Solicitors:
Elliot Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2011/3653
Decision under appeal Court or tribunal: District Court
Date of Decision: 24 April 2014
Before: Hock DCJ
File Number(s): 2011/3653
[2]
Judgment
MACFARLAN JA: I agree with Hall J.
HALL J: The appellant, Afif Mikael, was arraigned in the District Court on 29 August 2013 before her Honour Hock DCJ and a jury of twelve in relation to the following counts:
Count 1: Supply a large commercial quantity of methylamphetamine (1848.73 grams) contrary to s 25(2) Drug Misuse and Trafficking Act 1985;
In the alternative to count 1:
2 counts of supply methylamphetamine (Counts 2 and 3);
2 counts of supply not less than a commercial quantity of methylamphetamine (Counts 4 and 5);
Count 6: Supply a prohibited drug (cocaine 0.72g);
Count 7: Knowingly receive proceeds of crime, namely $6100 (s 193V(2) Crimes Act 1900)
On 10 September 2013, the appellant was found guilty on Counts 1 and 7 and not guilty on Count 6. The trial proceeded over 31 days.
The trial before Hock DCJ was the third time that the appellant had stood trial on the charges. The first two trials had been aborted on the application of the appellant due to the necessity for the defence to examine telephone intercepts.
On 24 April 2014, the appellant was sentenced to a head sentence of 10 years 6 months with a non-parole period of 6 years 6 months.
By Notice of Appeal dated 14 May 2015 and filed on 29 May 2015, the appellant appeals against his conviction only, on a single ground in the following terms:
"The trial judge erred in failing to discharge the jury."
Counsel appearing for the appellant at trial, Mr Thomas, commenced his closing address to the jury at 3:30pm on Thursday, 29 August 2013. His address continued the next morning and finished at 11:30am on 30 August 2013.
Shortly after the morning tea break, a jury note was given to the trial judge. It was in the following terms:
"We have noticed in the defence closing statement two men entered the court room and the youngest was on his phone. Five of us saw a flash from his phone which was facing the jury. We would like to know if it was a photo taken. Can we ask no phones to be visible or used in the court room for our privacy. Thank you."
The trial judge discussed the note with counsel for the appellant and the Crown. Mr Thomas informed her Honour that the two men referred to in the jury note were Elias Matouk, solicitor, and a person in Mr Matouk's company or employment. The phone in fact belonged to Mr Matouk's associate. Mr Matouk was not the solicitor for the appellant at trial. Mr Thomas told her Honour that the flashes occurred when the mobile phone received a message. Her Honour then recalled the jury and directed them as follows:
"… the enquiries that I have been able to make so far reveal that one of the gentlemen is a solicitor of this court. I am told that the modern phone applications often flash when a message is received.
The phone should not have been on in court but I am reasonably confident that no photograph was taken, but when you are sent home for the day, I am going to have the solicitor contacted and make some further enquiries about the matter because it simply just should not happen. Now I am hoping that will set our minds at rest over the weekend and I will give you more information about that on Monday.
At this stage I can commence the summing up and I think unless any of you indicate that you'd rather just go now for the day, if you are concerned. Do you want to go outside and think about it or are you happy for me to go on? And, as I say, I can only assure you so far my enquiries reveal to date, no photograph has been taken of you and I will certainly be making those enquiries of the solicitor who of course will know who the gentleman was with him, the younger gentleman."
Following this direction the jury indicated to her Honour that it wished for her to proceed. Her Honour then commenced the Summing Up.
Shortly before the luncheon adjournment the trial judge heard evidence from Mr Elias Matouk. He told her Honour that the other man was undertaking work experience and was a university student named James Ghafari. The court sheriff examined the phone and confirmed that no photographs had been taken. Mr Thomas asked the trial judge to contact the jurors to tell them that no photographs had been taken, which her Honour declined to do. Her Honour in that respect observed:
"I rather feel that if the members of the jury got a message from the sheriff they might be even more worried this afternoon. They didn't seem particularly troubled once I assured them that our inquiries revealed that it was a solicitor sitting at the back of the Court. And when I asked them whether they would like me to commence the Summing Up or defer it, they all wanted me to commence. So I don't believe that they're particularly troubled, but I understand your sensitivity to it."
