Court of Appeal (Qld)|2000-12-14|Before: de, Jersey CJ, Williams and Douglas JJ, Separate reasons for judgment of each member of the Court, each concurring as, to the order made
de, Jersey CJ, Williams and Douglas JJ, Separate reasons for judgment of each member of the Court, each concurring as
Catchwords
CRIMINAL
LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
- PARTICULAR GROUNDS - IRREGULARITIES IN RELATION
TO JURY - OTHER CASES - all
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL- PARTICULAR GROUNDS - IRREGULARITIES IN RELATIONTO JURY - OTHER CASES - allappellants convicted of murder - where certain irregularities occurred inrelation to jury - whethertrial judge erred in refusing to discharge jury -where one of jurors suffered personal problems during trial and absentedhimselffrom the group after jury retired, later returning to continuedeliberations - where juror had lengthy conversations with policeofficers, butthere was no evidence that he had discussed the jury's deliberations withanyoneCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL ANDNEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDINGOF JUDGE - PARTICULARMATTERS - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY - construction of s 53Jury Act 1995 - whether trial judge applied correct test in determiningwhether or not to discharge jury - trial judge gave insufficient regard
to the
perception of prejudice to a fair trial - test is whether the irregularities
appeared to give rise to a reasonable suspicion
about the fairness of the trial
and that includes considering whether the public confidence in the proper
administration of criminal
justice could be preserved if the convictions were
allowed to stand in the light of the irregularities
Criminal Code (Qld), s 621, s 622
Jury Act 1995 (Qld), s 53, s 54, s 56, s 57
R v Chaouk [1986] VicRp 70
(1986) VR 707, considered
R v Davies (1991) 53 A Crim R 122, considered
R v Fielding [1993] 1 Qd R 192, considered
R v Jackson and Le Gros [1994] QCA 46
[1995] 1 Qd R 547, considered
R v Ketheridge (1915) 1 KB 467, cited
Webb and Hay v The Queen [1994] HCA 30
(1994) 181 CLR 41, discussed
Judgment (100 paragraphs)
[1]
Legal Aid Office (Queensland) for appellant Heferen
[2]
Legal Aid Office (Queensland) for appellant Georgiou
[3]
Director of Public Prosecutions (Queensland) for respondent
[4]
[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams J. I agree with the orders His Honour proposes and with his reasons. I add these observations concerning the test for discharge of a jury in cases of this character, and concerning a judge's approach to determining the circumstances of such contraventions.
[5]
[2] The issue is the correctness of the learned trial judge's conclusion that, in terms of sections 53 and 54 of the Jury Act1995, the contraventions of those provisions "appear (ed) (to the judge) likely to prejudice a fair trial". I agree with Williams J that the judge applied too narrow a test, evident from his observation that the provisions "focus not so much upon perceptions as upon the reality of (likely) prejudice ..."
[6]
[3] Although the test formulated by the High Court in Webb and Hay v R[1994] HCA 30; (1994) 181 CLR 41, 50-1, 53, 57, 88 with respect to the criminal jurisdiction at common law is not directly applicable to Queensland where the position is governed by statutory provision, that formulation has indirect relevance here, in drawing attention to the primacy of public confidence in the administration of justice, and the potentially destructive effect, in that regard, of reasonable public suspicion as to the fairness of the criminal process.
[7]
[4] One cannot ignore community perception in gauging what amounts to a "fair trial" in the criminal court. The word "fair" primarily connotes freedom from bias or injustice. But it also ordinarily embraces the appearance of the thing.
[8]
[5] Although sections 53 and 54, on my construction, invite the judge, faced with such difficulties, to consider how the matter appears to that judge, the "matter" is the likelihood of prejudice to a fair trial, and a "fair" trial is one not only free from bias and injustice, but which also bears an appearance of fairness, to the Crown, the defence, and the community.
[9]
[6] And so in the Queensland cases of R v Fielding[1993] 1 Qd R 192 and R v Jackson and Le Gros[1994] QCA 46; [1995] 1 Qd R 547, determined by reference to Code provisions not in my view materially different from these provisions of the Jury Act, the courts considered, as highly significant, the question of public perception of the fairness of the trial, and addressed the question whether there was ground for "reasonable suspicion" about that fairness.
