R v Chung; R v Rechichi [2010] VSCA 39

1 Following a trial in the County Court sitting at Melbourne in 2008, the applicants, Chi Wai Chung and Antonio Michael Rechichi were each convicted on one count of conspiracy to defraud the Commonwealth Bank of Australia (CBA), one count of obtaining property by deception and one count of obtaining financial advantage by deception. In addition Chung was convicted on one count of knowingly dealing with the proceeds of crime. Chung was sentenced to a term of 5 years and 9 months imprisonment with a non-parole period of 4 years and 3 months. Rechichi was sentenced to a term of 5 years and 3 months imprisonment with a non-parole period of 3 years and 9 months.

2 The applicants seek leave to appeal against their convictions on grounds which relate to the discharge of two jurors during the jury deliberations at the conclusion of the trial. In substance complaint is made that the trial judge ought not to have discharged the jurors and that having done so, the trial judge gave the remaining jurors a direction which was so prejudicial that it gave rise to a miscarriage of justice.[1] Each applicant also seeks leave to appeal against the sentences imposed.

3 In the context of the grounds argued on the appeal, it is unnecessary to do more than provide a bare outline of the circumstances of the offending.

4 Each of the offences were committed in the furtherance of a fraud upon the CBA whereby funds were fraudulently obtained for the predominant purpose of gambling. The applicants played different roles in the offending conduct. Rechichi was an employee of the CBA as a 'personal banker'. In this position Rechichi had broad powers including the ability to authorise loans and transaction up to a value of $50,000. Rechichi used his position of employment as a means to facilitate the frauds. Chung was a frequent gambler. He was in contact with many other gamblers, including Asian students and loans sharks at the Casino. Chung's predominant role in the offending was to find and recruit loan applicants for the purpose of facilitating the frauds with the 'inside' assistance of Rechichi.

5 Chung (acting with two other loan recruiters) recruited Asian students and Asian problem gamblers as loan applicants. The consequence was 32 separate loan applications which contained false loan particulars. The amount sought was a total of $783,500. Rechichi used his position and understanding of banking practice to facilitate the approval of the loans. The total amount actually paid out was approximately $500,000, with the loan applicants generally not intending to repay the loans (count 1). Both applicants in conjunction with another co-offender dishonestly obtained $50,000 from the CBA account of a man named Pawer Widjaja (count 2). The applicants fraudulently obtained credit of $580,000 from an account held by GPR Dehler Pty Ltd. The frauds were complex and involved the co-operation of other persons. Rechichi used his inside role at the CBA and Chung played an organisational role (count 3). Chung in league with a number of co-offenders sought to launder the proceeds of the Dehler fraud. He used a different CBA branch to that of Rechichi to create a false account and moved the money through that account to 'launder' that money through the casino tables (count 4).

6 The events relating to the discharge of the jurors are not disputed on the appeal. Following a six week trial the jury commenced deliberations on Friday 28 February. By the evening of Tuesday 4 March 2008 the jury had completed 2½ days of deliberations. The judge delivered a perseverance direction ('Black' direction) to the jury and discharged them until the following morning when they were to continue their deliberations.

7 Each member of the jury then proceeded to leave the court building for the night. Whilst moving towards the exit, two jurors somehow became separated from remaining 10. At this point one of the two had a coughing fit. She did so in proximity to a group of people that included family members of the second applicant. That group had previously included the second applicant, his mother and his legal counsel. It was found by the trial judge that these three had at this stage moved ahead of the main group.

8 In response to the coughing fit the aunty of the second applicant offered the juror some cough lozenges from a packet and asked 'would you like a Strepsil'. The juror replied 'thank you', took one of the lozenges and returned the packet to the aunty. The exchange was seen by a court security officer who admonished the group and then informed the trial judge. The judge then directed court staff to ensure that the two jurors were separated from the main group when they arrived at the court the following morning. That morning, the two jurors were duly separated and the remaining ten jurors were instructed to suspend deliberations and await any further instructions. The trial judge then called evidence from the security officer who saw the incident, the aunty of the second applicant and two further witnesses from the group. With the agreement of all counsel the two jurors were not questioned.

9 The learned trial judge received extensive submissions from Counsel for each of the parties as to how he should respond to the event. The prosecutor submitted that the two jurors should be discharged and that the trial should then continue. Both applicants opposed the discharge of the jurors, submitting that the situation could be remedied by an appropriate direction to all of the jurors explaining what had happened and reminding the jury that they should act only on the evidence.

