[1996] HCA 50
Clark v R [2010] NSWCCA 94
Crofts v The Queen (1996) 186 CLR 427
[1996] HCA 22
Domican v The Queen (1992) 173 CLR 555
[1992] HCA 13
Farrell v The Queen (1998) 194 CLR 286
[1998] HCA 50
Filippou v The Queen (2015) 256 CLR 47
Source
Original judgment source is linked above.
Catchwords
[1996] HCA 50
Clark v R [2010] NSWCCA 94
Crofts v The Queen (1996) 186 CLR 427[1996] HCA 22
Domican v The Queen (1992) 173 CLR 555[1992] HCA 13
Farrell v The Queen (1998) 194 CLR 286[1998] HCA 50
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
GAR v R (No 2) [2010] NSWCCA 164
Haile v R [2022] NSWCCA 71
Hamide v R (2019) 101 NSWLR 455[2019] NSWCCA 219
Hamilton v R [2020] NSWCCA 80
Kalbasi v Western Australia (2018) 264 CLR 62[2018] HCA 7
Longman v The Queen (1989) 168 CLR 79[1989] HCA 60
Medich v R [2021] NSWCCA 36(2021) 390 ALR 398
Mikael v R [2015] NSWCCA 294
Mortimer v R [2021] NSWCCA 47
Papakosmas v The Queen (1999) 196 CLR 297[2005] NSWCCA 20
R v Wu (1998) 103 A Crim R 416
Shepherd v The Queen (1990) 170 CLR 573[1990] HCA 56
Singh v DPP (NSW) [2006] NSWCCA 333(2006) 164 A Crim R 284
TO v R [2017] NSWCCA 12(2017) 265 A Crim R 191
Trieu v R [2012] NSWCCA 169
Watson v R [2022] NSWCCA 208
Weiss v The Queen (2005) 224 CLR 300
Judgment (20 paragraphs)
[1]
Solicitors:
Criminal Law Group (Applicant Brown)
Legal Practice (Applicant Haines)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2019/00049941; 2019/00082524; 2019/00167172
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 8 April 2021
Before: King SC DCJ
File Number(s): 2019/00049941;2019/00082524; 2019/00167172
[2]
[This headnote is not to be read as part of the judgment]
On 8 April 2021, following a trial by jury in the District Court (with an additional co-accused, Mr Wayne Ingray), the applicants, Mr Aaron Brown and Mr Tony William Haines, were found guilty and convicted of seven and nine counts respectively relating to offences of aggravated breaking, entering and stealing, of entering with intention to steal, of stealing a motor vehicle, and of driving conveyance taken without consent of the owner, contrary to ss 97(1), 112(2), 113(2), 114(1)(a), 154A(1)(b) and 154F of the Crimes Act 1900 (NSW) (Crimes Act).
At the commencement of the trial, following the empanelling of a jury of twelve, the trial judge acceded to a joint application by the applicants and the Crown to discharge one of the jurors, on the basis that the juror had engaged in misconduct. Counsel respectively appearing for each of Mr Brown and Mr Ingray pressed a further application for discharge of the entire jury (counsel for Mr Haines did not join in the application and the Crown took a neutral stance). The trial judge dismissed the application and ordered that the trial continue with the remaining eleven jurors.
During the trial, the Crown relied substantially on circumstantial evidence, and asked the jury to identify the applicants as being recorded in CCTV footage by comparing the people recorded by the CCTV with the applicants as shown in photographs on arrest or as they were then sitting in the court room.
Mr Brown's appeal raised one issue, namely whether the trial judge erred in failing discharge the whole jury pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) (Jury Act). Mr Haines' appeal raised a different issue, namely whether the trial judge erred by failing to give the jury adequate directions and warnings as to the evidence of identification relied on by the Crown.
The Court (Ward P, Walton and Davies JJ) held, granting leave to appeal on Mr Brown's appeal but dismissing the appeal; and refusing leave on each ground of appeal raised by Mr Haines' appeal:
As to Mr Brown's appeal:
1. Section 53C(1)(a) of the Jury Act requires a trial judge to discharge the whole of the jury, following the discharge of one juror, where he or she forms the opinion that there is a risk of a substantial miscarriage of justice if that course is not taken. Once the evaluative judgment is formed that there is no risk of a substantial miscarriage of justice, there is no discretion: [40]-[43].
Watson v R [2022] NSWCCA 208; Haile v R [2022] NSWCCA 71 applied.
1. While section 19 of the Jury Act provides a prima facie right of the accused to a trial by a jury of twelve, it is necessarily limited in operation by s 22 of the Jury Act. The trial judge did not fail to take into account the prima facie right (and indeed he considered the desirability) of the accused to a trial by a jury of twelve: [44]-[46].
2. There is no inconsistency in the trial judge's finding of misconduct against the juror who was discharged and the trial judge's determination that no risk of a substantial miscarriage of justice arose in allowing the jury of eleven to proceed. No particular act of "delinquency" on the part of any juror other than the discharged juror was identified, nor was it suggested how the discharged juror's "delinquency" may have practically influenced the other jurors' behaviour: [47]-[48].
Watson v R [2022] NSWCCA 208 applied.
[3]
As to Mr Haines' appeal:
1. The evidence of identification in the present case in the form of CCTV footage was not strictly identification evidence within s 165 of the Evidence Act 1995 (NSW). In circumstances where the trial judge directed the jury to make any comparison using the CCTV footage and not the stills, and where the difficulties of visibility were self-evident, no warning or special instruction was necessary: [76]-[77].
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 distinguished.
1. There was a very real possibility that the jury might have concluded beyond reasonable doubt that Mr Haines was shown on one or other of the different segments of the CCTV footage (but not all) and yet still be able, taking into account other evidence, to be satisfied beyond reasonable doubt of his guilt on the offences with which he was charged. A direction of the kind Mr Haines' counsel suggests should have been given would have been confusing. No Shepherd direction was required: [93]-[94].
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 considered.
[4]
JUDGMENT
THE COURT: Two applications for leave to appeal pursuant to s 6 of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) were heard consecutively by this Court on 6 March 2023, those applications relating to the conviction of a number of offenders on counts relating to what the Crown contended was a joint criminal enterprise involving a series of break and enter offences at residential homes in various suburbs of Sydney. Each of the applicants had pleaded not guilty to the respective counts charged against him and each was convicted on 8 April 2021, following a trial before King DCJ and a jury of eleven, of those counts (as indicated below).
