
5. the absence of any recorded conversation following the deceased's murder between the appellant and any co-accused, in which a plan to murder the deceased was discussed, was inconsistent with such a plan ever having been formed; [50]
6. the appellant's demeanour on the evening of the deceased's murder was inconsistent with that which might reasonably have been expected of a person who was about to kill someone pursuant to a predetermined plan; [51]
7. the fact that the deceased was not killed when the appellant first saw him on the evening of 30 October was inconsistent with the Crown case that there was a plan to kill the deceased, but entirely consistent with the appellant's case that he had attended the unit block, not to kill him, but to recover money that was owing to him; [52]
8. the fact that the appellant was present when the deceased entered the car park was consistent with his case that there had been an agreement between the two of them to meet, and nothing said by the appellant to Tom Jones was consistent with the proposition that the appellant was acting with, or pursuant to the instructions of, a female; [53]
9. the evidence of Tom Jones was unsatisfactory in various respects; [54]
10. there was clear evidence that the appellant was in fear, a factor directly relevant to his assertion of self-defence; [55] and
11. it was entirely unrealistic to conclude that the appellant would have been a party to an agreement to kill the deceased in return for payment of the relatively small sum of $4,000.00. [56]
[16]
The summing-up of the trial judge
It is convenient to begin an analysis of the trial judge's summing-up by setting out its general structure, which was explained by his Honour as follows: [58]
Now, my summing-up is going to fall into a number of parts. Firstly, there will be some fundamental directions that apply generally in criminal trials. And there are four parts.
Secondly, I will give you some directions as to the legal principles that apply to the charges here and the most important of those directions will be in writing.
Thirdly, there will be some instructions as to matters you must bear in mind and some suggestions.
And, fourthly, I will make some reference to the evidence and counsel's argument. Obviously, I am not going to refer to all of the evidence. We will be here for another three months if I do.
The "fundamental directions that apply in every criminal trial" encompassed the following propositions: [59]
1. the jury were bound to accept his Honour's directions of law;
2. the jury determined issues of fact;
3. the jury's determination was required to be based solely on the evidence;
4. the jury's determination was required to be unanimous;
5. all accused were presumed to be innocent;
6. the jury could not find the appellant guilty unless the Crown satisfied the jury of his guilt beyond reasonable doubt; and
7. in a case based on circumstantial evidence, it was necessary that the jury be satisfied that a finding of guilt was the only reasonable finding to make, and that there was no reasonable explanation consistent with innocence.
His Honour also gave the following further direction in this context: [60]
… [Y]ou are entitled to disregard any views you think I may have as to the evidence or the facts. Indeed, you should disregard them unless, by the end of your deliberations, you are persuaded by the evidence to a similar view.
All of those directions were repeated in a summary form [61] before his Honour said the following: [62]
Let me amplify the third direction that you should discard any views you think I may have as to the facts or concerning the evidence unless at the end of your deliberations, you are persuaded by the evidence to a similar view. Firstly, let me say I am entitled to express views. That said, it is certainly not my intention to indicate any view on the question of what your verdict should be. However, you are likely to be assisted if I concentrate on the matters that seem to me important rather than referring to all the evidence that has been given. Much of what I say I expect will be contentious. However, I recognise, as should you, that that may not be so and indeed you may disagree with what I see as important.
So let me make it clear that you are the masters in this area. You have to decide the case of each accused on the basis of all the evidence admitted in the case of that accused, and if I do not mention something or a witness one of you thinks is important, still take it or the witness's evidence into account. If you want me to mention or refer to something or someone else, please say so and I will add to what I otherwise have in mind. Counsel know they have the right to ask me to do the same.
During the course of this summing-up I will invite your consideration as I have indicated to various matters in the evidence. Sometimes this may be because the Crown or defence counsel have not referred to them or not referred to them in the detail that I think the topic deserves. Sometimes it may be merely by way of completing a picture. Sometimes it may be because I think they are sufficiently important to merit further consideration, but whatever the reason the result will be that at times I make or appear to make points favourable to the Crown or to the accused. We would not be here at all if there were not some points to be made in favour of the Crown. We would not have been here for this length of time if there were not also some points to be made in favour of the accused.
As I go through picking points in what seem to me some sort of logical order among the mass of material there are going to be matters that favour one side or the other. When that occurs bear my purpose in mind, I am in no sense trying to usurp your role. So far as matters of fact and evidence and the result of the trial are concern [sic] it is your view and your decision that matter.
[17]
The applications made at the conclusion of the summing-up
At the conclusion of the summing-up, counsel for the appellant made an application to his Honour to discharge the jury, or alternatively, to "take the summing-up away from the jury …… and to start over". [81] Counsel submitted that in dealing with the factual issues, his Honour had "embarked upon what could only be described as a second Crown address" the aim of which had been to "demolish the defence case". [82]
Counsel went on to articulate, in considerable detail, the bases of his applications by reference to statements made by the trial judge in the course of his summing-up. Counsel submitted that the trial judge had:
1. informed the jury that he was not going to cover the evidence in any detail, before going on to cover everything that might conceivably have been said to support the Crown case; [83]
2. engaged in repeated criticism of the appellant's case, effectively suggesting to the jury that the appellant's evidence was either improbable, or was objectively contradicted by other evidence; [84]
3. failed to "place the weight of judicial authority" behind the summary of the appellant's case; and [85]
4. ignored, "skirted over" or attempted to explain away, any evidence that could conceivably assist the appellant's case. [86]
The gravamen of these various complaints was encapsulated by counsel in the following submission to the trial judge: [87]
…… [W]hen one looks fairly at the time and the manner in which your Honour summed up the respective cases, you have summed up in a manner which makes it virtually impossible for the jury, let alone one which is so clearly following what your Honour has to say, to do anything other than to convict [the appellant] of the charge of murder.
When the trial judge called upon the Crown to respond, the following exchange took place: [88]
CROWN PROSECUTOR: It is not correct to say that your Honour made a "substantial attack" on [the appellant's] case. That is simply not so.
HIS HONOUR: Do you oppose his application to discharge the jury?
CROWN PROSECUTOR: I do, your Honour.
HIS HONOUR: I don't need to hear you further on that point. Do you agree with or oppose his application that I withdraw that part of my summing-up that deals with the evidence?
CROWN PROSECUTOR: I oppose that application as well.
HIS HONOUR: I don't need to hear you any further on the topic.
[18]
Submissions of the appellant
Senior counsel for the appellant submitted that the summing-up of the trial judge was entirely unfair to the appellant. In particular, it was submitted that:
1. to the extent that his Honour had referred to the appellant's evidence, such references were accompanied by clear attempts to highlight what his Honour perceived were weaknesses in the appellant's case;
2. his Honour's approach tended to undermine the appellant's evidence, his case generally, and the various submissions put to the jury by counsel;
3. the trial judge's summaries of the appellant's case, his evidence, and the submissions of counsel (such as they were) were wholly inadequate;
4. there was a complete absence of any clearly defined summary of the appellant's evidence;
5. when read as a whole, the summing-up was unfairly influential towards a verdict of guilty.
[19]
Submissions of the Crown
The Crown submitted that in the course of the summing-up his Honour had made clear, in an objective way, the appellant's case, and his evidence in support of that case. It was submitted that the complexity of the case rendered it essential that the trial judge have an appropriate degree of flexibility as to how the summing-up was to be approached and structured.
It was further submitted that the approach adopted by the trial judge was appropriate because it reminded the jury of the evidence they had heard, and how that evidence fitted in to the respective cases which had been presented for their consideration.
In advancing these submissions, the Crown addressed the specific passages of the summing-up set out above, and emphasised the need to read the summing-up as a whole. The Crown submitted that when this approach was taken, it was evident that the summing-up was not lacking in balance, or otherwise unfair.
[20]
Consideration
In Popovic and Ors v R [90] Adamson J observed that the purposes of a summing-up are to:
1. direct the jury as to the law;
2. summarise the evidence which is germane to the issues;
3. summarise, fairly, the way in which the Crown, and the accused, put their respective cases, and the inferences for which each contends;
4. instruct the jury as to any possible defence or alternative verdict which might be available on the evidence; and
5. comment on any obviously untenable submission put by either party.
Her Honour went on to say: [91]
[I]f the inferences for which the Crown or the accused contend are interleaved in the summary of evidence, there is a risk that the jury will gain the impression that the judge is contending for a particular inference.
Bearing in mind this general framework, the authorities establish the following propositions regarding the obligations of a trial judge in terms of a summing-up to the jury:
1. although there is considerable leeway in the manner in which a summing-up can be structured, it remains essential for a trial judge to summarise, fairly and adequately, the competing cases of the Crown and the accused; [92]
2. the requirement to summarise the cases fairly and adequately does not oblige the trial judge to remind the jury every argument advanced by counsel; [93]
3. it is the case which the accused makes that the jury must be given to understand, and it is not sufficient for a trial judge to simply say to the jury that they should give consideration to the arguments which have been put by counsel; [94]
4. a trial judge must hold an even balance between the Crown case and the accused's case, and fairly direct the jury's consideration to the matters raised by the accused in his defence, the detail of which will depend on the circumstances of the particular case; [95]
5. generally speaking, a trial judge should not put matters to the jury in the summing-up which have not been put by the Crown, but which nevertheless advance the Crown case, because such an approach has the capacity to amount to a denial of natural justice because of the absence of opportunity for the accused to respond; [96] and
6. the task of restoring the credit of a Crown witness, or of destroying the credit of the accused, should always be left to the Crown Prosecutor. When such a task is undertaken by a trial judge, there is a risk of losing the appearance of impartiality which is expected. [97]
[21]
GROUND 3 - HIS HONOUR ERRED IN NOT DISCHARGING THE JURY FOLLOWING THE DISCHARGE OF A JUROR ON 2 JUNE 2016
[22]
GROUND 4 - HIS HONOUR ERRED IN NOT DISCHARGING THE JURY FOLLOWING THE DISCHARGE OF A JUROR ON 6 JUNE 2016
[23]
GROUND 5 - THE TRIAL MISCARRIED BY REASON OF THE DURATION OF, AND THE CIRCUMSTANCES PERTAINING TO, THE JURY DELIBERATIONS AND DELIVERY OF THE VERDICT
It is convenient to deal with these three grounds together. The sequence of events set out hereunder has been drawn from the agreed chronology provided by the parties.
It should be noted at the outset that although all three grounds were pressed, the submissions of senior counsel for the appellant before this Court tended to focus upon grounds 4 and 5 rather than ground 3.
[24]
The discharge of the first juror
On Friday 4 March 2016, well before the close of the Crown case, his Honour informed the parties that one of the members of the jury (the first juror) was in hospital, having been admitted the previous evening. His Honour expressed the view that the first juror should not be discharged at that point, a course with which counsel for all accused agreed. [111]
The trial did not resume until Tuesday 8 March 2016, at which time his Honour informed the parties that he had received a medical certificate indicating that the first juror would be "unfit for work/school/usual activities from 4 March 2016 to 11 March 2016", and was being treated in hospital for what his Honour referred to as "some stomach condition" [112] . There was an accompanying note from the first juror's wife confirming the admission to hospital. [113]
On the basis of this material, his Honour expressed the preliminary view that the first juror should be discharged, and that the trial should continue with a jury of 11. [114] His Honour then informed counsel that he had received a note from the remaining members of the jury which was in the following terms: [115]
In the event our juror cannot continue with this trial, we, the other members of the jury, would like to continue. We feel we have invested and absorbed the case. We ask that we could please continue as a jury for the duration of the trial.
Counsel for Spiteri-Ahern informed his Honour that all defence counsel were "unanimous in the submission that we make the effort to continue with 12 jurors", [116] and submitted that there were no grounds which would warrant the discretionary discharge of the first juror, having regard to the provisions of the Jury Act 1977 (NSW) (the Act). [117] The Crown submitted that the first juror should be discharged and that the trial should proceed with a jury of 11. [118]
His Honour subsequently ordered that the first juror be discharged, and that the trial continue with a jury of 11. In ex-tempore reasons, his Honour said: [119]
In my view, in a situation where there is no certainty as to when or if the absent juror will be ready to resume his deliberations, it seems to me that the requirements of section 53B(d) of [the Act] are established.
The question then arises whether the trial should continue. There are four accused, two of whom, as I understand it, are in custody, and two of whom are on bail. There has been to date some approximately two weeks of evidence with an original estimate for the trial of six weeks. I am told that the balance of the Crown evidence may finish in a week. It may, but I am by no means certain that this is so, particularly in a case where there are four counsel who are entitled to cross-examine.
In my view, having regard to what has been invested in the trial to date, it should continue. I accept that there is some potential disadvantage in proceeding with 11 jurors rather than 12, but in my view that disadvantage is substantially outweighed by the desirability of the trial continuing.
[25]
The jury's indication of an inability to reach a unanimous verdict
On the morning of 1 June 2016, which was the eighth day of the jury's deliberations, his Honour received a note from the jury which was in the following terms: [122]
The jury is unable to reach a unanimous verdict. Please instruct us further.
The Crown, supported by counsel for Spiteri-Ahern, Barber and Zraika, submitted that the jury should be given what is generally referred to as a Black direction. Counsel for the appellant submitted that the giving of such a direction was premature, following which there was argument as to whether or not such a direction, if given, should be followed by a direction as to the availability of a majority verdict.
Although nothing turns on it, there was no substance in the submission that a Black direction was "premature". On the contrary, such a direction was clearly warranted given the jury's unequivocal indication that they were unable to reach a unanimous verdict at that point.
Having heard submissions, his Honour concluded: [123]
I don't propose to give a majority verdict direction at this stage and I have used the expression "Black direction"; I regard the language of the High Court in Black as extremely stilted and I have an adaptation of it which I propose to use.
His Honour then directed the jury in the following terms: [124]
Members of the jury, I have received your note saying that you are unable to reach a unanimous verdict. You are not the first jury and you no doubt will not be the last to give such a note to a presiding judge.
However, experience over the years has shown that, despite a message and indication such as you have given, juries often do agree if they are given more time to consider and discuss the issues. For that reason, judges usually request juries to, as it were, have another go, re-examine the material, particularly the matters in which you are in disagreement, and to make a further attempt to reach a verdict.
You each have a duty, as I think I have indicated earlier, to listen carefully and objectively to the views of your fellow jurors and calm and objective discussion often does lead to a better understanding of your differences of opinion and may convince you or, at least some of you, that your original opinion is wrong.
