R v CZAJKOWSKI; R v SHEPHERD

Appellant Czajkowski - April Francis COUNSEL : Appellant Shepherd - S J Odgers SC Respondent - G J Bellew SOLICITORS : Appellants - Michael Croke & Co Respondent - Commonwealth Director of Public Prosecutions CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Trial by jury - impartiality - bias - written communication from foreperson indicating fear of bias and prejudgment by unspecified jury members - whether jury to be discharged - whether direction overcame prejudice - whether reasonable apprehension that jury had not discharged its task impartially LEGISLATION CITED : Customs Act 1901 Criminal Appeal Act 1912 R v Stretton; R v Story (1982) VR 251 Webb and Hay v R (1994) 181 CLR 41 Sussex Justices; ex parte McCarthy [1924] 1 KB 256 Johnson v Johnson (2000) 201 CLR 488 R v Maxwell 23 December 1998 NSWCCA 27 CASES CITED: R v Piccin (2001) NSWCCA 35 R v van Hoang (2002) 128 A Crim R 422 Bright (2000) 114 A Crim R 466 R v Pearson (2000) 114 A Crim R 80 Williams v R (2000) 119 A Crim R 490 Crofts v R (1996) 186 CLR 427 DECISION : Appeals allowed; Convictions and sentences quashed; New trials of both appellants.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 60866/01 60850/01

SHELLER JA WOOD CJ at CL SULLY J

Thursday, 17 December 2002 REGINA v Hans Johannes CZAJKOWSKI REGINA v James William SHEPHERD Judgment 1 SHELLER JA: The appellants, James William Shepherd and Hans Johannes Czajkowski, were each charged that on 18 January 2000 at Sydney they did, without reasonable excuse, attempt to obtain possession of a prohibited import to which s233B of the Customs Act 1901 applied; namely, narcotic goods consisting of a quantity of 3, 4-methylenedioxy methamphetamine ("MDMA"), commonly known as ecstasy, (being not less than the commercial quantity applicable to MDMA) reasonably suspected of having been imported into Australia in contravention of the Act. They both pleaded not guilty and were tried before Judge Keleman and a jury of twelve commencing on 7 November 2001. On 28 November 2001 the jury found each of the appellants guilty. Each appeals from his conviction. 2 Shepherd was sentenced to twenty-nine years, eight months and twenty-nine days imprisonment with a non-parole period of nineteen years, eight months and twenty-nine days commencing on 29 November 2001 and expiring on 26 August 2021. Czajkowski was sentenced to twenty-four years, nine months and twenty six-days imprisonment with a non-parole period of fifteen years, nine months and twenty-seven days commencing on 29 November 2001 and expiring on 23 September 2017. 3 For the purpose of these appeals, the facts giving rise to the charges can be stated shortly. In January 2000, more than fifty kilograms of ecstasy was imported into Australia by a man named de Groot, together with another man called Hughes. The ecstasy was contained in rolls of foil. The police intercepted the drugs and replaced them with a controlled delivery sample. The rolls were transported to the Sydney depot of TNT in Coward Street, Botany. Observations were made of the appellants in the company of de Groot and Hughes and around the TNT depot. The prosecution relied on these observations to support the inference that the appellants must have known that the rolls contained prohibited drugs. Hughes picked up the rolls from the TNT depot and met the appellants at a car park where the rolls were transferred into a van in which the appellants were travelling. Czajkowski was the driver. The van was observed to drive in a manner which was relied upon by the prosecution as manifesting an intention to escape from surveillance police. 4 Ultimately, both appellants were arrested. In essence the Crown case relied on the suspicious behaviour of the appellants in the period from before the rolls were picked up and up to the time of their arrest to prove beyond reasonable doubt that the appellants knew that the rolls contained prohibited drugs. Both appellants gave evidence that at no stage did they believe the rolls of foil contained narcotic goods. At all times they believed they were doing Hughes a favour and were innocently involved in transporting, at Hughes' request, the rolls of foil and some furniture they were to have picked up from an address at Mascot and to store for a short time in a storage facility that Czajkowski had at Kogarah. 5 On 28 November 2001 after the evidence had finished, after about three weeks of hearing and after the addresses for the prosecution and appellants, but before the trial Judge's summing-up to the jury, a note was sent to the Judge by the foreperson. That note became identified as MFI J7. It read: "Dear Judge

Some of the jurors are slightly bias [sic] against drugs and have already made there [sic] minds up on day one." 6 In the absence of the jury an application was made by counsel for each accused for the discharge of the jury. The trial Judge declined the application and relied on directions to the jury to put aside any prejudices and decide the case on the evidence. His Honour said: "At this stage I'm not inclined to discharge the jury. I believe that in the circumstances an appropriate direction can be formulated to ensure that if there is any such bias it will be put to one side and not be something that will be involved in the process of deliberation ..."