The first applicant, Aaron Brown, was convicted of seven counts (counts 5-11, being counts of aggravated breaking and entering, assaulting with intent to rob, stealing a motor vehicle and being carried in a conveyance taken without consent). The offences occurred at Randwick on 10 February 2019; Sylvania Waters on 12 February 2019; Caringbah South also on 12 February 2019; and Matraville on 14 February 2019. Except for the offence committed at the Sylvania Waters premises, substantial quantities of personal items were stolen. Mr Brown was sentenced on 27 January 2022 to an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 4 years 1 month and 14 days. Mr Brown will be eligible for parole on 12 February 2025.
The second applicant, Tony William Haines, was convicted of nine counts (some of which overlapped with counts against Mr Brown and/or another accused, Wayne Ingray) (counts 1-4, 6-10, being counts of aggravated breaking and entering, entering land with intent to steal, assaulting with intent to rob and stealing a motor vehicle). Those counts related to offences on 5 February 2019 at Mosman, Seaforth and Cremorne; and on 12 February 2019 at Sylvania Waters, Caringbah South and Marrickville. On 27 January 2022, Mr Haines was sentenced to an aggregate term of imprisonment of 6 years and 6 months with a non-parole period of 4 years and 7 months. Mr Haines will be eligible for parole on 11 January 2025.
A third accused, Mr Ingray, pleaded guilty to counts 1-6 and other counts not charged on the joint indictment with the applicants. Another of the persons said to form part of the criminal enterprise (a Mr Ty Simms) had pleaded guilty to his involvement in these offences and was not tried with Mr Haines, Mr Brown and Mr Ingray (see 16;03;2021; T 5.29-44).
[5]
Application for leave to appeal by Brown
The sole ground of appeal sought to be raised by Mr Brown, if leave to appeal against conviction is granted, relates to the fact that, after arraignment and the opening remarks of the trial judge, a juror was discharged for misconduct (in circumstances which will be explained shortly) and the trial judge then ordered that the matter proceed with eleven jurors. There is no complaint as to the discharge of the individual juror (that following a joint application by all accused and the Crown). Rather, the complaint by Mr Brown is to the effect that the whole jury was not discharged at that time and a new jury empanelled. (No such complaint is made in relation to this by Mr Haines, whose counsel at the trial did not join in the application for discharge of the whole jury.) The circumstances in which this issue arose may be summarised briefly as follows.
The trial was listed to commence on 16 March 2021, with three co-accused (Mr Brown, Mr Haines and Mr Ingray), each of whom was separately represented. The trial judge was advised by the Crown that the trial was expected to have a duration of ten days; Counsel for Mr Ingray (Mr Jones) suggested a more conservative estimate of 10-15 days.
The process of empanelling the jury commenced just after the luncheon adjournment on 16 March 2021. After the presentation of the indictment and arraignment of the respective accused, and the empanelling of the jury, the trial judge made opening remarks to the jury following which, at around 3.38pm, his Honour released the jury until the following day.
What then occurred, as the trial judge informed the parties the following morning in the absence of the jury, was that, after the jury retired on 16 March 2021, the court officer advised the trial judge that there was a problem with one of the jurors. His Honour required that this be put in writing. The juror in question wrote a note (which was marked MFI 1), which included the following:
Hi, I am a university student studying full-time. I thought the jury is one day a week and not every day. I study 12 hours a week plus personal work. I attend Uni on Monday and Wednesday-Friday. I also have assessments starting to come in.
The note also included a list of hours on Monday and Wednesday to Friday, apparently representing the times at which the juror would be in attendance in classes at university (see 17/3/21; T 2.15).
[6]
Submissions for Mr Brown
Counsel for Mr Brown (Mr Wendler) submits that his Honour erred in principle when he exercised his discretion to order the applicant's trial continue with 11 jurors; and argues that the order his Honour made was such a departure from the essential requirements of the law that it went to the root of the trial, such that Mr Brown did not have a trial according to law and there was a substantial miscarriage of justice (referring to Phan at [122]-[131] and to the concept of that expression as explained in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou v The Queen) at [15] per French CJ, Bell, Keane and Nettle JJ).
In submissions, Mr Wendler emphasised the statutory "guarantee" (or statutory right) under s 19 of the Jury Act for a criminal trial to commence with no less than 12 jurors (as, it may be noted, this trial did - albeit that it had not proceeded past the trial judge's opening remarks by the time the individual juror was discharged).
The error of principle identified by Mr Wendler as resulting in an unfair trial is said to be a combination of the following: the failure adequately to consider that the trial was in a very early stage "thus enabling recognition and obedience to the statutory guarantee" in s 19 of the Jury Act of 12 jurors; the fact his Honour had made a finding of misconduct against the (discharged) juror (a finding that it is said was inextricably associated with a risk of a substantial miscarriage of justice); and the fact that he (Mr Brown) "lost" one of his judges of fact through no fault of his "and became hostage to the delinquency of an single juror". Mr Wendler submits that the trial judge's decision creates "a norm that insinuates that s 19 is of titular legal effect and isolated from s 53C" of the Jury Act.
On the basis that the order to continue the applicant's trial with a reduced jury was such a departure from the essential requirements of the law that it went to the root of the trial such that Mr Brown did not have a trial according to law, Mr Wendler submits that his conviction cannot be "rescued" by application of the proviso in s 6(1) of the Criminal Appeal Act (reference here being made to Farrell v The Queen (1998) 194 CLR 286; [1998] HCA 50 (Farrell); Bulejcik v The Queen (1995-96) 185 CLR 375; [1996] HCA 50 (Bulejcik); Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (Weiss); Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (Kalbasi)).
[7]
Crown submissions
The Crown points out that the right to trial by a jury of 12 (under s 19 of the Jury Act) is a qualified one (not a statutory "guarantee" as such), noting that s 19 is subject to s 22 and, implicitly, to s 53C (those provisions are extracted in due course).
The Crown submits that the conclusion that the trial judge reached was open given the circumstances and the submissions by counsel. The Crown notes that continuation of the trial with a jury of 11 (permitted by s 22 of the Jury Act) is governed by the test regarding the risk of substantial miscarriage in s 53C; and submits that the test would not be satisfied by the preference of an accused for a jury of 12 (cf 17/3/21; T 9.31-37); rather, unless the continuation of the trial would give rise to the risk of a substantial miscarriage of justice, the trial would have to continue with a jury of 11 (reference here being made to what was said in Sharpe at [12] by Bellew J).
