Higgins v R

Court of Criminal Appeal (NSW)|2018-10-31|Before: Hoeben CJ, Harrison J, Schmidt J, McClellan J

lton SC with Ms N Carroll (Appellant) Mr M G McHugh SC with Ms A Hawkins (Respondent)

Solicitors: George Sten & Co (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/94882 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: --- Date of Decision: 26 May 2017 Before: Woodburne SC DCJ File Number(s): 2015/94882

Judgment

HOEBEN CJ at CL: I agree with the orders proposed by Schmidt J in relation to Ground of Appeal 1 and Ground of Appeal 2. Regrettably, I do not agree with her Honour's judgment in relation to Ground of Appeal 3.
Ground 3 was in the following form:

Ground 3 - That should this Court consider that the Sheriff's report thus far is inadequate, then the Court should adjourn this appeal and order the Sheriff to conduct a further thorough and complete investigation with legal assistance and obtain affidavits from each juror with respect to the allegations of juror compromise and juror bias.

There was some issue in the appeal, which was not resolved, as to whether Ground 3 was a freestanding and separate ground or whether it involved the exercise of the power given to this Court pursuant to s 12 of the Criminal Appeal Act 1912 (NSW). Only limited argument was devoted to that question and in those circumstances I prefer not to make a decision in relation to it, other than to say I have doubts as to whether the ground of appeal does involve an exercise of this Court's power under s 12. I have that reservation notwithstanding the apparent agreement between the Crown and the appellant on that issue.
As Schmidt J has set out, the basis for the initial investigation pursuant to s 73A of the Jury Act 1977 (NSW) was an email from one of the jurors, the contents of which are set out in her Honour's judgment. The effect of her Honour's findings in relation to Grounds 1 and 2 (with which I agree) is that the concerns raised in that email have not been made out and that they should not be further pursued.
In the course of that investigation, however, one juror who was apparently no longer a member of the jury during its deliberation, reported "witnessing jurors making racist and derogatory comments about the accused in the jury room". The particular jurors referred to were not further identified and no further information concerning that comment was forthcoming.
There are obvious difficulties with the reported observations of the former juror. Apart from their hearsay nature, they are conclusory and vague in the extreme. No indication is given as to when in the course of the proceedings the asserted comments were made. That of itself is sufficient, in my opinion, for that aspect of the matter to be taken no further. In that regard, her Honour's analysis of Ground 2 is apposite.
More importantly, however, the sort of inquiry which is described in Ground 3 would inevitably involve an examination of the interaction and deliberations of the jury. To make the sort of assessment which her Honour requires in the orders which she proposes must involve the ventilation of such matters.
In that regard, I rely upon the observation of Basten JA in Petroulias v The Hon Justice McClellan [2013] NSWCA 434; (2013) 306 ALR 210 at [56] where his Honour said: "56 The extensive reference to the manner in which the deliberations were undertaken invites an investigation of the psychological relationships between the jurors, who were no doubt of very different backgrounds from each other, and thrown together for an extended period in order to undertake a public service which may not have been entirely welcome. To conduct an investigation into such matters would merely invite the destruction of the jury system." Bathurst CJ and Beazley P agreed with this part of his Honour's judgment.
I have difficulty in seeing how the proposed further investigation could avoid coming in conflict with the exclusionary rule identified by Basten JA. The difficulties with determining what is covered by the exclusionary rule and what is not were highlighted by the High Court (French CJ, Crennan, Kiefel, Gageler and Keane JJ) in Smith v Western Australia [2014] HCA 3; 250 CLR 473 at [27]-[28] where their Honours said: "27 The exclusionary rule does not deny the admissibility of evidence "extrinsic" to the jury's deliberations. What is "extrinsic" for this purpose is somewhat unsettled in that the description has been used to refer, both to a source of evidence other than the jurors themselves, and to events extraneous to the deliberative process. Evidence of irregularity has been said to be admissible where the evidence comes from a source other than the members of the jury. Evidence has also been said to be extrinsic where it concerns events which occurred outside the jury room or the jury box. In this latter regard, in R v Mirza, Lord Hobhouse of Woodborough noted that statements in the cases which refer to the confidentiality of the "jury box" were coloured by the experience that the jury was traditionally enclosed and segregated so that it was natural to regard the deliberations of the jurors as contained within the jury room. 28 What is "extrinsic", and therefore outside the exclusionary rule, is not a question which can always be answered by a mechanical application of rules about the source of evidence or the location of an event. In R v Young, for example, the Court of Appeal of England and Wales admitted evidence from a juror as to irresponsible behaviour in relation to the consideration of the guilt of the accused (the use of a ouija board to consult the deceased alleged victim of the accused) which occurred in the jurors' overnight accommodation."
As an aid in determining what is or is not covered by the exclusionary role, their Honours had regard to the rationale behind the rule: "30 As to the rationale for the exclusionary rule, in Minarowska, Gleeson CJ said: "[T]he underlying policy [of the exclusionary rule] aims to preserve the secrecy of jury deliberations, and to maintain the integrity and finality of a formally expressed verdict." 31 This description of the purpose of the exclusionary rule is consistent with that to be gleaned from the modern cases in Australia, Canada and the United Kingdom. There is some variety in the way the rationale for the rule is expressed in the cases, but it is sufficient for the purposes of the discussion which follows to proceed on the basis that the rationale for the rule lies in the preservation of the secrecy of a jury's deliberations to ensure that those deliberations are free and frank so that its verdict is a true one and to ensure the finality of that verdict."