10 Following the hearing of these submissions the learned trial judge ruled that the two jurors should be discharged and that the trial continue with the remaining ten jurors. His Honour then directed the jury to continue deliberations in the terms set out later in these reasons. The jury then returned to the jury room to continue deliberations. Later that day, after some jury questions were addressed, the remaining ten jurors returned the verdicts of guilty on all but one count.[2]

Did the trial judge err in his decision to discharge the two jurors?

11 Counsel for each applicant submitted that the trial judge erred in his decision to discharge the two jurors. As a consequence, it was said, that the applicants were wrongfully deprived of their right to receive the verdict of the 12 jurors that had been empanelled to determine their cases. It was submitted that the requisite criteria for an order discharging jurors pursuant to s 43 of the Juries Act 2000 did not exist and that as the trial then proceeded before a jury that was unlawfully reduced in number, it was no longer authorised in law to determine the applicants guilt.[3] It was said that the present circumstances were analogous to those in R v Panozzo & Iaria[4] where the convictions were set aside.

12 I did not understand the respondent to contest the proposition that the applicants would not have had a trial according to law if some of the jurors lawfully empanelled to determine their guilt were improperly discharged. A wrongful discharge of the jurors would constitute a fundamental irregularity in the trial. If the jurors were unlawfully discharged, then from the time of their discharge there was a fundamental defect in the constitution of the jury. Thereafter the jury was not authorised in law to try the issues between the Crown and the applicants and the resultant verdicts of guilty could not stand.

13 I turn to the question whether the trial judge erred in discharging the jurors. His Honour made a number of findings of fact which formed the basis for his decision to discharge the jurors and which were clearly set out in his ruling. Although the legal conclusion that flowed from these findings was squarely raised on the appeal, the findings themselves were not contested by either party. His Honour's findings were:

(a) The two jurors and the second accused's group met up at the revolving door at the entrance to the court as both groups were departing the building.

(b) One of the jurors was having a coughing fit, which she was also experiencing in court at the time I gave the Black direction. She was in obvious discomfort and did not look well.

(c) The second accused's aunty instinctively pulled out some cough lozenges, that is, Strepsils, and offered them to the juror in the presence of the other juror. The second accused had gone ahead at this point with his mother and counsel and they were a short distance away.

(d) The aunty said, "Would you like a Strepsil?" and the juror replied, "Thank you". The juror then took the lozenge and ate one of them and handed the packet back to the aunty.

(e) There was no discussion about the case or the evidence.

(f) The aunty did not recognise the juror as a member of the jury until after she had taken the item, although Ms Hughes [the second applicant's girlfriend] did recognise both of them as jurors from the outset. Ms Hughes noted that she understood there was a need for distance to be kept between the two groups.

(g) The whole incident took about twelve seconds.

(h) The second accused was not directly involved and did nothing wrong.

(i) The court security officer came out and admonished the second accused's group for the contact that had occurred with the two jurors and it was acknowledged the contact should not have occurred.

(j) The interaction should not have occurred, however it was innocent contact. As Ms Hughes said in evidence "It was an act of motherly instinct towards a person is discomfort".

(k) The two jurors would have no difficulty recognising the aunty and Ms Hughes as part of the second accused's connections, as they had been present in court for many days leading up to the incident.

(l) The aunty expressed her deep apology for the incident and felt really embarrassed.

14 In the reasons for ruling, the trial judge set out the following four matters which he considered to be determinative:

First, there may not have been the appearance of justice, having regard to the paramount importance that there be no inappropriate contact with any juror. Put another way, would the integrity of any verdict be impugned or questioned by reason of the incident?

Secondly, the trial had reached a particularly sensitive and crucial stage.

Thirdly, although the aunty had a pure motive, the juror may have felt in some way an obligation to repay the favour and to do so in the form of a verdict favourable to the second accused.

Fourthly, the jurors themselves may have felt quite uncomfortable in the course of their deliberations by reason of the contact that had occurred with the second accused's group, which matter may have adversely affected the position of the second accused in the jury's continuing deliberations.

15 These four reasons in effect described one central issue - whether there was the possibility of an apprehension of bias as a consequence of the incident. Recognising that issue, the learned trial judge referred to Webb v R where Mason CJ and McHugh J in their joint judgment said:

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.[5]

16 In his ruling his Honour referred to the principle discussed in R v Chaouk[6] that there be no outside contact with jurors during their deliberations. In that case Hampel and Kaye JJ in their joint judgment emphasised the importance of maintaining the appearance of justice in relation to jury deliberations.

17 His Honour then applied the test set down in Webb concluding:

I was satisfied that on the Webb test I should discharge the two jurors and that there was, in all the circumstances, a high degree of necessity to do so. Accordingly, I discharge the two jurors.