Insofar as Mr Brown relies upon Phan, the Crown says that the circumstances in that case were similar to those observed by this Court more recently in Haile v R [2022] NSWCCA 71 (Haile) and were quite different from those in the subject case.
Insofar as Mr Brown relies upon the failure of the discharged juror to follow instructions, the Crown says that such a failure that cannot be attributed to the remainder of the jurors. The Crown says that while the individual juror's behaviour in the present case was irregular, there was nothing that indicated the remaining 11 jurors were not otherwise able to carry out their duties and follow directions as required; and it is noted that there is nothing in the submissions of the applicant that indicates that in the remainder of the trial there was any other than proper compliance by that jury of 11.
The Crown maintains that there should be a high degree of necessity before a jury is discharged noting that such a consideration often arises when there is an irregularity in the trial (citing Watson v R [2022] NSWCCA 208 (Watson) at [36]-[42]). The Crown further observes that, while not going directly to a consideration of whether there was a risk of a substantial miscarriage of justice, if there had been a discharge it might be unlikely that there would be a fresh panel of jurors and the trial would have to be delayed (TT 8.48 - 9.16).
[8]
Determination
Section 53C(1) of the Jury Act provides:
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:
…
(b) 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
(c) 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.
Section 22, to which s 53C(1)(c) is expressly made subject, relevantly provides that:
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,
…
and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A.
Section 19 of the Jury Act, on which counsel for Mr Brown places much weight, provides:
Numbers of jurors in criminal proceedings
(1) Except as provided by section 22, in any criminal proceedings in the Supreme Court or the District Court that are to be tried by jury, the jury is to consist of -
(a) 12 persons, or
(b) if the Court makes an order under subsection (2) for the selection of additional jurors - 12 persons together with the number of additional jurors ordered by the Court,
returned and selected in accordance with this Act.
The legal principles with respect to s 53C of the Jury Act were recently summarised by Bell CJ, Price and Yehia JJ in Watson (at [34]-[40]), where their Honours observed that, in the context of a non-statutory test for the discharge of the jury, a high degree of need or necessity is to be established before a jury should be discharged (citing Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 440-441, per Toohey, Gaudron, Gummow and Kirby JJ; Clark v R [2010] NSWCCA 94 at [68]; GAR v R (No 2) [2010] NSWCCA 164 at [59]; Trieu v R [2012] NSWCCA 169 at [28]; Mikael v R [2015] NSWCCA 294 at [43]; Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [7]; Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [84]; and Pratten v R [2021] NSWCCA 251 at [158]). Their Honours went on to say as to the statutory test (which is the test here applied) that:
… That having been said, s 53C(1)(a) of the Jury Act requires a trial judge to discharge the whole of the jury, following the discharge of one juror, where he or she forms the opinion that there is a risk of a substantial miscarriage of justice if that course is not taken.
[9]
Application for leave to appeal by Haines
Mr Haines seeks leave to appeal his convictions on different grounds, both of which relate to the reliance placed by the Crown at trial on CCTV footage and the issue of "identification".
The Crown case against Mr Haines relied (among other evidence) on CCTV footage recorded on 5 and 12 February 2019 in respect of count 1 (Mosman; Ex 8; Seaforth; Ex 9), and count 6 (Sylvania Waters, Ex 22). (There was additional CCTV footage but it did not show a person alleged by the prosecution to be Mr Haines.) Mr Haines' position at trial was that he was not involved in any of the incidents.
Insofar as the Crown invited the jury to engage in an exercise of comparison between the images on CCTV footage with forensic procedure photographs (Ex 21) and in court observations of Mr Haines, it is submitted by Mr Haines that this was in practical terms an identification evidence exercise and that in those circumstances it was imperative to a fair trial that the trial judge provide the jury with warnings that went beyond mere generalisations about identification evidence.
Counsel for Mr Haines at trial during his closing address told the jury:
Much of the evidence in the Crown case against Mr Haines went in entirely unchallenged. Much of it was given through the officer-in-charge. The reason for that, if it was not clear to you, during the course of the trial, I hope to now make clear to you in the course of this closing address. The central issue in this trial against Tony Haines is the question of identification. That is, has the Crown proven beyond reasonable doubt the highest standard known to law, that Mr Haines was one of the men involved in the break-ins at Mosman, Seaforth and Cremorne in the early hours of 5 February 2019 or at Sylvania Waters or Caringbah South in the early hours of the 12th and the incident at Marrickville, where we heard evidence about from Mr and Mrs [xxx] [6/4/2021; T 440]
The trial judge in the summing-up identified the evidence of identification as follows:
… in this case, the Crown case relied almost wholly on circumstantial evidence. The direct evidence in this matter is entirely dependent upon what you make of the CCTV footage you have been shown. The Crown has asked you to identify particular accused as being recorded in the CCTV footage committing an offence by comparing the persons recorded by CCTV with the accused as shown in photographs on arrest or as they now are sitting in the dock. If you find beyond reasonable doubt that any of the accused are recorded in the CCTV footage, that would be evidence of that accused's participation in the offence the subject of the CCTV footage. That is, direct evidence of participation. But in the absence of that identification, you are asked to make by the Crown you are left with what is a wholly circumstantial case. [emphasis added]
In a circumstantial case the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based on direct evidence. Some direct evidence can be of very dubious quality, for example, direct evidence from a witness identifying an accused person as being an offender can he very unreliable because identification evidence can be honest but mistaken. In this case, of course, each of the accused has said that you would have difficulty and not be able to identify any of the accused from any of the CCTV footage so that the possible identification by you would be mistaken.
[10]
Submissions for Mr Haines
Mr Haines accepts that his trial counsel did not seek from the trial judge further directions or warnings concerning the evidence of identification relevant to the question whether he was one of the number of participants in the crimes visited upon the suburban homes identified on the indictment; and hence that he is obliged to establish that this ground of appeal is arguable and that a miscarriage of justice has been occasioned to him by reason of the trial judge's failure to direct the jury in accordance with law. Additionally, it is noted that his Counsel did not request a special warning concerning the evidence of identification. Mr Haines further accepts that he must demonstrate that a real chance of acquittal has been lost (referring generally to Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 319 per McHugh J; R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20; ARS v R [2011] NSWCCA 266 (ARS); Mortimer v R [2021] NSWCCA 47).