Apart from the application of the exclusionary rule and the protection it extends to jury deliberations, the principle of finality is also relevant. The order proposed by her Honour would involve the second investigation of what occurred in this particular jury room. As indicated above, it does not involve a further examination of the email and the matters raised in it but it is based on an incidental remark made by a juror who played only a limited part in the trial.
On that issue, Smith is of assistance in the endorsement which it gives to expression of opinion by Lord Devlin. "40 Lord Devlin, writing extra-judicially in 1956, said: "All the jury must be in court when the foreman is asked to stand up and give their verdict so that it may be given in the presence of them all. And when he has given it the clerk of the court says: 'And that is the verdict of you all?'; and thereafter if no juryman dissents the jury is discharged and it is finis rerum [the end of things]. The court will not listen to any juryman who has second thoughts or allow any of them to assert thereafter that he was not a consenting party to the verdict. How otherwise could there be finality?"
This must apply even more to a remark by a person who was at one point a member of the jury but did not participate in the jury deliberations which led to the verdict in this case. The issue of finality becomes even more compelling when one has regard to the fact that no other member of the jury made a similar observation to the Sheriff and when no context for the alleged comments has been provided.
For the above reasons I would dismiss Ground of Appeal 3.
Accordingly, the order which I propose is that the appeal be dismissed.
HARRISON J: I have had the benefit of reading the judgments in draft of both Hoeben CJ at CL and Schmidt J. I agree with their Honours that grounds 1 and 2 should be dismissed. By reason of the difference of opinion between them with respect to ground 3, it becomes necessary that I indicate why it is that I agree with her Honour.
In Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30, Mason CJ and McHugh J said this at 52-3: "Furthermore, if the reasonable apprehension test remains the test for alleged bias on the part of a judge, as we think it should, it is not easy to see why a different test should be applied to a juror. In criminal trials in particular, the jury's function is of great public importance. It is certainly no less important than that of the judge sitting alone in a civil trial, a commissioner determining an industrial dispute or a member of a statutory tribunal inquiring into conduct in an industry which it supervises. The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias. It is true that, unlike the judge and persons exercising quasi-judicial functions, the juror is subject to the directions of a third party - the trial judge. In considering whether a reasonable apprehension of bias exists, it is therefore necessary to consider the likely effect of the judge's directions (if any) as well as the irregularity in question. But that difference does not seem to us to be sufficient to distinguish the test for juror bias from the test for judges and persons who exercise quasi-judicial functions. It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
It goes without saying that all of us are to varying extents and degrees burdened with accumulated predispositions and prejudices. That is a sad and regrettable fact of the human condition. It is the reason that judges are required to warn jurors to decide the issues in a criminal trial fairly and without resort to prejudgment. Prejudice and prejudgment are etymologically connected.
It cannot always if ever be confidently assumed that all jurors abide by these warnings. Except in cases where there is some evidence of it, the question of whether or not any particular juror has arrived at a decision improperly, in the sense that he or she was guided by prejudice or bias, will never be known. Even in countries such as the United States, where the jury selection process involves examination of prospective jurors in an attempt to discern their views on a whole range of issues that are arguably relevant to the case in question, there is not and cannot be any guarantee that jurors ultimately selected will exercise their functions in a benign and neutral manner.
Because there is an obvious need to maintain the sanctity of jury deliberations and the finality of jury decisions, there is an understandable reluctance evident in the relevant jurisprudence to encourage any approach that might potentially create any inconvenient exceptions to these important concepts. That reluctance recedes in cases where there is, or appears likely to be, some good reason to be concerned that the presumption or the expectation of impartiality may be in question. The offer of flowers by a juror to the mother of the deceased in a murder trial is an uncontroversial example. Not all examples of demonstrated affection or ill will are likely to be as clear.
In the present case, there is some evidence that one or more of the jurors in the appellant's trial spoke of her in racist or otherwise derogatory terms. That evidence is limited and anecdotal, and consists of, or is to be found in, the sheriff's report. The sheriff wrote that: "With the exception of jurors [X] and [Y], all other jurors reported deliberations were conducted fairly and properly. Notwithstanding, it was suggested discussions were at times robust and heated due to frustration concerning the length of the trial… … The only juror who could be considered as somewhat supporting the allegations of jurors [X] and [Y] was juror [presumably Z]. [Z] alleged witnessing jurors (not identified further) making racist and derogatory comments about the accused in the jury room…"
That material, admittedly scant, raises a question of whether or not more than one juror may have revealed themselves as racially prejudiced against the appellant in particular or to have held racially based or motivated opinions in general. It is not to the point that such opinions, if held, did or did not influence either the course of the jury's deliberations or the verdict at which all jurors unanimously arrived. Indeed, the inquiry that the appellant calls for is in fact collateral to and removed from either of these considerations. The burden of the appellant's submissions is not that the jury's decision was wrong but that it was arrived at in circumstances where the perceptions of impartially and neutrality, and therefore fairness, cannot withstand scrutiny. It should be noted that the mere availability of further material concerning the issue of whether or not one or more of the jurors did or may have spoken in racist or derogatory terms about the appellant does not automatically foreclose the result in, or dispose of, this appeal.