7 Discussion took place with counsel about the form such directions should take. Early in the course of his summing-up Judge Keleman said: "You are the sole judges of the facts. Although that is your role, indeed your right, you must not exercise that right irrationally. You are not entitled to find as a fact what you would like the fact to be. You are obliged by the oath each of you took to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial and nothing else. That evidence comprises what has been said by the various witnesses whom you have seen and heard, and the various exhibits which have been produced and which you will have with you in the jury room. You will recall that the purpose of the inspection of locations in the Botany area was to assist you in understanding the evidence given in the trial and it is open to you to draw any reasonable inference from what you saw, heard or otherwise noticed during the inspection. That is the only material upon which you should arrive at your conclusions. You should reach your conclusions totally excluding any considerations of sympathy, prejudice or other emotion. You are judges and acting judicially requires you to shed any emotion and to act only upon evidence and according to reason. We all have strong feelings about illegal drugs and those who are involved in such drugs. That is only natural. However, any prejudices any of you might have in that regard must not be permitted to play any part in your deliberations. Your deliberations must be undertaken in a totally objective fashion without regard to considerations of sympathy, prejudice or other emotions, and must start from the presumption that both accused are innocent until the Crown has proved they are guilty. It is essential, in accordance with the oaths each of you took at the commencement of the trial, that you have listened to the evidence with an open mind during the course of the trial. It is vital that during the course of the evidence of the trial that you have not prejudged any issue or fact until such time as your deliberations have taken place following this summing-up. The fact that this case involves drugs is irrelevant unless you are ultimately satisfied, following an objective consideration of the evidence in accordance with the directions of law I give you, that the accused whose case you are considering has been proved by the Crown to be guilty of the offence charged."

8 On the following day, 29 November 2001, at the beginning of the second day of summing-up, counsel for one of the appellants said: "Just briefly your Honour before the jury come in. Your Honour I have given some thought overnight about the note from yesterday and although I agree your Honour probably could not say any more on the issue, I do again renew my application for a discharge on (sic) the jury on the basis that although your Honour has said everything that could have been said I don't consider it can cure it so once again I just renew that application your Honour."

9 Counsel for the other appellant said: "I support that application and I accept the fact that there is nothing which your Honour could say or any more that you could say, it's just the discomfort that I feel."

10 In response Judge Keleman said: "I understand the discomfort but I'm satisfied that the directions that have been given ensure that the jury will properly discharge their function and I refuse the applications. I assume you didn't want to say anything Madam Crown? CROWN PROSECUTOR: No your Honour."

11 The grounds of appeal of both appellants were: "1. The trial Judge erred in failing to discharge the jury after the note from the jury MFI J7 was received.

2. The trial Judge miscarried by reason of a reasonable apprehension of bias on the part of some members of the jury." 12 It is appropriate to deal with the two grounds of appeal together. Mr Odgers SC, counsel for Shepherd, made the following observations about the note:

1. It came from the foreperson and indicated her concern that some members of the jury had not kept an open mind during the trial.

2. While a 'slight bias against drugs' by itself would not be a cause for concern, in context the foreperson was indicating that in her opinion some jurors were biased against the two accused and had decided they were guilty at the beginning of the trial, presumably after hearing the Crown Prosecutor's opening address.

3. If it was correct that some members of the jury had not kept an open mind during the trial, this had obvious implications for their preparedness to give serious consideration to the evidence of the two accused and their explanations for their behaviour.