[10]
[7] This learned judge, while describing the matter as "reasonably closely balanced", said that he was not convinced that the contraventions appeared likely to prejudice a fair trial. He gave comprehensive, rationally expressed reasons for that which may well have left reasonable, objective observers present within the courtroom or reading his observations satisfied of the correctness of his conclusion.
[11]
[8] But that leaves out of account the assessment of members of the community outside the courtroom who, having learned of the broad thrust of the irregularities, draw their own conclusions unassisted by the judge's rational analysis, albeit that it is only their fair minded and reasonable reaction which falls for consideration. It may be, however, and this is such a case, that to such an observer, a particular contravention bespeaks a relevant risk of unfairness.
[12]
[9] In the end, although the existence in Queensland of a particular statutory test means that the High Court formulation with respect to common law jurisdictions should not automatically be transposed, the considerations to which the High Court refers are in my view nevertheless potentially relevant here.
[13]
[10] In determining, under sections 53 and 54, whether to the judge, a particular contravention "appears likely to prejudice a fair trial", the judge, having ascertained the circumstances as best he or she may, should consider not only the question of any established actual jeopardy to the justice of the proceeding, but also the question of how a reasonable and informed member of the public would see the matter. In that latter regard, likelihood of a "reasonable suspicion" that the proceeding could not justly be carried through, would ordinarily warrant aborting the trial.
[14]
[11] I stress however that the suspicion must be reasonable, and its existence established as a matter of probability, not mere possibility.
[15]
[12] I mentioned earlier the need for the judge to ascertain the relevant circumstances as best that may be done. The manner in which it is done should recognise these considerations:
[16]
1. It may be possible to identify circumstances warranting the discharge of a particular juror (s56 (1) Jury Act), rather than the whole of the jury, and the judge being satisfied that the irregularity relating to that juror has not infected the deliberations of the others, the judge may determine that the trial continue with the remaining jurors. As Williams J explains, it may have been possible to proceed in that way here, had the juror not been allowed at the early stage to rejoin his other deliberating jury members.
[17]
2. In endeavouring to determine the circumstances of a suggested irregularity, the judge must be careful not to intrude into the jury's deliberations. While it may sometimes be appropriate to delegate the task of questioning the juror to a court official, it may sometimes be preferable for the judge to question the juror, in the absence of the other jurors, but in the presence of the accused, the Crown prosecutor and defence counsel. The judge would ordinarily be most circumspect about allowing any questioning of the juror by counsel.
[18]
3. The limits of any such questioning would ordinarily recognise the important consideration of public perception. Sometimes, as in this case, the character of a clearly evident contravention will be such that any substantial questioning would be to no avail, in that it could not produce an assurance sufficient to exclude the "reasonable suspicion" which would overwhelmingly, inevitably emerge from the basic circumstances of the contravention.
[19]
[13] WILLIAMS J: The appellants, Edwards, Heferen and Georgiou, together with one Rice, were indicted on two charges: (1) breaking and entering premises and stealing; and (2) murder. Their trial in the Supreme Court at Townsville commenced on 3 May 2000. Edwards and Georgiou had previously pleaded guilty to the charge of breaking and entering premises and stealing. Therefore the trial proceeded with respect to the murder count against the four accused, and the count of breaking and entering premises and stealing with respect to Rice and Heferen. Verdicts were returned late in the afternoon of 26 May. The trial judge accepted that the jury was unable to reach a verdict on either count involving Rice; he discharged the jury from giving verdicts with respect to those charges and ordered that Rice be retried at an ensuing sittings of the court. The jury returned verdicts of guilty of murder against Edwards, Heferen and Georgiou, and also found Heferen guilty of breaking and entering premises and stealing.
[20]
[14] Certain irregularities occurred with respect to the jury on the night of 25-26 May, but the learned trial judge ruled that those irregularities were not such as to require him to discharge the jury. Each of the three appellants has taken as a ground of appeal that the learned trial judge erred in refusing to discharge the jury in the light of the irregularities.