The appellant's contentions do no more than draw attention to the need to respect the undoubted requirement that justice is administered under a bright light. In the present case, there is some evidence to suggest that it may not have been. Moreover, the fact that one or more of the jurors may have openly exposed their prejudices to the others is arguably an example of conduct extrinsic to the accepted and understood imperative that jurors heed the judge's instructions and abide by their respective oaths or affirmations.
Until it is known whether or not what the Crown would presumably and quite reasonably wish to characterise as a throwaway line in the sheriff's report is more than simply that, I think that some further investigations should be conducted. It is for these reasons that I consider the orders proposed by Schmidt J are appropriate.
SCHMIDT J: In 2016 at trial in the District Court presided over by Woodburne DCJ, the jury unanimously found Ms Higgins guilty of 81 Commonwealth offences, 80 involving fraud and one count of dealing in proceeds of crime greater than $1 million. She appeals against those convictions, contending that there has been a miscarriage of justice which ought to result in a retrial.
Ms Higgins' appeal flows from the results of an investigation Woodburne DCJ directed the Sheriff to conduct under s 73A of the Jury Act 1977 (NSW), after one of the jurors sent an email to the Sheriff, the day after the verdicts were reached, with the knowledge of the juror about whom concerns were there expressed. The email advised: "… Following on from my call earlier, as per your request, I would like to detail the issues I had with respect to the manner in which the verdict was reached for a number of counts in yesterday's deliberation. It is my understanding that no juror has the right to attempt to coerce nor do they have the right to attempt to manipulate another juror into suspending their objections and/or issues regarding a count and that deliberation must continue until such disputes have been peacefully resolved. This certainly was not the case yesterday as, without going into too much detail, two jurors did not have their doubts and objections addressed or resolved and simply decided to go with the majority of other jurors. Whilst I personally did not disagree with the outcome, I cannot in good conscience support the outcome as reached. Deliberation is, as I understand, meant to be taken very seriously as our decisions inform the judge in their sentencing. Therefore, it would be totally inappropriate and unconscionable for me to allow the accused in the case "R v Melissa Jade Higgins" to be subject to any penalties with respect to the counts where objections were raised and quashed, rather than addressed diplomatically and civilly. I would therefore like to ask if it is at all possible for this trial to be declared a mistrial as I believe this is not just to the accused and because I believe this to be a gross perversion of the course of justice."
Section 75C(2) of the Jury Act permitted a former juror to approach the Sheriff, if he or she had "reasonable grounds to suspect any irregularity in relation to … the performance of" another juror's "functions as a juror on that jury", to "disclose the suspicion and the grounds on which it was held to the sheriff". "Irregularity" is defined in s 75C(4) "in relation to a juror's membership of a jury, or the performance of the juror's functions as a juror" to mean: "(a) the commission by the juror of an offence under this Act or any other misconduct, (b) a juror becoming excluded from jury service, (c) the refusal of the juror to take part in the jury's deliberations, (d) the juror's lack of capacity to take part in the trial or coronial inquest (including an inability to speak or comprehend English), (e) the juror's inability to be impartial 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."
It is apparent that Woodburne DCJ formed the view, as s 73A required, that the email provided a reason to suspect that the verdicts entered at Ms Higgins' trial may have been affected by "improper conduct by a member or members of the jury". The result was that an investigation into what had been raised by the juror in the email was conducted. On this appeal neither party suggested that her Honour erred in taking that course.
Section 73A provides: "73A Investigation by sheriff of jury irregularities (1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation. (2) Section 68A (1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation. (3) Section 68B (1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation. (4) Section 139 (2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official). (5) The sheriff may, despite sections 29 and 68, include a juror's name or other matter that identifies a juror in a report to the court under this section."
The Sheriff interviewed the author of the email, as well as other jurors and then provided a report which her Honour considered did not require any further steps, other than the parties being notified that a s 73A inquiry had been conducted, Ms Higgins already having indicated her intention to appeal against her convictions. But she refused Ms Higgins' application that she be provided with a copy of that report, even though the provision of a copy of the report, redacted to preserve juror anonymity was not opposed by the Director: R v Higgins (District Court (NSW), Woodburne DCJ, 31 May 2017, unrep) at 12.
Her Honour's refusal rested on the exclusionary rule discussed in Smith, where it was held at [1]: "It is a general rule of the administration of criminal justice under the common law that once a trial has been determined by an acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict."
Her Honour considered that Ms Higgins would not be precluded from seeking access to the report in her foreshadowed conviction appeal, but was satisfied that: "there is no evidence of extrinsic influence, or unlawful conduct, or coercion, or other misconduct that would lead me to the conclusion that I should not proceed to sentence, or that I should, in advance of the matter being listed in the Court of Criminal Appeal for directions or hearing, disclose the contents of the report"(at p12)
Woodburne DCJ later sentenced Ms Higgins to a total sentence of 7 years, with a non-parole period of 4 years. Ms Higgins has not appealed against that sentence or by her conviction appeal suggested that it was not open to the jury to have convicted her on all counts, on the evidence led at trial.
Woodburne DCJ refused Ms Higgins application for bail. Before filing her appeal, Ms Higgins made another application for bail and also then sought to be provided with a copy of the sheriff's report.
On that application the Director opposed Ms Higgins being provided with a copy of the report, but Bellew J ordered that both Ms Higgins' solicitors and the Director be provided with a copy, taking the view that it could be relevant to the issues that he was required to determine under s 22 of the Bail Act 2013 (NSW), as to Ms Higgins' prospects of success on appeal: R v Higgins [2017] NSWSC 1257 at [24].

