R v Fox [1998] QCA 121

At the trial, at which the appellant himself gave evidence, the only issue was one of identity. There was, however, ample evidence, both direct and circumstantial, to identify the appellant as the intruder who fired the gunshots. As to motive, the relationship between him and his deceased victim had been a stormy one. He had threatened and used violence against her shortly before the killing. There was evidence that he suspected her of having a sexual relationship with Horrex. The appellant was already awaiting trial for an attempted murder alleged to have been committed on the Gold Coast. He had been allowed bail, for which the deceased had gone surety; but on the day before the killing she had applied to withdraw her surety. On that occasion the application had been adjourned; but in the ordinary course it might be expected to succeed, in which event the appellant's bail on that charge would have been seriously at risk. There was other evidence to connect him with the crime, including an oral admission to an acquaintance, and forensic evidence linking him with the car; with cartridge cases from which the shot had come; and with the gun from which the shots had been fired, which the police claimed to have found at or near his hiding place at Mt. Glorious where he was later arrested.

It does not go too far to say that the prosecution evidence against the appellant at his trial was overwhelming, making it in the circumstances not at all surprising that on appeal the complaint that the verdict was unsafe was not pursued. Instead, the only ground relied on arose out of something that happened on the first day of what turned out to be a trial lasting some five weeks in all.

The trial before Lee J. in the Supreme Court began on 7 January 1998, with Mr W. Clark of counsel appearing for the Crown and Mr R. Clifford for the appellant. After the appellant had pleaded not guilty to all six primary counts in the indictment, the jury were empanelled without incident. His Honour explained the charges and gave the jury an outline of their duties as jurors, in the course of which he instructed them that they must be independent and impartial in their assessment of the facts, adding that it was necessary that they should so appear "in the mind of a fair-minded member of the public, so that the public would feel confident in your verdict". The names of proposed prosecution witnesses were read out, followed by the customary inquiry that, if there was any reason "why you ... feel that you could not be objectively impartial in deciding this case", now was the time to say so. If, said, his Honour:

"... you feel you can be impartial, that's all that matters. Everybody feels quite happy about serving on the jury? Very good."

Once this inquiry had been answered, his Honour went on to explain in detail various matters of relevance, such as the presumption of innocence, the standard of proof, and what constituted evidence. As to that, the learned trial judge enjoined the jury to listen only to the evidence and ignore anything they might have heard or read about the case out of court. He referred to the course of examination and cross-examination and the right of an accused to give, or to refrain from giving, evidence at the trial. The instructions given were extensive and they were detailed. The jury were left in no doubt what their function and their duty were to be. They were asked to retire at 11.06 a.m. while matters of law relating to the admission of evidence were argued by counsel.

It was while this was still taking place that his Honour received an intimation that the jury wished to ask a question. When they returned to open court at 11.35 a.m., their foreman said simply:

"The question was: we as jurors are concerned that the accused was taking our names as selected jurors".

At this, his Honour remarked "Well, they are read out in court". In response to his question to counsel whether there was anything that the judge could do about it, Mr Clark for the Crown said No, but that, if they had concerns, the jury could take comfort that no other means of identification had been made available; that their names would not be mentioned again until after the verdict was given; and that their addresses had not been provided. His Honour commented that that seemed to him to be right, and that the jury should not be concerned about it: addresses and occupations had not been given, and there was no means of tracing them. Mr Clifford for the defence was applied to for his views, and confirmed that the jurors would be referred to by number and not by name. The jury retired at 11.37 a.m., and the legal argument concerning admissibility of evidence was resumed in their absence.

After the adjournment for lunch, the matter was raised again by Mr Clark. He had in the meantime confirmed that the appellant had been writing down the names of jurors. It was arranged between him and counsel for the accused that the papers he had written on should be delivered to the judge. They seemed, his Honour remarked on seeing them, to be perfectly innocuous, referring as they did to those jurors who had been challenged or not challenged, "just ordinary participation", his Honour said. Counsel had by then agreed on a statement which the learned trial judge was asked to read out to the jury who returned to court at 3.32 p.m. It was as follows:

"HIS HONOUR: Members of the jury, again I thank you for your patience. Certain matters had to be discussed. Now, you will recall that earlier today you expressed some apparent concern to me through your foreman in relation to your names being read allowed [sic] in Court during the jury selection process. It appears that concern may have arisen through at least some of the members of the jury having observed the accused writing whilst this selection was in process.