[21]
[15] Other grounds of appeal have been taken by each of the appellants and they can be summarised as follows:
[22]
(i) His trial was unfair because it was a joint trial and there was a substantial body of highly prejudicial evidence inadmissible against him before the jury;
[23]
(ii) The learned trial judge did not adequately put his defence case in the summing up;
[24]
(ii) The summing up of the learned trial judge with respect to the identification evidence was inadequate;
[25]
(iii) The verdict was in the circumstances unsafe and unsatisfactory;
[26]
(i) The learned trial judge did not adequately put his defence case in the summing up;
[27]
(ii) The learned trial judge wrongly admitted confessional evidence.
[28]
[16] As I have come to the conclusion, for reasons which will be hereinafter stated, that there has to be a retrial with respect to each appellant because of the irregularities with the jury it is not appropriate to consider the other grounds of appeal in any detail. Counsel for the Crown submitted that at a retrial the evidence may well be significantly different; it may well be, for example, that Rice will be called as a prosecution witness. Some of the other grounds of appeal involve an exercise of discretion or a ruling by the trial judge in the light of circumstances existing at the time. In my view it is preferable that all of those matters be considered afresh by the judge presiding at the retrial in the light of circumstances then prevailing.
[29]
[17] However, I should mention that counsel for the appellant Heferen did submit that this court should consider his grounds of appeal because, if this court considered that the verdicts of guilty with respect to him were unsafe and unsatisfactory, it could quash the convictions and not order a retrial. Such a submission was primarily based on the proposition that this court would hold that the identification evidence of the witness Dunne was inadmissible (or not deserving of any weight) and, in those circumstances, there was no evidence on which a jury properly instructed could conclude that Heferen was at the scene of the crimes. However, it appears to me that there was sufficient evidence of association between Heferen and the other appellants, both immediately before and immediately after the incidents in question, so that (even without Dunne's evidence) at least a circumstantial case could be advanced on which a jury properly instructed could arguably be satisfied beyond reasonable doubt of his complicity in the crimes.
[30]
[18] I would therefore reject the submission on behalf of the appellant Heferen that he should not face a retrial on the two charges.
[31]
[19] I now return to the issue of the irregularities with the jury. As already noted, the jury initially retired at 9.16 am on Wednesday 24 May. At 2.33 pm on that day, at the request of the jury the learned trial judge gave some redirections. Then at 5.53 pm the jury indicated that they wished to retire for the night. That request was acceded to and they were duly taken to a hotel in central Townsville for the night.
[32]
[20] At 3.14 pm on 25 May the learned trial judge notified counsel that he had a request for a redirection from the jury. Before dealing with that redirection he placed the following matter on record:
[33]
"I just want to place on the record I spoke to counsel briefly before lunch. One of the jurors had a family matter that he wished to have some inquiries pursued about and I made arrangements for him - I gave permission for him to separate from the other jurors and, in the presence of the Deputy Registrar, speak to a police officer for the purposes of giving information so that inquiries could be pursued."
[34]
[21] For convenience I will refer to that juror as Juror A.
[35]
[22] After hearing submissions from counsel with respect to the redirection sought by the jury, a redirection was given at 3.38 pm and they retired again at 3.40 pm Then at 5.52 pm the jury again informed the judge that they wished to break for their evening meal and continue their deliberations in the morning. The trial judge acceded to that request and the jury were again duly taken to a hotel in central Townsville.
[36]
[23] At 10.50 am on 26 May the learned trial judge placed the following on the court record:
[37]
"Well, I spoke to counsel in my Chambers a little earlier this morning. I have been contacted by the bailiff earlier this morning and told that one of the jurors had, for a period, left the hotel where the jury are confined, obviously without anybody's permission to do so, particularly without the Court's permission. The juror had some family problems which were touched upon in Court yesterday and I gave the Deputy Registrar permission to have the juror leave the other jurors whilst he formally put in train with the police inquiries about the whereabouts of a member of the family.
[38]
He had earlier in the evening, before leaving, discussed his personal problems and his - he was apparently in a state of some upset - with the bailiff. The juror was found, I am told, at a nightclub. He - the bailiff spoke to him upon his return and I authorised the Deputy Registrar to speak to him this morning.
