R v ALH [2003] VSCA 129

R v ALH [2003] VSCA 129 - VSCA 2003 case summary — Zoe

[32]

"[PROSECUTOR]: Can I inform Your Honour formally that just before 10.00 a.m. this morning, I received information in relation to a possibility that a person connected with the case, who wasn't actually a witness in this trial, J.H., the complainant from the previous trial, may have known a member of this jury and that J.H. who was present around and in the court at various stages from about Thursday lunch time last week and he may have had eye contact and possibly mouthed a word to this juror, apparently known to him. Now, it is only a suggestion at this stage, Your Honour, and it comes from two sources, both of which sources I have spoken to directly in the presence of my instructor this morning. Those two sources were the [complainant's mother and the complainant] in this trial. The information I was given was firstly as to the events of Thursday afternoon, that J.H. was present from approximately lunch time on Thursday, until after the jury were sent home, the oath having been administered on Thursday afternoon. He was also present in court during the administration of the oath, which to my recollection took place at about 4.30 or thereabouts, Your Honour, in the afternoon. [The mother] told me that she was sitting near J.H. and she saw him look at a young male juror and smiled at the young juror and that the juror winked at J.H. Her daughter told me that after they walked out of court, she said that J.H. said to her something to the effect of, 'You are going to win, just trust me' and she asked him what did he mean and did he know one of the jurors and he said, 'I'm not saying nothing' and then they all went home. On the Friday morning, Your Honour, there were no events of any significance apparently. After lunch downstairs, during the luncheon break, there was a group of people which included J.H. and the complainant, the two of them had a conversation together, apparently out of earshot of the others and she asked him directly, whether he knew one of the jurors and he said 'Yes' and she asked him, 'How do you know we're going to win?' and he, J.H., claimed that as the jury were leaving the court on the Thursday afternoon, after the administration of the oath, he had, he claimed, mouthed the word 'convict' to the juror and he said the juror smiled and winked and so forth. She asked him had he actually talked to the juror and he said 'No'. But he did say to her, 'Don't tell anyone about what he told her'. Now, Your Honour, the position is that as from now, as from the receipt of this information, J.H. will not be within a bull's roar of the jury, that will be a certainty when they are in the court, he will be kept well away, in fact, he will be sent away from the court shortly, he is at court just outside the court. Initially Your Honour, I was of the view that an enquiry would be appropriate and it's really a matter for Your Honour, I suppose at the end, whether Your Honour wished to hear from these witnesses or indeed wished to hear from J.H. But it has been pointed out to me Your Honour something that I did overlook, that J.H. would have to be warned if he were called as a witness or cautioned in fact about his right and probably he would have to be offered the right to consult with a solicitor in the circumstances before he would be asked any questions effectively, so that might render the whole procedure a bit pointless, as indeed it was pointed out to me Your Honour. I merely bring this to the court's attention pursuant to my duty prosecuting the case. I don't suggest, Your Honour, at this stage that it is anything more than a suggestion and bearing in mind my experience of J.H. and Your Honour's experience of him as a witness in the last case, the possibility of J.H. making these claims to promote himself or indeed to exaggerate the real situation completely out of proportion, in fact looms large I would respectfully suggest, Your Honour. And, Your Honour, it seems that from what I understand, Your Honour, there has been no suggestion that any juror has been sought to be overborne by J.H. I am not aware of any claims of influence or whatever being made to Your Honour and it may well be on the fact of the material that I have seen, although the Crown has got no reason to doubt what these two obviously honest people say happened, but they may have slightly misinterpreted what happened in court. So at this stage, Your Honour, I merely bring it to the court's attention. I note that the time is coming up, well, it's over six hours and I assume Your Honour may be considering saying something to the jury in terms of the overall state of their deliberations at this stage. As I say, I am in Your Honour's hands as to precisely, well, I am prepared to call these people as witnesses if that's the appropriate course that Your Honour sees, but perhaps the better view might be simply to let things rest for the moment. All of them are outside court but separated and will be here in the foreseeable future, Your Honour. HER HONOUR: Yes, good, thank you for that. Do you wish to respond? [APPLICANT'S SOLICITOR]: Your Honour, I make application that the jury be discharged and this allegation is obviously of the most serious kind and given what has been indicated to you by the prosecutor, Your Honour, it can be seen to be polluted and justice has to be seen to be done. The test is a high degree of need and it is my submission that's the situation here and I would ask Your Honour that the jury be discharged. As Your Honour pleases. HER HONOUR: I think I can put on the record that on Thursday after the first occasion when J.H. was in court, that one of the jurors and I suspect this is the same juror that we are talking about, the youngest juror indicated to my Tipstaff that he thought he knew the person that was identified as J.H., as having been to school or at the same school as him. He did not indicate that he knew who he was or that he was a friend or knew his association with the case or knew anything about the case because of that. Merely as a matter of prudence on his part, he pointed out that he recognised that person as somebody who had been to school at the same time when he was at school. This was not raised with you at the time, because there was no other knowledge that was imparted on the part of that juror and J.H. was obviously not a witness or otherwise directly associated with this case. Now, given that that juror has made that much known and has not throughout Friday or certainly this morning, in any way indicated that there was a contact of the type that has been now raised, I think two matters follow. First, I have the same concerns about any formal enquiry being made of J.H., for the obvious reason that would really not be productive of the evidence that we are seeking and secondly, I think that in the circumstances, there is not within the terms of the test that is required in these circumstances, there is not a sufficiently high degree of need demonstrated, just on the basis of the indications that has been shown to date, that would warrant a discharge of this jury. It is something that may need to be monitored in terms of anything that might be raised by that juror. I think it would be not warranted to make an enquiry of that juror at this stage and I think we should just see how things develop."