Grounds of appeal

Ms Higgins' case on this appeal is that there was a miscarriage of justice at her trial. She finally advanced three grounds of appeal: 1. The verdicts of the jury should be set aside because unanimous verdicts were reached through juror pressure, compromise of verdicts and time constraint pressures from exceeding the trial estimate; 2. The verdicts of the jury should be set aside as a juror irregularity has deprived the accused of a fair trial, where multiple jurors have exhibited actual bias against the accused in the jury room, to other jury members; 3. That should this Court consider that the Sheriff's report thus far is inadequate then the Court should adjourn this appeal and order the Sheriff to conduct a further thorough and complete investigation with legal assistance and obtain affidavits from each juror with respect to the allegations of juror compromise and juror bias.
Whether the report is admissible on this appeal was also in issue.

Is the report admissible?

I am satisfied that the report is admissible.
In issue between the parties is whether the results of the sheriff's investigation into the behaviour raised by the former juror falls within the exclusionary rule discussed in Smith, establishing that there was a miscarriage of justice at Ms Higgins' trial. Further, whether there is reason to suspect that there was other improper conduct by a member or members of the jury, which has not been investigated.
The case advanced for Ms Higgins included that: 1. "at least one juror's verdicts were as a result of pressure of other jurors during deliberations" and that this undermined the unanimous verdicts which the jurors had entered; 2. "issues of compromise of verdicts" arose, given views expressed by some jurors about the evidence on some counts and Ms Higgins conviction on all counts; 3. observations made by jurors revealed "a real risk that the pressure felt by jurors regarding the extended duration of the trial, may have adversely affected the process as well"; 4. there had been actual bias against Ms Higgins evidenced by racist or derogatory comments made about her by some jurors.
Resolution of all of these matters depends on the application of what was decided in Smith, to the results of the investigation Woodburne DCJ required the sheriff to conduct under s 73A of the Jury Act.
In those circumstances it is apparent that the report is admissible, relevant as it is to what arises for determination on this appeal, namely, whether there has been a miscarriage of justice at Ms Higgins' trial and whether a further investigation is required.

Ground one - should the verdicts be set aside because they were reached through jury pressure, compromise and time constraint pressures?

For the following reasons I am satisfied, however, that this ground of appeal cannot succeed.

The exclusionary rule

In Smith the rationale for the exclusionary rule that once a trial has been determined by jury verdict and the jury discharged, evidence about the jury's deliberations is not admissible to impugn the verdict, was explained at [31] to lie "in the preservation of the secrecy of a jury's deliberations to ensure that those deliberations are free and frank so that its verdict is a true one and to ensure the finality of that verdict."
That rationale informs the limits of the operation of the exclusionary rule: at [32].
While the exclusionary rule does not deny the admissibility of evidence "extrinsic" to the jury's deliberations, what "extrinsic" means for this purpose "is somewhat unsettled". But it does not exclude evidence being called from a juror: at [28].
The place where an irregular incident occurred, or the fact that the source of evidence about such an incident is a juror, also does not preclude the incident being "extrinsic", because "in cases of the most egregious misconduct the only source of the evidence will often be the jurors themselves": at [29].
"Unlawful influence" upon a juror falls within the exclusionary rule, that being "inconsistent with free and frank deliberation by that juror, and the integrity of his or her verdict": at [33] following R v Mirza [2004] 1 AC 1118 at 1145 [51]. That is because (at [34]): "... free and frank deliberation by jurors would not be encouraged or protected by applying the exclusionary rule to a case where the very conduct which a juror seeks to bring to the attention of the court is unlawful harassment by a fellow juror calculated to prevent the conscientious discharge of the juror's duty."
Other examples of conduct which falls within the exclusionary rule given in Smith were threats of physical retaliation, if jurors acquitted an accused (at [35]); unlawful physical coercion by a rogue juror (at [36]); crimes committed in the jury room (at [37); and unlawful intimidation (at [54]).
What did not fall within the exclusionary rule was there explained to be "lawful but irresponsible behaviour by a juror, careless of his or her oath": at [46]. That was there explained to be because: "The risk that a juror may not be true to his or her oath because of his or her personal eccentricities is a risk which is inherent in a system of trial by jury, whereas the risk of the intimidation of jurors by unlawful threats of violence from other jurors is not."
It was thus concluded at [48] that: "It is consistent with the rationale for the exclusionary rule to conclude that evidence by a juror that unlawful pressure or influence has been applied to him or her by another juror in relation to his or her verdict falls outside the scope of the rule."
In Smith the High Court also warned at [50], however, that "A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion; but where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation as part of its consideration of whether a miscarriage of justice has occurred."
This observation underscores the care which must be taken in this case. What lies in issue between the parties goes to the integrity of the trial process which resulted in the verdicts which Ms Higgins now challenges, even though she does not contend that they were not open on the evidence: see Smith at [52].
In undertaking the task which arises on this appeal, it must thus be borne in mind that the High Court has drawn distinctions between what is and is not "extrinsic" to the jury process and thus falls within the exclusionary rule. That includes the distinctions which must be maintained between: 1. lawful, albeit irresponsible behaviour by a juror, careless of his or her oath, as opposed to unlawful behaviour by other jurors; 2. lawful pressure or influence, as opposed to unlawful pressure or influence which jurors may not apply to each other; and 3. robust debate between jurors, which is permitted and unlawful coercion or intimidation by a juror or jurors, which is not.