18 It is convenient to refer at this point to an argument advanced that his Honour erred in his reference to the decision in Chaouk. That was in error, it was submitted, as a very different state of the law pertained at the time of that decision. Chaouk was decided under the then common law which imposed strict rules prohibiting separation of jurors from the jury keeper during the deliberations. The Full Court considered the validity of a conviction after three jurors were found to have travelled (twice) to and from the court during deliberations, without the presence of a jury keeper. The strict application of the rule resulted in the quashing of the conviction. Counsel here submitted that by applying Chaouk, the trial judge may have mistakenly adopted a too strict approach to the integrity of jury deliberations. It was submitted that there was danger that the trial judge failed to moderate the principle in Chaouk to allow for the fact that a trial judge has a discretion to refrain from discharging a juror, even where improper contact is shown to have occurred. I do not accept that his Honour so erred. It is clear that his Honour recognised that he had such a discretion. As was pointed out by Justice King during the hearing of the appeal, his Honour's reference to Chaouk is to be understood as providing context to his decision. It was relevant for his Honour to make note of the historically strict approach to maintaining propriety in jury conduct. Importantly, his Honour correctly identified and applied the test which was appropriate to these circumstances, as established by decisions such as Webb and as applied in R v Goodall[7] and R v Halliday.[8]

Did the discretion of the trial judge miscarry?

19 To succeed on this ground it is necessary for the applicants to demonstrate that the trial judge erred in exercise of the power to discharge a juror, as provided by s 43 of the Juries Act 2000. The power involves the exercise of a discretion which attracts the principles which govern appellate review of discretionary decisions discussed in House v R.[9] As was observed by Mason CJ and McHugh J in Webb:

[T]he decision of the judge is a discretionary judgment in the sense that it involves a value judgment. Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for the trial judge's opinion. The law reports contain many cases where the decision of the trial judge to continue a trial has been upheld, notwithstanding irregular incidents.[10]

20 On the appeal Counsel thus sought to attack the ruling of the trial judge on two bases. First, it was submitted that his Honour's decision was one that no reasonable judge could have made; such that his Honour's discretion miscarried. Further it was said that the trial judge made a number of material errors of law as he took into account irrelevant considerations[11] and failed to take relevant considerations into account. Each of these submissions should be rejected.

21 The question falls to be considered in light of authority which sets out the basis upon which a trial judge might exercise the discretion under the Juries Act to discharge a jury or juror (the test for both being the same). Section 43 of the Juries Act 2000 (Vic) provides that a judge may discharge a juror without discharging the whole jury if:

(a) it appears to the judge that the juror is not impartial;

(b) the juror becomes incapable of continuing to act as a juror;

(c) the juror becomes ill; or

(d) it appears to the judge that for any other reason, the juror should not continue to act as a juror.

22 Despite the broad terms of s 43, the power to discharge a juror has been narrowly construed. As was recognised in R v Boland:[12]

The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident "a high degree of need for such discharge", that high degree being "such as in the wider sense of the word might be denoted by necessity".[13]

23 The discretion may only be exercised where it is found that there is a 'high degree of need' to do so.[14] In the present case, it is the reasonable apprehension that a juror is biased which is the circumstance that is said to constitute the requisite high degree of need. Notwithstanding its confines an appellate court will be slow to interfere with a discretionary decision of the trial judge to discharge jurors.[15]

24 In support of its submission that the trial judge's discretion miscarried, the applicants sought to draw an analogy with the decision of the High Court in Webb. It was submitted that the conduct of the juror in Webb was more serious than that in the present case, and yet the High Court concluded that a fair minded observer would not have had an apprehension of a lack of impartiality on the part of that juror. So it was said that the trial judge must have been wrong in the present case.

25 This submission fails to give due regard to the fact that the power to discharge a juror is discretionary in the sense that it involves a value judgment.[16] The actual decision in such cases does not give rise to a binding precedent. Only statements of principle, which underlie how the discretion should be exercised, may do so. Consequently there is limited utility in seeking to compare different circumstances which have called for the exercise of a discretionary judgment.[17] Be that as it may, an examination of the majority judgments in Webb do not support the applicants' submission. The factors that weighed so critically in their conclusion are absent in the present case. Furthermore, the joint judgment emphasises the weight that should be afforded to the discretionary judgment at first instance and that an appellate court should be slow to interfere.[18]

26 In explaining the court's preference for 'the reasonable apprehension of bias' test over the 'real danger' test formulated by the English courts, Mason CJ and McHugh J in their joint judgment state that a fair minded observer is bound to evaluate the incident in terms of the trial judge's findings.[19] Although they found that the trial judge had applied the wrong test, Mason CJ and McHugh J referred to the trial judge's opportunity to see the juror and concluded that :