On the morning of Monday, 2 September 2013, Mr Thomas applied to have the jury discharged. The transcript records in that respect, that the application was made:
"… on the basis that the only rational inference that could have been drawn from the event is they considered to be the taking of a photograph would be to drive that action home to the accused as being in some way, some material and relevant way, connected with the action that had taken place in Court… The only rational and irresistible inference in my submission is that the photographer acted in some way as an agent of the accused."
Following the application, her Honour addressed the jury about the flashing phone. She told them that the young man with the phone was a law student doing work experience with a solicitor and that his phone flashed when it received messages. She told the jury that the sheriff had examined the phone and that there were no photographs taken on it. Her Honour told the jury that the young man and the solicitor had apologised to the Court and that they had no connection with the accused.
Her Honour thereafter proceeded to send the jury out to decide whether they had any further questions, and asked whether they would like a break or for her Honour to continue the Summing Up. The jury confirmed that they wished her Honour to continue. Her Honour subsequently refused the application to discharge the jury and gave reasons as follows:
"I will formally record that I declined to discharge the jury on the basis that in my view there is no prejudice to the accused from the incident on Friday afternoon, given what has been said to the jury today, and also from the fact that the jury had no further request for information or concern when they were specifically invited to raise any further matters with me this morning. They were sent out but they came straight back into court and did not send a note. Of course the fact is that this is [the] third trial.
This incident occurred at the end of the case in counsel for the accused's address but my observation was that all the members of the jury were paying close attention to counsel for the accused address which I might say was very colourful. I am not surprised that they were paying close attention to it, Mr Thomas."
The jury retired to consider its verdict before morning tea on 2 September 2013. Later that day they requested the transcript of a witness's evidence. The jury continued its deliberations all day on 3 September 2013 and on 4 September 2013 asked for the transcript of another witness's evidence. A little later, the jury sent a jury note in these terms:
"We would like the transcript of your Honour's closing statement. Same too for Mr Thomas, his closing statement owing to potential distraction of the phone flash to five jurors."
The jury were then provided with the closing addresses for both the defence and the Crown.
No further application to discharge the jury was made.
The jury continued its deliberations the rest of that day and the following three days.
On 10 September 2013 (the eighth day of the jury's deliberations) the jury indicated that they had reached a unanimous verdict on all but one of the counts. A direction was given in accordance with Black v R (1993) 179 CLR 44. Later that morning the jury reiterated that it was hung on one count. Her Honour then gave a majority verdict direction. A few hours later the jury returned verdicts of guilty to Count 1 and Count 7 and not guilty to Count 6.
[3]
Submissions for the Appellant
In the written submissions for the appellant dated 21 May 2015, the incident was described at [9]. In that paragraph it was stated that the student who was in the company of Mr Matouk when the incident occurred, contrary to regulations and signs that have been posted throughout the court building, took several phone calls and received several text messages after he entered the courtroom and while Mr Thomas was addressing the jury. Further, it was said that at least four text messages were received and his phone emitted numerous white flashing lights while it was pointed in the direction of the jury. The submissions continued:
"… Not surprisingly, several (five, it turned out) members of the jury thought that they were being photographed as they sat there attempting to hear the address from Mr Thomas. They were intimidated enough by this to fashion a note and they gave it to the trial judge." (Appellant's Submissions at [9])
In written submissions Mr MA Robinson SC, on behalf of the appellant, supported the ground of appeal in the following terms:
"… Her Honour erred in that she failed to have regard or proper regard to the effect that the incident had or would have had on the jury, the intimidation they felt and the interruption to the jury being able to hear and/or understand the submissions of the applicant's counsel. Her Honour wrongly determined that there was no prejudice to the appellant, when there plainly was. She wrongly founded her decision on whether the jury took it upon themselves to write her a note, which (at that stage) they had not done. This was an irrelevant consideration as there were many reasons why the jury might not have sent the Judge a note as to the incident." (Appellant's Submissions at [3])
It was submitted that the trial judge had erred in law and that the conviction should be set aside.
It was also contended on behalf of the appellant that her Honour wrongly failed to discharge the jury two days after the incident occurred in court and while the jury was deliberating on 4 September 2013. On that date, as noted above, the jury handed her Honour a note which specifically asked for copies of the transcript of the closing statement of counsel for the appellant "owing to potential distraction of the phone flash to five jurors": Appellant's Submissions at [5]. It was argued that it should have been apparent to the learned trial judge at that point that at least five members of the jury were in fact distracted significantly by the incident in court and that they missed a part of the defence closing arguments. It was further argued that her Honour wrongly failed to discharge the jury at that point.