[39]

That is so for the following reasons. First, there was no material that the juror understood, or might have understood, the word that J.H. mouthed. Presumably the juror was not a lip-reader. Instant acknowledgement of a request to convict - conveyed by winking - is highly unlikely. If the juror thought J.H. was speaking, it is more likely the juror would have thought J.H. was mouthing "hello" or some greeting or acknowledgement, than the word "convict". Second, there is material that the juror did not know J.H.'s identity, other than that the juror thought he may have been at school with J.H. There is no material that the juror had any idea that J.H. had been in the previous trial, had been a complainant in relation to the applicant or had any connection with the present trial. Third, and significantly, there is material that the juror was a responsible person acting consonantly with his oath or affirmation as a juror. It was the juror who of his own initiative, on the Thursday afternoon, informed the Judge's tipstaff that he thought he knew the person who was J.H. and how. Further, it is highly unlikely that the juror would himself initiate such a communication to the tipstaff and at the same withhold that he thought or knew the person had mouthed the word "convict". It is likely that the juror thought J.H. was indicating that he knew the juror. The fact that the juror did not mention to the tipstaff that J.H. had mouthed some word at him and that he had smiled and winked at J.H. indicates the juror thought those matters were insignificant and not worthy of report - merely a passing acknowledgment between two people. In the circumstances the fact that the juror's response to J.H. was smiling and a wink is, shorn of other pregnant factors, inconsequential. It would make no difference had the juror's response been a nod, a thumbs-up or other colloquial communication. Fourth, the juror had sworn or affirmed that he would give a true verdict according to the evidence. Plainly the jury worked long and hard - indeed into the next week - on its verdicts, a matter confirmed by the statement of the foreman to the Judge on the late Monday afternoon. There is no material to suggest the juror was not acting consonantly with his oath or affirmation. Further, upon the jury being empanelled on 13 November 2000 the learned Judge had given unexceptionable directions to the jury as to the performance of its proper function, including the following:

[50]

"I should also tell you something about the fact that the accused has given evidence on oath. You should also understand that there is no obligation on the accused to do so. He could have declined to say anything and, had he done so, no-one could have made any comment about it. An accused has the right to remain silent. The accused rejected that course and chose to give evidence. By doing so he pledged his oath to tell the truth in his evidence. More importantly perhaps he, by choosing this course, the accused submitted himself to cross-examination, which is a means used by lawyers to extract the truth. There are two things to bear in mind about this. First, a guilty person might decide to attempt to brazen it out in the witness box in the hope that he will be more likely to be believed if he takes the risk of cross-examination than if he dodged it. Secondly, however, an innocent person can really do no more than choose this course, for by doing so the accused says in effect: this is what I say happened. I pledge my oath to it, and you can cross-examine me about it. You should weigh both these comments when considering what weight you should give to the accused's evidence. You should have regard to this evidence in the same way as you would any other witness's evidence, but remembering that the accused may be under some strain, under more strain than other witnesses, because he is the accused. You should also remember that by going into the witness box the accused does not assume any burden of proof. The burden of proof still rests on the Crown. In this case the accused has led evidence that he has not been convicted of any crime in the past and is of good character. Such evidence is led in disproof of guilt. It bears directly on the probability of the accused having committed the crime or crimes. Of course good character cannot alter proven facts. However, it is evidence that you should consider, along with other evidence, in reaching a conclusion as to whether the facts relied upon by the Crown have been proved to your satisfaction beyond reasonable doubt. Evidence of good character raises a presumption that the accused is incapable of committing the crime or crimes of which he is charged. Of course that presumption lasts only up to the point at which you find that, despite the accused's past good character, the Crown has proved beyond reasonable doubt that the accused did commit the crime or crimes of which he is charged. In this case you have been presented with two accounts of a series of events which differ markedly from each other. Where there is word against word, as it is sometimes called, you might think that it is your function to determine whether [the complainant] or the accused is telling the truth. This is not the case. Your function is to determine whether the prosecution has discharged its onus of satisfying you beyond reasonable doubt that [the complainant] was assaulted by the accused in the manner alleged. Remember that the accused does not have to prove anything, and it would be wrong for you to convict him simply because you do not believe his version of events."

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Judgment (131 paragraphs)

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Cases Cited (5)