4. In summary, the note indicated the foreperson's belief, presumably based on what she had heard in the jury room, that some members of the jury had, from the beginning of the trial, been biased against the two accused and had pre-judged the issues before hearing the evidence in the trial. 13 Counsel submitted that the conclusion was inescapable that a reasonable apprehension of bias arose in respect of some members of the jury and that the trial Judge should have discharged the jury. 14 Counsel relied upon observations by Starke J in R v Stretton; R v Story (1982) VR 251 at 255, a case in which a juror was reported to have said he felt biased because of the ethnicity of the accused's father (254.10). Starke J pointed out that the trial Judge assumed that the bias was in favour of the accused and against the Crown and accordingly was not a relevant matter for the exercise of his discretion. Starke J disagreed and said: "A juror who has confessed bias at an early stage in the case is just as likely as not to form another and perhaps stronger bias the other way later in the trial. In any event, a biased juror is a tainted juror, and his bias and taint, which was openly, as it were, discussed in front of the other members of the jury, may of course infect the rest of the jurors." 15 In that case an experienced Crown Prosecutor had not opposed the application to discharge the jury. 16 In the present case the Crown Prosecutor did not indicate her position about the application. 17 In Webb and Hay v R (1994) 181 CLR 41 at 50, Mason CJ and McHugh said: "In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done." 18 Reference was made to Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259 and Johnson v Johnson (2000) 201 CLR 488 at [12]. Mason CJ and McHugh J continued at 53 (see also Toohey J at 87-8): "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." 19 This Court has held that the test is whether "the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding"; R v Maxwell 23 December 1998 NSWCCA at 27-28 "a test of possibility upon possibility." The test will be at its most strict for a criminal trial. 20 If a juror indicates that he or she is biased, the jury should be discharged; R v Piccin (2001) NSWCCA 35; R v Stretton; R v Story at 255. Similarly, if a Judge indicates that he is biased in some way (for example he has a generalised view that drug dealers are not to be believed; R v van Hoang (2002) 128 A Crim R 422 such expressions of opinion conflict with the requirement of neutrality) and impartiality and cause a reasonable apprehension of bias. In Bright (2000) 114 A Crim R 466 at [28] Kirby J said: "A person should not sit as a juror if, in all of the circumstances, the parties, or a fair-minded and informed member of the public, might entertain a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to the resolution of questions involved in the trial; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293." 21 Mr Odgers submitted the note from the foreperson was only evidence of actual bias on the part of some other members of the jury. He accepted that it did not actually prove they were biased, although it put the court on notice that there was a real issue as to actual bias. To determine whether there was actual bias, it may or may not have been appropriate to investigate the matter further. However, as noted, the test is not actual bias but reasonable apprehension of bias. Mr Odgers said there could be no doubt the note gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that some of the jurors had not and would not discharge their task impartially. 22 Judge Keleman's reliance on directions to cure the problem was, it was submitted, misconceived. No directions could overcome the reasonable apprehension of bias or pre-judgment. Reference was made to cases where it had been held that the giving of a direction by the trial Judge could not reasonably cure the problem: R v Pearson (2000) 114 A Crim R 80 at par 34; Williams v R (2000) 119 A Crim R 490 at 496. It was submitted the present was such a case. One problem was that the directions were given after all the evidence had been given. If, as a reasonable observer might conclude, some members of the jury had pre-judged the trial against the appellants before hearing any evidence, it was hardly likely they would have given serious attention or consideration to the defence evidence as it was adduced. A direction as to how they should proceed after the evidence had been adduced simply could not overcome that problem. A retrospective direction could not undo what had already happened or what may have already happened. 23 A second problem was there was no basis on which the trial Judge or a reasonable observer could have any confidence that all members of the jury would follow the direction to put their apparent bias to one side. In Webb and Hay the majority of the High Court dismissed the appeal, partly on the basis of directions given by the trial Judge after one of the jurors gave flowers to the victim's mother. The circumstances were distinguishable because the juror who gave the flowers to the victim's mother did not thereby assert, expressly or impliedly, that she was biased against the accused. Her sympathy was for the victim's mother. It did not manifest itself in any act of hostility towards the accused; Mason CJ and McHugh J at 56.5. Toohey J observed at 86.3 that "sympathy of itself cannot be treated as an indication of bias against the accused". Further, the majority in the High Court placed great significance on the trial Judge's finding that the juror who gave flowers to the victim's mother "was a very attentive and diligent juror" who "was very concerned about her conduct, conduct for which she had apologised"; see Mason CJ and McHugh J at 55-56, Toohey J at 88. 24 Mason CJ and McHugh J said at 56.7: "A fair-minded person would assume that the juror would do her best to follow the judge's direction". The majority members of the High Court referred to the judge's direction, the juror's apology and "recognition of the seriousness of what she had done" and her "general attentiveness and diligence"; Mason CJ and McHugh J at 56.7 and Toohey J at 88.5. In the present case there are no similar circumstances. 25 Mr Odgers submitted there was a more fundamental error made by the trial Judge: in declining to discharge the jury he applied the wrong test. He concluded that the juror should not be discharged because he believed that "an appropriate direction" would "ensure" that any bias would "be put to one side". This focussed on actual bias. It failed to address the question of whether the public might entertain a reasonable apprehension that members of the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the trial. Even if the jury attempted to follow the directions, a reasonable observer might entertain a reasonable apprehension that some of the jury might be biased against the appellants. 26 In its submissions the Crown conceded that if either of the grounds of appeal was made out then the proviso to s6 of the Criminal Appeal Act 1912 could not appropriately be applied and the appellants would be entitled to a new trial. 27 Ms April Francis, appearing for Czajkowski, relied upon Mr Odgers's submissions and referred to the passages already quoted from the judgment of Mason CJ and McHugh J in Webb and Hay; namely, whether the incident was such that, notwithstanding any warning or direction given by the trial Judge, it gave rise to a reasonable apprehension or suspicion on the part of a fair-minded member of the public that the juror or jury had not discharged or would not discharge his, her or their task impartially. She submitted that the governing consideration was not whether Judge Keleman's directions were capable of curing the demonstrated bias but rather how the content of the note would appear to reasonable members of the public. Justice should manifestly and undoubtedly be seen to be done. 28 The Crown submitted it was not clear who had been the author of the note or how or when the existence of the suggested bias had come to the knowledge of the particular juror. It was not correct to assert that "the foreperson was indicating that in her opinion some jurors were biased against the two accused" or that the note indicated the foreperson's belief that some members had pre-judged the issues. It was not clear whether it purported to record the concerns and opinion of the foreperson or those of some other member of the jury. It was not clear who or how many jurors may have held the opinion that some of the jurors were biased or what the nature of the bias was. As his Honour observed, it was possible that the note was no more than an impression held by one of the members of the jury. As his Honour said, the note reflected what was simply one juror's opinion. Whether that opinion was correct remains to be seen. 29 The Crown accepted that the test was an objective one and did not depend upon the actual effect of the incident. Even so, the apprehension or suspicion that the jury had not or would not discharge its task impartially must be reasonably based in the circumstances where the origin of the note was unclear, the basis on which it was asserted that there was bias was not clear, and the precise nature of the asserted bias was not clear. The Crown submitted there was no reasonable apprehension or suspicion the jury had not, or would not, discharge its task impartially. The case was distinguishable from R v Story, where there was direct evidence of a conversation between the juror concerned and the trial Judge's tipstaff in which the juror stated that he felt "biased", from R v Pearson (2000) 114 A Crim R 80, where there was evidence of an approach by a solicitor to the jury in a hotel, and from R v Williams, where there was evidence of a conversation, outside the court but within the hearing of a juror, concerning the accused's criminal record. 30 The Crown submitted that even if the conclusion were reached that the contents of the note gave rise to a reasonable apprehension of bias, it did not follow that the trial miscarried. The test formulated in Webb and Hay was whether "notwithstanding the proposed or actual warning of the trial Judge" a reasonable apprehension or suspicion arose that the juror or jury had not discharged or would no discharge its task impartially. The Crown submitted that any difficulty which arose as a consequence of a note was cured by the direction and emphasised the dictates in the passage I have quoted from his Honour's direction: "[Y]ou must not exercise that right irrationally."