I should now remind you that, just prior to the selection process starting, the accused was expressly advised, as he is required to be advised by law by my associate, as to his rights to take part in the selection of the jury members. As is usual in criminal trials, he chose to do so and he was entitled to keep notes - just as you are, just as I am, just as counsel are in this case. Now, he chose to do so and in association with his counsel, who challenged potential jurors on his behalf. That's a normal selection process. You must therefore not assume that he was writing with any improper intent or motive.

Indeed, having heard of your concern, he has volunteered through his counsel, to deliver all such writings to myself with a request that it be now destroyed and that has been handed to me. Looking at the list that he has written, it is perfectly innocuous. It refers not only to names of those selected but the names generally, as he was invited to do so. There is therefore nothing which he has done here which is not proper to be done by any accused person at any trial, however grave the charges which are brought against him. His cooperation should remove any concern that may have arisen.

Of your concern relating to the publishing of your names in open court, you should be aware that this is the norm in every jury trial and nothing to cause concern to you. I should mention also that, because of the nature of the charges - serious charges - brought against this person, you are not to draw any inferences whatsoever against this person. He is presumed to be innocent, as any one of us in this court room would be if we entered the dock facing a charge of a criminal trial. What he did was perfectly normal and you must be totally reassured now that nothing that he did was improper. So you must keep that in mind and I hope that that allays any concerns that you might have had earlier. Is that satisfactory, gentlemen?

HIS HONOUR: Very good. Now, with those remarks, Mr Clark now will proceed with his opening, which he [you] commenced prior to lunch. Mr Clark?"

Nothing further was said about the matter in the course of the afternoon of the first day of the trial, during which Mr Clark continued to open the prosecution case. The opening concluded at 4.33 p.m. and the court adjourned to the following day. However, at the beginning of the second day, Mr Clifford for the accused applied for the jury to be discharged. He referred to the "question" asked by the jury on the previous day and to the agreed statement which had been read to them, adding "however" that, since then, there had been a radio broadcast in which the accused Mr Fox had been described as having "thrown a scare" into the jurors at the trial by recording their names. This, coupled with the lapse of time between 11 a.m. and 3 p.m. would, he submitted, have made it possible for those jurors who were concerned "to develop a prejudice against my client". It was, so counsel explained, the "four hour delay as well as the broadcast", that required that the jury now be discharged. After further discussion, in the course of which both counsel made submissions, his Honour gave a ruling in which he declined to discharge the jury, saying that "no proper reason" within the meaning of s.60 of the Jury Act 1995, had been demonstrated to warrant taking that course.

The sole ground of appeal is that the jury should have been discharged, and that failure to discharge them produced a miscarriage of justice that vitiated the trial and the ensuing verdicts and convictions. Section 60 of the Jury Act 1995, which is in terms similar to s.626 of the Criminal Code which it replaced, authorises a judge to discharge a jury without their having given a verdict if they cannot agree, "or the judge considers there are other proper reasons for doing so": s.60(1). Section 60(3) adds that a decision of a judge under that section is not subject to an appeal. In relation to the comparable provision formerly in the Code, it was held that, arising out of such a decision, an appeal "can succeed only if it is shown that there has been a miscarriage of justice resulting from the failure to discharge the jury", and that it is not to be regarded as an appeal against that failure itself. See R. v. Thompson [1983] 1 Qd.R. 224, 227. Before us, Mr Butler S.C. for the appellant may to some extent have reversed the emphasis in the passage quoted by submitting, as he did in his written outline, that an appeal will succeed if it is shown that a miscarriage of justice has resulted from the failure to discharge the jury.