Mr Haines also acknowledges that the evidence of identification in the trial did not come within the strict definition of identification evidence within Pt 3.9 of the Evidence Act 1995 (NSW) (Evidence Act) and the Dictionary or ss 116 and 165 of the Evidence Act. However, Mr Haines argues that it was nevertheless evidence of identification in his trial and capable of coming within a collateral category of general evidence attracting the application of s 165 of the Evidence Act, i.e., that it was "evidence of a kind that may be unreliable" (referring to the observations of Kirby J in R v Baartman [2000] NSWCCA 298 (Baartman) at [62] as to the need for a warning typically arising where the jury needs to be acquainted with the accumulated experience of courts in dealing with the certain types of evidence or because there is the danger that the jury may over-estimate the probative value of certain evidence).
Mr Haines accepts that the question whether evidence in respect of which a special instruction or warning is required is always a matter for the trial judge but argues that, absent the CCTV footage, there was no case against him and says that in those circumstances the trial judge was bound to "isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence" (referring to Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 (Domican) at 562 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[11]
Crown submissions
The Crown points out that its case against Mr Haines relied not only upon CCTV footage but also other matters, including telephone communications between Mr Haines and Mr Ingray. It is noted that the Crown submitted at the trial that it was a "strands in a cable" case and not a "links in the chain" case (T 334.10-35).
The Crown says that the description of the principal issue in the trial as identification was in the context that there was no doubt that the various offences charged in the indictment were committed and the issue was the identification of Mr Haines as one of the offenders. Thus, the Crown says that this was not an identification case to which authorities such as Domican are addressed, noting that there was no identification made by any witness called by the Crown at trial.
The Crown submits that the obligation in s 165(2) of the Evidence Act was not engaged because no party requested the trial judge to give a direction to the jury as to the unreliability of the process of identifying the applicant from CCTV footage; and hence there has been no contravention of the statutory obligation (referring to R v Hunt [2003] NSWCCA 301 (Hunt) at [52] per Tobias J, with whom Howie and Shaw JJ agreed); Singh v DPP (NSW) [2006] NSWCCA 333; (2006) 164 A Crim R 284 at [38] per Basten JA, with whom Whealy and Latham JJ agreed). The Crown nevertheless accepts that s 165(5) of the Evidence Act does not affect the power of a trial judge to give a warning to or inform the jury even if no party requires that such a warning be given (reference being made in this context to what was said by this Court in R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 (Fowler) at [125] per Tobias JA, James and Howie JJ; and to Hunt at [52] and TO v R [2017] NSWCCA 12; (2017) 265 A Crim R 191 at [178]-[183] per Price J with whom Button J and Fagan J agreed); and that a warning must be given whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. The Crown also accepts (referring to Fowler at [179]) that a warning may be required where the courts have special knowledge or experience about the kind of evidence which has been given which a jury may not possess or where there is a risk that a jury may attribute more weight to the evidence than it actually deserved (referring also to Baartman per Kirby J (Spigelman CJ and Smart AJ agreeing) at [62]-[64]); and Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 per Deane J at 95-96).
[12]
Determination
As is recognised by Mr Haines, the evidence of identification in the present case (in the form of the CCTV footage) was not strictly identification evidence within s 165 of the Evidence Act. Nor was it identification evidence of the kind that was the subject of consideration in Domican. That is illustrated by the fact that many of the weaknesses seen by the plurality in Domican as affecting the reliability of the evidence by identification by the witness in that case have no parallel here, where the jury itself was reviewing the CCTV footage.
In circumstances where the trial judge directed the jury to make any comparison using the CCTV footage and not the stills, and where the difficulties with the CCTV footage in terms of the visibility of the men in question was self-evident, no warning or special instruction was necessary in our opinion.
In that regard, we note that this Court was invited to review the CCTV footage, it being noted that the CCTV footage in Ex 8 and Ex 11 was the footage most pertinent to Mr Haines' case. That footage, while not pristine in quality or clarity, does in our view permit the jury comfortably to have come to the conclusion that Mr Haines was depicted (at least in Ex 8), taking into account his physical appearance in Court and the other evidence available to the jury of his association with the other accused.
No miscarriage of justice, in the sense of the loss of a real chance of acquittal, has been established by reference to the lack of any specific warning as to the quality of the CCTV footage or the unreliability of identification evidence more generally. Accordingly, leave to appeal on ground 1 should be refused (and, had leave been granted on this ground, the appeal would have been dismissed).
[13]
Submissions for Mr Haines
The second ground of appeal is the contention that the trial judge erred by failing to instruct the jury that if the Crown were unable to prove beyond reasonable doubt that the applicant was one of the participants on [any of] the CCTV footage evidence, the jury must acquit the accused in respect to all counts on the indictment. It is accepted that leave is also required to prosecute this ground of appeal.
Mr Haines submits that the CCTV footage was the inviolable link in the Crown's circumstantial case against him and that, if the jury was not satisfied that he was depicted in any of the CCTV evidence, then there was no case against him. Mr Haines points out that, absent the CCTV footage, there was no fingerprint or DNA evidence linking him to any of the crimes charged. It is said that although a handbag and sunglasses were found at a residence associated with Mr Haines, there was no evidence of his DNA or fingerprints and no evidence that Mr Haines had been to the said property. Mr Haines says that there was surveillance evidence concerning three of the co-accused but that he (Mr Haines) was not sighted in their company; and it is submitted that, despite a body of mobile phone records, there is nothing said by Mr Haines to any co-accused suggestive of criminal activity referable to the crimes charged. Mr Haines says that telephone communications on 5 February 2019 between two of the co-accused suggestive of preparation for the crimes committed do not mention him. It is noted that there was no evidence by way of DNA or fingerprints that Mr Haines ever entered the stolen motor vehicle that was used in the commission of the offences.
Mr Haines argues that the suggestion by the Crown that, in respect to the crimes committed at Sylvania Waters and Caringbah, the reason Mr Haines' phone electronic signature was not located in those areas was because Mr Haines left his phone elsewhere is fanciful and speculative. It is said that the evidence of identification by the victims of the assault with intent to rob did not match the physical characteristics of Mr Haines nor was there any evidence connecting Mr Haines to the BMW that was used in connection with that crime.