That is not, of course, to suggest that you should join in a verdict, if you, at the end of the day, do not honestly and genuinely think it is the correct one. If, after listening to the opinion of the other jurors and considering the evidence, you cannot honestly agree with the conclusion of the others, you must give effect to your own view of the evidence. But, that said, because of the matters to which I have just referred, past experience of the Courts, I am going to ask you to keep trying and retire again and make another attempt at reaching a unanimous verdict. So would you go, please, and try.
[26]
The discharge of the second juror
The transcript records that the jury returned to the jury room at 10:00am the following day, 2 June 2016. [126] To the extent that this notation suggests that all 11 members of the jury returned to the jury room at that time, it was, in light of the events which followed, misleading. I have considered these circumstances further below when addressing ground 6.
When the Court was reconvened (the transcript does not indicate at what time that occurred) his Honour indicated that he had received a medical certificate under the hand of Dr Gaurav Tewary, pertaining to a member of the jury (the second juror) which was in the following terms: [127]
This is to certify [the juror's name] is/was, in my opinion, suffering from stress [underlined]. I understand that he is currently serving jury duty and, given his current anxiety and stress levels, I would recommend that he be excused from active jury duty. I have seen him on 2/6/16.
There was general agreement between all counsel that the second juror should be discharged. However, at that point, counsel for the appellant made an application that if that course were taken, the entire jury should then be discharged. In light of these grounds of appeal, it is appropriate that counsel's articulation of the basis of that application be set out in full: [128]
The certificate does raise a significant concern. Obviously, this is a trial that not only deals with matters that are going to cause some stress, it is a very serious case, it has been going on for a very long time, so that is going to be asking quite a lot of any juror.
It seems now that, given that particular juror has got to the point where he feels he needs to go to a doctor, that there is no question that he at least should be discharged. The question is what happens after that.
My concern, your Honour, is that the stress and anxiety might not be the result of just what one would expect was the ordinary stress attaching to their deliberations but, given that we were given an indication that this jury was deadlocked yesterday or they could not agree, I am concerned that the stress and anxiety has at least or might at least have been as a result of undue pressure or influence placed on that juror, perhaps by other jury members. That is a concern, if the deliberations are proceeding in a way that causes stress, such that a juror feels he cannot continue.
Your Honour, whilst that makes no difference as to what you should do with that individual juror, if it was, for example - and no-one knows, but if it was the case that that juror was feeling undue pressure, the sort that would be of concern to the administration of justice, then the appropriate course must be to discharge the jury, if that is the way deliberations are proceeding.
At this stage, we cannot know. Your Honour does have the right to examine that juror and I simply raise for your Honour's consideration whether you feel, in these circumstances, it is appropriate to enquire as to the source of the stress; whether it is just the proceedings as a whole, the time it's [sic] taken, in which case I have got nothing further to say, or whether there is something else that concerned the juror; without going into the detail of what is, if he feels that, again hypothetically, he has been intimidated by or feels threatened in the course of deliberations, it seems to me, with respect, that the deliberations have gone off the rails and that this trial should be aborted. They are the submissions I have to make about the particular note.
Your Honour, my instructions are that, given the nature of the case, the note that we received yesterday and the possible consequences for [the appellant], that this is not a trial that should receive a verdict from only ten jurors, especially in circumstances where it may well be - and it is certainly a risk - that that one juror is excusing himself to remove a deadlock or makes the deadlock much more easy to overcome because now other persons are isolated, either one or two other persons are isolated, in other words, the deliberations are not proceeding in a regular manner, or in a manner that one would have confidence in the integrity of the verdict.
So, your Honour, my ultimate application is that you would discharge this jury. Before we get there, perhaps, your Honour would make an enquiry of the particular juror.
[27]
The illness of the third juror
The transcript of proceedings on the following day, 3 June 2016, records that the jury continued to consider their verdicts at 10:00am. [133] The Court then reconvened (again, the transcript does not indicate precisely when this occurred) at which time his Honour indicated that he had received a note regarding another member of the jury (the third juror) which was in the following terms: [134]
One of the jurors cannot participate further in this trial due to health reasons and seeks leave to be dismissed from the jury. He will provide a medical certificate as soon as possible. The remaining jurors are willing to continue deliberating.
Having read the note, his Honour said: [135]
It is my intention to call the jury in, record receipt of the note, indicate that I am not prepared to act upon the basis of the note and no-one should assume that I will act simply on the basis of a medical certificate. It may be if there is a serious problem the juror might need to arrange for his doctor to attend and that is all I propose to say at the moment.
Counsel for the appellant, supported by counsel for Barber, then said the following: [136]
I wonder whether your Honour would consider inquiring of that juror whether he feels he is able to participate today, because if the answer is "no" , then, in effect, he is already absent, and that's something we should probably know.
His Honour indicated that he was prepared to make that request.
When the jury returned to Court at 11:05am, his Honour repeated the terms of the note before saying: [137]
As is apparent from what has already happened in this trial, I have power to excuse one of the jury, but I would not contemplate doing so simply on the basis of a note as peremptory as this.
It may be I would act on the basis of a medical certificate; it may be I would require more evidence than that. Those are questions which can only be answered in particular circumstances as and when they arise. But this note, insofar as it says "cannot participate further in this trial due to health reasons", raises the question whether that juror can participate during today in any further deliberations.
What I am going to do now is ask you to retire again, give you the opportunity of providing more specificity on the question of whether that juror can participate properly today, whether and how long that juror thinks it will be before he contemplates providing a medical certificate.
So, having posed those two questions for you, I am going to ask you to retire and wait to hear again from you (my emphasis).
[28]
The discharge of third juror
The transcript of 6 June 2016 notes that the jury "returned to the jury room at 9:45am". [150] At that stage, the jury comprised 10 persons. To the extent that this notation in the transcript suggested that all 10 members of the jury returned at that time, it was misleading in light of the events which followed.
When the Court reconvened (again, the transcript does not record when this occurred) his Honour informed the parties that he had received a medical certificate in relation to the third juror from a Dr Marinucci which was in the following terms: [151]
I saw [the juror] on 4/6/16 in distress, as he has been suffering from severe anxiety, sleep deprivation and panic attacks following the jury decision in the case. He will be on medication and I consider him unfit to……"
Part of the certificate was illegible in the form in which it had been provided to his Honour. Further, notwithstanding the terms of the certificate, there had obviously been no "jury decision" at that point.
Following an exchange between his Honour and the Crown, [152] the jury returned to Court at 10:16am, at which time they were directed not to deliberate any further, pending additional directions being given to them. [153] The circumstances which led to that direction being given are, in part, the subject of ground 6. In considering that ground below I have set out the relevant extracts of the transcript in full.
His Honour then raised the absence of the third juror and the terms of the medical certificate. It was agreed between counsel for all parties that the third juror should be discharged. [154] In making an order to that effect, his Honour said the following in ex-tempore reasons: [155]
….. I have received a medical certificate from Dr N A Marinucci of Ramsay Street, Haberfield which, so far as is relevant, reads:
"I saw [the name of the juror] on 4/6/16 in distress, as he has been suffering from severe anxiety, sleep deprivation and panic attacks following the jury decision in the case. He will be on medication and I consider him unfit to…".
And then the certificate seems to continue for half a line and then contain what purports to be a signature. The half line, which is obscured, seems to have become obscured in the facsimile transmission process but, having regard to what the certificate does say, I think one may reasonably infer the substance of that half line. The doctor clearly considers the juror unfit.
The certificate does suffer from the inaccuracy that it refers to "following the jury decision". It is obvious that there has not been any jury decision.
Whether those words are due to error on the part of the juror or on the part of the doctor, I nevertheless think that the certificate has the consequence that the juror should not continue as a member of the jury.
Accordingly, I do discharge the juror. His circumstances seem to me, clearly, to come within the terms of section 53B(a) or (d).
The further application to discharge the jury
[29]
The verdict of the jury
The transcript records that the jury left to resume deliberations at 10:55am, [160] and that a verdict of guilty against the appellant was delivered at 11:19am. [161] However, it should be noted that counsel for the appellant later indicated to his Honour that he had received notification at 11.07am that there was a necessity to reconvene the Court. [162] That strongly suggests that it was around that time that the jury had indicated to the Sheriff that a verdict had been reached. That was only 12 minutes after the jury had been directed by his Honour to resume deliberations. Significantly, those deliberations had resumed, and had resulted in a verdict in 12 minutes, in the absence of the third juror who had been discharged.
A further three days of deliberations took place before the jury indicated that they were unable to reach a unanimous verdict in respect of Spiteri-Ahern. [163] His Honour took the view that this meant that the jury were also unable to reach a unanimous verdict in relation to Barber or Zraika. His Honour proceeded to make an order discharging the jury in relation to the remaining three accused. [164]
[30]
The relevant legislative provisions
There are a number of provisions of the Act which are relevant to these grounds of appeal.
To begin with, s 19(1)(a) provides that except as provided by s 22, the jury in any criminal proceedings is to consist of 12 persons. However, provision is made in s 22 for the continuation of a trial following the discharge of an individual juror which results in the number of the jury been reduced to less than 12:
22 Continuation of trial or inquest on death or discharge of juror
Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if--
(a) in the case of criminal proceedings, the number of its members--
(i) is not reduced below 10,
(ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or
(iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months,
(b) ….
(c) …
In determining, following the discharge of the third juror, that the trial should continue with a jury of 9, his Honour obviously relied (at least in part) on sub-para (a)(iii).
Section 53B confers a discretion to discharge an individual juror and is in the following terms:
53B Discretionary discharge of individual juror
The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if--
(a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or
(b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or
(c) a juror refuses to take part in the jury's deliberations, or
(d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.
[31]
Submissions of the appellant
Senior counsel for the appellant submitted that the events which followed the trial judge giving the purported Black direction clearly indicated that a significant issue had arisen with the jury. It was submitted that such significance stemmed from the fact that the second juror had not sought to be discharged because of (for example) professional or social considerations, but because they were suffering from anxiety and stress to a sufficient degree to cause a medical practitioner to express the view that they should not continue. Senior counsel submitted that in circumstances where deliberations had, at that point, been ongoing for almost two weeks, and in the absence of the trial judge informing the jury that he had the power to discharge them if a unanimous verdict could not be reached, there was a risk that the jury may have come to perceive that their ultimate discharge depended upon reaching such unanimous verdict. It was submitted that there was an obvious inference that the second juror represented a minority view, and that their request to be discharged stemmed from perceived pressure for unanimity.
Senior counsel for the appellant submitted that, against this background, and following the discharge of the third juror, proceeding with the trial gave rise to a substantial miscarriage of justice which had become so acute that the discharge of the jury was required. It was submitted that there was an obvious and justifiable concern that the third juror had simply adopted the course adopted by the second juror in seeking to be discharged, so as in effect to escape from an intolerable position from the juror's perspective.
Senior counsel further submitted that by the time the trial judge received the medical evidence that led to the discharge of the third juror:
1. the second juror had been discharged on the basis of the anxiety and stress associated with the trial;
2. the third juror had indicated that they were in the same position and wished to be discharged;
3. the jury were aware that a unanimous verdict could be returned on any count at any time;
4. the afternoon of deliberations which followed the evidence from the two jury members failed to result in a unanimous verdict, in circumstances where the third juror had been a part of such deliberations;
5. in the event of the third juror being discharged, the two jury members perceived that the jury was close to being able to deliver a unanimous verdict;
6. the following day, the third juror had seemingly conveyed to their General Practitioner the view that the jury had already made a decision (in circumstances where no unanimous verdict had been delivered at that time); and
7. the jury had not been directed, at any time, that they could be discharged as a whole if a unanimous verdict proved impossible.
[32]
Submissions of the Crown
The Crown submitted that it was "perfectly reasonable" to conclude that the jury intended to arrive on the morning of 6 June to bring in a verdict of guilty against the appellant, and that there was no reason to think that it was likely, or even possible, that there was a "winnowing out" of jurors who did not support a verdict of guilty. The Crown submitted that it was not possible, then or now, to infer that the second and third jurors were, as the Crown put it, "in the appellant's camp" and that in those circumstances, there was no error in the trial judge rejecting the application to discharge the jury.
[33]
Consideration
I turn firstly to ground 3 which asserts error on the part of the trial judge in discharging the first juror.
In my view, that asserted error is not made out. Although, on one view, the discretion to discharge the first juror might more properly have been exercised pursuant to s 53B(a) of the Act rather than s 53B(d), the gravamen of his Honour's conclusion was that the discharge of the first juror was warranted because of the interruption that would otherwise be caused to the trial if it were adjourned, pending the first juror regaining their health to a sufficient degree to be able to resume their duties. It was open to his Honour to take that view. The submission which was advanced (on behalf of all counsel) by counsel for Spiteri-Ahern, namely that there were "no grounds" which warranted the discharge of the first juror, was, given the evidence of the juror's ill-health and the expected period of their recovery, untenable, in light of the reference in s 53B(a) of the Act to a juror becoming "so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict ……."
Similarly, his Honour's reasons do not indicate any error in his separate determination to continue the trial with a jury of 11. The effect of his Honour's reasons for continuing was that there was nothing which would support the forming of an opinion, in terms of s 53C(1)(b), that to continue the trial would give rise to the risk of a substantial miscarriage of justice. That conclusion was also open.
In the course of written submissions senior counsel for the appellant made reference to the following observations of McHugh J in Wu v The Queen [165] which, as I understood it, were said to support ground 3:
But no one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than 12 is a denial of a long-standing right of those tried for serious crime under the common law system. Given the mandatory terms of s 19 of the Jury Act, some positive reason, beyond the death or discharge of a juror, must exist for the judge to make the order that the trial continue with less than 12 jurors.
McHugh J's observations must be viewed in context. They were made well prior to the provisions of s 53B of the Act coming into effect. [166]
[34]
GROUND 6 - THERE WERE IRREGULAR JURY DELIBERATIONS IN THE ABSENCE OF ALL MEMBERS WHICH RESULTED IN A MISCARRIAGE OF JUSTICE
During the course of the hearing of the appeal, an issue was raised with the parties which resulted in senior counsel for the appellant being granted leave to rely on this additional ground. In setting out the circumstances which give rise to it, I should note that in the course of reviewing the material and submissions, it became apparent to me that there were in fact two separate occurrences in the trial which were relevant. Only the second of those was raised with counsel during the course of the hearing, and therefore only that occurrence has been the subject of submissions. However, this has not affected my ultimate conclusion in respect of this ground.
[35]
The directions of the trial judge
His Honour delivered some brief opening remarks to the jury following their empanelment, [179] in the course of which he emphasised that they should not speak to anyone in the vicinity of the Court complex. [180] At the conclusion of those remarks, the following exchange took place between his Honour and the Crown: [181]
HIS HONOUR: Mr Crown, is there anything else that you suggest I should mention at this stage?