It was noted that her Honour had been satisfied that the two men involved in the incident were telling the truth, after having the phone inspected for photographs by the court sheriff. Inspection confirmed the operation of the flashing when a text is received while the phone was in the locked position. Her Honour considered the situation could be satisfactorily explained to the jury and that she did not need to discharge the jury.
In the appellant's submissions, it was noted that the security and safety of a jury is a paramount consideration. It was argued that the sanctity of the jury is a fundamental feature of the criminal justice system and once breached the jury should have been discharged: Submissions at [14].
Reference was made in the appellant's submissions to a number of case law authorities. There is authority for the proposition that no rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. See, in particular, Crofts v R (1996) 186 CLR 427 at 440.
Where inadvertent and potentially prejudicial events have occurred, the High Court in Crofts at [440] stated that relevant considerations will include the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, as well as the likely effectiveness of a judicial direction designed to overcome its apprehended impact.
In the course of submissions, reference was also made to the High Court's decision in Webb & Hay v The Queen (1994) 181 CLR 41, and in particular to the statements of Mason CJ and McHugh J at 53.
It was noted that the applicable test is an objective one and does not depend upon the actual effect that the incident might have had upon the jury in question: R v Pearson (2000) 114 A Crim R 80 per Foster AJA at [32].
Finally, emphasis was given to the fact that the jury note which was given to the trial judge on 4 September 2013 referred to the fact that transcript of the closing address of Mr Thomas was requested "owing to potential distraction of the phone flash to five jurors" on the basis of this "new information". It was contended that it should have been apparent to the trial judge that, notwithstanding the evidence she had collected from the solicitor and the law student and the explanation that she had given to the jurors, at least five members of the jury had in fact been distracted significantly by the phone flash incident and arguably as a result had missed part of or missed entirely the defence closing arguments.
It was contended that her Honour was wrong in law in responding by simply providing copies of the transcript of the defence and Crown closing addresses: Appellant's Submissions at [19] and [20]. It was submitted that the foundation for the earlier reasoning had "fallen away" by that stage. The jury, it was argued, had itself now plainly indicated that it had been distracted during the course of the final address for the appellant.
It was contended that the conviction should be set aside on the ground of appeal relied upon.
[4]
Submissions for the Crown
The Crown in its written submissions also referred to relevant case law authorities including, in particular, the test as set out by the High Court in Webb & Hay v The Queen, supra, at 53 (Mason CJ and McHugh J). In summary, the Crown relied upon the following matters:
1. An application for the discharge of a jury is pre-eminently a decision made in the exercise of a trial judge's discretion.
2. The test to be applied in 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 the fair-minded or informed member of the public that the jury or juror has not discharged or will not discharge its task impartially: Webb & Hay v R, supra, at [53].
3. The jury should not be discharged unless there is a high degree of need: Crofts v R at 432.
The Crown set out a number of submissions in relation to the application of the relevant principles in its written submissions at [20]-[26].
The Crown contended that her Honour's address to the jury was effective and in particular was appropriate to assuage any concerns the jurors may have had. It explained that the persons involved were a solicitor and a law student, not associated with the accused, and that no photographs had been taken.
The jury did not request any further information or express further concern. Nor did they wish to adjourn. There was nothing that would raise a concern, apprehension or suspicion on the part of the fair-minded or informed member of the public that the jury would not discharge its task impartially: Crown Submissions at [21].
Further, after the jury sent the further note concerning potential distraction (MFI 99) there was no application at that stage to discharge the jury that was extant. The earlier application had been dismissed and no further application had been made.
It was submitted that there was no further application made because the atmosphere of the trial, as it appeared to trial counsel, did not indicate any concern on the part of the jury.
Provision of the transcript to the jury, in the Crown's submission, no doubt provided a resolution of any concern that there had been of any distraction by the incident: Crown Submissions at [22].
Reliance was placed upon the observations in Lyndon v R [2014] NSWCCA 112 by Basten JA. In that case no objection was taken to the prosecutor's closing address. However, on appeal it was argued that the address had caused the trial to miscarry. The relevant observations made by his Honour at [29], related to the operation of Rule 4 of the Criminal Appeal Rules. His Honour indicated that the principle underlying Rule 4 can apply in relation to the question of a discharge of the jury. The principle imposed on both parties, as well as the court, obligations with respect to the running of a trial before a jury.