Mr Haines submits that in circumstances where the prosecution case depended on utilising the CCTV evidence as an amalgam of circumstantial and direct evidence and where the prosecution relied on CCTV evidence as supporting tendency reasoning it was imperative the trial judge give the jury a direction that, in terms, the CCTV evidence was an indispensable link in the chain of reasoning in respect to the question whether the prosecution had proved the case against the applicant beyond a reasonable doubt.
[14]
Crown submissions
The Crown accepts that the evidence of the CCTV footage and stills were of significance to the Crown case in general; and that the CCTV and stills (Ex 11) in relation to count 6 (which related to the aggravated break and enter at Sylvania Waters) were of particular significance to the Crown case and specifically to its tendency argument. It is noted that the Crown made a number of submissions at trial concerning the strength of that evidence in proving that Mr Haines was one of the men who committed count 6 (see transcript at T 351.350.20-352.5). While there was also CCTV footage from premises at Mosman (count 1) and Seaforth (count 2), the footage and stills of which were Es 8 and 9 respectively, the Crown notes that more reliance was placed on the CCTV from the Sylvania Waters premises (T 340.49 - 343.2, esp at T 341.33-35).
Mr Ingray was alleged by the Crown to have been present at the commission of counts 1, 2 and 6, where CCTV was obtained and relied upon against Mr Haines. The submission was based in part on the ability to compare CCTV to his appearance in the dock (T 344.11 -27). The Crown otherwise relied upon Mr Ingray as a person who had committed the offences on the indictment, whether or not he had pleaded to them.
The Crown then relied upon Mr Haines' telephone conversations with Mr Ingray on 4 and 5, and 11 and 12 September 2019, in circumstances where the Crown said it was open to conclude that Mr Haines had arranged to meet with Mr Ingray in order to commit the offences committed on 5 and 12 September 2019 (see Ex 26; T 347.18-348.46; T 358.48-359.50). By way of example, the Crown notes that Mr Haines told Mr Ingray he was at the Matraville shops at 11.04pm on 4 February 2019 (Ex 26 p 24, entry 127) and that Mr Ingray had a connection to that suburb, including being arrested there (T 63.28-64.30); and that Mr Ingray also communicated with Mr Brown and Mr Simms (Ex 26). Thus, the Crown says that the CCTV footage did not exist on its own.
The Crown argues that, if the CCTV footage was not sufficient to prove Mr Haines' identity, the jury would be dealing with a conclusion not of his identity but of his resemblance to the CCTV footage and in those circumstances proof of guilt would depend on the remainder of the evidence tendered by the Crown against the applicant and on the degree of resemblance about which the jury was satisfied. It is submitted that in that regard the jury were properly directed.
[15]
Determination
It is telling that there was some change during the course of oral submissions in the wording of ground 2 (not least because of the room for confusion that it highlighted). The proposition that the jury should have been instructed that if the Crown was not able to prove beyond reasonable doubt that Mr Haines was depicted in "any" of the CCTV footage the jury was to acquit does not take into account the very real possibility that the jury might have concluded beyond reasonable doubt that Mr Haines was shown on one (or other) of the different segments of CCTV footage but not all; and yet still be able, taking into account the other evidence, to be satisfied beyond reasonable doubt of his guilt on the offences with which he was charged. The Crown's submission that a direction of the kind Mr Haines' counsel now suggests should have been given would have been confusing is correct.
We therefore consider that the Crown's submission that no Shepherd direction was required is correct. No miscarriage of justice, in the sense of the loss of a real chance of acquittal, has been established by reference to the lack of a direction of the kind that it is here contended should have been made. Accordingly, leave to appeal should also be refused in relation to ground 2 (and, had leave been granted on this ground, the appeal would have been dismissed).
[16]
Conclusion
Accordingly, leave to appeal should be refused.
[17]
Orders
For the above reasons, in the respective matters, the following orders should be made:
[18]
Application by Brown
1. Leave to appeal be granted.
2. Appeal dismissed.
[19]
Application by Haines
1. Leave to appeal refused.
[20]
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Decision last updated: 17 May 2023
At trial, agreed statements of facts were tendered for each of the applicants (in the case of Mr Brown, Exs 3 and 51; in the case of Mr Haines, Exs 2 and 53). As noted by the trial judge in his sentencing remarks, those agreed facts related to the particular facts relevant to the charge, or charges, against the relevant individual offender (details as to what was stolen and where certain stolen property was eventually recovered). There was no admission as to participation in the commission of the offences.
The trial judge made the observation to counsel that he did not understand how the juror in question could have thought that jury duty was only one day per week, having regard to the process engaged in by court officers when dealing with potential jurors; and expressed his opinion that the juror had made a deliberate decision to run the risk of being empanelled rather than to make an application to be excused.
His Honour invited comments or input from counsel, whereupon counsel appearing for Mr Brown (Mr Fokkes) immediately foreshadowed an application that the whole jury be discharged, seemingly as an alternative to an application to discharge the individual juror concerned (see 17/3/21; T 2.50ff), submitting in relation to the individual juror that if he was not willing to tell the truth to the judge of a District Court criminal trial then he was not suitable to be a jury member and may not be complying with his oath or affirmation as a jury member; and also that he had demonstrated a lack of interest and willingness to participate in the jury process.
His Honour identified that those were separate applications (i.e., an application to discharge the particular juror and an application to discharge the remaining members of the jury); and that the application to discharge the whole jury would not arise until the application to discharge the individual juror was dealt with (17/3/21; T 3.30ff).
Each of the counsel appearing for the accused and the Crown made or joined in the application to discharge the juror in question pursuant to s 53B of the Jury Act 1977 (NSW) (Jury Act). His Honour indicated that he would accede to those applications on the basis that the juror had engaged in misconduct in relation to the trial by not making his position known during the empanelment process and, in his Honour's view, by making false statements in the MFI 1 note as to his belief that juries only sit on Tuesdays each week (17/3/21; T 5).
The trial judge made clear to counsel that after his discharge the juror was not to be returned to the jury room and that the jury was not to be informed of what had happened (17/3/21; T 6). The trial judge then asked that the individual juror attend the courtroom (in the absence of the jury) and questioned the juror on his note before informing the juror that he was going to be discharged on the basis that the judge had no faith in his honesty or integrity as a result of his conduct in becoming a member of the jury in the circumstances that he had (17/3/21; T 7).