[39]
He assures the Deputy Registrar, as he assured the bailiff, that during that time he had no discussion with anybody about this matter; that he left because of the fact that he was emotionally upset and found the hotel a difficult area because of its constraints, and he wished to spend some time away from the environment, given his then circumstances.
[40]
So that's where things currently stand. The jury in fact continued with their deliberations this morning, not starting until some time later than they otherwise would have."
[41]
[24] It is obvious that it was Juror A who separated from the rest of the panel in the course of the evening. It was also accepted by all counsel on the hearing of the appeal that in fact Juror A had rejoined the panel some time early on the morning of 26 May, and in fact had become involved in jury deliberations with the rest of the panel before the circumstances just outlined were made known to the trial judge.
[42]
[25] Immediately thereafter counsel for each accused applied for the discharge of the jury. Lengthy argument ensued. In the course of the morning the learned trial judge requested that the Deputy Registrar speak to the police officer who located Juror A and returned him to the jury hotel. A report so obtained was given to counsel. The record then reveals that at 2.34 pm on Friday 26 May the learned trial judge made a statement containing the following:
[43]
(i) He had received a message from the jury that they had reached a verdict on some charges, but not on others;
[44]
(ii) He had received a message from a juror who said that she had very high blood pressure and didn't feel she was well enough to cope with another night. The learned trial judge had authorised medication to be delivered to her the previous day;
[45]
(iii) Juror A had asked to see the trial judge "personally about matters". The judge authorised the Deputy Registrar to speak to Juror A to ascertain whether there was any relevant information he wished to convey to the court.
[46]
[26] The Deputy Registrar reported to the trial judge that Juror A informed him that at the nightclub he spoke to four women he knew, but didn't speak to them at all about the case except to say that he was serving on a jury. Juror A also indicated that he attributed his actions to his "depressed condition and the absence of medication" and asked that he see a doctor to get antidepressant drugs as soon as possible.
[47]
[27] After hearing further submissions the learned trial judge made his ruling. I will quote much of the ruling because it records relevant facts and circumstances in detail:
[48]
"The juror concerned yesterday conveyed a message to the Court, through the bailiff, indicating that there was some family problem arising from the departure from the home of a member of the family. I had at the time understood it was a child. There is some material before me which suggests it may have been his partner, although it is possible that it was both. He wished to put in train inquiries and sought the Court's permission to do so. I informed counsel of this and authorised him to speak to a police officer who came to the Court and who spoke to him in the presence of the Deputy Registrar of the Court. I should also add that associated with that, he requested the payment of his jury fees, so that he could meet some expenses associated with inquiries he wanted to have carried out privately.
[49]
The juror last night was, with other members of the jury, taken to a hotel in the centre of the city. I received information earlier this morning that this juror, without permission, absented himself from the hotel where the jury was staying overnight. The jury commenced their deliberations in this matter on Wednesday morning.
[50]
It appears that some time before the juror left the hotel, he had approached the bailiff, who was known to him previously, and raised with him his personal problems and mentioned in fact, feeling suicidal. After some brief discussion and reassurance, the juror thanked the bailiff and left, telling him that he was feeling much better as a result of the talk that they had had.
[51]
The juror was, a little after 10, seen in the bar of the hotel on his own. He was spoken to by the duty manager and told he should go back upstairs - the duty manager knowing that he was a member of the jury - and he did so, taking a drink with him.
[52]
The Deputy Registrar has spoken to the juror concerned, who confirms that that occurred. He says he spoke to nobody at that time, and this seems to be borne out by what the duty manager says.
[53]
Sometime later in the evening a police officer who, as things would have it, was the police officer who had come to the Court and spoken to him on the Thursday, saw him near a nightclub in Flinders Street. Recognising him, or believing that she had recognised him, she contacted the police communications room at Townsville to find out if the trial was still continuing, being aware apparently that the jury had commenced deliberations somewhat earlier. When informed that it was, she and the other police officer she was with conducted foot patrols through the nightclub that he had been observed standing near and other nightclubs in the vicinity.
[54]
Not being certain of the identity of the person, she went to the hotel and spoke to the police officer who had been assigned to assist the bailiff in keeping the jury in a safe place. As a result of what she told this police officer, Senior Constable Stanbrook, he went to the room where the juror should have been and found that he was missing. He notified the bailiff at that time. Constable Stanbrook was the person looking after the jury at that time of the night.