A fair minded person would give considerable weight to the judge's conclusion that the public ventilation of the incident- together with an appropriate warning- would nullify the inference otherwise to be drawn from the irregularity.[20]

27 It was concluded in the joint judgment that it was open to the trial judge to find that the conduct of the juror gave rise to a reasonable apprehension that she could not perform her task impartially and that the trial judge should have found that her conduct did give rise to such an apprehension. Mason CJ and McHugh J then said:

But a finding that the incident gave rise to a reasonable apprehension of bias is not the end of the matter. The fair minded and informed observer would also consider the effect of the judge's warning on the juror and the judge's assessment of the character of the juror... Further the learned judge made findings concerning the juror and gave a warning which a fair minded person was bound to consider... The public ventilation of the incident, the juror's apology, the recognition of the seriousness of what she had done, the general attentiveness and diligence of the juror, and the strength and detail of the judge's warning were countervailing factors of considerable strength. A fair minded person would assume that the juror would do her best to follow the judge's direction to look at the evidence 'coldly, dispassionately and above all using her common sense'. When a fair minded observer also considered the opinion of the judge - the person on the spot - that the juror would be able to approach the issues dispassionately, we think that a fair minded [person] would not have an apprehension of bias or lack of impartiality on the part of the juror.[21]

28 None of the countervailing factors that were critical in either of the majority judgements in Webb are to be found in the present case. Contrary to the trial judge's view in Webb, the trial judge in this case was of the opinion that only through the discharge of the jurors could a reasonable apprehension of basis be avoided.

29 In further support of its submission that it was not open to the trial judge to discharge the jurors, the applicants emphasised that the aunt's act was, in the words of counsel, 'a spontaneous and innocent act of decency'. The applicants sought to place significant importance upon his Honour's finding that there was no deliberate attempt by the aunt to make contact with any juror in support of the contention that the order to discharge the jurors was not open to the trial judge. That submission must be rejected. It accords undue weight to the motivations of the family member involved. Although the conduct of the juror was found to be innocent in purpose, it could shed no definitive light on the ultimate question, which is how the exchange might be perceived by the reasonably informed bystander.

30 An essential feature of the jury system is that there is to be no contact between the accused and those who sit in judgement upon him. This principle extends to those connected with an accused person and to persons who appear to have an interest in the outcome of the trial. No matter how innocent or unintentional, disregard of this principle may create a perception of impropriety.

31 The maintenance of the integrity of the jury, and equally significantly, the public perception of that integrity, requires an understanding that even inadvertent contact or involvement with the jury or a jury member by persons who are or might reasonably be perceived to have an interest in the outcome of the case, may compel the intervention by the trial judge. Strict limits have historically been recognised as proscribing contact between jurors and persons with an interest in a trial. As was observed by Deane J (in dissent) in Webb:

The law has long recognised the need to ensure an absence of contact between members of an empanelled jury and those interested in, or concerned about, the outcome of the particular trial. Notwithstanding the abandonment of past methods designed to ensure that the members of a criminal jury were isolated, the position remains that any extraneous contact between a juror and a person with a special interest in, or concern about, the outcome of the trial is a serious irregularity in the administration of justice.[22]

32 In this context, Senior Counsel for the Director urged the Court to consider the subtle ways in which even minor contact might require the discharge of a juror concerned. There are understated ways in which an improper connection with a juror may develop. The creation of a rapport between persons perceived to be connected to a party and a juror, may have as its ultimate object that the juror might show some small degree of favour to the relevant party. Consciously or unconsciously, the relevant harm is the danger that somehow a bond or some other form of connection may be established. Although not fully articulated in the ruling, this appears to have been the central concern of the trial judge. It is the very uncertainty created as to the possible effect on the jurors, which may inspire an apprehension of the kind entertained by his Honour.

33 The exchange occurred at a point in the trial when the jury would have known the aunt was a member of one of the applicant's families. Senior counsel for the Director submitted that an objective bystander may not have regarded the exchange between the aunt and the juror as innocuous and that it may have been viewed as an attempt to ingratiate herself with the juror. He drew attention to the fact that the 'exchange of hospitality' was in breach of the usual direction which the trial judge had given the jury that contact of such a nature was to be avoided. It was a factor which the trial judge took into account. The irregularity infringed the direction he had given to the whole jury - a direction given in accordance with a long standing practice designed to ensure both the appearance and reality of a fair trial.[23]

34 It remains, under this ground, to consider whether the judge erred in failing to take certain matters into account. First, it was said his Honour erred by failing to take into account a possible direction that might have 'cured' any apprehension of bias. As I stated in R v Goodall:

The test set down in Webb invites consideration of the effect of any direction or warning given to the jury by the trial judge in respect of the irregular matter, on the basis that a fair-minded and observer would also consider the effect of the judge's warning in assessing whether the jury could discharge their duty impartially.[24]

35 The possibility of a direction that could remove any reasonable perception that the jury may not have discharged their duty impartially would have to be taken into account before adopting the significant course of discharging a juror and thereby altering the constitution of the jury.[25] A reasonable apprehension of bias may be capable of dissipation by a careful direction from the judge to the juror, or to the jury as a whole, or to both the individual juror and the entire jury. Such a course should normally warrant careful consideration, because both the prosecution and the accused are, in the absence of those special circumstances which permit the juror's discharge, entitled to a trial before the jurors who were duly selected to try the issues between the accused and the Crown.

36 In the present case the trial judge considered whether a direction to the two jurors alone or to the entire jury would be sufficient to remove any apprehension of bias. The question was debated at great length in the absence of the jury before the trial judge gave his ruling. The prosecutor opposed the notion that either direction would cure the apprehension of bias and further submitted that either direction was problematic and would likely exacerbate the already existing prejudice.

37 The trial judge commenced his ruling by repeating the applicants' primary submission that a discharge of the jurors was unnecessary as a direction to the jury would be sufficient. There is no substance in the contention that the trial judge failed to take this question into account. Evidently, his Honour did not regard a direction of the sort pressed by the applicants to be a satisfactory solution. The trial judge would only have been obliged to refrain from discharging the jurors if, having regard to all of the circumstances, he was affirmatively satisfied that as a consequence of the proposed direction, the 'need' to do so would no longer exist. It is difficult to see how an appropriate warning tailored to the circumstances would have removed the perception. Neither of the applicant's counsel on appeal was able to suggest a direction that might have been appropriate. A direction that the jurors act only on the evidence without partiality, could not have alleviated concerns about the subtle kinds of connection or bias identified above. Further, as was pointed out by counsel for the Director, such a warning, particularly in the context of the juror receiving a very minor item, might have provoked an indignant or otherwise prejudicial response.

38 It was also submitted by counsel for Chung that his Honour failed to consider whether a different outcome was required for each applicant as it was the conduct of a relative of Rechichi that gave rise to the need to discharge the jurors. When pressed his counsel was unable to suggest any contrary course that might have been followed by his Honour, once it was found that an apprehension of bias existed in relation to one of the applicants.

39 To conclude, it is sufficient that I state my view that the course adopted by his Honour was one that was reasonable and plainly open to him. Once the trial judge concluded that the apprehension of bias could not be removed, he was obliged to make the order that he did in accordance with his duty to make the trial as fair as he could make it[26] and to ensure confidence in the integrity of the jury's verdict. That is not to say that reasonable minds might not differ as to the course that could be followed when conduct of this nature occurs. But no error has been shown in the trial judge's decision, made with great care, that the two jurors be discharged.

40 By way of ground 2 the applicants submit that the learned sentencing judge erred in his directions to the remaining ten jurors. His Honour instructed the jury as follows:

Good afternoon, ladies and gentlemen, first of all I apologise for the fact that you've been kept waiting downstairs for half a day now. It wasn't possible for me to bring you back until this very moment to explain, in some detail, about what has been happening.

You will notice that two of the jurors are no longer in your group, and that is because I have discharged them from the jury. The reason for that is because after you had left yesterday afternoon, after court adjourned, as I understand it, all of you were ahead and the two other jurors were behind.

While they were leaving court there was an incident involving contact between the aunty of the second accused and one of those two jurors while in the presence of the other juror. It is not appropriate to describe what happened, to you, but there was a spontaneous reaction at that time, on the part of the two persons, for a very short time. I do not mean that in the sense that there was any adverse thing said between them.

The second accused did not do anything improper. Indeed, he was not present. He was on the forecourt of the building at the time that this interaction happened. The first accused was not involved, at all.

You will recall my direction at the outset of the trial that there must be no communication or contact between the jury and any members - any persons involved in the case, whether they be the accused, the Crown or any parties, persons who are part of those people, including any family group involved with one or other of the accused.

The reason for that is because, of course, there must be the appearance and the maintenance of the appearance of justice. You are now engaged in a crucial time of the trial.

You have been deliberating now for three days, and you have all taken a separation oath which you will recall or an affirmation which binds you not to discuss the detail of the case, the evidence in the trial or your deliberations with anyone other than members of the jury.

