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[2007] VSCA 61
Court of Appeal (Vic)
2007-04-05
BUCHANAN AP, EAMES JA and KELLAM AJA
Original judgment source is linked above.
Criminal law - Jury questions - Trial judge failed to inform counsel of terms of questions - Convictions set aside.
1 The applicants were arraigned in the County Court and pleaded not guilty to a presentment containing a number of counts arising from an alleged invasion of a house and offences said to have been committed against the occupants of the house.
2 Phillipp Black is 25 years old. His brother Steven is 22 years old. Phillip Watts is 37 years old. The Crown case was that the applicants and two other men entered a house in Horsham, pushing past two young men who had come to the door. A number of young men and one young woman were in the house. Watts brandished a pistol. Phillipp Black carried a baseball bat.
3 Watts told the occupants of the house to get on the floor. They obeyed him. Watts said he would kill them all if they did not give him everything they had. One or all of the invaders gathered mobile telephones, wallets and money. Watts hit one of the occupants, Clinton Fisher, with a baseball bat on the hands, arms and legs and also stomped on his head. Phillipp Black hit Clinton Fisher with a baseball bat. Fisher sustained bruising, cuts and swelling. Another occupant, Warren Van Braam, was hit on the side of the head with a wooden object and was pushed from behind so that he hit the edge of a table with the corner of his eye. Van Braam was kicked in the back of the head with a chair. He sustained bruising to his head and back.
4 A young man, Troy Potter, arrived at the house as the invaders were leaving. Watts and Steven Black grabbed him and pushed him against a wall. He was addressed by name and told that the attackers knew where he lived and that if he went to the police he would be found.
5 The applicants were charged with one count of aggravated burglary and a number of counts of attempted armed robbery, armed robbery, threat to inflict serious injury, intentionally causing injury and recklessly causing injury. There were 22 counts in all.
6 At the conclusion of the trial the applicants were found guilty on the count of aggravated burglary, two counts of attempted robbery, four counts of armed robbery, seven counts of threat to inflict serious injury and one count of intentionally causing injury. After pleas Phillipp Black was sentenced to a total effective sentence of five years' imprisonment and, because the applicant had been sentenced in respect of other offences, a new non-parole period of two years and seven months' imprisonment was fixed. Watts was sentenced to a total effective sentence of eight years' imprisonment and a new non-parole period of five years and eleven months' imprisonment was fixed. Steven Black received a total effective sentence of four years and six months' imprisonment and a new non-parole period of two years and one month imprisonment was fixed.
7 Phillipp Black has sought leave to appeal against his conviction. Watts and Steven Black have sought leave to appeal against both their convictions and the sentences imposed upon them. Watts' application for leave to appeal against his sentence was dismissed as a result of breach of the rules of court and Watts has applied to reinstate the application.
8 There are a large number of grounds of the applications. It is not necessary for me to canvass all the grounds, for I have arrived at the conclusion that an error alleged in all three applications for leave to appeal against conviction has been established.
9 The grounds in the full statement of grounds on behalf of Phillipp Black include the following:
"9. The learned trial judge erred in failing to disclose the contents of three jury questions received during the trial.
10. The learned trial judge erred in answering two of the jury questions without the appellant's knowledge or any opportunity to argue as to the appropriate response to the jury's questions.
11. The learned trial judge erred in refusing to provide details of jury questions received after the jury had been charged.
12. The learned trial judge erred in answering the jury's questions without giving the appellant an opportunity of arguing the same with the knowledge of what were the jury questions."
The full statement of grounds of the other applicants contained like complaints.
10 In an opening direction to the jury the trial judge invited the jury to write down and pass to her any questions they wished to ask. During the course of the evidence the jury accepted the trial judge's invitation. After the Crown case was closed the trial judge said to the prosecutor:
"Ms McNiff, very early on the jury provided me with a number of questions. I answered two of them, but not the third, or had further evidence elicited. The third one was in respect of count two, Shaun Roberts. I said that I would just leave that for the time being."