The presumption that the verdicts were correctly entered

In resolving what lies in issue, account must also be taken of what was decided in In NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public Prosecutions (2016) 260 CLR 546; [2016] HCA 33 it was held at [26], however: "What is "conclusively inferred", where there is no dissent and no timely correction, is that the verdict delivered by the foreperson is the verdict of the jury. The presumption that the verdict is correctly communicated is rebuttable when it is not delivered in the sight and hearing of all jurors or if it can be shown that one or more of the jurors was not competent to understand the proceedings. As a general principle, the presumption will not be rebutted by evidence admitted simply to show that a juror did not agree with the verdict or that the juror's apparent agreement resulted from a misapprehension." [footnotes omitted]
It follows that in order to rebut this presumption, what Ms Higgins has to establish on this appeal is that the investigation has established more than that one juror did not agree with some of the 81 verdicts which were entered. That may be established if it can be found that joining in those verdicts was the result of unlawful behaviour by other jurors, of the kind dealt with in Smith.
This trial lasted almost 10 weeks, having initially had an estimate of 6 weeks, an indication given that it was more likely to take 3 to 4 and potential jurors also being asked to indicate if they would be unavailable in the next 8 weeks.
The jury commenced its deliberations on 14 November 2016 and reached its verdicts on 23 November. On three of those days the jury sought and was granted leave to retire early. Finally, in the presence of all members of the jury, the foreperson indicated in respect of each of the 81 counts that the jury's unanimous verdict was one of guilty, in a process which took some hours. No juror then indicated any disagreement with any of the verdicts. That only emerged from the Sheriff's investigation into what the email raised.
The case Ms Higgins pressed was that the investigation had established that it was the pressure of other jurors which caused the jury member to compromise, when agreeing to enter verdicts of guilty on some charges, of which he or she did not believe her to be guilty. Further, that this had involved an inappropriate level of pressure from others, "as perceived by the juror". Additionally, that it appeared that a proportion of the 81 verdicts was the result of such compromise and that the integrity of those verdicts was not only undermined by juror pressure, but also by time constraints, given concerns jurors articulated about the length of the trial, notwithstanding that the juror had not indicated any disagreement with the verdicts when they were delivered in open court in his or her presence.
The Crown contended that to displace the presumption the investigation had to establish that the juror in question had acted under duress, fear or intimidation.
I am satisfied that what the sheriff's investigation has revealed and what was relied on for Ms Higgins neither rebuts the presumption discussed in NH, nor establishes that her circumstances fall within the exclusionary rule explained in Smith.

Jury pressure

Ms Higgins' case relied on the existence of the "jury pressure" which it was argued the Sheriff's investigation had established existed.
But given what was decided in Smith and NH, in my view that alone is incapable of establishing that during Ms Higgins trial, there was any unlawful behaviour, pressure, influence, coercion or intimidation directed by other jurors to the juror who joined in the verdicts in question, despite the doubts he or she later told the sheriff were still held when the verdicts were entered, about what the evidence on those counts had established.
A member or members of this jury feeling "pressured", as the result of this jury's interactions with each other during their deliberations, robust as they no doubt were, is simply not a basis upon which a finding that there has been a miscarriage of justice can rest. More than that must be established, because as was discussed in Smith at [50], there is a line which must be maintained "between robust debate and unlawful coercion".
That line is not concerned with the existence of subjective feelings of pressure, which a juror or jurors may feel or be concerned about, as the result of their participation in the jury process. It is rather concerned with the existence of objectively established, unlawful behaviour by some jurors to the juror who feels pressured as a result, such behaviour being extrinsic to the jury process.
That was not the case which Ms Higgins advanced, it not being submitted that the investigation had established that any unlawful pressure had been directed to the juror in question, or that the line discussed in Smith had been crossed.
In a complex trial such as that involved in Ms Higgin's case, jurors undoubtedly would have felt under pressure, both during the course of the trial and even more so, during the course of their deliberations. That is only natural, given the number and nature of the charges which they had to consider; the nature of their role; and what their participation in the jury's deliberations necessarily required of them.
Such feelings of pressure may be self-imposed. They may result from the nature of the jury's task; or from the time that the trial and the jury's deliberations are taking: or from the way in which jurors conduct themselves towards each other.
The Sheriff's report certainly establishes that in Ms Higgins' trial, some jurors did feel under pressure. Two of them genuinely held concerns about how some jurors had conducted themselves towards others, during the deliberations. But that is not enough to establish that a miscarriage of justice occurred.
Even if Ms Higgins' case be understood as amounting to a submission that the investigation had established that unlawful pressure was placed on the juror about whom the email which triggered the investigation raised concerns, fairly read, the report did not reveal that the line discussed in Smith, which must be maintained in resolving what here lies in issue, was crossed.
The report indicates that all but two jurors reported that the jury's deliberations were conducted fairly and properly, even though there was at times robust and heated discussion, including as the result of frustration about the length of the trial. The two who disagreed were concerned that the opinions of some jurors were not adequately heard, or considered by others.
The juror who reported still having reservations about what the evidence relating to some counts established, even when he or she finally joined in all of the guilty verdicts, as the result of pressure also, however, described how he or she had failed to persuade other jurors to share those reservations. Even those jurors who at one point appeared to have swung towards sharing them, were persuaded by the opinions of other jurors, who did not share those doubts, to join in the guilty verdicts on even those counts.
Neither the frustration which the juror felt about that outcome, nor the fact of his or her acquiescence in all of the verdicts because of feelings of pressure, establishes the pursuit of conduct by other jurors of a kind which can properly be accepted as having amounted to unlawful pressure or influence by other jurors. Nor does it establish that any other unlawful behaviour, such as unlawful coercion or intimidation, or any other conduct which amounted to "extrinsic" conduct of the kind dealt with in Smith, was pursued by any member of this jury.