[55]
The police officer concerned, with her colleague, went back to Bullwinkles Nite Club, looked around and could not see the juror. However, the other officer pointed to somebody squatting in the corner and she says she recognised that to be the juror. She approached him and called him by his name and he acknowledged her. She told him he would have to come with her and she says he said, "You've got me. I just wanted to get out of there." She said that he appeared to have been drinking but did not appear to be overly intoxicated. He went back to the hotel and sometime later she returned and saw Senior Constable Stanbrook to see whether he needed anything.
[56]
She saw that the door of a room (which apparently is assigned to the police officer performing the duties described at that time) was open and she saw what she says were someone's feet on the bed. Senior Constable Stanbrook told her that the juror was asleep in that room. The room is used effectively by the officer performing duties, as I understand it, to watch television and to have a cup of coffee or something of that kind.
[57]
Senior Constable Stanbrook has provided a statement of the steps taken earlier in the evening to check on the presence of the jurors. Just before midnight, the two police officers to whom I have referred came to the hotel and spoke to him and events proceeded as I have already outlined.
[58]
He says that, when the juror came back to the hotel a little after midnight, he was affected by liquor, but not drunk. There was some conversation between he and the juror. He told the juror that the juror would now be in the same room as he was in, rather than the one he had been in and left from.
[59]
He says that, whilst they were together - and that was a significant time - the juror spoke to him about his personal life, but that there was no discussion about the trial except that he mentioned that he was under pressure as a result of his service as a juror and his other problems. He gave some details of the difficulties in his family or domestic life and why he had left the hotel.
[60]
The Deputy Registrar, at my request, spoke to the juror. He informed him - as he had informed, as I understand things, the police officer earlier - that he needed to get away from the hotel because of his personal problems, but he did not speak to anybody about the trial and, in fact, said to one of them that that was the last thing he would have wanted to speak to anybody about.
[61]
He has indicated to the Deputy Registrar that, whilst he was some quite significant time earlier on antidepressant drugs, he has not been on any recently and he ascribed his behaviour to the effect of depression, as he put it, as a result of the personal problems which have beset him. He says that, at the nightclub, he spoke to four women he knew and mentioned that he was on jury service, but said that there was no discussion of any kind about the trial."
[62]
[28] After referring to s 53 and s 54 of the Jury Act1995 the learned trial judge concluded that those provisions had been infringed in a number of ways by the events which had happened. Significantly he said: "Subsection (4) of Section 53 in my view requires the Court to focus not so much upon perceptions as upon the reality of prejudice, or likely prejudice, to a fair trial." In broad terms the learned trial judge held that the conversations between Juror A and the police officer who located him at the nightclub, and the conversations with the police officer who was acting as jury keeper would not "give rise to any concern that the accuseds' rights to a fair trial might be prejudiced." The question he ultimately asked himself was, do the irregularities "provide grounds to conclude that the relevant contraventions appear likely to prejudice a fair trial?" He held that the "considerations are reasonably closely balanced", but concluded that "the proper course to take is not to discharge the jury, since I have not been convinced that the contraventions, and in particular the contravention of Section 53 of the Jury Act appears likely to prejudice a fair trial." Subsequently at about 4.30 pm he took the verdicts noted above.
[63]
[29] As noted previously by the time the attention of the learned trial judge was drawn to the irregularities Juror A had already been permitted by the jury keepers to rejoin the other members of the jury. With hindsight it may have been preferable for them to have kept Juror A isolated from the rest until the court had made a decision with respect to the irregularities. It may well be that Juror A could have been discharged pursuant to s 56 of the Jury Act and verdicts taken from the remaining 11 jurors (s 57). In the circumstances it is not necessary to consider that further.
[64]
[30] On appeal counsel for each appellant submitted that the learned trial judge adopted the wrong test in determining whether or not the jury should be discharged. It was submitted that he should have applied the test laid down in Webb and Hay v The Queen[1994] HCA 30; (1994) 181 CLR 41. Alternatively, it was submitted that, whatever the test be, the circumstances here were such that the jury ought to have been discharged.