"I should alert you to something that I thought might occur, and that is the jury have asked why they didn't hear Phillipp Black's statement and record of interview."
11 After the conclusion of her charge, the trial judge said to counsel in the absence of the jury:
"I have received two questions from the jury ... . The questions both relate to the concept of acting together and one of them deals with the concept of silence as to what part that may play in whether a person is acting together, or whether that is sufficient for - well, I don't say withdrawal but don't want a part of it. ... I don't want to read the questions out because it seems to me that to do so indicates material in the jurors' minds during the deliberation in this particular instance."
The prosecutor asked to see the questions. Her Honour responded:
"I am telling counsel what is the subject of the notes in order that I can have counsel decide whether the re-directions that I propose, or the clarification - or expansion, I suppose - is a better way of putting it is appropriate in the circumstances of this case.
Now the other question deals with offences committed but not planned is the way that it is described and also refers to the concept of withdrawal."
Her Honour then read out the re-directions she proposed to give to deal with the questions. Counsel for Watts protested, saying:
"If the task of counsel in this process is to make a submission about the relevance or otherwise of your Honour's proposed remedy to the jury's question, that is, whether or not your Honour's comments as they have been read out adequately answer the question that has been posed by the jury, I am simply in a position where I don't - I am not in a position to make a valid submission without the benefit of knowing what the question was even with an undertaking to be given. I have heard your Honour's views on that, and its unlikely to change."
The trial judge did not disclose the jury's questions to counsel, but proceeded to give the re-directions she had proposed.
12 After the jury retired to consider their verdicts, the trial judge said to counsel:
"The jury have asked for a clarification of counts 8 and 15, that is the difference between the two charges and what they specifically relate to."
The prosecutor requested the trial judge to read the jury's questions into the transcript, saying:
"I have ascertained there is authority for the proposition that once the jury have retired to consider their verdict any communication between the jury and the judge, at least if it relates to the issues joined between the Crown and the accused should take place in open court in the presence of the prisoner and of course on both sides."
"Well, I ruled on this yesterday, Ms McNiff, and the situation hasn't changed."
13 Hand written questions are on the court file. The date of receipt of each question is noted. The dates succeed the commencement of the trial judge's charge to the jury. The questions are as follows:
"If somebody commits a crime and he is accompanied by two friends and there is no agreement beforehand and the two friends stay silent while the crime is committed, are they then a party? Is silence enough to say they don't want a part of it?
Where persons are acting together to commit an offence and other offences are committed but not planned, do the persons continue to act together excepting[1] that there is no withdrawal by any parties?
Can you please clarify count 8 and 15, as to the difference between the two charges and what they specifically relate to?"
The first two questions appear to have been written by different persons. The remaining, undated question, which was disclosed to counsel by the trial judge, was as follows:
"The jury is wondering why we haven't heard the accused Phillipp Black's statement and record of interview?"
14 It is well established that generally a trial judge must disclose to the parties questions asked by a jury. In R v Gorman[2] the English Court of Appeal referred to a number of cases in which judges had said that communications from a jury to the trial judge must be read out in court. Lord Lane CJ, delivering the judgment of the Court, said:
"Accordingly it seems to us that certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to consider its verdict.
First of all, if the communication raises something unconnected with the trial, for example, a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel ... .
Second, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.
Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.
We may add, before parting with the case, that the object of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret communication between the court and jury, and second, to enable the judge to give proper and accurate assistance to the jury on any matter of law or fact which is troubling them. If those principles are borne in mind, the judge will, one imagines, be able to avoid the danger of committing any material irregularity."[3]
15 The same basic rule and exceptions have been stated by Australian courts.[4]
16 The trial judge was obliged to inform the parties of the precise terms of the questions asked by the jury. In my opinion it was not sufficient to identify the subject matter of the questions in general terms. Not only was complete candour required in order to dispel any impression that the judge had been told of matters concealed from the parties, but also the effectiveness of counsel's assistance depended upon their being informed precisely of the terms in which the jury had expressed their concerns.