"You are obliged by the oath each of you took to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial and nothing else."

"That is the only material upon which you should arrive at your conclusions. You should reach your conclusions totally excluding any considerations of sympathy, prejudice or other emotion. You are judges and acting judicially requires you to shed any emotion and to act only upon evidence and according to reason." 31 In the last paragraph of the direction quoted, the trial Judge emphasised to the jury that any prejudices any of them might have about illegal drugs and those involved in such drugs "must not be permitted to play any part in your deliberations". They were directed to undertake their deliberations in a totally objective fashion without regard to considerations of sympathy, prejudice or other emotion. They must start from the presumption that both accused are innocent until the Crown has proved they are guilty. 32 The trial Judge said: "It is essential, in accordance with the oaths each of you took at the commencement of the trial, that you have listened to the evidence with an open mind during the course of the trial. It is vital that during the course of the evidence of the trial that you have not prejudged any issue of fact until such time as your deliberations have taken place following this summing-up." 33 One question that this part of the direction throws up flows from the indication in the note itself that some of the jurors had already made their minds up on day one. That might suggest that they had not listened to the evidence with an open mind during the course of the trial and had, during the course of the evidence of the trial, pre-judged an issue of fact. 34 The Crown emphasised the comprehensive nature of the trial Judge's direction and submitted that there was no reason to suggest the jury would not have regard to, and properly follow, any direction he gave. In Crofts v R (1996) 186 CLR 427 at 441 the Court said: "... in the imperfect environment of the trial it is necessary to operate on the assumption that a jury will be capable of conforming to judicial instruction ...". 35 In my opinion, the trouble in this case is that the note indicated that by the time addresses concluded and before the summing-up some jurors or a juror had made up their minds or his mind or her mind on day one. That statement was made in the context of some of the jurors or a juror being "slightly bias [sic] against drugs". In my opinion, the appellants or a fair-minded and informed member of the public might entertain a reasonable apprehension that the jury would not discharge its task impartially. 36 In fact, despite the careful argument advanced on behalf of the Crown, both in writing and orally, I find it hard to reach any other conclusion. To my mind, this is a clear case where such a fair-minded and informed member of the public would entertain a reasonable apprehension that the jury could not discharge its task impartially, that a juror or jurors were biased and had pre-judged the case on day one. 37 It follows, in my opinion, that the appeals should be allowed, that the convictions and sentences should be quashed, and that there should be a new trial of both the appellants. 38 WOOD CJ at CL: I agree. 39 SULLY J: I too agree. 40 SHELLER JA: The orders of the Court will be as I have announced.

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