Perhaps, however, the effect of that way of stating it is much the same, the question in the end being whether the trial produced a miscarriage of justice. That is not the form in which the ground is stated in para.1 of the notice of appeal, where the error is expressed simply to be "by and in not dismissing the jury ...". It is, however, desirable to consider the matter on the broader basis of the submission made on appeal. As to that, it was urged that his Honour had misdirected himself with respect to the test to be applied. It was not whether the jury had in fact harboured bias against the accused at his trial arising out of their impression of his action in recording their names; but whether, referring to what was said by Mason C.J. and McHugh J. in Webb v. The Queen [1994] HCA 30; (1994) 181 C.L.R. 41, 47:

"... despite the warning that [his Honour] proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror."

According to the test propounded in Webb, the critical question was not the subjective perception of the particular jury, but the impression that was or would be imparted to a hypothetical objective observer of the trial possessing the characteristics described by their Honours in that passage.

The starting point is the proper inference to be drawn from, or implication to be read into, the bare statement that the jurors were "concerned" that the accused was recording their names "as selected jurors". Mr Butler's proposition was that it was implicit in the statement that the jurors, or some of them, feared that the applicant was capable of carrying out some form of retribution against them. Assuming that to be so, it also meant (so the submission proceeded) that they had already formed a view about his propensity for violence. Once that stage was reached, it was arguable that they must have been aware of some of the adverse pre-trial media publicity of which the appellant had been a target in the past. In support of that submission, it was sought to tender on the appeal an affidavit exhibiting extracts from newspapers published in August and September 1996; that is, at about the time of the killing, or shortly after it.

For reasons given at the hearing, we declined to admit the affidavit tendered on the appeal. It is not necessary to repeat what was said in rejecting that tender in this Court, beyond saying here that the publications in question had appeared some 18 months before the trial, which made it unlikely that any juror who had read them then would have retained any, or any accurate, recollection of their contents; and, more significantly, that at the trial no attempt was made to support the application to discharge the jury by tendering any of the newspaper reports now sought to be relied on. To admit them on appeal would thus be to furnish this Court with a basis for exercising a discretion with which it was not thought fit to provide to the judge at the trial. It would be to review the decision not to discharge the jury in the light of material which the trial judge did not, and was not asked, to take into account.

Close attention to what was submitted by Mr Clifford for the accused at the trial shows that the proposition now sought to be advanced by Mr Butler on appeal in fact formed no part of the defence submission to the judge in the court below. The point taken by Mr Clifford in support of his application to discharge the jury on the second day of the trial was not that the "question" raised by the jury carried an inference or implication either of bias or of absence of impartiality on their part, or any objective perception of it. That matter was disposed of on the first day of the trial, when, far from applying to have the jury discharged on the ground of apparent bias or lack of impartiality, counsel for the defence had voluntarily joined in preparation of a statement on the subject, which had been read to the jury with his active participation and assent. It was only on the second day that the application to discharge was made, and then on the double ground of an isolated phrase in a single radio broadcast at 5 p.m. ("thrown a scare" into the jurors) and of the lapse of a period of four hours which had ensued between the jury "question" at 11.35 a.m. and the reading to them of the prepared statement at 3.32 p.m. During those four hours, it was said, the jury would have had time to reflect and to "develop a prejudice" against the accused.

It is evident that what it is now sought on appeal to do is to rely on a state of affairs which, if it ever existed at the trial, ought properly to have been made the subject of an application to discharge the jury at the time when they asked their "question" at 11.35 a.m. on the first day. Then and throughout that day, counsel for the defence plainly elected not to take that course. There is no reason to suppose that his election to refrain from doing so was in any sense the product of inexperience or incompetence. Indeed, counsel's decision not to apply at that time for the jury to be discharged is itself a strong indication that "a fair-minded and informed observer" would not at that stage have entertained a reasonable apprehension of any lack of impartiality on the part of a juror or jurors. Defence counsel was much more than a mere observer of events. He was the professional representative of the interests of the accused, and in that role he might fairly have been expected to be acutely sensitive to potential prejudice to a degree much greater than any hypothetical disinterested observer of events at the trial.