Nothing can happen in a trial which may lead an objective bystander to question the integrity of any verdict which might be delivered by a jury, or to question whether any juror has not, for any reason, discharged his or her task, impartially.

I reached the conclusion that there was a high degree of necessity to discharge the two jurors and have done so, and that means they are no longer part of your group. You are now a group of ten.

41 The trial judge then directed the jury not to speak to the discharged jurors. He also reminded them of the separation oath and their obligation to bring in a verdict based on the evidence alone. His Honour then said:

It was not possible for me to explain to you what was happening until now because I was required to make an investigation into the situation, and it was appropriate that the other two jurors should have been separated off because they were involved in the matter and you were not, and that is the reason why the two of them were kept separate from you this morning.

42 After the two jurors had been discharged and before the remaining jurors were brought into court, the trial judge stated that he did not intend to provide the remaining jurors with any detail of the incident that had led to the discharge of the two jurors. In the direction which then followed the trial judge did not describe in any detail the circumstances of the incident but he informed them that it was an incident involving the second applicant's aunty and the jurors concerned. He gave only a partial explanation for his reasons for the discharge which he said had led him to conclude that there was a 'high degree of necessity' to discharge the jurors.

43 Trial counsel for both applicants took immediate exception to the terms of this direction. Each urged the trial judge to recall the jury to tell them that the incident was 'innocent' and that the jury should draw no prejudicial inference from the discharge of the jurors. They submitted that the 'prejudicial overall impact' of the direction made it incumbent on the trial judge to describe to the jury the full circumstances of the incident so as to prevent any speculation that some significant impropriety had occurred on the part of a family member of the applicant. In response, the prosecutor did not oppose a further direction, but submitted it would in the circumstances be 'unnecessary'. Following this discussion the trial judge rejected the submission that any further direction was required.

44 Similar submissions were advanced by the applicants on appeal. In the absence of an explanation that the incident involving the two was 'innocent' the comments made by his Honour were said to have unfairly prejudiced the applicants. Having given them only some details of that incident, the learned sentencing judge created a real risk that the jury may have thought there had been some significant impropriety or 'sinister' conduct by the aunt. The statement that 'the second accused did nothing improper' would not have minimised that risk. While acknowledging that the judge said that it was a 'spontaneous' event and that nothing 'adverse' had occurred, it was submitted that a number of the comments by the trial judge invited speculation among the jurors. It was contended that reference to the requirement that 'nothing must happen as may lead an objective bystander to question whether those jurors could discharge their task impartially', in combination with the phrase 'high degree of necessity' was productive of a high risk of prejudice. The impression that some serious impropriety had occurred, would only have been reinforced, it was said, by the further comment that it would be inappropriate to inform the jury as to what had happened and that 'any verdicts that you deliver must be based on the evidence and only upon the evidence and nothing else'.

45 Counsel for the Director contended that the directions, when read as a whole, did not create a risk of prejudice to the applicants as it sufficiently communicated to the jury that no event of substance had occurred and that they should not take the circumstances of the discharge into account when considering their verdict. That submission cannot be sustained.

46 The judge's direction is to be considered in its context. The jurors had served together for a period of over six weeks. They must have wondered for the entirety of the Wednesday morning, just what it was that had caused the loss of two of the jurors. In my view the course adopted by the trial judge was productive of substantial prejudice. Although unintended, the overwhelming impression conveyed by what was said and not said, was that the applicant's aunty had done something so serious as to affect the jurors capacity to act impartially. The problems generated by this direction provide a salutary reminder that it will often be a much safer course to simply instruct the jury that it has become necessary to discharge jurors and to give the jury a direction that they should not speculate as to why that was so.

47 Having determined to refer to some detail of the events, his Honour identified the second applicant's aunt as involved. He did not go on to describe the nature of her conduct or that he had found that it did not involve any improper purpose. The statement 'that it is not appropriate to describe what happened, to you' created a real risk that the jury would speculate that some serious impropriety had occurred which they could not be told about and which so affected the jurors impartiality that it was necessary to discharge them. That danger was unlikely to have been removed by the statement that 'there was nothing adverse said between them'. It was followed by a reminder that his Honour had already directed them that they were not to discuss 'the detail of the case, the evidence in the trial or your deliberations' with anyone. The jury may well have concluded that the irregularity involved a breach of that direction. The reminder of the earlier direction was again repeated at the end of the direction with the further caution that their verdict must be based 'only upon the evidence and nothing else'.