[65]
[31] The Jury Act1995 was debated in Parliament in September-October 1995, assented to on 9 November 1995, and the sections in question came into force from 17 February 1997. Sections 53 and 54 are relevant for present purposes and so far as is relevant they provide:
[66]
"53 (1) ... the jurors must not separate until they have given their verdict ...
[67]
(2) However, the judge may allow the jury to separate before retiring to consider its verdict ...
[68]
(4) The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.
[69]
54 (1) While a jury is kept together a person (other than a member of the jury ...) must not communicate with any of the jurors without the judge's leave.
[70]
(4) The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial."
[71]
[32] Prior to the enactment of those sections the equivalent statutory provisions were s 621 and s 622 of the Criminal Code. Section 621 provided, inter alia, that the jury "must not separate" and that no person was "allowed to speak to or communicate with any of them without the leave of the Court until they are discharged." Section 622 required the jury to be kept together while considering their verdict. Section 621 provided that the validity of the proceeding was not affected by disobeying the directions contained in the section, but if the court "is of opinion that such disobedience is likely to prejudice a fair trial of the charge" the jury may be discharged. They were the statutory provision considered in R v Fielding[1993] 1 Qd R 192 and R v Jacksonand Le Gros[1994] QCA 46; [1995] 1 Qd R 547 (judgment delivered 21 March 1994). The matter of Webb and Hay was heard by the High Court in December 1993 and judgment delivered in June 1994. It was an appeal from South Australia and the court was concerned with the position at common law. It was unanimously held that the test to be applied for determining whether an irregular incident involving a juror warranted the discharge of the juror or the jury was whether the incident was such that, notwithstanding any proposed or actual warning of the judge, it gave 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 had not discharged or would not discharge their task impartially (50-1, 53, 57 and 88). The High Court rejected the test adopted in England, namely whether there was a "real danger" that the accused's position had been prejudiced in the circumstances (50).
[72]
[33] It follows that when the Jury Act1995 was enacted Parliament was aware of the test adopted by the High Court. Nevertheless it re-enacted the test in substantially the same terms as found in s 621 of the Code; the judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial. Parliament must be taken to have rejected the test as precisely formulated by the High Court, but the inclusion of the term "appears" is of significance.
[73]
[34] Counsel for each appellant submitted that the appropriate test was that formulated by the High Court, and that such test could be accommodated by the words of s 53 and s 54 of the Jury Act. Each therefore submitted that the learned trial judge here applied the wrong test. In written outline counsel for the respondent conceded that the trial judge applied the wrong test but substantially retracted that in the course of argument. Ultimately it is for this court to determine what is the appropriate test to apply in the circumstances.
[74]
[35] In Fielding the court was concerned with the situation where a police officer, one of the sworn jury keepers, was observed consuming alcohol with and talking with some of the jurors when they were accommodated overnight at an hotel whilst deliberating on their verdict. In dealing with that situation pursuant to s 621 of the Code Ambrose J (with whom Derrington J agreed) said at 197:
[75]
"Very little reflection is required to assess the likely effect on public perception of the fairness of the trial of the appellant in this case ... . ... it is imperative in my view that public confidence in the proper administration of criminal justice be preserved even if its preservation calls for setting aside the verdict given by the jury where there is good reason to believe or suspect that there has been communication between some of its members and members of the police force during its confinement."
[76]
[36] Dowsett J in that case at 199 referred to "community perceptions". There the convictions were set aside and a new trial ordered.
[77]
[37] Jackson and Le Gros was concerned with a situation where a bailiff had given advice to members of the jury in the course of their deliberations. The court again had to apply s 621 of the Code. The following relevant passages appear in the joint judgment of Macrossan CJ, McPherson JA and White J:
[78]
"... it can scarcely be doubted that here the bailiff's communication to the foreman had a potential to influence the jury to arrive at verdicts against the appellants. A reasonable suspicion about the fairness of the trial is therefore raised. ... there is a reasonable possibility that the impermissible communication operated as an influence on the jury in arriving at their verdicts against the appellants, which, in turn, gives rise to a reasonable suspicion about the fairness of the trial." (551)
[79]
[38] In the latter case the court referred to R v Chaouk[1986] VicRp 70; (1986) VR 707 where (in a common law context) Kaye J at 712 applied the test whether the incident was "likely to give rise to a reasonable suspicion concerning the fairness of the trial". That was a case where some members of the jury had travelled in a taxi without a jury keeper present to their overnight accommodation and return. The convictions were quashed and a new trial ordered.