CROWN PROSECUTOR: No, thank you, your Honour. Of course the jurors shouldn't speak to anybody at home about the case either.
HIS HONOUR: Well, it is undesirable. No doubt your wives or spouses or partners are likely to ask you what it is about. It is better that you don't tell them, not because that of itself hurts, but they are likely to put in their six-penneth worth and express their views. When the case is over, talk to your heart's content if you want to, but it is better at this stage that you don't run the risk of them sticking their spoke in.
At no stage of the trial did his Honour direct the jury as to the necessity for discussions and deliberations to take place only when all of the jury members were present. Further, at no stage following the commencement of the jury's deliberations did his Honour make a formal order pursuant s 54(1)(b) of the Act which is in the following terms:
54 Jury permitted to separate in criminal trials
(1) The jury in criminal proceedings--
(a) …
(b) may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict.
[36]
The first period of deliberations in the absence of all members of the jury
As of 2 June 2016, the jury numbered 11 persons. I have previously noted [182] that the transcript of the proceedings of that day indicates that "the jury" returned to the jury room at 10.00am. However, it is clear from what followed [183] that there were, in fact, only 10 members of the jury who returned at that time. The second juror was not present, having provided a medical certificate to the Court seeking to be discharged. To the extent that the notation in the transcript might convey the suggestion that all 11 members of the jury returned at 10.00 am, it is misleading.
It was not until 11.17am that his Honour informed the jury that the second juror had been discharged. [184] It follows that from 10.00am until 11.17am, 10 members of the jury were in the jury room, in circumstances where the jury was, in fact, a jury of 11. No direction was given by the trial judge at any time that the 10 remaining members should cease any deliberations on the basis that not all members were present.
[37]
The second period of deliberations in the absence of a member of the jury
The transcript of the proceedings on 6 June 2016 records that the jury "returned to the jury room at 9.45am". [185] The second juror had been discharged. The third juror was not in attendance at Court but had not been discharged, and accordingly remained a member of the jury. Accordingly, as at 9.45am the jury comprised 10 persons. In light of the third juror's absence, to the extent that the notation in the transcript suggests that all 10 members of the jury returned to the jury room at 9.45am, it is misleading.
The necessity that the jury not continue deliberations until such time as the third juror's position was resolved was recognised by the Crown in the following exchange with the trial judge and counsel for the appellant when discussing the medical certificate which had been received in relation to the third juror from Dr Marinucci: [186]
CROWN PROSECUTOR: So, the question then arises, your Honour, whether the jury should be permitted to continue their deliberations in the absence of a person who is still part of the jury and I think not at the moment, with respect, and they should be brought in and asked not to continue their deliberations because a person who is still a member, and it should be explained, bluntly and directly, a person who is still a member of the jury is not here.
HIS HONOUR: Well, Mr Crown, theoretically, you're right, but the plain fact of the matter is that it is unreal to think that the jury for the last half hour or so haven't been deliberating.
CROWN PROSECUTOR: Well, that may well be the case, your Honour.
HIS HONOUR: Does anyone disagree with the Crown's suggestion?
COUNSEL: Yes, your Honour. Your Honour, if the Crown's suggestion is that, at some point, that juror be made to come back - -
HIS HONOUR: No. I think the Crown's suggestion is bring the jury now, tell them don't deliberate until I speak to you again.
COUNSEL: Yes. I would have thought the more important question is what happens to that juror and what happens to the jury, but if your Honour wants to approach it in the manner suggested by my friend, then yes, I have no objection to the jury being told not to further deliberate.
HIS HONOUR: All right. Bring the jury in, please.
CROWN PROSECUTOR: Your Honour might tell them that the medical certificate has been received and in the facts process - -
HIS HONOUR: No, I don't propose to do that. I will just tell them not to deliberate until I hear from me again.
CROWN PROSECUTOR: As your Honour, pleases.
[38]
Submissions of the appellant
Senior counsel for the appellant acknowledged that the Act does not prescribe the conditions under which deliberations of a jury are to be conducted. However, it was submitted that the fact that deliberations should not occur unless all jury members were present was reflected in a generally accepted practice (albeit one which was not followed in the present case) that in the opening directions of the trial judge, as well as on each occasion when the jury separates during the course of deliberations, a direction is given that deliberations should not take place unless all jury members are present.
Senior counsel acknowledged that there will be occasions on which deliberations may continue for short periods in the absence of a member or members of a jury, and accepted the need for a pragmatic and flexible approach to overcome any unrealistic expectation to the contrary. However, senior counsel stressed the importance of adhering to fundamental rules governing the trial process, and submitted that it was open to infer, in particular, that the 9 jurors who ultimately returned a verdict of guilty were deliberating, for a not insignificant period, in the absence of the third juror.
Accepting that this constituted an irregularity, senior counsel submitted that it was necessary to then determine whether such irregularity gave rise to a miscarriage of justice. In this regard, it was submitted that the irregularity was material, that it had arisen at a critical time, and in circumstances where:
(i) the trial had been lengthy;
(ii) the deliberations of the jury had, at this time, been ongoing for more than two weeks;
(iii) there was evidence of disagreement amongst the jurors;
(iv) an incomplete Black direction had been given; and
(v) two jurors had sought to be discharged on the basis of the stress and anxiety associated with their deliberations.
As I understood it, senior counsel did not submit that this irregularity was sufficient, of itself, to give rise to a miscarriage of justice. However, it was submitted that such irregularity simply fortified the conclusion that the ultimate verdict of the jury was tainted with the trial judge's error in failing to discharge the jury.
[39]
Submissions of the Crown
The Crown submitted that the fact that jurors may have deliberated for a period in which not all of them were present did not amount to an irregularity. In this regard, the Crown drew attention to the fact that, as a matter of practicality, jurors separate in the course of deliberations for many reasons.
The Crown further submitted that even if this did amount to an irregularity, it was not one which was of such materiality as to give rise to a miscarriage of justice. It was submitted, in particular, that in circumstances where the jurors who were present were those who ultimately delivered the verdict against the appellant, there had been no risk of "caucusing".
[40]
Consideration
Before addressing the substance of this ground, it is appropriate to make two observations.
First, at the end of each day of deliberations in the present case, the trial judge obviously allowed the jury to separate. However, his Honour did so in the absence of an order pursuant to s 54(1)(b) of the Act allowing such separation to occur. The absence of a formal order under s 54(1)(b) does not have the consequence that the jury ceases to be a jury, or that any verdict which follows is not valid. [191] The reality is that there may well be instances where a jury "separates" without the express knowledge or permission of the trial judge. For example, it is not uncommon for members of a jury to leave the jury room, in the company of a sheriff's officer, for the purposes of going to have a cigarette. Those occasions aside, the making of an order under s 54(1)(b) when a jury leaves the Court to return home at the end of each day of deliberations would be a prudent course for a trial judge to take. Apart from any other consideration, the making of such an order would go some way to eliminating any issue which might arise from the jury's separation.
Secondly, as I have previously noted, at no stage in the present case did the trial judge ever direct the jury that their deliberations should not continue unless and until all members of the jury were present. The omission of such a direction was, to say the least, highly regrettable. The prudent course is for a trial judge to give that direction at the commencement of the trial, and to repeat it at appropriate intervals during the trial, particularly when deliberations are ongoing.
Turning to the circumstances of this ground it is, even in the absence of any evidence, entirely unrealistic to think that during each of the two periods of separation, the jury's deliberations were not continuing. Accepting that they were, the first step in a consideration of this ground is to determine whether that constitutes an irregularity. In written submissions the Court was referred to a number of cases where irregularities had arisen in factual circumstances far removed from the present case. [192] However, some of those cases, even though they are distinguishable on their facts, provide some guidance to the principles to be applied in determining whether an irregularity is made out. For example, in R v Forbes [193] the appellant had been found guilty by a jury of manslaughter and appealed against his conviction partly on the basis that during the trial, a member of the jury had been found in possession of a book on guns, and a brochure for ammunition, and that such misconduct had caused the trial to miscarry. In dismissing the appeal, Spigelman CJ formulated the following general propositions:
1. the occurrence of an irregularity in a criminal trial, including an irregularity involving the jury, invokes the overriding principle of a fair trial; [194]
2. usually, the issue will be whether something that was done or said in the course of the trial resulted in the accused being deprived of a fair trial, and led to a miscarriage of justice; [195]
3. the reference to "miscarriage of justice" invokes the traditional formulation set out in s 6 of the Criminal Appeal Act 1912 (NSW), and the irregularity must be material; [196]
4. the test in New South Wales for determining the materiality of an irregularity is whether the Court can be satisfied that the irregularity had no effect of the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred; [197] and
5. the test in Victoria is whether the irregularity was such to give rise to a reasonable suspicion or concern about the fairness of the trial, and such terms do not operate differently to the test that applies in this state. [198]
[41]
ORDERS
I propose the following orders:
1. The time for filing the notice of appeal is extended to 13 August 2021.
2. The appeal against conviction is allowed.
3. The appellant's conviction and sentence are quashed.
4. The matter is remitted to the arraignments Judge on 6 May 2022 to set a new trial date.
IERACE J: I agree with Bellew J and with the additional observations of Bell CJ.
[42]
Endnotes
R v Haile [2016] NSWSC 1732.
R v Spiteri-Ahern, Barber and Zraika [2017] NSWSC 1820.
R v Spiteri-Ahern [2018] NSWSC 1072.
Spiteri-Ahern v R [2022] NSWCCA 56 (Meagher JA, R A Hulme and Davies JJ).
AB 7 - AB 27.
AB 28 - AB 116.
AB 4512.
AB 4512.
AB 4513.
AB 4513.
AB 4517.
AB 4519; MFI 53.
AB 4520 - AB 4521.
AB 4533.
AB 4533 - AB 4534.
AB 4547 - AB 4548.
AB 4549.
AB 4550.
AB 4554.
AB 4556.
AB 4557.
AB 4559 - AB 4560.
AB 4564 - AB 4565.
AB 4713.
AB 4728 - 4729.
AB 4959.
AB 4771.
(1985) 159 CLR 507; [1985] HCA 66.
Mason ACJ, Wilson and Dawson JJ at 508 (citations omitted).
At 515.
(2002) 211 CLR 193; [2002] HCA 26.
Gummow and Hayne JJ; Gaudron, Kirby and Callinan JJ agreeing).
At 212 - 213; [57].
At 201; [23].
(2012) 290 ALR 699; [2012] HCA 34.
French CJ, Hayne, Crennan, Kiefel and Bell JJ at [12].
At [65] above.
(2019) 268 CLR 57; [2019] HCA 48.
At [36].
Kiefel CJ, Bell, Gageler and Gordon JJ.
At [9] - [11].
At [12].
[2021] WASCA 1; (2021) 95 MVR 37.
At [128].
At [128].
AB 4361 - AB 4362.
AB 4363 - AB 4364.
AB 4365.
AB 4376.
AB 4378.
AB 4380.
AB 4380 - AB 4381.
AB 4390.
AB 4392 - AB 4393.
AB 4416.
AB 4445.
AB 4395 - AB 4412.
[43]
Amendments
21 November 2022 - correction of typographical errors
13 April 2023 - Publication restriction lifted.
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: 13 April 2023
ted the jury at any stage that deliberations should only take place when all members of the jury were present - Whether either instance of separation amounted to an irregularity - If so whether such irregularity gave rise to a miscarriage of justice and was thus material - Material irregularity established - Appeal allowed and new trial ordered - Observations as to the importance of making orders allowing a jury to separate during deliberations - Further observations as to the importance of directing juries at the commencement of, and during, the trial that deliberations must only be undertaken when all members of the jury are present
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Jury Act 1977 (NSW)
Jury Amendment Act 2010 (NSW)
Cases Cited: B v The Queen (1992) 175 CLR 599; [1992] HCA 68
BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 225
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67
Connelly v Director of Public Prosecutions [1964] AC 1254
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
De Pledge v Western Australia [2021] WASCA 1; (2021) 95 MVR 37
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Decision Restricted [2021] NSWCCA 227
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34
El-Jalkh v R [2009] NSWCCA 139
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Jenkins v Director of Public Prosecutions [2013] NSWCA 406
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
Phan v R [2018] NSWCCA 225
Popovic & Ors v R [2016] NSWCCA 202
R v Alexander [1974] 1 WLR 422; [1974] I All ER 539
R v Bates [1985] 1 NZLR 326
R v Chaouk [1986] VR 707
R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49
R v Dempster (1980) 71 Cr. App. Rep. 302
R v E (1995) 89 A Crim R 325
R v Esposito (1998) 45 NSWLR 442
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Haile [2016] NSWSC 1732
R v Hodgkinson [1954] VLR 151
R v Ketteridge [1915] 1 KB 467
R v Locchi (1991) 22 NSWLR 309
R v Machin (1996) 68 SASR 526
R v Marsland (unreported, Court of Criminal Appeal, NSW, No 60263 of 1990, 17 July 1991)
R v Meher [2004] NSWCCA 355
R v Minarowska (1995) 83 A Crim R 78
R v Pavlukoff (1953) 106 CCC 249
R v Riley [1982] 1 NZLR 1
R v Roberts [2004] QCA 366
R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37
R v Spiteri-Ahern [2018] NSWSC 1072
R v Spiteri-Ahern, Barber and Zraika [2017] NSWSC 1820
R v Twiss [1918] 2 KB 853
RPS v The Queen (2000), 199 CLR 620; [2000] HCA 3
South v R [2007] NSWCCA 117
Spiteri-Ahern v R [2022] NSWCCA 56
Tennant v R [2006] NSWCCA 208
Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
Category: Principal judgment
Parties: Daniel Haile - Appellant
Regina - Respondent
Representation: Counsel:
B Rigg SC and J Brock - Appellant
E Balodis - Respondent
Solicitors:
Benjamin Leonardo Criminal Defence Lawyers - Appellant
C Hyland, Solicitor for Public Prosecutions NSW - Respondent
File Number(s): 2013/334195
Publication restriction: Nil
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: [2016] NSWSC 1732
Date of Decision: 09 December 2016
Before: R S Hulme AJ
Judgment
BELL CJ: I have had the privilege of reading Bellew J's reasons. They express with great clarity the various respects in which the trial judge erred. Those errors dictate that the appeal must succeed, the appellant's conviction and sentence be quashed and a new trial ordered. I agree with his Honour's reasons for those orders.
