R v Cotter [2004] VSC 295

During the course of the trial a question arose as to whether or not the accused had been wearing a black bumbag in circumstances which implicated him in the death of the deceased, Sean Macgiolla. A black bumbag was found in the garden of the accused's neighbour's home some hours after the deceased's body had been found.

Supreme Court of Victoria|2004-06-25|Before: Redlich J

Discharge of jury - Inquiry into matter extrinsic to jury deliberation - Exhibit given to jury containing material not in evidence and highly prejudicial - Irregularity that would cause miscarriage of justice.

Following an application made on behalf of the accused Shane John Cotter to discharge the jury who had retired to consider its verdict on Thursday 24 June 2004, approximately a day ago, I discharged the jury without verdict. These are my reasons for doing so.

During the course of the trial a question arose as to whether or not the accused had been wearing a black bumbag in circumstances which implicated him in the death of the deceased, Sean Macgiolla. A black bumbag was found in the garden of the accused's neighbour's home some hours after the deceased's body had been found.

The Crown case was that the accused had left the black bumbag in the garden of his neighbour's home. The Crown called evidence that the accused had been seen wearing such a bumbag shortly before the deceased was discovered murdered. Evidence was led of DNA material found upon a meat cleaver concealed within the black bumbag, that evidence being to the effect that the accused could not be excluded as a contributor to that DNA.

In his video Record of Interview, the accused denied ownership of that black bumbag and claimed that he had not been wearing it that night. The Crown submitted to the jury that the jury should conclude that the accused's denials were false and were motivated by a consciousness of his guilt of the crime with which he was charged.

During the course of the jury's deliberations, it appears that the foreman of the jury discovered a number of notes within a closed zip pocket of the bumbag. The foreman drew the discovery to the attention of my tipstaff.

On the application by the accused's counsel to discharge the jury, each of those notes was tendered as an exhibit, there being five separate documents. Three of those notes, if they had been read by the jury, would almost certainly have led the jury to conclude that the accused was the author of some, if not all of the written notes, and that the black bumbag was the accused's or had at least been in his possession that night.

I was told during the course of this application made on behalf of the accused, that the accused had no recollection at all of any of the written material, but that he did not dispute that Exhibits 1, 2 and 3, were three notes written by him to his father. The fourth note, Exhibit 4, was a document which recorded in handwriting a number of names and numbers on it. Counsel informed me that the accused denied that that note was in his handwriting.

Counsel made a submission which I accepted as to the likely inference a jury would draw from those names and numbers. The inference could provide a motive for the alleged conduct of the accused. The notes were highly prejudicial.

Inquiry into matter extrinsic to jury deliberations

I am satisfied that I would not be breaching any confidentiality of the jury's deliberations by disclosing what the jury had discovered. The information which the jury had discovered, whether or not they read it, related to an issue which was extrinsic to their deliberations. Emmett & Masland v R[1]; Minarowska and Koziol v Rl[2]; R v K[3]; Tuia v R[4]. It is permissible to establish that inadmissible and prejudicial material of an evidentiary nature was sent to and was available to the jury. Rinaldi v R[5]; R v K[6]. I did not regard it as appropriate to make an enquiry as to whether or not the foreman or any members of the jury read the material. Zampaglione & Ors v R[7]; R v Softley[8]; R v Medici[9]. The inference is inescapable that the foreman at least regarded the notes as containing matters of importance. In any event it must be presumed that members of the jury became aware of the information in the absence of proof to the contrary. There thus arose a real risk of injustice as some or all of the jury may have become aware of the content of the material, which may have influenced their verdict.

Limited right of Crown to adduce evidence after summing up

The very limited right of the Crown, if it exists at all, to adduce evidence after the summing up by a trial judge in a criminal trial provides a useful guide as to the seriousness with which one must view the receipt by a jury of information which was not part of the evidence at trial. It has been held that in exceptional circumstances evidence can be placed before a jury after a summing up but it will rarely be permitted without the consent of the accused. Shaw v R[10]; Dryburgh v R[11]; c/f R v Lawrence[12].