Pausing here, counsel for Mr Brown on the present application (Mr Wendler) submitted in effect that the manner in which the individual juror was discharged (following questioning and a lecture from the trial judge) demonstrated the trial judge's frustration and anger at the delinquent juror and that this was relevant to the present application as informing the context in which the trial judge's decision not to discharge the entire jury came to be made. Such a submission cannot be accepted, having regard to the reasons subsequently given by the trial judge for the making of the order that the trial continue with a reduced number of jurors, in which nothing turned on the cause of the individual juror's discharge or his Honour's displeasure at what had occurred. Mr Wendler also made submissions as to the likely impact on the faith or confidence in the justice system held by the juror who was discharged as a result of what occurred but when pressed on this he accepted that any such loss of faith on the part of the discharged juror was not of relevance to the present application.
Following the discharge of the individual juror, there was discussion between the trial judge and counsel as to the then recent decision in R v Sharpe (No 3) [2021] NSWSC 33 (Sharpe), a copy of which had been provided to counsel by the trial judge earlier that morning prior to the commencement of the second day of the hearing. It seems to have been accepted by counsel then appearing for Mr Brown (Mr Fokkes) that the issue to be determined on an application to discharge the entire jury following the discharge of the individual juror was as to whether there was a risk of a substantial miscarriage of justice; and that this was not a matter of discretion (17/3/21; T 8). The Crown and counsel for the respective accused then made submissions on that issue.
The Crown (which took a neutral stance on the application) pointed to the risk of a miscarriage of justice if the trial were to continue (with eleven jurors) and then for any reason further jurors had to be discharged, namely the risk that, with the then ongoing pandemic, the accused would in all likelihood then have their matters go back into the general list and not be assigned a listing until later in the year or perhaps the following year. The Crown noted in this context that two of the accused were in custody on remand.
Counsel for Mr Brown pressed an application for discharge of the entire jury pursuant to s 53C(1)(a) [sic] of the Jury Act, seeking to distinguish Sharpe on the basis that, here, there were three accused and essentially three trials running simultaneously; and that it would be a complicated matter. Mr Fokkes emphasised that there would be varying amounts of evidence against each of the accused and that care would need to be taken by the jury to consider the quantum of evidence against each of the accused; and Mr Fokkes submitted that the "requirement and the right" to have 12 jurors meant that there would be 12 minds available carefully to consider the evidence against each individual accused. The risk of substantial miscarriage was put by him as being the risk that 11 minds would not be as diligent as 12.
Counsel for Mr Haines (Mr Jones), as noted above, did not join in the application for the discharge of the entire jury.
Counsel for Mr Ingray (Ms Fernando) did join in that application, pointing to the early stage at which the discharge of the individual juror had occurred (with no evidence or openings having taken place) and (as had the Crown) identifying the risk of a substantial miscarriage as being the risk of the trial aborting at a later stage, with the prospects of another trial date not being available until later (Mr Ingray being one of the accused in custody). To his Honour's observation that this might be an argument not to discharge the entire jury, Ms Fernando submitted that this was an argument for re-empanelling as soon as possible (17/3/21; T 10). There was nothing said on the transcript to indicate whether that was a possibility at that stage.
Pausing here, it is apparent from a review of the transcript that both the Crown and Counsel for Mr Ingray raised concerns at the prospect of delay if the trial were to continue but then later aborted (by reference to likely listing delays that might occur in that event), noting that two of the accused were in custody. Insofar as the trial judge observed in effect that this might well be an argument not to discharge the entire jury, one might infer that the trial judge was cognisant of listing delays for criminal trials at that time. However, nothing turns on this.
The trial judge then delivered an ex tempore judgment, referring to a number of authorities (Phan v R [2018] NSWCCA 225 (Phan); R v We (No 6) [2019] NSWSC 930 (We); R v Wu (1998) 103 A Crim R 416 (Wu) (which was before the introduction of Part 7A into the Jury Act) and Sharpe. Noting that, in Sharpe, Bellew J had concluded that, although s 53C was under a heading referring to discretion, the provision was in mandatory terms; the trial judge considered that this meant that where he could not find that there was a risk of substantial miscarriage of justice he was required to order that the trial continue with a reduced number of jurors.
His Honour made reference to the matters that had been raised by counsel as to why the entire jury should be discharged, including what he referred to as the generally recognised right of an accused to have a jury trial consisting of 12 jurors and the risk that there might be further applications by the jurors to be discharged, whether for illness or any other reason.
His Honour emphasised his belief in the necessity for juries to consist of 12 persons and that his practice was to endeavour to ensure that 12 jurors participate unless there was an extremely good reason for departing from the traditional expected norm (noting that this was what was provided for by s 19 of the Jury Act). His Honour nevertheless considered that all the matters that had been raised by counsel (as to the risk of a substantial miscarriage of justice) were speculative.
The trial judge was unable to find that continuing with a jury of only 11 would give rise to the risk of a substantial miscarriage of justice and accordingly ordered that the trial continue with the remaining 11 jurors.
As noted above, Mr Brown's sole ground of appeal relates to this decision. It is framed as follows:
The trial judge erred in law by ordering the applicant's trial continue with eleven jurors following the discharge of a single juror for misconduct within the meaning of s 53A(1)(c)(2)(b) of the Jury Act 1977 (NSW) and thereby a miscarriage of justice has been occasioned to the applicant within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
Reference was made in Watson to what was said in Haile by Bellew J (with whom Bell CJ and Ierace J agreed) at [199]-[201] as to the mandatory nature of the provision. At [199], Bellew J said (in a conclusion affirmed by his Honour in Sharpe):
199. 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… [his Honour going on to quote from Phan per Price J (with whom Hoeben CJ at CL and Fullerton J agreed)]
Bellew J obtained some guidance as to the circumstances in which it may be necessary to discharge a jury because the risk of a substantial miscarriage of justice has arisen by reference to the decision of the plurality in Filippou v The Queen and noted at [201] that, in Phan, Price J concluded that the definition of "substantial miscarriage of justice" (i.e., 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) 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. Bellew J went on to say that:
Considerations relevant upon an application to discharge the whole of the jury include but are not limited to the extent of the prejudice to the accused; the ability to ameliorate that prejudice to any degree by direction, comment or other step; and the stage that the proceedings have reached: R v Ahola (No 6) [2013] NSWSC 703 at [18] (Ahola). This decision was referred to with approval by the Court of Criminal Appeal in Younan v R [2016] NSWCCA 248; (2016) 316 FLR 122, where Beazley P observed, with reference to Ahola, that "the authorities did not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material": at [39].