Time pressure

The same conclusion must be reached in relation to time pressures.
It is only natural that in a long trial such as this, jurors may have concerns and feel frustrated by the time that the trial and/or their deliberations are taking. No doubt jurors may raise and discuss such concerns with other members of the jury, especially during the course of their deliberations. The report reveals that this was such a case. In some trials such concerns are raised by jury questions, but that did not occur at Ms Higgins' trial, even when requests for early adjournments were sought and granted during the course of the jury's deliberations.
Neither the existence of such concerns, nor complaint or discussion by members of the jury about them, can alone provide a basis for the conclusion that there has, as a result, been a miscarriage of justice. That is because that could also not establish the existence of unlawful pressure or influence upon a juror, of the kind falling within the exclusionary rule discussed in Smith.
While the Sheriff's investigation did establish that concerns about the time that the trial and the deliberations were taking were raised during the deliberations, it did not establish that they amounted to unlawful influence or pressure on any juror.

Compromise

In Villis v R [2014] NSWCCA 74, it was established that the course pursued at 2pm on the 9th day of that trial and the directions then given by the trial judge, after the jury had advised that it was deadlocked, had led to a risk that passive pressure would be applied to the jury to compromise their verdict and for those in the minority to fold to the views of the majority, contrary to their sworn oaths or affirmations: at [23].
It was the length of Ms Higgins' trial and the pressure which resulted from the way in which the jury members interacted and conducted themselves, which I have already discussed, which were argued to have resulted in one juror so compromising his or her verdict on some counts, in a way that resulted in a miscarriage.
In Ms Higgins' case, all verdicts were entered in the presence of the jury. The Sheriff's investigation established that one juror had doubts about conviction on some counts, given the view which he or she took of the evidence; that they were discussed during the course of the jury's deliberations; and that having been unable to convince other jurors to share those doubts, the juror finally agreed in the verdicts. That of itself, does not establish that the juror compromised his or her verdict, by folding to the views of the majority, contrary to his or her sworn oath or affirmation.
That is because, as held in NH, even showing that the juror, who was present when the verdicts were entered and who did not then dissent, even though disagreeing with the verdicts, does not rebut the presumption that the verdicts were properly entered. More must be shown.
If the investigation had established that a juror had not revealed that he or she did not agree with some of the verdicts, when they were given in open court, because of unlawful conduct by others towards that juror, of the kind falling within Smith, the presumption would have been rebutted. But as I have explained, that has not been established.
Clearly that juror, having doubts about what the evidence on some counts established, which to his or her frustration that juror could not convince any other juror to share, naturally felt under pressure to join in the verdicts. The juror finally decided to join in the verdicts with which all other jurors agreed and was present when they were entered. When later approached by the Sheriff that juror indicated that he or she had not revealed any disagreement with the verdicts, despite having such doubts, because of pressure that was felt.
That of itself did not establish that it was unlawful conduct of the kind dealt with in Smith, on the part of other jurors, which had resulted either in the juror's decision to join in the verdicts, or not to indicate disagreement with those verdicts, when they were given in the juror's presence, in open court.
In the result, it also cannot be concluded that the juror's "compromise" either displaced the NH presumption, or fell within the exclusionary rule discussed in Smith, so as to have resulted in any miscarriage of justice.