[80]
[39] One can therefore see from Fielding and Jackson and Le Gros, both decided before Webb and Hay, that Queensland Courts recognised that "reasonable suspicion about the fairness of the trial", "public confidence in the administration of justice" and "public perception" were elements of the test to be applied pursuant to the Code provisions. The Queensland cases were not referred to by the High Court in Webb and Hay, possibly because the court was primarily concerned with the position at common law. But Mason CJ and McHugh J at 47 noted that "Australian courts have frequently applied the reasonable suspicion test". The judgments (see, for example, at 50) emphasised that "the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice." It was primarily such considerations which led the court to conclude "that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question" rather than the trial judge's assessment of the situation (cf at 50 and 51). One of the reasons for rejecting the English approach was that "it will often be difficult to determine objectively whether the incident has affected or might affect the impartiality of the juror" (52).
[81]
[40] That High Court test cannot simply be adopted in Queensland; it cannot be reconciled with the test now found in s 53 and s 54 of the Jury Act. Pursuant to those provisions it is the determination of the judge not the apprehension of a fair minded member of the public which is determinative. But that does not mean that in applying the statutory test a judge in Queensland cannot have regard to what might be taken to be the "public perception" of fair minded, reasonable and informed members of the public regarding the irregularity. The judge is entitled to consider what would be the reaction of an ordinary reasonable member of the public to the irregularity in question. In my view the members of the court in Fielding had regard to such considerations.
[82]
[41] In this jurisdiction the question is whether or not the judge considers that the contraventions (irregularities) appear likely to prejudice a fair trial. In applying that test the judge may have regard to the reaction of fair minded and informed members of the public to the irregularities in question. It is sufficient if the judge is satisfied that there appears to be a reasonable suspicion about the fairness of the trial. That may well be the case even though there is no evidence of "real danger" of bias or of inability on the part of the jury to arrive at a verdict uninfluenced by the irregularities.
[83]
[42] In my view by holding that the appropriate test focussed "not so much upon perceptions as upon the reality of prejudice, or likely prejudice to a fair trial" the learned trial judge applied too narrow a test. The very use of the term "appears" in the statute makes "perception" relevant. In accordance with Fielding and Jackson and Le Gros he should have considered whether the irregularities appeared to give rise to a reasonable suspicion about the fairness of the trial and that included considering whether public confidence in the proper administration of criminal justice could be preserved if the convictions were allowed to stand in the light of the irregularities.
[84]
[43] Here, given the requirements of s 53 and s 54 of the Jury Act, there were a number of irregularities:
[85]
(i) Juror A discussed "his personal problems" and the fact that he was "feeling suicidal" with the bailiff. Such a conversation was likely (at least to the mind of an ordinary reasonable member of the public) to have involved discussion of the impact of being locked up with the jury for a consideration period of time was having on his "personal problems";
[86]
(ii) Juror A left the confines of the jury and drank alcohol in the bar of the hotel where objectively it was possible for him to communicate with outsiders and outsiders to communicate with him;
[87]
(iii) Juror A departed from the hotel and mingled with the public for some hours. It seems clear he walked along Flinders Street (a main thoroughfare in central Townsville) and visited a number of nightclubs where he consumed alcohol. Specifically he spoke to four women and at least mentioned the fact that he was serving on a jury. Objectively there was ample opportunity for numerous members of the public to communicate with him during that period of time;
[88]
(iv) Juror A was then escorted by police officers back to the jury hotel. A reasonable observer may well conclude from the known facts that Juror A did not return voluntarily - his preference was to remain away from the deliberations;
[89]
(v) Juror A on his return to the hotel remained in the presence of a police officer, and away from the other members of the jury, for some hours. During this time there was considerable discussion about the "personal life" of Juror A. In the course of that there was at least mention of the fact that he was "under pressure as a result of his service as a juror".