The facts of this case, as explained in Bellew J's reasons, supply a graphic demonstration as to why a Liberato direction will invariably be essential where conflicting versions of events are presented in a criminal trial. The inappropriate language of "choice" as between "competing" versions employed by the trial judge in his directions to the jury wrongly and misleadingly suggested a binary inquiry was required in circumstances where the inculpatory "version" of events may have been quite inadequate to satisfy the standard of proof beyond reasonable doubt. Just as the Liberato direction "serves to clarify and reinforce directions on the onus and standard of proof" in a case where there are competing versions of events (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [10] extracted by Bellew J at [69] below), the failure to give a Liberato direction in such a case is apt to give insufficient guidance to a jury. To give, as occurred in the trial in the present case, a positive direction or series of directions in terms of "choice" of competing versions renders it highly likely that the jury will be misguided in its deliberations, and the trial miscarry. That was regrettably what occurred in this case.
I also agree with Bellew J that the trial judge's modification of the Black direction to omit any reference to the power of the trial judge to discharge the entirety of the jury in the event of a deadlock was apt to create an intolerable choice for the juror described in his Honour's reasons as "the third juror": either, on the one hand, to hold to his or her conscience as to the appellant's guilt and keep a no doubt increasingly fraught jury in deadlock, or, on the other hand, to succumb against his or her oath and contrary to his or her duty to the majority position: see s 72A of the Jury Act 1977 (NSW). The third juror's discharge on medical grounds appeared to have been brought about by the pressure which this apparently inescapable moral dilemma presented, and followed quickly on the heels of the discharge of another juror. For the reasons given by Bellew J, this was apt to and, with hindsight, did lead to the conversion of what was likely to be a hung jury of 10 to a unanimous jury of 9, an outcome permitted under s 22(a)(iii) of the Jury Act in a trial of longer than 2 months duration. In these circumstances, I agree with his Honour that the whole of the jury should have been discharged on the discharge of the third juror. The discharge of the third juror in the particular circumstances of this trial generated the risk of a substantial miscarriage of justice within the meaning of s 53C of the Jury Act. A majority verdict is not permitted in a jury comprising 10 or fewer jurors (see s 55F of the Jury Act) but in a functional sense, that is what in substance if not in form eventuated.
Jones gave evidence that on the following day, 30 October, the appellant contacted him again and asked to be collected. When Jones did so, the appellant was in possession of a plastic bag which contained a change of clothes. Jones drove the appellant to a location near the unit block where the appellant got out of the car, requesting that Jones wait for him to return. At about 11:00pm, the deceased entered the vicinity of the unit block accompanied by his daughter. Jones said that after approximately half an hour, the appellant returned and said words to the effect:
I felt like slapping the bitch. He was supposed to be there to fix it up.
On the Crown case, this statement was a reference to the appellant being misinformed by Spiteri-Ahern about the arrangements which had been made for the deceased to have access to his daughter.
Jones said that after the appellant had returned to the car, and at the appellant's request, he (Jones) drove to another location where, on the Crown case, the appellant contacted Spiteri-Ahern in order to clarify the deceased's whereabouts. Following that, the appellant asked Jones to drive him back to the area of the unit block where, upon arrival, the appellant got out of the vehicle whilst Jones waited behind.
By the time the appellant arrived at the unit block, the deceased was leaving the area in the company of Archbold. Archbold's evidence was that the deceased was unarmed when they left, and that upon seeing the deceased the appellant fired a number of shots towards him. On Archbold's account, the deceased reacted by chasing the appellant, whilst Archbold ran to her car to take cover. According to Archbold, the chase ended with the appellant and the deceased in the vicinity of the car, at which time more shots were fired. Archbold got out of the car to assist the deceased, who fell to the ground with Archbold cradling him. At that point, the appellant ran from the area.
Jones gave evidence that he heard gunshots whilst waiting for the appellant, who returned to the car shortly thereafter. The appellant and Jones then drove away, in the course of which the appellant told Jones that he had "fucked up". During the trip, the appellant changed his clothing and left a bag containing his original clothing in Jones' car, requesting that Jones burn it.
The following morning, 31 October, Jones learned through the media of the deceased's shooting. He contacted the police, who made arrangements to seize his car. Jones spoke with the appellant on 1 November, at which time he told him that the car, containing the appellant's clothes, had been seized. In a statement relied upon by the Crown as an admission, the appellant replied:
You fucked me. I'm going to do 25 years now. I'm fucked.
The Crown also relied on the evidence of Marko Pehar (Pehar) that on 3 November 2013 the appellant had asked him to contact Spiteri-Ahern and request that she pay the sum of $4,000.00. On the Crown case, this money was the payment due to the appellant for shooting the deceased.
In the course of the investigation, conversations between Zraika and Barber were recorded by police, during which Zraika was said to have made statements indicating that he had knowledge of Barber's involvement in the deceased's shooting. Based on this evidence, the Crown alleged that Zraika was guilty of concealing a serious indictable offence.
The appellant took no issue with Jones' evidence that when he returned, he changed his clothes and left his discarded clothes in Jones' car. He said that he kept possession of the firearm but disposed of it shortly afterwards in an attempt to disassociate himself from the shooting. He said that he was unaware at the time whether the deceased was injured, and that he was concerned that he might be charged as a consequence of being in possession of, and discharging, a firearm.
The appellant also took no issue with the statement attributed to him by Jones upon finding out that Jones' car had been seized by the police. Similarly, he took no issue with the fact that he had an association with Spiteri-Ahern. On his case, that association had originated as a consequence of his supplying Spiteri-Ahern with quantities of prohibited drugs, following which a friendship had developed between them, in the course of which the appellant had loaned Spiteri-Ahern an amount of money. The appellant said that after the shooting, he did not want to have any direct contact with Spiteri-Ahern. As a consequence, he had asked Pehar to assist him in recovering the sum of $4,000.00 which he maintained was owing to him by Spiteri-Ahern.
In the third part of the summing-up, which the trial judge described as consisting of "some instructions not falling within the previous two groups and some advice as to the drawing of inferences", [14] the jury were directed in the following terms: [15]
The first instruction is by way of reminder that the choice of some of the accused not to give evidence cannot be used against them. …. In choosing not to give evidence, Ms Spiteri-Ahern, Ms Barber and Mr Zraika are simply exercising rights all of us have. And when you think about it, if the exercise of that right could be regarded as some evidence against them, the right would be meaningless and, in effect, cease to exist.
You cannot, and I tell you this as a matter of law, use the fact that they have not given evidence in any way, shape or form, against them. And if you think about it, you will appreciate that, if it could, then, effectively, the right would just not exist. They have a right to stay silent and say the Crown has to prove its case.
It should be noted at this point that unlike the three co-accused, the appellant did give sworn evidence in his case. However, his Honour did not direct the jury, be it at this stage of the summing-up or at any other time, as to how the appellant's evidence should be approached and evaluated, bearing in mind that the onus of proof was on the Crown.
His Honour subsequently commenced to summarise various aspects of the evidence by reference to specific topics. Those topics, and the general structure of his Honour's summing-up, are considered further in the context of ground 2. However, in the course of dealing with one such topic, defined as "The shooting and post-mortem", his Honour said: [16]
Now let me go to the first topic, the shooting and post-mortem. There is no doubt he was shot on the night of 30 to 31 October and it was the shooting which caused his death. ….. Now the position of the wounds and the trajectory of the bullet are matters not in dispute and you may think they give you a good idea of where the gun was relative to the deceased when it was discharged. That may also help you to reach some view as to where the gunman was and help you in making a decision between the quite different accounts of Miss Archbold and [the appellant] (my emphasis).
In the context of addressing the same topic, his Honour said: [17]
Also to be borne in mind is the evidence of Mr Crowther and Sergeant Moynihan to the effect that it appeared that Mr Crowther's car, he living over the road, had been hit by a bullet. Although absolute positions might be unable to be determined, nevertheless, the matters to which I have referred are not in issue and I have said may help you to decide between the different accounts of Ms Archbold and [the appellant] (my emphasis).
A short time later, in addressing the head wound sustained by the deceased, his Honour said: [18]
Given that, on the accounts given by Ms Archbold and Ms Haile [sic], there was some sort of struggle between [the appellant] and the deceased, it may be that the head injury, even if caused by the butt of a gun, does not argue persuasively in favour of either account and that is a matter for you (my emphasis).
In addressing a further topic, defined as "Details of events in the car park", the trial judge made reference to Archbold's account on the one hand, and the appellant's account on the other, in terms of what each had said had occurred at or about the time the deceased was shot. In doing so, his Honour said: [19]
Let me go to my second topic: Details of events in the car park. The Crown case commenced with the evidence of Ms Archbold as to what happened in the car park. When he gave evidence [the appellant] gave a different account. Both accounts cannot be right and clearly inconsistency is one of the major issues which you have to address (my emphasis).
A short time later, having addressed aspects of Archbold's evidence, his Honour said: [20]
[The appellant's] account was radically different (my emphasis).
His Honour then said: [21]
As I said, the position described and indicated by [the appellant] is such a long way from where Ms Archbold said the deceased ever went that both versions cannot be right (my emphasis).
His Honour then summarised aspects of the appellant's account of what had occurred, at the conclusion of which he said the following: [22]
Is there anything to help you decide between these two versions?
Obviously any conclusions you reach as to the respective credibility of Ms Archbold and [the appellant] may do so, as may any conclusion you reach as to whether the deceased was dealing in ice, or whether there was a joint criminal enterprise, as may the evidence of [Tom Jones] and Mr Pehar. But is there anything in the accounts themselves or in the circumstances of the shooting? I already suggested you consider the entry wound of the bullet and its trajectory and the evidence of Mr Crowther.
You should, as [counsel for the appellant] suggested, consider the lighting in the car park. Consider the inherent likelihood of the three persons present doing each of the things attributed to them by one or other of the witnesses' account. For example, the call 'you motherfucker'. That may suggest, it is a matter for you, something must have occurred before those words were uttered. That is the sort of thing which I suggested you have a look at when you are trying to make a judgment between competing versions.
My suggestion is you consider the individual actions said to have occurred one at a time and say, "Well, now, do I think that's likely? Do I think that's credible?", or whatever other conclusion you come to (my emphasis).
At that point counsel went on to make a further application which I have considered in the context of ground 2 below.
The following exchange then took place between the Crown and the trial judge: [25]
CROWN PROSECUTOR: In respect of the Liberato direction - -
HIS HONOUR: I don't need to hear you any further on the topic.
CROWN PROSECUTOR: One other matter, your Honour.
HIS HONOUR: I'm sorry, Mr Crown, perhaps it was premature, but I did have a look at the Bench Book where [counsel for the appellant] suggested that I look and the notations there in the case of the Liberato direction where the jury is given clear directions regarding the onus and standard of proof, Liberato-type direction may be unnecessary. I believe I gave them clear directions in that respect.
The passage goes on, "If there's no suggestion of a choice between conflicting cases, a Liberato direction is not required" . There is a conflict here. I accept that.
The next paragraph, 3610, which deals with the Murray direction, applies where there is one witness essential to the Crown case. Well, in my view, this is not that sort of case. Where the issue is self-defence the Crown relies on three witnesses or topics: One, Ms Archbold; two, [Mr Jones]: three, the evidence concerning drugs.
CROWN PROSECUTOR: And four, Mr Pehar, because the Crown relies upon that conversation after the event as containing admissions as well.
HIS HONOUR: The matters I've outlined are the ones that make me disinclined to give a Liberato or Murray direction. Do you suggest I should do so?
CROWN PROSECUTOR: I agree with your Honour that you should not.
HIS HONOUR: Very well.
In rejecting the application for a Liberato direction, the trial judge said the following in ex-tempore reasons: [26]
It was also suggested that I should give the jury some Liberato and/or a Murray direction. I decline to do either. I do so because the circumstances of this case, in my view, do not bring the principles referred to in those cases into operation.
I take the view that the fundamental directions I gave to the jury at the commencement of my summing-up were clear, were emphasised, and some of them, particularly dealing with the onus and burden of proof were included on every page of my written directions to the jury.
Secondly, this is not a case where it is one witness against the accused. The Crown case depends on, and has at least four strands or witnesses in it: One is Ms Archbold; a second is [Tom Jones]; a third is the evidence concerning the likelihood of the deceased having been dealing in ice or buying it from [the appellant]; and a fourth concerns the pattern of phone calls.
True it is that, to an appreciable degree, that evidence is directed to the question of self-defence; nevertheless, in my view, it is quite sufficient to take the case well away from the circumstances in which it is regarded as appropriate to follow either of the Liberato or the Murray direction which I was asked to give.
In Murray v The Queen [31] the accused had been convicted of murdering the deceased by shooting him. The accused admitted having pointed a gun at the deceased with the intention of frightening him, but denied having deliberately pulled the trigger. In the course of her summing-up, the trial judge drew the jury's attention to the prosecution and defence cases and instructed the jury that it was necessary "to decide which versions of those events" was to be accepted.
The plurality [32] allowed the accused's appeal against his conviction. Gummow and Hayne JJ said: [33]
[57] Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused's evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
Gaudron J said: [34]
Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury's determination with respect to murder as the question whether it accepted the prosecution's or the appellant's version of events. That was the central or critical direction in her Honour's summing up. And as the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility, that direction misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. Accordingly, the appeal should be allowed on that ground.
In Douglass v The Queen [35] the accused had been convicted of the aggravated indecent assault of his granddaughter. The only evidence of the commission of the offence came from the victim, and the accused gave evidence denying the victim's account. In allowing an appeal against conviction, the plurality said the following: [36]
[12] … It was an error to view (as the Court of Criminal Appeal did) the appellant's trial as reducing to a case of "word against word". It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt.
Their Honours went on to cite, with approval, the passage from the judgment of Gummow and Hayne JJ in Murray extracted above. [37]
In De Silva v The Queen [38] the accused had been convicted of two counts of rape. He did not give evidence at his trial but had made a number of exculpatory statements to police which were admitted into evidence. The trial judge was not requested to, and did not, give a Liberato direction. It was argued on appeal that the failure to give such a direction was an error. Whilst concluding [39] that when the summing-up was read as a whole, the trial did not miscarry by reason of the omission of a Liberato direction, the plurality [40] made a number of observations as to the circumstances in which such a direction might be appropriate. Those observations included the following: [41]
[9] Whatever may have been the practice when Liberato was decided, in Murray v R this Court made clear that it is never appropriate for a trial judge to frame the issue for the jury's determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt. In light of Murray, the occasions on which a jury will be invited to approach their task as involving a choice between prosecution and defence evidence should be few.
[10] This is not to say that the occasions calling for a Liberato direction should be few. The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.
[11] The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused's answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused's answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.