Thus, once the evaluative judgment is formed that there is no risk of a substantial miscarriage of justice, there is no discretion.
As noted above, in the present case Mr Brown relies on four factors by which he submits the primary judge fell into error. Two factors concern the application of s 19 of the Jury Act. To the extent that Mr Brown interprets s 19 as providing a statutory guarantee that informs the operation of s 53C, the argument is misconceived. True it is that s 19 provides a prima facie right of the accused to a trial by a jury of twelve (see as set out above). However, as noted in the Crown's submissions, s 19 is necessarily limited in operation by s 22 of the Jury Act. Indeed, during oral submissions the applicant conceded that, if his argument were taken to its logical conclusion, it would mean that in every case there would be a risk of a substantial miscarriage of justice simply by virtue of the diminution of the jury members, which does not accord with the enactment of Part 7A of the Jury Act (see T 6.29-36).
The "statutory guarantee" contended for by Mr Brown is no more than a right that may be displaced in the circumstances provided for in s 22. The trial judge did not fail to take into account the prima facie right (and indeed he considered the desirability) of the accused to a trial by a jury of twelve, nor did the trial judge misapprehend any principle in that regard. However, the trial judge was obliged to act in accordance with s 53C, once the relevant evaluative judgment was formed.
Mr Brown's complaints in this regard are in essence that the primary judge failed to have regard to normative considerations about how the law should operate and what is desirable in a criminal trial. That is not the test as formulated in s 53C of the Jury Act and the primary judge did not err by failing to recognise or abide by s 19.
As to the submission that "the fact his Honour had made a finding of misconduct against the juror, a finding that was inextricably associated with a risk of a substantial miscarriage of justice, i.e. a risk in respect to the individual juror but curiously not in respect to the remaining jurors", this at odds with Watson, where the Court made clear that, when considering whether to discharge the remainder of the jury, the jury must not have included the witness juror, as s 53C(1)(a) is necessarily predicated upon the prior discharge of a juror. Accordingly, there is no inherent inconsistency in the trial judge's finding of misconduct against the juror who was discharged and the trial judge's determination that no risk of a substantial miscarriage of justice arose in allowing the jury of eleven to proceed. Moreover, in Watson the Court at [56] in that decision drew attention to the importance of identifying which jurors had purportedly engaged in misconduct and the occasions that any misconduct occurred, in order to establish a risk of a miscarriage of justice. In the present case, Mr Brown does not identify any particular act of "delinquency" on the part of any juror other than the discharged juror, nor is it suggested how the discharged juror's "delinquency" may have practically influenced the other jurors' behaviour.
For the same reason, the fourth factor (that the applicant lost a jury member through no fault of his own and should not be "held hostage" by the delinquency of that juror) must fail as a reason that the trial miscarried.
To the extent that Mr Brown relies upon Phan, the Crown correctly notes that the circumstances in that case were different to the circumstances of the present appeal. Notably, in the present case there was no evidence of disharmony in the jury room deliberations, nor was there evidence of a recurrent illness of a juror or lengthy deliberations by the jury; whereas in Phan the Court held that these three factors cumulatively meant that the reasonableness and well-being of the remaining nine jurors could not be ignored (see at [191]-[192] per Price J, with whom Hoeben CJ at CL and Fullerton J agreed). In any event, the error identified by Price J in Phan was the failure by the primary judge to apply the correct test, that is, to consider whether a risk of a miscarriage of justice arose from new material from the jury of nine (see at [193]-[194]). That error has not been established in this appeal.
During oral submissions, counsel for Mr Brown also referred to R v Papanicolaou (No 5) [2022] NSWSC 28, in which the fact that the trial had not progressed beyond the Crown opening was a factor that Wright J took into account in determining that the jury ought to be discharged. Relevantly (and as the applicant himself noted) this factor was considered in the context of the COVID-19 pandemic, and Wright J emphasised at [24] that it was likely that one or more jurors would contract the virus or be a close contact of a person who tested positive for the virus and would be unable to participate in the trial for at least seven days. As a result, there was a real likelihood of the trial not being able to proceed after some days or weeks of evidence, and, perhaps, addresses and deliberation. Moreover, in that case (unlike the subject case) the circumstances in which the individual juror was discharged gave rise to a significant risk that the consideration of the case by the remaining jurors would have been affected by those circumstances which, by itself, amounted to the risk of a substantial miscarriage of justice, within s 53C(1)(a) of the Jury Act (see at [23]). As such, the decision is clearly distinguishable from the subject case.
In the evaluative judgment that his Honour was required to form, no error has been shown. The trial judge has not been shown to have failed to consider a relevant consideration or taken into account an irrelevant consideration. It was well open to the trial judge to conclude that no risk of a substantial miscarriage of justice had been established. The fact that the trial was at a very early stage (as was the case in Sharpe) and the possibility that a new jury might have been able to be empanelled without delay to the hearing dates (which does not seem to have been explored at the time) does not alter that conclusion.
Leave to appeal should be granted but the appeal dismissed.
The trial judge further directed the jury that in a circumstantial case no individual fact could prove the guilt of the accused and went on to explain the process of reasoning on a circumstantial case.
The trial judge identified the "circumstantial facts " relied on by the Crown in its circumstantial case against Mr Haines, noting that the Crown in closing address had summarised this as being five categories of circumstances: first, the CCTV images from Mosman and Seaforth on 5 February and Sylvania Waters on 12 February 2019, compared with the appearance of Mr Haines in the dock and photographs of Mr Haines during a forensic procedure; second, telephone records demonstrating association between Mr Haines and co-offenders; third, general evidence of association; fourth, the proximity in time and space of the commission of the offences; and, fifth, property taken from the various locations and found in the possession of the co-offenders and in one instance Mr Haines (Ex 44).
The trial judge told the jury that:
… if you are satisfied that Mr Haines was seen on CCTV footage at Central Avenue and Seaforth Crescent, you might think that also includes the other offences that occurred off camera on Seaforth Crescent, and also at Cremorne as well and also of course on the 12th if you are satisfied of what happens at James Cook Island [Sylvania Waters] ...