[90]
[44] Each of those matters constituted an irregularity. Each alone would require the court to give consideration to discharging the jury on the ground that the contravention was likely to prejudice a fair trial. But importantly, the matter must ultimately be assessed in the light of the combined effect of all those irregularities.
[91]
[45] In this particular case one ought not to be overly critical of the police officers who were involved in the events of the night in question. They were faced with a very unusual situation and undoubtedly were not fully aware of all the implications of their conduct and that of Juror A. If, as appears to be the case, Juror A exhibited signs of emotional distress, it is perhaps understandable that it was thought by all concerned that some discussion with him about the problems was desirable. The police officers who saw him in the street and subsequently escorted him from the nightclub back to the jury hotel only adopted what they believed to be the appropriate course in the circumstances.
[92]
[46] But at the end of the day the court is confronted with the situation where a juror was involved in conversations with police officers over a number of hours away from the other members of the jury. If the irregularity in Fielding was such that the convictions there should be set aside, then it is even clearer that a similar result should be reached here. In Fielding it was not so much the consumption of alcohol with a police officer that constituted the irregularity as the fact that there was conversation with that officer over a period of time. It matters little that Juror A informed the Deputy Registrar that he did not speak about the jury deliberations to anyone. There was ample opportunity whilst he was roaming the streets and in nightclubs for others to communicate with him. There was no positive evidence in Fielding or Chaouk that the jurors had spoken to anyone about their deliberations, but in each case the convictions were quashed. Courts appear to have adopted a fairly strict approach where there has been a separation with the likelihood of contact with the public; cf R v Ketheridge(1915) 1 KB 467.
[93]
[47] In some circumstances, as the authorities indicate, it is appropriate for the trial judge to make some inquiries of the juror to ascertain as accurately as possible the nature of the irregularity. But it is not appropriate, in my view, for the trial judge to embark upon a collateral hearing in order to ascertain from evidence given on oath precisely what happened. Of course, the actual jury deliberations must remain private and no inquiry in circumstances such as this could transgress that requirement. Counsel for the appellants wanted to cross examine the police officers involved, but, in my view, the learned trial judge correctly refused that request.
[94]
[48] Here the irregularities were so serious that in my view when the proper test was applied the conclusion was inescapable that the contraventions appeared likely to prejudice the fair trial of each of the appellants.
[95]
[49] That conclusion can be reached without considering whether the "deliberative capacity" of Juror A (or indeed of any of the other jurors) was affected by the irregularities. In Davies(1991) 53 A Crim R 122 the New South Wales Court of Criminal Appeal had regard to the question whether the excessive drinking of two of the jurors might affect their "deliberative capacity". Mason CJ and McHugh J at 55 in Webb and Hay also considered whether the irregularity might support a conclusion that the state of mind of the juror in question was not compatible with the unemotional and impartial consideration of the case. Here, given that the emotional state of Juror A and the fact that he was feeling suicidal was advanced as an explanation for his conduct, a reasonable member of the public might well conclude that his "deliberative capacity" was affected (or appeared to be affected) so that there was a reasonable apprehension that the appellants may not have received a fair trial.
[96]
[50] Overlaid on that is the fact that when the jury communicated their position to the trial judge at 2.34 pm on 26 May, the statement included the fact that another juror had very high blood pressure and did not feel she was well enough to cope with being locked up for another night. One does not know what the other members of the jury knew about the conduct of Juror A on the night of 25-26 May, but, again, an objective observer may well conclude that they were aware there were some problems which might complicate their decision making process. One does not know what impact Juror A had on deliberations after he rejoined the jury on the morning of 26 May, but an ordinary reasonable member of the public could readily have concerns about the fairness of such deliberations.
[97]
[51] But as I have said, it is not necessary to base this court's decision on those considerations.
[98]
[52] It is sufficient to say that the contraventions of s 53 and s 54 of the Jury Act particularised above were, in all the circumstances, such as to appear to be "likely to prejudice a fair trial" of each of the appellants and the learned trial judge erred in not discharging the jury and ordering a retrial.
[99]
[53] In the circumstances this court should now quash the convictions, recorded as a result of the jury's verdict, and order retrials.
[100]
[54] DOUGLAS J: I have had the advantage of reading in draft the reasons of the Chief Justice and of Williams J and agree with them.