Their Honours went on to observe: [42]
… [I]t is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
Although the judgment in De Silva was delivered after the appellant's conviction and sentence, it was not suggested by either party before this Court that such judgment materially changed the law set out the in various authorities which preceded it. In my view, the following propositions may be distilled from those authorities, as well as from the judgment in De Silva.
First, it is never appropriate for a trial judge to frame the issue for a jury's determination as one which involves the making of a choice between conflicting Crown and defence evidence. In a criminal trial, the issue is always whether the Crown has proved its case beyond reasonable doubt.
Secondly, a direction of the kind postulated by Brennan J in Liberato will be appropriate for the purposes of reinforcing directions as to the onus and standard of proof in any case where, absent such a direction, there is a risk that the jury may be left with an impression that:
1. the evidence upon which the accused relies will only give rise to a reasonable doubt if that evidence is believed as truthful; or
2. a preference for the evidence led by the prosecution is sufficient to establish guilt.
Thirdly, if such a direction is considered appropriate, it should be given in terms which make it clear that:
1. a preference for the evidence led by the Crown is not a sufficient basis for a finding of guilt;
2. the jury must not convict the accused unless satisfied, beyond reasonable doubt, of the truth of the evidence relied upon by the Crown;
3. if the accused's account is accepted, a verdict of not guilty must follow;
4. if the accused's account is not accepted, but the jury consider that it might be true, a verdict of not guilty must follow;
5. if the accused's account is not accepted, it should be put to one side, and the question will remain whether the Crown, on the basis of the evidence that is accepted, has proved the guilt of the accused beyond reasonable doubt; and
6. even if evidence given by an accused is not positively believed, the jury must nevertheless acquit the accused if that evidence gives rise to a reasonable doubt about his or her guilt.
Bearing in mind these principles, and for the reasons that follow, I am satisfied that this ground of appeal is made out in the present case.
The trial judge appropriately directed the jury, both at the commencement of his summing-up and at its conclusion, that the Crown bore the onus of proof. However, it remains the case that on a series of occasions in the course of a summing-up which extended over a number of days, the trial judge directed the jury in terms which, expressly or by implication, framed the issue for the jury in terms of the requirement for a choice between the evidence of Archbold and the evidence of the appellant. Those directions were erroneous. The authorities to which I have referred make it clear that framing the issue in such terms is never appropriate, for the simple reason that doing so has the clear tendency to obscure the fundamental fact that in any criminal trial, the issue for the jury is whether the Crown has established its case beyond reasonable doubt. I should also say that his Honour's direction to the jury that they should ask themselves "Why should [Archbold] lie?" was also an error, for the reasons I have expressed in considering ground 2 below.
There was a clear risk that the jury may have understood that their task involved choosing between the two competing accounts. Unfortunately, that risk was created by the terms of the directions which his Honour gave, and which are set out in the passages above. Moreover, that risk was heightened, and the identified errors of the trial judge compounded, by the fact that at no stage was the jury directed as to how the sworn evidence of the appellant was to be assessed, and how that assessment was to be undertaken bearing in mind the fact that the Crown bore the onus of proof.
These errors were further compounded by the trial judge's error in refusing to give the Liberato direction which had been sought. The basis of that refusal was his Honour's assessment that the circumstances of this case did not "bring the principles referred to in [Liberato] into operation" because this was not a case of "one witness against [the appellant]". Analysing the case in that way may have been correct in the (very technical) sense that there were a number of witnesses called by the Crown who gave evidence as to the circumstances in which the deceased was shot and killed. However, such analysis completely overlooked the fact that there were only two eyewitnesses to the deceased's murder, namely Archbold and the appellant. His Honour's repeated directions as to the necessity for the jury to decide or choose between their respective accounts effectively framed the case as one in which there was indeed "one witness against [the appellant]". Accordingly, the analysis of the case that had been conveyed by his Honour's directions was precisely the analysis, the disavowal of which was used by his Honour as a basis for concluding that a Liberato direction was not warranted.
In the course of oral submissions before this Court the Crown relied upon the decision of the Western Australian Court of Appeal in De Pledge v Western Australia [43] to support the proposition that because the Crown had brought an alternative case against the appellant, a Liberato direction could not have been crafted, and that such a direction was therefore not appropriate. I do not accept that to be the case. The fundamental conclusion reached by the Court in De Pledge was that a Liberato direction was not required because there was no conflict between the accounts of any prosecution witness and the accused. [44] Because there was no conflict, there was no risk that the jury might have viewed their task as one which required them to choose between competing accounts. That, without more, distinguishes the circumstances in De Pledge from the circumstances of the present case.
Having reached that conclusion, the Court went on to state the following in a passage on which the Crown before this Court particularly relied: [45]
…. Any form of Liberato direction would need to have been modified to identify the particular parts of the appellant's evidence which, if the jury believed them or thought they might be true, would lead to a not guilty verdict. The task of identifying relevant parts of the appellant's evidence would be significantly complicated by the evaluative nature of the questions posed for the jury's consideration. Whether a failure to positively reject particular evidence would lead to a not guilty verdict would depend in part on the jury's evaluative assessment of the dangerousness of driving in a particular manner. A Liberato direction modified to the circumstances of this case would have been likely to have been so complicated and qualified as to have run a risk of confusing the jury rather than to clarify directions on the onus of proof.
In light of the Court's conclusion that the circumstances of the case did not warrant a Liberato direction being given, this passage of the judgment should be viewed as obiter. In any event, and even allowing for the alternative case brought by the Crown against the appellant, a Liberato direction was clearly able to be formulated in the present case, whilst preserving the Crown's alternative position. There was no suggestion to the contrary on the part of the Crown when opposing the direction at the time. Further, and more importantly, if the circumstances of a particular case are such as to require a Liberato direction, the fact that such a direction may require some modification to suit those circumstances is highly unlikely to ever justify a decision not to give such a direction at all.
For all of these reasons, this ground is made out.
In addition to putting these (and other) specific submissions, counsel for the appellant mounted, as one might have expected, an attack on the evidence of Archbold. That attack was extensive and covered, in considerable detail, numerous aspects of Archbold's evidence of what had occurred on the night of the shooting. [57]
The trial judge then commenced the second part of his summing-up by distributing written directions to the jury setting out the elements of each offence. Those written directions were then supplemented by oral directions. [63] His Honour then commenced the third part of his summing-up [64] in which he gave the jury a number of specific directions in relation to discrete issues including the choice of the three co-accused not to give evidence, expert opinion evidence, unreliable evidence, lies, and the drawing of inferences. But for the fact that no direction was given to the jury regarding the appellant's evidence and how it should be assessed, the second and third parts of the summing-up are, of themselves, generally uncontroversial.
In commencing the fourth part of his summing-up, his Honour said: [65]
Now I am going to split this summing-up also into a variety of topics in the hope that by doing so I can provide some assistance to you and my suggestion is that when you, at least at some stage in your deliberations, you consider the evidence in effect, topic by topic, perhaps the ones I have picked, perhaps others, but clearly discussion between you is not going to be advanced if you try and talk about half a dozen different things at the one time.
The topics identified by his Honour for the purposes of this part of his summing-up were: [66]
1. the shooting and post-mortem;
2. the details of events in the car park;
3. the evidence of Jones and Pehar;
4. the evidence of the deceased's drug dealing; and
5. the issue of self-defence.
In addressing the first of those topics his Honour said: [67]
[Counsel for the appellant] criticised Ms Archbold's account of the number of shots quite trenchantly. He asserted on I think seven occasions that she had referred to ten shots. She did not. She referred to one group of three shots and then another group of "about seven". It is a matter for you what number or numbers are embraced within the expression "about seven", but she clearly did not assert that she had heard ten (my emphasis).
His Honour then said the following about Archbold's evidence: [68]
Subject to what anyone may say, I am not going to spend a great deal of time referring to all of the details of Ms Archbold's evidence as to what happened. What occurred is intimately bound up with the question of who brought the gun to the site and I doubt that your decision is likely to depend on Ms Archbold's recollection of the less significant details of what occurred during what must on any view have been to her a very stressful event and during some of which she said she had her head down in the car. She agreed that events that night were a blur and that her thoughts were jumbled. At another stage she said her mind was a complete jumble that night. Detective Mason said that when the recorded interview with Ms Archbold occurred, she was extremely distressed. At one stage in evidence Ms Archbold said she was sure of the events of the night but her recollection of the order of them was not the best.
However, there are differences between Ms Archbold's and [the appellant's] account of what occurred that seem to me to be more significant and I shall refer to them.
His Honour then made reference to what he apparently perceived were inconsistencies between the evidence of the appellant and evidence given by other witnesses called by the Crown. For example, in dealing with the evidence of Tom Jones, his Honour said: [69]
On the following day when he told [the appellant] that the police had his car and clothes, [the appellant's] response was to the effect: "You fucked me, I'm going to do 25 years, now I'm fucked". At one stage [the appellant] agreed this was possibly said; at another stage he agreed it was said (my emphasis).
A short time later, in respect of the same issue, his Honour said: [70]
[The appellant] agreed he made the statement about doing 25 years, at least at one stage he agreed (my emphasis).
In addressing the appellant's drug dealing activities, his Honour said: [71]
[The appellant] said that the deceased had regularly purchased cannabis two to three times a week and that he personally would have delivered pot to the deceased in 2012 at least 20 to 30 times. [The appellant] said he also delivered cannabis to the deceased in the August to October 2013 period and there were times he would "usually sit back and talk to the deceased because at that time I wanted [the deceased] to work for me", transcript 2178. This would occur at the front of a house in Merrylands.
Later in his evidence [the appellant] said it was in 2012 that he tried to persuaded the deceased to be runner and not, as he had said earlier, 2013. I invite correction, but I think there is no explanation for the inconsistency in dates (my emphasis).
In respect of the appellant's knowledge of the deceased's address, his Honour said: [72]
[The appellant] gave somewhat inconsistent evidence as to his knowledge of the deceased's address. He said he had delivered drugs to the car park a couple of times previously; transcript 2195. At 2327 he said, "I knew the unit number. I'd been there before, met him at the front before", and as transcript 2367 he said he did not know the unit number (my emphasis).
As to the events on the night of the murder, and the appellant's assertion of self-defence, his Honour said: [73]
Now, as I said, there was no suggestion that, on the night or on the occasion where [the appellant] said he was fucked, there was no suggestion by [the appellant] that he had to defend himself against the deceased and no suggestion made during [Tom Jones'] evidence, although I should mention that, in his own evidence, [the appellant] asserted he had remarked to [Tom Jones]: "Don't worry, the prick tried to get me" (my emphasis).
Later in the summing-up, his Honour addressed criticisms of Archbold's evidence which were the subject of submissions to the jury by counsel for the appellant. His Honour scrutinised some of those submissions in a way which openly questioned the weight which might be given to them. For example, his Honour said: [74]
Now, apart from accepting her time estimate, to which I have just referred, [counsel for the appellant] was very critical of Ms Archbold's evidence, submitting that it was, in many parts, completely unbelievable and on a number of topics she was lying. He asked how can you rely on anything she said for a finding of guilt beyond reasonable doubt.
One topic he went to was the number of shots and groups of shots and I said something about this earlier in my summing-up.
He referred also to later statements she had made the police in which she endorsed her first account, submitted that she lied, would not accept the fact that her evidence of two lots of shots and about ten shots was accurate and then dug herself deeper in.
He took issue with the number of shots, as I have said, and Ms Archbold's evidence that she saw the gun and it was a pistol. Certainly, there is a deal of evidence of what she said in these respects is wrong, but it is fair to ask yourself why she should lie in respect of such matters.
I have previously noted in my consideration of ground 1 [75] that his Honour also posed the question, "Why should (Archbold) lie?" in his final directions to the jury.
In addressing other aspects of the appellant's evidence, his Honour said: [76]
[The appellant's] evidence raises an appreciable number of obvious questions.…… I leave you to reflect on the other questions that arise.
His Honour also addressed one aspect of Pehar's evidence when he said to the jury: [77]
[The appellant] also agreed, transcript 2428, that he had not said to Mr Pehar that the deceased had tried to get him or had pulled a gun on him. What significance you give to that absence is a matter for you (my emphasis).
His Honour's summing-up also questioned the approach which had been taken by counsel for the appellant to the cross-examination of various witnesses. For example, when addressing aspects of the cross-examination of Archbold, his Honour said: [78]
All right, then. I will move on to another one. This is relevant to the question of association between [the appellant] and the deceased. It is relevant to the question of the extent to which Ms Archbold was in the deceased's company. It is relevant to the question of the supply or possible supply of ice by [the appellant] to the deceased.
The evidence that I am going to take you to will firstly be some evidence in the cross-examination of Ms Archbold then later to the evidence of [the appellant].
It is a matter for you, but I think you will conclude that Ms Archbold did not agree with some of the questions which [counsel, the appellant] put to her, presumably on instructions. When [the appellant] gave evidence, it is a matter for you, the question arises did his evidence accord, not with the questions originally put to Ms Archbold, or the tenor of those questions, but with the evidence she had finally given (my emphasis).
His Honour concluded his summing-up by reminding the jury of some of the submissions which had been advanced by counsel for the appellant in his closing address. [79] That summary was bereft of any reference to a number of the principal submissions put by counsel to the jury which I identified above.
In considering the effect, on the jury, of what his Honour said in the passages extracted above, it is important to note that the transcript of the summing-up records a number of instances in which the foreperson of the jury interrupted his Honour and asked him to repeat matters, and/or slow down the speed at which he was speaking. [80] The only available conclusion is that at least some of the members of the jury were taking contemporaneous notes of, and thus closely following, what his Honour was saying.
In rejecting both applications, his Honour said the following in ex-tempore reasons: [89]
I do not propose to acquiesce in either of those applications. In my view, I have no doubt, if any of the accused are convicted, the Court of Criminal Appeal will be given an opportunity of considering this conclusion. The summing-up was not unbalanced. Certainly a deal more of the summing-up concerned the Crown case, then the defence case, but that is to be expected when the evidence in the Crown case very considerably exceeds that which is adduced in the defence case.
Reference was made to the time which I apparently took to summarise the contentions of counsel for the accused near the end of my summing-up. That calculation or assessment of the situation took no account, obviously, of the very extensive reference through earlier parts of my summing-up to evidence which was adduced from [the appellant] and, to a lesser extent, from other defence witnesses, nor did it take into account any other matters I had referred to in the earlier part of my summing-up which could be regarded as favourable to the defence cases.
Reference was made to some remarks or observations I made concerning some submissions of [counsel for the appellant]. One topic that I specifically mentioned concerned those parts of his address as referred to the number of shots which Ms Archbold said had been fired. In my view, [counsel for the appellant's] reference to that evidence misrepresented it and placed a deal of emphasise [sic] on his misrepresentation by referring, as he did, some seven times to "ten shots" when the evidence quite clearly supported "about ten".