The Crown further submitted that the information placed before the trial judge went no further than to suggest that a juror or some jurors were "potentially distracted" by the incident. The note, however, did not suggest an inability on the part of the jury to properly and impartially perform their duty. It was also submitted that the directions of the trial judge were sufficient to address any perceived risk: Crown Submissions at [24].
The Crown additionally submitted that the jury note did not indicate any anxiety or inattention on the part of the jury at a level that attracted the principles enunciated in Webb & Hay v R: Crown Submissions at [25].
In all the circumstances, including the trial directions, the Court would conclude that a fair-minded and informed observer would not have a reasonable apprehension of a lack of impartiality on the part of the jury: Crown Submissions at [26].
[5]
Principles
1. Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion: Crofts v R, supra, at 432 per Dawson J.
2. The discretion is one to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that "a high degree of need for such discharge" must appear before a discharge will be ordered: Crofts v R, supra, at 432.
3. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken, and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury: Crofts v R, supra, at 432.
4. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial: Crofts v R per Toohey, Gaudron, Gummow and Kirby JJ at 440.
5. Much depends upon the seriousness of the occurrence in the context of the contested issues; the state at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact: Crofts v R, per Toohey, Gaudron, Gummow and Kirby JJ at 440.
The duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order but also requires it to ensure that the correct principles are kept in mind. An appellate court must also decide for itself whether the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.
[6]
Conclusions
The essential argument on behalf of the appellant was that the incident in question resulted in a prejudice to the accused arising from:
The effect that the incident was said to have had or would have had on the jury;
The alleged intimidation that the jurors felt; and
The interruption caused by the incident interfering with the jurors' ability to hear and/or understand the submissions of the appellant's counsel.
On the above basis the ground of appeal asserts that by reason of the fact that there was prejudice resulting to the appellant, the trial judge was in error in finding that there was in fact no prejudice to the accused.
It is clear on the evidence that the phone flashes occupied fractions of a second or at most a few seconds in time, and though this may have occasioned momentary distraction in some of the jurors, there is no basis for a finding or conclusion that such jurors missed, either entirely or in part, the arguments presented in the closing address at the time of the incident.
The trial judge's judgment on the application for discharge (2 September 2013) contained an observation which suggests that there was minimal, if any, distraction to the jurors (see quote at [13] above).
The evidence disclosed that the trial judge provided the jury with a full explanation as to the circumstances in which the phone flashes occurred (resulting from the operation of the flashing device when a text was received while the phone was in a locked position). The initial concern of the jurors was that they had been photographed. That concern was effectively dispelled by the explanation given by her Honour which assured the jurors that no photographs had in fact been taken. There was no basis for a conclusion of prejudice arising in these circumstances.
The steps taken by the trial judge to investigate and deal with the jury note reporting the phone flashes were appropriate and effective in meeting and satisfying the concerns expressed and/or associated with the jury note.
The provision of copies of the closing address of the Crown Prosecutor and the closing address by defence counsel, met any concern that any jurors may have momentarily missed hearing something said by defence counsel if distracted by the phone flashes. The provision of the transcripts of the closing addresses ensured that the jurors had available to them a record of the entirety of defence counsel's address, thereby enabling any juror to be informed of any or all aspects of the defence closing address and the Crown's closing address.
At the time the application for the discharge of the jury was made there was no basis upon which a conclusion could be reached that there was a risk that the jury would not perform its duty to determine the issues in the case impartially. The detailed explanation given by the trial judge concerning the incident was not followed by any further request by the jury for information, or by any expression of concern even though they had been invited to make any further comment.
Contrary to the submissions made on behalf of the appellant:
1. The finding by the trial judge that there was no prejudice by the event involving the flashing mobile phone was soundly based.
2. There was no error of fact or law in the trial judge's decision to decline the application for a discharge of the jury.
3. There was no substance to the basis upon which that application was made.
4. The argument on behalf of the appellant, namely that jurors were distracted by the flashing from the phone such as to require the jury to be discharged, is without substance or merit. No such suggestion was made by counsel who appeared for the appellant at trial.
I proposed the following order:
The appeal be dismissed.
BELLEW J: I agree with Hall J.
[7]
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Decision last updated: 25 November 2015