Where evidence should have been discovered before the close of the Crown case, if there had been appropriate inquiries made, or where the need to call such evidence should have been foreseen, the accused will generally be regarded as unfairly prejudiced if subsequent evidence is admitted. Lawrence v R[13]; Killick v R[14].

The existence of these notes in a pocket of the exhibit should have been discovered by investigating police. Their possible significance as to ownership or possession of the bag and as to the accused's possible dealings with the deceased and others should have been recognised. Although no application was made to introduce such evidence such an application would inevitably have failed.

Where the degree or extent of departure from the proper procedures of a trial is clear and substantial, there will generally be an irregularity which will give rise to an unfair trial. If the examination of exhibits becomes a means of supplying new evidence, it is generally not permitted. Kozul v R[15]. In most cases a material irregularity will constitute a miscarriage of justice. Hembury v The Chief of General Staff[16].

A substantial irregularity occurs when material which has not been admitted into evidence in the trial is placed in the jury room. Domican No. 3[17]; Rinaldi v R[18] and Barker & Ors v R[19]; R v Myles[20]; R v Skaf[21].

In Barker v R[22] the decision of the trial judge was upheld when he answered in the affirmative a jury inquiry as to whether they could take into account a blue fibre which they found on a piece of tape which was an exhibit. There had been no evidence led at trial concerning the blue fibre on the exhibit. After referring to Hodge v Williams[23] and Kozul, the Court of Appeal, noting that defence counsel had agreed to that course, concluded that there was no miscarriage of justice, notwithstanding that at trial the defence case was that there was no blue fibre on the tape.

In R v Vong[24] the Court of Appeal granted a new trial where a jury had been given an exhibited video-tape which contained, not only the tape recording relied upon by the Crown, but a further video recording, the second being highly prejudicial. This irregularity did not come to light until after the verdict.

In R v Sharp v R[25], it was discovered after verdict, upon examination of the exhibits left in the jury room, that material which had not been admitted into evidence in the trial had been placed in the jury room. In dismissing the appeal against conviction, the Court of Appeal concluded that the material which had been given to the jury was not material which could have significantly impacted upon the jury's considerations.

The facts of the present case are not dissimilar to those in the unreported decision of R v Rudkowsky[26] which was considered in R v K[27]. In Rudkowsky a miscarriage of justice was found to have occurred when handwritten notes of the victim referring to the appellant's violence and which were not in evidence, were found in a bag tendered as an exhibit and given to the jury.

The defence has disputed that the black bumbag belonged to the accused. There has been no evidence concerning the notes which the jury found in the bag. The circumstances in which they came to be there may be disputed. The fourth note, if written by the accused, may provide evidence of motive for the deceased's death. The Crown had submitted to the jury that the accused had lied to investigating police in denying the bag was his, and had invited the jury to conclude that the denial was borne of a consciousness of guilt.

The accused must have an adequate opportunity to meet the case upon the material which is now before the jury and upon which the Crown would now rely. That is essential to a fair trial. R v Chin[28]; Cheney v R[29]; Regina v Herring[30]. These principles make it plain that it would be impermissible for a jury to consider extraneous information unless the information so obtained was ventilated in the trial and submitted for comment by the parties.

Irregularity that would produce miscarriage of justice

It is clear that this constituted an irregularity of such an order that a miscarriage of justice would occur had the jury been allowed to return a verdict. It is a fundamental principle of the administration of justice, that no person should be convicted of a serious criminal offence except by the verdict of a jury after a fair trial according to law. Wilde v The Queen[31].

The irregularity was not one which it could be said would not have affected the jury's verdict. That is to say, it could not be said, had the jury returned a verdict of guilty, that the jury would have returned the same verdict had the irregularity not occurred. R v Knape[32]; R v Marsland[33]; R v Allan[34]; R v K[35].

The Crown submission that the jury should be allowed to return a verdict, there being no high degree of necessity to discharge the jury, cannot be accepted. It would involve an abdication of my responsibility were the question of a miscarriage of justice in the event of a conviction to be left for determination by an appellate court.

[16] (1998) 193 CLR 641 per McHugh J at 651.

[26] Unreported NSWCCA 15 December 1992.

[30] [1998] NSWSC 551, 24 November.

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