48 The trial judge chose to discuss the legal principle relevant to the discharge of the jurors. He spoke of the integrity of the verdict and the impartial discharge of the jurors' task. He then stated his legal conclusion that the incident had produced a high degree of need to remove the jurors. All of this must have further conveyed the strong impression that some serious impropriety had occurred which potentially would have affected the integrity of the jurys' deliberations. His Honour's decision to embark upon some explanation of the legal principles was fraught with danger. The requirement of a high degree of necessity and its application to a reasonable apprehension of bias, as distinct from actual bias, are difficult concepts easily misunderstood by persons unfamiliar with them. The direction that was given was calculated to produce speculation amongst the jury as to the conduct of the persons associated with the second applicant and their purpose and effect. As a consequence of the explanation and instructions given, there was a real risk that the jury would have suspected the incident to comprise some form of improper attempt to influence them. The risk created by the direction was, furthermore, underscored by the critical time at which it was delivered: following two days of deliberations and, ultimately, shortly before a verdict was received.

49 If members of the jury are to be discharged, leaving the fate of the case in the hands of the remainder of the jury, the trial judge will need to tell the balance of the jury that those jurors have been discharged. Though they will be concerned that one or more of their number is no longer with them and will be curious to know why, it will often, as I have suggested, be prudent to say nothing about the circumstances

which led to their discharge and instruct the remainder of the jury not to speculate as to why that has occurred. As this case strikingly illustrates, to descend into an explanation of the circumstances and the legal principles that led to the jurors' discharge will be attended by substantial risk. Anything less than a comprehensive accurate explanation of the facts and the law is likely to engender subsequent concern that the direction prejudiced a party.

50 In my view the direction given created an appreciable risk of prejudice to both applicants such that the convictions should be quashed and a new trial ordered.

51 I agree with the learned presiding judge that the convictions should be quashed and a new trial ordered. I also agree with his Honour's reasons for coming to that conclusion. I wish only to add some observations arising out of the difficult position with which the trial judge was faced.

52 It is a truism that justice must not only be done but must be seen to be done. It is likewise true that a verdict which a reasonable bystander might perceive as being tainted with bias is a verdict which should not be allowed to stand. At the same time, judges must be careful before attributing to members of the public, or members of a jury, an incapacity to distinguish between perception and reality, or a lack of common sense, which judges would never attribute to themselves.

53 In this case, the learned trial judge found that the aunt's motive was 'pure'. He found in addition that there was, in the exchange between the aunt and the juror, no discussion about the case or the evidence. Jurors of ordinary honesty and strength of mind would not allow what happened to influence their verdict. And yet there was in the opinion of the trial judge what his Honour described to the remaining members of the jury as a 'high degree of necessity' to discharge their two

54 I agree with the presiding judge that, in discharging the two jurors, 'the course adopted by his Honour [the trial judge] was one that was open to him'. It was open because what happened was a breach of the trial judge's direction that there be no communication or contact between the jury and any persons involved in the case. The incident might also, as his Honour the trial judge concluded, cause the jurors themselves to have felt quite uncomfortable in the course of their deliberations. In addition, it was also the fact that the trial had reached a particularly sensitive stage. Possible perceptions of impropriety were an added a factor which the trial judge was entitled to take into account.

55 Nevertheless, it was necessary to put into the scales the inevitable prejudice to the parties, but particularly to the accused, in reducing the number of jurors to 10. As the presiding judge has pointed out, both the prosecution and the accused are, in the absence of those special circumstances which permit a juror's discharge, entitled to a trial before the jurors who were duly selected and empanelled at the commencement of the trial. I add to this the very important consideration (as it seems to me) that the removal of two members of a jury is so inherently and obviously a significant step that the trial judge who directs such discharge has no option but to say something about it to the remaining jurors. And whatever is said will have to be said with care. In some circumstances, at least where as here the inappropriate contact with the juror was essentially innocent, much the wiser course will be to retain as jurors those members of the jury who were concerned in the incident in question. One reason for keeping them on the jury may be that any direction which might, as a result of the incident, be necessary to give to the jury, will be much less problematic than that which would necessarily be given to the remainder of the jury were one or more jurors to be discharged. Another may be that appropriate judicial remarks to the intact jury may readily remove any apprehension of bias which, as a result of the incident, a fair minded person might otherwise have entertained.

56 The learned presiding judge has noted that 'it will often be prudent to say nothing about the circumstances which led to their discharge [that is, of one or two members of the jury] and instruct the remainder of the jury not to speculate as to why that has occurred'. I agree. If a juror has been discharged in circumstances which reflect adversely upon an accused then the instruction which the learned presiding judge had in mind would almost certainly be appropriate.