The CCTV footage was linked to tendency reasoning employed by the Crown:
The Crown has submitted to you that the simplest way to do this is for you, the jury, to consider the CCTV evidence of count 6 and compare that with the photos taken of Mr Haines upon his arrest and your own observations of Mr Haines in the dock, noting also, the evidence of Mr Ingray contacting him by phone and the agreement reached to meet up prior to count 6. If you the jury think that the evidence proves and you have no reasonable doubt Mr Haines is guilty of count 6 and that he has the tendency submitted by the Crown, then you can use that as tendency evidence when considering whether Mr Haines went on to commit counts 7 and 8 and also to reason backwards regarding counts 1 to 4 that occurred on 5 February especially given the telephone contact between Mr Ingray and Mr Haines shortly after midnight.
The two grounds of appeal here sought to be raised by Mr Haines are as follows:
Ground 1: Having regard to the applicant's counsel submitting to the jury in his closing address that the central issue in the trial of the applicant "is the question of identification" the trial judge erred by failing to give the jury adequate directions and warnings that the evidence of identification relied on by the Crown may be unreliable and full reasons why reliance on such evidence may be unreliable such failure by the trial judge has occasion to the applicant a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
Ground 2: The trial judge erred by failing to instruct the jury that if the Crown were unable to prove beyond reasonable doubt that the applicant was one of the participants on the CCTV footage evidence, they must acquit the accused in respect of all counts on the indictment.
When pressed at the hearing to identify the direction that it is submitted should have been given (on the issue raised by ground 1), counsel for Mr Haines (Mr Wendler) amended the wording of ground 2 to read "if the Crown were unable to prove beyond reasonable doubt that the applicant was one of the participants on any of the CCTV footage evidence, they must acquit the accused in respect of all counts on the indictment" (emphasis added).
It is submitted that a warning was required that specifically related to the circumstances of the Crown's case where the jury was, in effect, invited to act as investigators engaged in the exercise of comparing one set of images with photographs and in court identification. It is said that, given the mediocre quality of the CCTV footage evidence, such an exercise required the full force of judicial authority highlighting the weaknesses and flaws in the identification comparison the jury was invited to perform; and that it was insufficient simply to refer to counsel's arguments about the quality of the CCTV evidence. Mr Haines argues that such warnings should have included informing the jury that evidence of identification has, in the experience of the courts, led to a miscarriage of justice.
In summary, Mr Haines maintains that the CCTV evidence was vitally important to proof of the Crown case. It is submitted that the invitation to the jury to engage with that evidence and compare it to other photographic and visual evidence and draw inferences beyond reasonable doubt that the applicant was the person recorded in the act of committing the crimes charged required judicial intervention comprising warnings tailored to meet the exercise the jury was invited to perform. Mr Haines submits that the investigative role of the jury on the question whether or not he was a member of the group of men charged with committing the crimes alleged was an identification exercise. It is said that such an exercise required the authority of judicial assistance as to how the jury was to perform its task concerning the CCTV footage, tempered with strong warnings of the dangers inherent in that task.
In the circumstances, absent warnings about why the CCTV footage may be unreliable, Mr Haines submits his trial was unfair and a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act.
The Crown points out that the difficulty comparing the person in the CCTV footage taken on 5 February 2019 and 12 February 2019 with stills of Mr Haines taken by police and with his appearance in the dock at trial was the subject of comprehensive submissions by counsel appearing for Mr Haines (referring to the trial transcript at T 441.21-39; T 443.4 - 44426; T 444.39 - 446.17; T 446.36-43; and T 447.6-12). The Crown maintains that no more needed to be said by the trial judge as to any risk above and beyond what was obvious. It is submitted that what the jury had in relation to the CCTV footage was not one where some other factors, unknown to the jury, might operate in a way that would be prejudicial to Mr Haines.
Further, it is noted that the trial judge did direct the jury that the jury should make any comparison using the CCTV footage and not the stills.
The Crown submits (and this is in our opinion of no little weight) that the fact that counsel for Mr Haines did not ask for a warning reveals that counsel saw no risk to Mr Haines that required such a warning (the Crown here referring to Hamilton v R [2020] NSWCCA 80 at [52] per Macfarlan JA and ARS v R [2011] NSWCCA 266 at [148]); and hence r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Supreme Court Rules) applies.
It is submitted that in the circumstances the trial judge was required to give the jury a Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (Shepherd) direction because the CCTV evidence was an intermediate step in the chain of circumstantial reasoning leading to the conclusion of guilt; and that the trial judge was required to instruct the jury that if the jury was not convinced beyond reasonable doubt that Mr Haines was one of the persons depicted on the CCTV footage evidence, they must acquit the accused on all counts on the indictment. It is said that this was because the CCTV footage underpinned the prosecution's circumstantial case and the tendency reasoning supporting it; and that without the CCTV footage the Crown case was one of mere suspicious ambiguous association.
Finally, the applicant submits that the absence of instructions to the jury referable to both grounds of his appeal was fundamental to the fairness of the trial and has resulted in a miscarriage of justice not capable of rescue by application of the proviso in s 6 of the Criminal Appeal Act (citing again Farrell; Bulejcik; Weiss; Kalbasi).
The Crown says that, as it was a matter for the jury it would be difficult to predict what they might conclude; and therefore it would be difficult, and likely to be confusing, to frame a direction that posed the question as to how the jury should treat the evidence from the CCTV footage. Moreover, it is noted that there was CCTV which had recorded three of the offences which were charged (counts 1, 2 and 6) and the Crown had accepted that identity was only made out in CCTV footage from the Sylvania Waters premises (count 6). The Crown says that the direction would have needed to take this into account.
The Crown says that an indispensable link direction pursuant to Shepherd was not necessary or would, if given, have been confusing (referring to what was said by Dawson J at 579 in Shepherd). For those reasons the Crown says that such a direction was not necessary and the failure to give one did not give rise to a miscarriage. It is submitted that the trial judge's directions as to the burden and standard of proof and circumstantial evidence were sufficient.
Again, it is noted that Mr Haines' counsel did not seek such a direction at the trial; and hence r 4.15 of the Supreme Court Rules applies. The Crown submits that the reason for this was that trial counsel recognised that such a direction was not necessary or, if given, would have been confusing.