I also spent a deal of time on the evidence of [Tom Jones]. I did so because I thought, again, that [counsel for the appellant's] summary of the evidence which [Tom Jones] had given was unfair. But whether those individual components of my summing-up be as I have indicated, I am satisfied that it was not unfair to the accused in light of the totality of the evidence which was given.
The application that I withdraw those parts of my summing-up that has dealt with the evidence should be refused on similar grounds, but it also should be refused because it is utterly impractical to think that a jury could disregard what I have said on the topic of evidence during my summing-up, but take note of what I commenced to say from this time onwards on that evidence.
In the circumstances of the present case, it is necessary to make specific reference to one further proposition. A trial judge's discretion to comment on the facts should be exercised with circumspection, to the point where, unless there is a specific need to do so, the wise course will often be not to comment at all. Any comment a trial judge does choose to make must exhibit a judicial balance, so that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. Comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury carry the risk of occasioning a miscarriage of justice, particularly when they amount to expressions of opinion as to the determination of disputed issues of fact. [98] There is also a degree of tension between a judge commenting on the facts, and then cautioning the jury that any opinion which might be apparent as a result should not influence them, to the point where it may become questionable whether there is any point in the comment having been made at all. As was said in R v Pavlukoff: [99]
It seems an absurdity for a Judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury, then why give his opinion to the jury? To a person who is not a lawyer, but has some training in the science of correct thinking and some knowledge of the workings of the human mind, a Judge who expresses his own opinions to the jury is in effect unconsciously perhaps but nevertheless subtly and positively undermining the plain instruction he has given to the jury that 'the facts are for them and not for him'; in reality he is in true effect attempting to persuade the jury not to exercise their own minds freely (as in law he has told them they must do) but instead to be guided by the factual conclusions he volunteers to them.
A determination of whether a comment goes beyond the bounds of what is permissible will generally depend upon its extent and content.
In my view, for the reasons that follow, the summing-up of the trial judge in the present case contravened a number of the principles set out above. In particular, the comments made, and the views expressed, by the trial judge regarding the evidence, the facts, and the appellant's case generally, extended well beyond what was permissible. The end result is that when it is viewed as a whole, the summing-up was lacking in balance, and was unfair to the appellant.
To begin with, his Honour's indication that he would not spend "a great deal of time" dealing with Archbold's evidence was, to say the least, a somewhat curious approach given the importance of Archbold's evidence to the Crown case, and the attack made upon her evidence by counsel for the appellant in his closing address to the jury. However, contrary to that initial indication, his Honour proceeded to spend a considerable amount of time addressing aspects of Archbold's evidence. Some of the passages in which he did so, and which are set out above, [100] demonstrate that his Honour addressed that evidence in terms which were pejorative towards the appellant, and which had a clear tendency to question the reliability of, and generally undermine, the appellant's case.
The unfairness which resulted was compounded by his Honour repeatedly asking the question, "Why should (Archbold) lie?" Asking such a question on a single occasion would have been entirely inappropriate. [101] The fact that it was asked on several occasions, one of which was in the course of that part of the summing-up in which his Honour was summarising the submissions put by counsel for the appellant, simply exacerbated its prejudicial effect.
Further, even accepting that a degree of leeway is permitted in terms of the structure of a summing up, the length and complexity of the present case demanded that there be a specific and clearly articulated summary of the appellant's case, and the evidence relied upon to support it. No part of the summing-up answers that description. Rather, as will be evident from the passages set out above, many of his Honour's references to the appellant's evidence were interposed with expressions of his Honour's personal opinions, the vast majority of which questioned the reliability of the appellant's case, and highlighted what the trial judge obviously viewed as inconsistencies in the appellant's evidence. Some of those expressions of opinion were openly disparaging of the appellant's case, his Honour at one point expressing the view that such case raised "an appreciable number of questions", before inviting the jury to "reflect on the other questions which arise". [102] His Honour made those comments without clearly articulating what the "questions" were said to be, and how they were said to arise.
These various expressions of opinion contributed to a summing-up which was unfair to the appellant. They gave rise to a real risk of the jury forming the impression that his Honour was simply advancing views of the evidence which were adverse to the appellant's case. [103] That risk was not, in my view, ameliorated by his Honour's direction to the jury as to how any comment he might make as to the facts should be treated. There is a clear danger that the expression of personal views of the kind repeatedly expressed by his Honour in the present case will overawe a jury, even in the face of conventional directions (of the kind his Honour gave) that the facts are for the jury's determination. [104] Significantly, those personal views were expressed by his Honour in circumstances where he expressly acknowledged an expectation that much of what he was going to say would be "contentious". [105] That, without more, was reason to refrain from expressing such personal views at all.
Further, having read the transcript of the Crown's closing address, I can find no reference to the Crown having made any submission to the jury based upon an asserted inconsistency arising from the applicant's evidence as to what he had said when informed that Jones' car had been seized, or an asserted inconsistency arising from the applicant's evidence as to his previous drug dealings with the deceased. Notwithstanding that, his Honour expressed the view to the jury that such inconsistencies arose on the evidence. [106] Those expressions contravened the principle that except in limited circumstances (which have no application in this case) a trial judge should not, in the course of a summing-up, put propositions in support of the Crown case which were not relied upon by the Crown in the closing address. For his Honour to have done so was entirely inconsistent with judicial impartiality. [107]
Moreover, and even accepting that the obligation of the trial judge did not extend to a requirement to summarise every aspect of the appellant's case, the approach taken by his Honour to addressing the submissions put by counsel for the appellant to the jury was, with respect, perfunctory. His Honour failed to refer to many of the substantive submissions which had been advanced by counsel, in considerable detail, in his closing address. The unfairness arising from that failure was made worse by the fact that when his Honour did refer to some of the submissions, he criticised them in terms which suggested that they ought not be accepted. [108] The unfairness arising from his Honour's failure to put the appellant's case properly and fairly was one thing. The inappropriate deprecation of some of the submissions of counsel to which his Honour did choose to refer, was quite another.
When giving reasons for rejecting the applications made on behalf of the appellant, his Honour accepted that he had spent more time addressing the Crown case than the appellant's case, and expressed the view that this did not support a conclusion that the summing-up was unbalanced. That conclusion was perfectly correct. The issue is not the length of time devoted to the case for the Crown or the accused, but the fairness, balance and impartiality of the summing-up as a whole. [109] However, for the reasons set out above, his Honour's summing-up was lacking in fairness and balance, to the point where it was unfair to the appellant. A miscarriage of justice has been made out because the appellant was denied a fair trial.
Finally, as I have noted, [110] when giving reasons rejecting the applications made on behalf of the appellant, his Honour made reference to the fact that in the event that the appellant or any of his co-accused were convicted, this Court would "be given an opportunity of considering" whether the summing-up was unbalanced or otherwise unfair. That was entirely irrelevant to the issue that his Honour was being asked to determine.
For all of these reasons, this ground is made out.
His Honour then informed the remaining members of the jury that in their absence, he had ordered that the trial continue with a jury of 11. [120] That jury of 11 persons subsequently retired to commence deliberations on 20 May 2016. [121]
I have considered that direction, and its effect on the events that followed, further below. At this stage it should simply be noted that the terms of the direction which was given were, as his Honour had foreshadowed, not in accordance with the form of suggested direction set out in Black v The Queen. [125] In particular, the direction was bereft of any reference to the fact that this Honour had the power to discharge the whole jury in the event that a unanimous verdict could not be reached.
Following that direction, the jury of 11 continued to deliberate for the balance of 1 June 2016 without reaching a unanimous verdict.
The Crown did not oppose the discharge of the second juror, but did oppose the application to discharge the entire jury. In doing so, the Crown described as "pure speculation" any suggestion that the second juror was seeking to excuse themselves for the reasons advanced by counsel for the appellant. [129]
In ordering that the second juror be discharged and that the trial continue with a jury of 10, his Honour said the following in ex-tempore reasons: [130]
I have received a medical certificate, the contents of which I read out earlier and which are recorded indicating that one of the jurors is suffering from stress and containing the recommendation from the author of the medical certificate that the juror be excused from active jury duty. In my view, given the terms of the certificate, I should excuse that juror from further involvement in the trial.
Some weeks ago I excused one other juror and that means there are ten remaining. The question arises whether I should discharge the whole of the jury panel [sic] or leave the ten remaining jurors to consider the verdict or verdicts which arise as an incident of the trial.
The trial has now run for something of the order of three months. The Jury Act envisages that a verdict may be returned by no more [sic] than ten and, indeed, fewer jurors and, in the circumstances, it seems to me that I should direct that the trial continue with remaining jurors.
In reaching that conclusion, I have obviously taken into account the terms of the note concerning the stressed juror, but I am not persuaded that the trial should not continue; indeed, I am of the view that it should.
When the 10 members of the jury returned to Court at 11:17am, his Honour said the following: [131]
Members of the jury …. it won't have escaped your attention that one of your number or a second of your number is not present today. I have received a medical certificate in relation to the juror and have decided to excuse him from any further involvement in this trial. I have also decided that the trial should continue with the remaining ten of you.
The jury (now a jury of 10) then resumed deliberations which continued until 4:00pm that day without reaching a verdict. [132]
In light of the views that I have reached in relation to this ground, it is noteworthy that although his Honour told the jury (in the italicised portion of the passage above) that he had the power to "excuse one of the jury", the jury were (and remained) unaware that his Honour had the power to discharge the entirety of the jury in the event that a unanimous verdict could not be reached. The purported Black direction which had previously been given had also omitted any reference to that power. [138]
The jury left Court at 11:10am. Sometime later (again, it is not precisely clear how long) his Honour received a further note which was in the following terms: [139]
The juror can continue being part of the jury today. Tomorrow the juror will see their own GP and will be able to provide a medical certificate to the Court early on Monday morning.
In the absence of the jury, his Honour said: [140]
Of itself, that note in my mind provides no reason why I shouldn't let the jury continue to deliberate. That said, the jury have now been out for nearly two weeks, and it seems to me, subject to what anyone may say, that the time has probably come for me to inquire of one or more jurors whether they think it is unlikely that the jurors will reach a unanimous verdict.
Counsel for the appellant, whilst expressing concerns about what he described as "this developing situation", did not oppose the course that his Honour foreshadowed. [141]
When the jury returned to Court at 11:42am, his Honour said the following: [142]
Members of the jury, I have received your further note saying that:
The juror can continue being part of the jury today and that tomorrow the juror will see their own GP and will be able to provide a medical certificate to the Court early on Monday morning.
I note that. I do not propose to further comment on that note at this stage.
However, I do think that the time has come where I should make some inquiries as to the progress of your deliberations and the Jury Act provides a methodology for the Court to follow in that situation.
I propose to ask two of you, the Foreman and perhaps the lady in the far corner, who is furthest removed from the Foreman and for no other reason, some questions.
The foreperson of the jury was then affirmed and gave the following evidence in answer to questions from his Honour: [143]
Q. I am now going to ask you a three-pronged question, so listen carefully, if you would, to the three prongs: Do you think it likely that the jurors will reach a unanimous verdict. Second prong: Do you think it unlikely that the jury will reach a unanimous verdict. Third prong: Do you not feel able to say "yes" to either of those questions. Do you need them repeated?
A. I think, yes, we will be able to reach a unanimous verdict.
……
Q. At the moment you are considering the situation of two of the accused?
A. (Witness nodded)
Q. Does your answer apply to each of the accused or only to one of them?
A. Only to one of them at this stage.
Q. Thank you. So far as the other accused is concerned, do you think it likely that you will reach unanimous verdict, do you think it unlikely you will reach unanimous verdict or do you not feel able to say?
A. I don't feel able to say.
A second member of the jury was then affirmed who gave the following evidence in answer to questions from his Honour: [144]
Q. Thank you. You heard the three-pronged questions that I asked the Foreman. I will ask it again. In respect of which ever accused you care to bear in mind initially, do you think the jury will be able to reach unanimous verdict, do you think it unlikely they will reach a unanimous verdict, or do you not feel able to say?
A. A unanimous verdict.
Q. Sorry?
A. I think we will reach - -
Q. A unanimous verdict?
A. Yes.
Q. For at least one of the accused?
A. Yes.
Q. What about the second of the accused? Do you think it likely you will reach unanimous verdict, unlikely or do you feel unable to say?
A. Unable to say.
Following this evidence, the jury were directed to continue their deliberations at 11:51am. [145]
At this point, counsel for the appellant made a further application that the jury be discharged in the following terms: [146]
… Your Honour, of course, can take individual verdicts and we have heard that the jury feel they can now come to a unanimous verdict. None of us know who that is in relation to. However, the submissions I was making before they came in have not, in my submission, lost any of their force because of those answers.
Since, if my concern is based on what is, in fact, occurring in the jury room, then one presupposes that the effect of untoward pressure is to come to a unanimous verdict.
Your Honour, I am concerned that the second note in two days running, after jury is told, your Honour, that they cannot agree, is a sign of pressure above and beyond what is ordinarily expected in the jury room. It is my application that you would discharge this jury.
Whilst the Crown opposed the application that the jury be discharged, the Crown acquiesced to his Honour reminding the jury that it was open to take separate verdicts. The Crown also suggested that the jury be reminded they were required to arrive at separate verdicts in respect of each individual accused. [147]
His Honour rejected the application to discharge the jury, saying the following in ex-tempore reasons: [148]
I'm not persuaded that at this stage I should acquiesce in [counsel for the appellant's] application that I discharge the jury. I'm not sure that the jurors' answers to my questions provide any argument for or against the course which [counsel] urges, but if those answers do give any indication, the indication I think they give is against the existence of any undue pressure.
The indications that the jury is not unlikely to reach a verdict, unanimous verdict, on at least one of the accused, leads me also to the view that I should not discharge them at this stage.
…
However, I am of the view that I should invite the jury, if they do reach a unanimous verdict in respect of any one of the accused, to inform us of that with a view to my receiving that verdict and leaving the jury to continue deliberating in respect of the other of the accused.
The jury returned to Court at 12 noon, at which time his Honour said the following: [149]
Members of the jury, in light of the notes which I have received and in light of the answers which two of your members gave to the questions I asked a short time ago, I think I should invite you, if and when you do arrive at a unanimous verdict in respect of one of the accused who you are presently considering, to bring in that verdict at that stage rather than defer bringing in any verdict, unless or until you have agreed on both or reached the conclusion that you will not agree on one of them. That is all I want to say at the moment. Yes, would you continue considering your verdicts, please.