17 I am also of the opinion that it was no answer that, in the words of the trial judge, the questions "indicate[d] material in the jurors' minds during the deliberation." That was the very matter that the parties were entitled to learn and deal with. There is no place in a trial for secret communications between the arbiters of fact and law. It is a fundamental requirement of the administration of the criminal law that the trial and every aspect of the trial take place in open court. As Williams J said in R v Fitzgerald:
"It is, as I have always understood, the very essence of the administration of our criminal law that the trial of prisoners should take place in open court."[5]
The questions in this case did not reveal information which the jury should not have imparted; nor were the jurors concerned with matters unconnected with the issues which the jury were to determine.
18 Counsel for the Crown submitted that the redirections satisfactorily dealt with the jury's questions and that the redirections constituted a correct statement of the law save in one respect that favoured the applicants. On the other hand, the first two questions concerned aspects of a concept of some difficulty. In answering the first of the jury questions set out above, the trial judge said:
"If an accused's presence at the scene is by agreement for the purpose of helping the other or others to commit it, then that accused is acting together with that other person or persons. If you remain silent in such a situation, you may still be encouraging another in the commission of the crime by your presence if you are holding yourself out as ready to help and you are still part of the agreement."
Her Honour did not directly deal with the absence of agreement, the matter about which the jury appears to have been concerned. This question appears to have proceeded upon a false premise. The concept of withdrawal and the significance of silence depend upon the existence of an anterior agreement. I have some doubt that the jury's difficulty would have been resolved by the redirection.
19 Even if the trial judge's redirections accurately stated the law, they did not in terms deal directly with the jury's questions, and it may well be that the redirections could have been refined and made clearer with the assistance of counsel. It is perhaps less important that the redirections could have been improved with the assistance of counsel than that the parties' representatives were entitled to participate in the production of the redirections. In any event, in my view disclosure is not rendered unnecessary if the judge in fact deals appropriately with the jury's concerns. The principle is not that trial judges are required to disclose only jurors' questions which have not been properly answered.
20 For the foregoing reasons I am of the opinion that the applications for leave to appeal against conviction should be allowed, the appeals granted, the convictions set aside and there should be a new trial.
21 I have reached that conclusion reluctantly, for the trial occupied in excess of three weeks and the nature of the offences and the evidence is likely to render a retrial an ordeal for the witnesses. Nevertheless, in my opinion a substantial miscarriage of justice occurred and it is not appropriate to apply the proviso to s 568(1) of the Crimes Act 1958. The evidence given by the Crown witnesses was not wholly consistent. That is not surprising, for they were attempting to describe a fast
moving series of events involving a large number of persons. I have considered the evidence, and I am of the opinion that, having regard to the natural limitations that exist in the case of an appellate court proceeding upon the record, I cannot conclude that each or any of the applicants was proved beyond reasonable doubt to be guilty of the offences with which he was charged. In any event, even if I were persuaded that the evidence proved the accuseds' guilt beyond reasonable doubt, I would allow the appeals as I consider that there was a significant denial of procedural fairness to the applicants.[6]
[1] It appears from the trial judge's redirection that her Honour assumed the jury meant "accepting."
[3] See also R v Ion (1950) 34 Cr App 152 at 155-6; R v Rose [1982] 1 WLR 614 at 620.
[4] See R v Fitzgerald [1889] VicLawRp 15; (1889) 15 VLR 40; R v Arthur (1966) 84 WN (Pt 1)(NSW) 121 at 125; R v E J Smith [1982] 2 NSWLR 608 at 609-612 per Street CJ; Rabey v R [1980] WAR 84 at 87, 93.
[5] Above at 48.
[6] Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at 317.
(2005) 224 CLR 300