57 In this case, however, neither accused was in any way responsible for the incident in question. And it is, I think, important to keep in mind the particular circumstances of this case. I note that neither of the applicant's counsel on appeal was able to suggest a direction that might, in the circumstances faced by the trial judge, have been appropriate. I also accept the presiding judge's proposition that '[i]t is difficult to see how an appropriate warning tailored to the circumstances would have removed the perception' of apprehension of bias. But, although difficult, it seems to me that it was even more difficult to address the jury in a way which would remove from their minds the adverse impact of the knowledge that two of their number had been discharged. It was difficult because, in essence, two members were discharged in circumstances so devoid of prejudicial behaviour that an explanation for their discharge, in the context of the juror receiving a very minor item, might have provoked an indignant or otherwise prejudicial response. Some members of the jury, had the full circumstances been recounted to them, might well have thought that a regime which, in such circumstances, required the taking of such drastic action as the removal of two of their number, did not have an entirely appropriate sense of proportion. That is not to suggest that they would necessarily have been correct had they taken that view. But as has consistently been said in this area of the law, perceptions - and these must include perceptions which might be held by members of the jury, are important.

58 In the absence of any appropriate explanation, however, the inevitable impression would be that some serious impropriety had occurred. In my opinion, it is very unlikely that the jury, given a direction that they should not speculate, would have restricted their consideration of the circumstances to a mere curiosity to know why the necessity to discharge arose. Even in the absence of active speculation, the danger of unarticulated prejudice to the accused may have remained.

59 In circumstances such as these, it seems to me that the most appropriate course may well have been to retain all the jurors and explain the circumstances to them. Those circumstances, as the trial judge found, involved no intent to influence the coughing juror. It seems to me that the jury could well have been credited with the ability to digest a carefully worded description of the incident without any prejudice to either the prosecution or the accused. Any alternative course was, it seems to me, more likely to cause prejudice. After all, no fair minded and sensible member of the public would think that the gift of a cough lozenge would influence that fair minded and sensible person one way or another when coming to an important decision. Who would buy a used car, simply because the sales person offered the prospective purchaser a lolly? Although the salesperson's motive might be clear, and although the fair minded observer might have suspected that the aunt, perhaps subconsciously, knew that her action would do her nephew's case no harm, nevertheless the fair minded observer would I think readily accept that judgments about serious matters are not swayed by such trifles. All fair minded jurors would likewise unhesitatingly follow a direction that they must not be influenced one way or the other by an equivalent gift, spontaneously offered.

60 None of this alters my conclusion that it was open to the trial judge in the exercise of his discretion (a discretion with which the Court of Appeal should not in the absence of some infringement of principle, interfere) to discharge the two jurors in question. Nor, of course, does it affect my agreement with the outcome of this appeal.

61 I agree with the reasons for decision of Redlich and Harper JJA.

[1] A separate ground by Chung relating to what was said to be an erroneous 'Ahern direction' was abandoned with leave during the hearing of the appeal.

[2] Rechichi being acquitted of Count 4 knowingly deal with the proceeds of crime.

[3] R v Panozzo & Iaria [2003] VSCA 184; (2003) 8 VR 548, [11].

[5] [1994] HCA 30; (1994) 181 CLR 41, 53; see also R v Goodall [2007] VSCA 63; (2007) 15 VR 673, 677; Abbott v Western Australia [2005] QSC 79; (2005) 153 A Crim R 186, [9]; and R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34, [31].

[6] [1986] VicRp 70; [1986] VR 707.

[7] [2007] VSCA 63; (2007) 15 VR 673.

[8] [2009] VSCA 195.

[9] [1936] HCA 40; (1936) 55 CLR 499.

[10] [2007] VSCA 63; (2007) 15 VR 673, [20].

[11] This was a reference to the trial judge's application of the principle as stated in R v Chaouk.

[12] [1974] VicRp 100; [1974] VR 849, 866.

[13] R v Goodall [2007] VSCA 63; (2007) 15 VR 673, [17].

[14] R v Halliday [2009] VSCA 195.

[15] Webb v R [1994] HCA 30; (1994) 181 CLR 41.

[17] The sentencing discretion is an illustration.

[18] The judgment of the third judge in the majority Toohey J, does not assist the applicants as he decided the case on the limited basis that 'sympathy' for the victim does not, of itself, constitute bias.

[19] [1994] HCA 30; (1994) 181 CLR 41, 52.

[23] Ibid 55 (Mason CJ, McHugh J), 59 (Brennan J), 78 (Deane J).

[24] [2007] VSCA 63; (2007) 15 VR 673, [20] (Redlich JA).

[26] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 49; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 323.

[27] This was putting the matter too high. The correct expression is 'a high degree of need', a phrase which, as made clear in R v Boland [1974] VicRp 100; [1974] VR 849, 866, equates to the single word 'necessity'.