The jury's deliberations then resumed at 12:03pm and continued, with the presence of the third juror, for the balance of that day. At the end of that day, no unanimous verdict had been reached. The proceedings were then adjourned until 6 June 2016.
Following that order being made, his Honour raised the broader question of whether the entire jury should be discharged. The Crown, by reference to s 22 of the Act, submitted that the trial should continue with a jury of 9. Having had his attention drawn by the trial judge to s 53C of the Act, the Crown submitted that proceeding with a jury of 9 persons did not give rise to a risk of a substantial miscarriage of justice, in circumstances where the jury were "continuing with their deliberations and doing their job diligently". [156]
Counsel for the appellant made an application that the jury be discharged. In doing so, counsel made the following submissions: [157]
On Friday, your Honour, after examining the jurors, your Honour was told Friday morning by the foreperson and the other juror that was examined; they expected they would be able to come to a verdict with respect to one of the accused. They did not for the rest of the day.
The only thing that has changed between now and then is one further juror, again, being discharged because of the stress and damage psychologically that whatever is going on in the jury room has done to him.
If now your Honour were to take a verdict, the difference now is that, in effect, we have a very real possibility that what was a nine-one deadlock on Friday, for example, is now a nine-nil unanimous verdict today, which is a de facto way of getting around the problem that the jury found insurmountable whilesoever that person was still there. I don't make that submission lightly.
It is clear that the jurors were very aware of what the problem was. They were also aware, no doubt, that the juror was suffering, and perhaps even that he had sought to be excused. The only difference between Friday at 11 o'clock on Monday at 11 o'clock is that the juror has disappeared.
So, if the jury now comes back with a verdict that they couldn't have come back with on Friday, because they didn't come back with one, the only real difference is that perhaps the dissenting voice has gone.
Your Honour, over and above that, clearly, there is a problem in the jury room. These are difficult issues, they have covered quite emotional matters of fact and events that have a substantial impact, not just on the accused, the family of the deceased and the accused's family but, obviously, also on the jury.
This has been an enormous burden placed on them and it seems, your Honour, that, by reasons of very real, human fragility that we now have come to a point where this jury should be discharged.
I appreciate that there is a very strong public interest in not discharging juries after trials of this length of this expense, especially when it means people are going to have to give evidence again. But, equally, your Honour, we have here, I submit, very real proof that it has had a deleterious effect on jury members and, therefore, clearly, on their ability to deliberate and to come to a conclusion in the ordinary course. I ask his Honour to discharge this jury.
In ex-tempore reasons refusing the application, his Honour said the following: [158]
Section 53C(1) of the Jury Act poses the criterion by which I am to judge whether the trial should continue or the jury should be discharged.
…
It is, I think, mere speculation, at this stage, to suggest that this juror's problems arise because a decision has been made in which he feels unable to join.
It has been made clear by me, both in the course of my original instructions to the jury, the relevant one of which fell within the stated category of fundamental, and also in the course of my Black directions that jurors were entitled to disagree with the views of others. I do not believe it is possible to predicate that this juror's problems arise because he is in fact disagreeing with the views of others.
I know nothing about the psychological make-up of this juror, as I knew nothing about psychological make-up of another juror who I earlier discharged on the basis of stress.
It is the fact that the jury, as constituted as it was on Friday, had the opportunity of bringing in a verdict concurred in by all of them.
During their evidence, two of the jurors on Friday morning indicated that they thought it likely the jury would reach a unanimous view in respect of one accused, but were unable to say what the situation was in respect of a second accused.
That evidence, of course, threw no light on what the nature of the unanimous verdict would be, or in respect of which of the two accused the jury are currently considering it was thought that unanimity was likely; nor did that evidence throw any light on the question of whether, in respect of the accused that the jurors felt unable to express a view concerning the verdict, whether that inability was due to disagreements by one or more than one of the jurors.
Section 55C(1) directs attention to "a substantial miscarriage of justice" or, rather, "the risk of a substantial miscarriage of justice". It says nothing about other factors which may argue in favour of the continuation of the trial, though the circumstances of this trial to date, namely that it has imposed emotional strain on both the accused and at least one of the witnesses and it has proceeded for in excess of something in the order of three months remains as a background - I put it no higher - against which a decision under s 53C(1) must be made. That said, I make my judgment upon the terms of s 53C(1).
I am not prepared to infer, from Dr Marinucci's report, and the reference therein to "the jury decision" that in fact the jury has made a decision; nor am I prepared to infer that the particular juror's symptoms are due simply to disagreement with the remaining jurors; as I think I have indicated, that seems to me to be speculation.
So far as one can judge, the remaining jurors are properly directing themselves to the task which has been put before them. Certainly, some of the issues are by no means easy of resolution and in the result I am of the opinion that there is no risk of a substantial miscarriage of justice and, in these circumstances, I order that the trial continue.
The transcript records that the jury (now a jury of 9 persons) returned to Court at 10:54am at which time, his Honour said: [159]
Members of the jury, I received or the Court has received, over the weekend, a medical certificate dealing with the situation of the juror who is absent for the first time today. I have discharged that juror, so would the rest of you, please, resume your consideration of the issues? Yes, you may retire again.
In the event that an individual juror is discharged, s 53C of the Act requires a separate determination to be made as to whether the trial should continue, or whether the entire jury should be discharged:
53C Discretion to continue trial or coronial inquest or discharge whole jury
(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must--
(a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or
(b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.
(2) A court or coroner that discharges a jury under subsection (1)(a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912 .
(3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order.
Senior counsel submitted that these circumstances gave rise to the inescapable inference that the second and third jurors had represented a dissenting view, leading to the conclusion that the verdict which was returned had resulted from the exclusion of such views. It was submitted that such a conclusion was fortified by the speed of the jury's verdict following the discharge of the third juror.
Senior counsel emphasised that at the time of the discharge of the third juror, a majority verdict was not permitted. However, senior counsel submitted that this was, in effect, the verdict which was returned once the third juror was no longer present. It was submitted that as a consequence of all of these circumstances, a risk of a substantial miscarriage of justice had arisen and that the trial judge was in error in not discharging the entire jury following the discharge of the third juror.
For these reasons, ground 3 is not made out.
I turn to grounds 4 and 5. Whilst these grounds overlap to a considerable degree, the essence of the complaint in both is that in the entirety of the circumstances which I have set out, his Honour erred in not discharging the jury after the discharge of the third juror. In considering these grounds it is convenient to commence by addressing some of the relevant statutory provisions, and the principles which govern their application.
Any determination that a jury be discharged following the discharge of an individual juror involves the exercise of the power contained in s 53C of the Act. Although the heading to s 53C makes reference to a discretion, the terms of s 53C(1)(a) are such that if the Court, having discharged a member of the jury, is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, the discharge of the jury is mandatory. In order to discharge the jury pursuant to that power, the Court does not have to be satisfied that a miscarriage of justice will eventuate, but only that there is a risk that this will be the case. The position was explained by Price J (with whom Hoeben CJ at CL and Fullerton J agreed) in Phan v R: [167]
Section 53C(1)(a) of the Jury Act imposes an obligation on a trial judge who discharges a juror in the course of a trial, to discharge the jury if the judge is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. However, if the trial judge is of the opinion that there is no such risk, the trial judge is required to order the trial continue with a reduced number of jurors as long as the numbers do not fall below the statutory minimum in s 22 of the Jury Act. The opinion is to be formed on all of the material then available to the Court.
Because the circumstances which may give rise to a substantial miscarriage of justice are difficult to define, [168] it is similarly difficult to formulate rigid rules governing the circumstances in which it may be necessary to discharge a jury because the risk of a substantial miscarriage of justice has arisen. [169] However, some guidance can be obtained from the decision of the plurality in Filippou v The Queen: [170]
By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal, which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description.
In Phan, Price J concluded that this definition applied to decisions pursuant to s 53C(1)(a), and that the overriding consideration must be the entitlement of the parties to a fair trial. [171]
The chain of events giving rise to grounds 4 and 5 can be taken to have commenced when the jury (then a jury of 11) indicated to the trial judge that they were unable to reach a unanimous verdict. It was at that point that the trial judge gave what purported to be a Black direction. In Black, the High Court considered the terms of the direction which should be given to a jury upon an indication being given to a trial judge that there is difficulty reaching a unanimous verdict. The plurality [172] observed that:
1. any such direction should clearly state that each juror has a duty to give a verdict according to the evidence;
2. it was proper to remind the jury that they should listen to each other's views and weigh them objectively; and
3. any individual juror could change his or her mind if honestly persuaded that his or her preliminary view was not well-founded.
The plurality [173] concluded that should the occasion arise, a trial judge should give a direction along the following lines:
Members of the jury,
I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict, but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree, if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.
Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.
Experience has shown that often, juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have ordered said, I ask you to retire again and see whether you can reach a verdict (my emphasis).
In the present case the trial judge expressed the view that the terms of the direction set out by the plurality were "extremely stilted", before stating that he preferred to use what he described as an "adaptation" of them. To describe the terms of his Honour's direction as an "adaptation" of what the plurality said is something of a misnomer. The direction his Honour gave departed from the terms adopted by the plurality in a material way. It completely omitted any reference to the fact that the jury could be discharged in the event that unanimity was not reached. That reference, which appears in the italicised portion of the passages from Black above, is an important component of the direction.
His Honour's material departure from the terms of the model direction outlined in Black was, to say the least, unfortunate. For the reasons developed further below, that departure contributed materially to the circumstances which have led me to the view that these grounds should be upheld.
There may be instances in which the suggested terms of a "model" direction require modification to suit the circumstances of the particular case at hand. However, instances in which such modification might be appropriate are, in my view, highly unlikely to ever include those in which a direction is required to be given to a jury in response to an indication that they are having difficulty reaching unanimous verdict. I am unable to envisage any situation in which, that circumstance having arisen, and a discretionary determination having been made that a direction is appropriate, a departure from the terms of the direction formulated by the plurality in Black would ever be warranted. On the contrary, giving a direction which departs from those terms is not something which should be encouraged. The circumstances of this case simply affirm the proposition, if indeed any affirmation were needed, that when the circumstances require a Black direction, the terms of the direction set out by the plurality in Black should be followed. The present case serves as a stark example of the problems that can arise when those terms are not followed. I should note that neither the Crown, nor counsel for any of the accused, took issue with the form of the direction that his Honour gave. Whilst the failure to do so was regrettable, I do not regard it as fatal to the appellant's position in respect of these two grounds.
Before going on to consider the effect of what followed after this direction was given, it is necessary to refer to some further authorities.
In BG v R [174] Adamson J considered the power in s 53C of the Act and identified three categories of case in which a question may arise as to whether a trial should continue with a reduced number of jurors:
1. where there is no indication how the discharged juror would have voted;
2. where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and
3. where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal.
Her Honour went on to observe, by reference to authority, that if a trial judge has discharged a member of the jury, it will not be appropriate to continue to the trial with a reduced number of jurors if the case falls into either the second or third category. Her Honour concluded [175] that in such circumstances, there is a risk of a substantial miscarriage of justice because:
…[I]t is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.
Her Honour also observed [176] that what distinguishes the second and third categories from the first is that in each of those two categories, something is known, or can be inferred, about what has transpired in the jury room, so as to give rise to a risk of a substantial miscarriage of justice if the trial continues with the remaining members of the jury.
In reaching these conclusions, her Honour made reference to a number of authorities, including R v Roberts [177] in which Cullinane J observed:
[46] To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict …..
With these matters in mind I return to the circumstances of the present case.
It is significant that it was following the purported Black direction that the trial judge received the note regarding the second juror's state of health. Importantly, that state of health arose from anxiety and stress which, inferentially, was linked to the second juror's duties and responsibilities as a member of the jury. That anxiety and stress resulted in a medical practitioner expressing the view that the second juror should be discharged. The incomplete Black direction made no reference to the trial judge's power to discharge the jury if unanimity could not be reached. The direction which was given had the clear capacity to lead the second juror (and, indeed, all those who were members of the jury at that point) to believe that there were only two options available, namely to seek to be discharged, or join in a verdict of guilty. The second juror chose the former option.
Such concerns increased as a result of what occurred on the following day when an issue was raised by the third juror as to their ability to continue. When the trial judge indicated to the jury that he would require further information as to the third juror's state of health, he informed the jury that he had "power to excuse one of the jury". Again, his Honour omitted any reference to the fact that he had power to discharge the entire jury if a unanimous verdict could not be reached. Significantly, by the time that his Honour received the medical certificate pertaining to the third juror on the following sitting day, the jury (then a jury of 10) had deliberated for a significant part of 3 June, with the participation of the third juror, without being able to reach a unanimous verdict.
When his Honour received that medical certificate, the following circumstances prevailed:
1. as a consequence of the incomplete Black direction, the jury had not been informed that the trial judge had power to discharge them in the event that they could not agree.
2. the second juror had been discharged on the basis of the stress and anxiety associated with the trial;
3. the third juror had sought to be discharged on the same basis;
4. two members of the jury had given sworn evidence to the effect that a unanimous verdict in respect of one accused was likely;
5. almost a full day of deliberations on 3 June, with a jury of 10 persons (including the third juror) had failed to return a unanimous verdict; and
6. the third juror consulted a medical practitioner on 4 June and provided a history that they could not continue on account of the anxiety and stress associated with the trial.
In my view, all of these circumstances support a conclusion that second and third jurors represented a minority view.
That conclusion, particularly insofar as it relates to the third juror, is significantly strengthened by the fact that on 6 June the transcript notes that the jury were informed at 10.54am that the third juror had been discharged, and resumed deliberations at 10.55am. At 11.07am, counsel for the appellant was informed that there was a need to reconvene the Court. The only available inference is that the need to do so arose because the jury (now a jury of 9 persons) had reached a unanimous verdict. On the evidence, that decision was reached within 12 minutes of deliberations resuming without the third juror, in circumstances where deliberations had continued for the entirety of the previous day, with the third juror taking part, without such verdict having been reached.
What also assumes significance in these circumstances is 55F(3) of the Act which defines the term "majority verdict" as:
1. a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned; or
2. a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned.
Bearing in mind the sequence of events I have set out, it is impossible to view the end result as anything other than a de facto majority verdict in circumstances where, given the number of members of the jury at that point, a majority verdict was expressly prohibited by statute.
The gravamen of his Honour's conclusion that the jury should not be discharged after the discharge of the third juror was that it was "mere speculation" to suggest that the third juror's difficulties arose from not being able to join in the views of the majority. Needless to say, the views of the third (or for that matter, the second) juror are not known. However, for the reasons I have outlined, the conclusion that both of them were not satisfied beyond reasonable doubt of the appellant's guilt, and were dissenting from the majority, is frankly overwhelming. [178]
It is also of some significance that in declining to discharge the jury his Honour relied upon his purported Black direction. For the reasons I have pointed out, that direction was deficient in a material respect. It provided absolutely no support for the conclusion that the jury should not be discharged.