Ground 2 - bias

Notwithstanding that it is not now contended that the evidence led at trial was not capable of leading to Ms Higgins' conviction on all 81 counts, as discussed in Webb at 50: "it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done":
There Mason CJ and McHugh J held at 53 that: "the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially
Brennan J also observed that just as in the case of a judge, it is a valid ground of objection to the continued sitting of a juror in a criminal trial "that a fair-minded and informed member of the public would entertain a reasonable apprehension that the judge or juror will not discharge his or her duty impartially": at 57.
It was as the result of the Sheriff's investigation into the juror's email, that another juror, who was apparently no longer a member of the jury during its deliberations, reported "witnessing jurors (not identified further) making racist and derogatory comments about the accused in the jury room".
The Sheriff had not been asked to investigate the making of such remarks. It appears that the juror who reported hearing them was not asked to indicate what was actually said. Nor were other jurors asked about such comments having been made.
There is no question that racist remarks, if made, involve prejudice of the kind which arose for consideration in Mirza, where it was observed that 'racial prejudice is an especially corrosive form of prejudice': at [151]. Derogatory remarks about any accused by a member of the jury may also evidence bias.
For Ms Higgins it was thus contended that this aspect of the report, established that her trial had miscarried because, as a result, she had not received a trial before an unbiased jury.
For the Crown it was contended that there was no real possibility of a miscarriage established by this aspect of the Sheriff's report, because the ordinary observer would dismiss the juror's claim as so unsubstantiated and unlikely to have permeated the jury decision, that this ground was not made out.
The difficulty with the Crown's case, so advanced, is that it would appear to invite a further investigation like that ordered in Lodhi v Attorney General of New South Wales [2013] NSWCA 433, to which I will return.
This follows because in the unlikely event that it was a judge who was heard to make what could properly be described as "racist and derogatory remarks" about an accused during the course of a trial, there could be no question that the judge could not continue to sit. That is because a fair-minded and informed member of the public would then entertain a reasonable apprehension that the judge would not be impartial.
If it was rather a juror or jurors who made comments of that kind about Ms Higgins during the course of her trial, a juror's continuation as a member of the jury would not depend on it also being established that such remarks 'permeated' the jury's decision as to her guilt, as the Crown contended.
To support the case advanced for Ms Higgins, reliance was also placed on s 18C of the Racial Discrimination Act 1975 (Cth) which provides: "Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence. (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. (3) In this section: "public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
It is difficult to see that s 18C takes the matter any further, given what is thereby made unlawful. The comments in question were apparently made in the privacy of the jury room, which is not a public place, in circumstances where they could not have been communicated to the public and were not made in the sight or hearing of people in a public place.
Despite this, there can be no question that a juror making remarks about an accused in the jury room during the course of a trial properly described as "racist or derogatory" may not only disclose racial prejudice, but also an attitude towards the accused which is not consistent with the conduct of a trial before an unbiased jury.
As discussed in Mirza, the law is alive to the existence of prejudice in members of the jury and so jury directions seek to address that possibility. As there discussed at [152]: "The legal system does not ignore these risks: indeed it constantly guards against them. It works, however, on the basis that, in general, the training of professional judges and the judicial oath that they take mean that they can and do set their prejudices on one side when judging a case. Similarly, the law supposes that, when called upon to exercise judgment in the special circumstances of a trial, in general, jurors can and do set their prejudices aside and act impartially. The recognised starting-point is, therefore, that all the individual members of a jury are presumed to be impartial until there is proof to the contrary: Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 , 21, para 58; Sander v United Kingdom 31 EHRR 1003 , 1008, para 25."
In this case, at the commencement of the trial, the jury was directed that they were "required to evaluate impartially and objectively the evidence produced in this courtroom." As discussed in Mirza at [154], jurors are expected to apply such directions.
Exactly when the "racist and derogatory" remarks were made by members of the jury is not identified in the sheriff's report, but it must be inferred that because they were made in the jury room, it was after this direction was given.
In summing up the jury was further directed that they had to decide what lay in issue on the evidence and without prejudice, and that they "must act impartially, dispassionately and fearlessly. You must not let sympathy or emotion sway your judgment."
The report does not suggest that any "racist or derogatory remarks" were made about Ms Higgins after this further direction was given, but it may be that Ms Higgins had already by then been denied the fair trial she was entitled to receive.
There is no suggestion that the making of remarks of that nature were reported to the trial judge. Had they been, they would have been investigated. If established, they are likely to have led to the jurors who made them being discharged, because communication of such remarks to other jurors would have been contrary to the directions already given. That would also have suggested that some jurors were not bringing an impartial mind to the matters that they were called on to decide at the trial.
Because, however, no such remarks were reported to the trial judge until the Sheriff's report and the view taken by the trial judge was that no further steps needed to be pursued, in relation to what the report contained, there has been no investigation into what was actually said by other jurors. Thus it has not been established that any remarks made about Ms Higgins were properly described as having been "racist and derogatory" or that she has been denied a fair trial.
In the result, this ground has also not been established.

Ground 3

This ground raises both the question of the Court's power to order a further inquiry into the question of the alleged bias raised by ground 2 and whether such a further inquiry should be ordered.