Viewing the evidence as it stood at the time, the circumstances fall within the second category identified by Adamson J in BG. Viewing the evidence retrospectively, the circumstances fall within the third category identified by her Honour. In either case, a risk of a substantial miscarriage of justice has been made out. The trial judge erred in not discharging the jury following the discharge of the third juror, and the verdict which was returned is tainted with that error.
It follows that grounds 4 and 5 are made out.
The comments of the trial judge recognise the obvious, that the jury's deliberations had, in all likelihood, been continuing in the absence of all the jury members being present. The transcript then records that "the jury" returned to Court at 10:16am. [187] For the reasons previously set out, to the extent that such a note might suggest that all 10 members of the jury returned to Court, it is misleading, for the simple reason that there were, in fact, only 9 members present.
When those 9 jury members returned to Court, his Honour said the following: [188]
Members of the jury, it is obvious that another of your members is not present today. I have brought you in here to ask you not to deliberate further until I speak to you again, please.
For the moment the jury includes the absent member, so there shouldn't be a deliberation between a part of you. All right, would you go now. I will call you back in in the not too distant future.
The transcript records that the 9 members of the jury left the Court at 10.17am. [189] It follows that a period of 31 minutes had elapsed between the time at which the 9 jurors were recorded as having returned to the jury room at 9:45am, and the time at which his Honour gave that direction at 10:16am. The jury were then brought back into Court at 10.54am and informed that the third juror had been discharged. They were then directed to continue their deliberations. [190]
The factual circumstances considered in R v Locchi [199] were closer to those of the present case. A member of the jury had not attended Court due to illness, at a time when the jury had commenced their deliberations. The trial judge directed the jury that they could retire to the jury room and remain for as long (or as short) a time as they wished, that they could discuss the case, and that they could look at the written material and talk about it provided that they did "not come to any final conclusions until [they were] together as a full jury". In dismissing an appeal against conviction, Samuels JA observed: [200]
Counsel does not submit of course that this is a case of contamination, but
rather puts it that a jury of twelve, while it remains of that number, must
discuss the case only together as a unit. Accordingly, any caucusing, that is to
say any independent discussion by less than twelve, amounts to a mis-trial
and presumably requires the intervention of the appellate court.
I must confess that I was troubled by this point and attracted by the
general approach that Mr MacGregor put to us. However, on further
reflection, and having heard observations by my brothers during the course
of the argument, it seems to me that so general a proposition is incapable of
support.
As both Enderby J and Loveday J have pointed out, it is the experience of
all those who have been involved in jury trials, particularly criminal trials
where there are juries of twelve, that sometimes a juror is late and the other
jurors spend some time together in the jury room. Always the jurors of
necessity arrive at different times, so that assembling in sequence, in series
as it were, in the jury room is routine. It can scarcely be presumed that as
they come in, they do not talk about the case. So that it is very likely that in
almost every trial there is some discussion about the case, not involving the
whole of the jury.
Similarly, even after retiring a jury now, by s 54 of the Jury Act 1979, is
permitted, if the judge so orders, to separate; and it might very well be that
two jurors might travel home together or three jurors or any number of
jurors might stop at a hotel on the way and have a drink together and discuss
the case. I do not think that any proposition could be framed which would
turn a discussion about the case between less than the full number of jurors
into a miscarriage of justice. But it is unnecessary to express any general
principle in this case and I do not attempt to do so. I exclude also the effect
of any admonition by the judge that the jury should discuss the case only
when they are all together. No such direction was given here.
The question is whether what occurred in this case establishes a
miscarriage of justice which requires the intervention of this Court. I do not
think that it does. I add to what I have already said the fact that the jury once
they re-assembled were together for forty-eight hours, during which time
they had ample opportunity of the fullest kind to discuss the matter. It is
highly improbable that any views which the eleven members of the jury
might have formed together, prevailed unchanged through the period of that
discussion. I would have thought that the probability is that during that time there would have been the freest exchange of opinion, uninfluenced by the earlier absence of the sick juror.
In Tennant v R [201] two members of the jury had been taken from the jury room, in the company of a sheriff's officer, to have a cigarette. The remaining 10 jurors remained in the jury room, in the absence of any order being made allowing the jury to separate. This Court concluded [202] that a strict interpretation of the word "separate" in s 54 would be liable to lead to absurd results and that no miscarriage of justice had arisen. James J said: [203]
[42] In any retirement of a jury which lasts for any length of time, it is inevitable that individual jurors will become temporarily separated from their fellow jurors, for example while they are using the bathroom facilities outside the jury room. It is not to be supposed that all such separations are contraventions of s 54 of the Jury Act, in the absence of the trial judge making an order permitting such separation to occur. I doubt whether the taking by a sheriff's officer of those members of a jury who are smokers to a place, apart from other jurors, where they can have a cigarette, should be regarded as a separation of the jury for the purposes of s 54 of the Jury Act.
[43] Even if what happened in the present trial did amount to a separation of the jury and hence a contravention of s 54 of the Jury Act, I do not, for a combination of reasons, consider that it gave rise to a miscarriage of justice.
[44] According to the trial judge's statement of the information he had been given, a sheriff's officer had accompanied the two jurors who had left the jury room to have a cigarette.
[45] The jury had been directed not to discuss the case, unless all twelve of them were present, and the trial judge was entitled to proceed on the assumption that individual jurors had complied with this direction, so that neither the two jurors who were smokers nor the ten jurors who had remained in the jury room had discussed the case during the separation of the jury.
[46] The trial judge thought that, if he had been asked to make an order permitting the separation of the jury so that the smokers among the jury could have a cigarette, he would, subject to any submissions he received from counsel, have made such an order.
[47] Although the period during which the jury was separated does not clearly appear from the trial transcript, the verdict of guilty was not returned until some hours after the jury had been reunited.
[48] Counsel for the appellant at the trial, after the trial judge had explained what had happened and had invited counsel to make submissions, submitted that there should be "no consequences" from what had happened.
In determining whether what occurred in the present case amounts to an irregularity it seems to me that the following considerations are relevant.
First, unlike the circumstances in Tennant, the trial judge did not direct the jury, at any time in the course of their deliberations, that they should not deliberate or discuss the case unless all members were present.
Secondly, there were two occasions on which separation occurred.
Thirdly, each of those periods of separation arose after deliberations had been ongoing for a significant period of time, and had not resulted in the return of a verdict.
Fourthly, the combined periods of separation totalled 1 hour and 48 minutes, which was not insubstantial.
Fifthly, during each period of separation, those members of the jury who were present were deprived of the views of individual jurors, in circumstances where it may reasonably be inferred that the views of each of those individual jurors were in the minority.
Sixthly, it was not until after the second period of separation that the jury were directed, for the very first time in the trial, that deliberations should not continue absent a member of the jury. That circumstance can be usefully contrasted with the position in Locchi where the trial judge had given such a direction to the jury in the course of the trial, and importantly before the separation occurred.
Seventhly, the circumstances of this case were quite different to those in Locchi in another material respect. In that case, once all jurors were present, deliberations continued for 2 days before a verdict was returned. In this case, the verdict of guilty was returned within minutes.
Given all of these circumstances, I am satisfied that the two periods of separation constitute an irregularity.
Whether those irregularities give rise to a miscarriage of justice warranting the quashing of the appellant's conviction is a separate question. Not all irregularities justify that conclusion. [204] Much will necessarily depend on the circumstances of the case. There have been many instances where an irregularity of some kind or other has been established, but a conclusion has been reached that no miscarriage of justice had arisen. [205] The guiding principle is that there must be a new trial unless the Court can be satisfied that the irregularity has not affected the verdict, and that the jury would have returned the same verdict if the irregularity had not occurred. [206]
His Honour's decisions to discharge the second and third jurors were made with the consent of all parties at the trial and were therefore not, of themselves, the subject of challenge before this Court. Accepting that those decisions were correct, it is evident for the reasons I have expressed that once the point was reached where the second and third jurors no longer played a part in deliberations, a verdict of guilty was inevitable. That verdict was, as I have found, tainted with, amongst other things, the error arising from his Honour's failure to discharge the jury and must be quashed.
In considering whether the two periods of separation constitute a material irregularity, I regard it as particularly significant that in each case, the deliberations continued in the absence of individual members of the jury who, I have determined, were obviously in the minority. In those circumstances, I am unable to be satisfied that the irregularities constituted by the two periods of separation did not affect the verdict which was returned. On the contrary, I am satisfied that the two periods of separation materially contributed to the risk of a miscarriage of justice which I have identified in grounds 4 and 5, for the simple reason that in each case, the jury deliberations continued in circumstances where the jury were deprived of one dissenting voice. For those reasons this ground of appeal is made out. It is appropriate that, having reached that view, I reiterate the importance of trial judges making orders for separation, and giving directions not to continue deliberations without all members of the jury being present. Doing so will go a long way to ensuring that the circumstances giving rise to ground 6 of this appeal are avoided in the future.
AB 4510 - AB 4511.
AB 4512 - AB 4513.
AB 4512.
AB 4513.
AB 4515 - AB 4516.
AB 4519 - AB 4533.
AB 4533 - AB 4545.
AB 4545.
AB 4547.
AB 4554.
AB 4554.
AB 4584
AB 4584.
AB 4624.
AB 4626.
AB 4584.
AB 4702 - AB 4703.
At [54] above.
AB 4617.
AB 4601.
AB 4675.
AB 4701 - AB 4706.
See for example AB 4556; AB 4558; AB 4578; AB 4579; AB 4585.
AB 4713 - AB 4714.
AB 4714.
AB 4714.
AB 4714 - AB 4715.
AB 4715.
AB 4715.
AB 4717.
AB 4728.
AB 4957 - AB 4959.
[2016] NSWCCA 202 at [223], Beazley P and R A Hulme J agreeing.
At [224].
Popovic at [224]; Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [81].
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 at 580 - 581; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]; R v Meher [2004] NSWCCA 355 at [77]; [82]; Trevascus at [81]; Decision Restricted [2021] NSWCCA 227 at [33].
El-Jalkh v R [2009] NSWCCA 139 at [147].
Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67 at 10.
Meher at [87] - [88].
R v Esposito (1998) 45 NSWLR 442 at 472 citing R v E (1995) 89 A Crim R 325 at 331.
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 at [47]-[48] per Bell, Keane, Gordan and Edelman JJ citing Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 at [61].
(1953) 106 CCC 249 at 266-267 cited in McKell at [51].
See the passages of the summing-up extracted at [92] - [103] above.
South v R [2007] NSWCCA 117 at [43]-[44], cited in Popovic at [220].
At [101] above.
Popovic at [224].
R v Machin (1996) 68 SASR 526 per Olsson J; B v The Queen (1992) 175 CLR 599; [1992] HCA 68 at 605.
At [88] above.
At [94] - [96] above.
Meher at [88].
See for example [92] and [99] above.
R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 at 56.
At [110] above.
AB 2072.21 - AB 2072.34.
AB 2084.36 - AB 2084.38.
AB 2084.38 - AB 2084.43.
AB 2084.45 - AB 2084.48.
AB 2085.5 - AB 2085.10.
AB 2086.1 - AB 2086.2.
AB 2086.24 - AB 2086.38.
AB 2097.45 - AB 2097.46.
AB 4953 - AB 4954.
AB 2100.3 - AB 2100.7.
AB 4772.
AB 4873; JN #21.
AB 4874.
AB 4875 - AB 4876.
(1993) 179 CLR 44; [1993] HCA 71 at 51.
AB 4889.
AB 4891; JN #24.
AB 4893 - AB 4894.
AB 4895 - 4896.
AB 4960.
AB 4896 - AB 4897.
AB 4899.
AB 4900.
AB 4900.
AB 4900.
AB 4901.
AB 4902.
See [142] - [143] above.
AB 4904.
AB 4904.
AB 4905.
AB 4905 - AB 4906.
AB 4906 - AB 4907.
AB 4907.
AB 4907.
AB 4908.
AB 4908.
AB 4909.
AB 4909.
AB 4911.
AB 4911.
AB 4912.
AB 4913.
AB 4913.
AB 4962 - AB 4963.
AB 4915.
AB 4915 - AB 4916.
AB 4964 - AB 4966.
AB 4918.
AB 4918.
AB 4918.
AB 4919.
AB 4941.
AB 4944.
(1999) 199 CLR 99; [1999] HCA 52 at [28].
Jury Amendment Act 2010 (NSW), Sch 1, Part 2 [10] effective 31 January 2014.
[2018] NSWCCA 225 at [122].
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at 312.
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 436.
(2015) 256 CLR 47; [2015] HCA 29 at [15].
At [128].
Mason CJ, Brennan, Dawson and McHugh JJ at 51.
At 51 - 52.
[2012] NSWCCA 139; (2012) 221 A Crim R 225 at [103] and following.
At [104].
At [105].
[2005] 1 Qd R 408; [2004] QCA 366 at [46].
Phan at [190].
AB 1447.13 - AB 1451.22.
AB 1450.25 - AB 1450.27.
AB 1451.21 - AB 1451.32.
At [145] above.
Summarised at [146] - [149] above.
At [150] above.
AB 4911.
AB 4912 - AB 4913.
AB 4913.
AB 4913.
AB 4913.
See [178] above.
Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [60].
See for example R v Ketteridge [1915] 1 KB 467; R v Hodgkinson [1954] VLR 151; R v Chaouk [1986] VR 707.
[2005] NSWCCA 377; (2005) 160 A Crim R 1.
At [26] citing Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347 per Lord Devland.
At [27] citing Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 at 300 per Mason CJ and McHugh J; at 353 per Toohey J.
At [28] citing R v Minarowska (1995) 83 A Crim R 78 at 87 - 89.
At [29] citing R v Marsland (unreported, Court of Criminal Appeal, NSW, No 60263 of 1990, 17 July 1991)
At [30] - [32].
(1991) 22 NSWLR 309.
At 315 - 316.
[2006] NSWCCA 208 at [42] - [48].
James J at [42], McClellan CJ at CL and Hoeben J (as his Honour then was) agreeing.
At [42] - [49].
See for example R v Twiss [1918] 2 KB 853; R v Riley [1982] 1 NZLR 1; R v Bates [1985] 1 NZLR 326.
See for example R v Alexander [1974] 1 WLR 422; [1974] I All ER 539; R v Dempster (1980) 71 Cr. App. Rep. 302.
R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 at [242].