Power

Section 12(1)(d) of the Criminal Appeal Act 1912 (NSW) was relied on for Ms Higgins. It relevantly provides: "12 Supplemental powers of the court (1) The court may, if it thinks it necessary or expedient in the interests of justice: … (d) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot, in the opinion of the court, be conveniently conducted before the court, the court or any judge thereof may refer the question for inquiry and report to a commissioner appointed by the court, and act upon the report of any such commissioner so far as the court thinks fit, and … and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters, and issue any warrant or other process necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial."
The Crown contended that there should be no further inquiry, but if one were to be ordered, the Court would utilise its undoubted powers under s 73A of the Jury Act: Petroulias at [30].
As there explained at [37], s 73A was introduced as part of a package of amendments, including s 68B (prohibiting jurors from disclosing to any person during the trial information about their deliberations) and s 68C (prohibiting a juror from making inquiries which might elicit extrinsic material in relation to the case). In the Second Reading Speech for the Jury Amendment Act 2004 (NSW), it was explained that the amendments were a response to two trials in which convictions were overturned because the verdicts of the juries had been tainted by misconduct, referring to R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 and R v Skaf [2004] NSWCCA 37; 60 NSWLR 86.
In Petroulias, Beazley P took the view that the function of a judge under s 73A did not readily fall within the supplemental powers of the Court of Criminal Appeal contained in s 12 and that s 73A did not bear the hallmarks of a judicial function, but all members of the Court agreed that the merit of the request for an inquiry into the jury conduct there in question, should be considered in the exercise of the jurisdiction granted by s 73A.
In my view, the same conclusion must be reached in this case, given the specific provisions of s 73A as to the circumstances in which jury deliberations can be investigated, both during and after trial, including when an appeal such as this is on foot.
In coming to that conclusion, it is relevant to take into account that s 73A provides an exception to those provisions of the Jury Act which make it an offence for a juror to wilfully disclose information about jury deliberations during a trial, defined in s 68B(3) to include "statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations."
Section 73A also provides an exception to s 68A, which makes it an offence to solicit information from a former juror "for the purpose of obtaining information about: (a) the deliberations of a jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest.
Section 73A also evinces an intention to authorise an infringement of the general law principles, reflected in ss 68A and 68B, as well as in ss 29 and 68, which govern the immunity of jurors from inquiry into their deliberations, and protect their anonymity: Lodhi at [10]. These aspects of s 73A are not replicated in s 12 of the Criminal Appeal Act.
It follows that it may be that in accordance with "the Anthony Hordern principle", enunciated by Gavan Duffy CJ and Dixon J in in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9 and discussed in Deputy Commissioner of Taxation v Dick [2007] NSWCA 190, even though the two provisions appear in different statutory schemes, that principle excludes the inquiry sought being ordered under s 12 of the Criminal Appeal Act, because: "when the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it should be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
It is unnecessary to come to a final conclusion about this, however, because it is apparent that in the circumstances which have arisen, if any further inquiry were to be ordered by this Court, it should be ordered exercising the powers given by s 73A of the Jury Act.

Should there be a further inquiry?

In my view there should be a further inquiry ordered.
In Petroulias a s 73A investigation was refused, after a blog was published on the internet, which extended over 30 pages, in which the merits of the convictions there in question were discussed, some of the views purporting to be from persons on the jury. It was concluded that the proposed investigation was without merit and that the material did not warrant further investigation because: "The extensive reference to the manner in which the deliberations were undertaken invites an investigation of the psychological relationships between the jurors, who were no doubt of very different backgrounds from each other, and thrown together for an extended period in order to undertake a public service which may not have been entirely welcome. To conduct an investigation into such matters would merely invite the destruction of the jury system."
In Lodhi, however, a s 73A investigation was ordered, as I said earlier, because it was concluded that in that case, it would not lack utility. It seems to me that this is a similar case and that as discussed in Webb, in the circumstances which have arisen, on this appeal this Court must be satisfied that justice was not only done at Ms Higgins' trial, but that it can be seen to have been done.
It was the investigation which Woodburne DCJ directed following the approach from one juror, which produced information from another, about what was said by some other members of the jury, which raises the possibility of other "improper conduct" involving actual bias against Ms Higgins, evidenced by the making of "racist and derogatory" remarks about her, during the trial.
But what was actually said and whether that can properly be described as having amounted to "racist and derogatory remarks", which have deprived Ms Higgins of the fair trial she was entitled to receive, because of the existence of bias, has not yet been investigated.
Also necessary to consider is whether what is now proposed would also invite the destruction of the jury system, as was concluded was the case in Petroulias, because what is sought is also an investigation into the psychological relationships between the jurors: at [56].
I consider that in the unusual circumstances which have here arisen, what is required would not involve an investigation of that kind.
That is because what is required is a circumscribed investigation into objective facts. It would involve the Sheriff: 1. first, obtaining an account from the juror who reported having heard remarks which he or she described as having been "racist and derogatory", as to the words which were heard spoken; when; and in whose hearing. 2. Second, an account then being obtained from the other jurors as to whether any of them either made such remarks, or heard such words, or words to similar effect, being spoken; when; and in whose hearing.
The utility of the resulting report will be that the Court will then be in a position to hear the parties in order to determine whether any remarks made by a juror can properly be described as having been "racist or derogatory" and if so, if there was, as a result, a miscarriage of the kind dealt with in Webb at Ms Higgins' trial.

Orders

I would thus order: 1. The hearing of the appeal be adjourned. 2. The Sheriff be directed to conduct a further investigation under s 73A of the Jury Act into the matters dealt with at [126] of this judgment. 3. Following receipt of that report: 1. A redacted copy of the report be provided to the parties; and 2. Ms Higgins notify the Crown within 21 days as to whether she wishes to further press her appeal, in which event she should approach the Registrar to have the matter relisted for further directions and listing. 1. If Ms Higgins does not seek to press her appeal further, that she notify the Court within 21 days, whereupon orders dismissing the appeal will be entered.

Amendments 22 November 2018 - typographical corrections made to [17], [40(4)], [48], [86], [117], [126(1)] 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: 22 November 2018

Jury Amendment Act 2004(NSW)

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