What prompted counsel on the second day to make his application for the jury to be discharged is not now the subject of appeal. Conversely, what is now the subject of this appeal did not form the basis of the application made in the court below. Even if it had been, there is no identifiable reason for inferring that the jury had at that stage arrived at any preconception about the appellant's guilt. It is difficult to suppose that, on the basis of what had happened, any fair-minded and informed observer would have formed a different impression. While it may well be right to infer that their question or observation may have been motivated by a "concern" for their own security as "selected jurors", it is the fact that they did not say it was. It is, in any event, not illegitimate to suspect that in many instances in recent times jurors may have some concerns about the risks to their own safety at trials involving charges of murder. Murderers, if that is what they are proved to be, are not the daily fare of ordinary members of the community, as they so often are for many judges. An expressed concern for their own safety is nevertheless not by itself ordinarily a sufficient justification for supposing that, when properly directed, they will disregard their duty of impartially assessing the evidence before them. If it were otherwise, it is doubtful if those accused of violent murders could ever be fairly tried, or even tried at all.

In determining whether the trial miscarried, the relevant time to be considered is the conclusion and not the beginning of the trial. That is consistent with the principle that the relevant consideration on appeal is not of itself the refusal to discharge the jury, but whether in the result the accused was denied a fair trial so as to give rise to a miscarriage of justice in the circumstances of the case. As was said in Webb v. The Queen [1994] HCA 30; (1994) 181 C.L.R. 41, 55:

"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. We have already set out the passage where the learned judge said that he thought that, even if there was a risk of bias or prejudice the case could be met with an appropriate warning. That was an opinion that a fair-minded person would not likely reject. Further, the learned judge made findings concerning the juror and gave a warning which a fair-minded and informed person was bound to consider."

In that regard, no challenge of any kind has been made to the sufficiency of his Honour's original direction on the first day, or to the summing up, which, once again, was detailed and thoroughly emphasised the obligation of the jury to arrive at an impartial verdict only after considering all the evidence. After five weeks of trial, they returned verdicts of guilty on all six counts, doing so only after they had considered the matter for some seven hours or more. There was nothing to suggest that, despite what they had been told, they had made up their minds to adopt that course because of what they observed the accused doing on the first day of that trial, which as, it was explained to them at the time, he had every right to do. In arriving at a conclusion on the matter of apparent bias, it might be difficult for an impartial observer to leave out of account the strength or weakness of the prosecution case. However that may be, in returning the verdicts which they did, no informed and fair-minded observer of the proceedings at this trial could reasonably apprehend any bias or a lack of impartiality on the part of the jury at the time they returned, or retired to consider, their verdicts.

It was also submitted that the judge should, when the question was presented, have undertaken an inquiry to find out whether any of the jurors had formed an impression adverse to the appellant. Eliciting information of that kind is, it was submitted, now authorised by ss.70(6) and 70(7) of the Jury Act 1995. It was not something that the judge was asked to do by either counsel in the case, and it wears the appearance of an attempt to find out what the jury was really thinking, which is said to be contrary to the decision in Webb v. The Queen on which the appeal is based. If, in circumstances like these, his Honour had done so of his own motion, it might well have precipitated an application to discharge the jury on that ground. It was not a course that was in any way requested or suggested by anyone at the time, and the omission to adopt it cannot now be made the subject of an appeal. There is nothing at all on which to found an argument that, in consequence of failing to take a step suggested for the first time only on appeal, the result was a miscarriage of justice at the trial of the appellant that now calls for the intervention of this Court.

In the result, the appellant has failed to establish any reason for setting aside the verdicts and convictions sustained at his trial.

The appellant also seeks an extension of time to appeal against sentence. On the basis of the verdicts, he was sentenced to imprisonment for life for the murder of the deceased, as well as to various other terms of imprisonment for the offences committed against the other victims in the course of his actions on that day in August 1996. Imprisonment for life is by statute a mandatory sentence for murder in Queensland. The appellant did, however, after his arrest at Mt. Glorious on 1 February 1997, spend some 371 days on remand before being sentenced on 7 February 1998. That period includes the time during which he was on trial beginning on 7 January 1998. In sentencing him, his Honour declared 98 days to have been time served as part of the sentences imposed, representing the period between 1 February 1997 when he was arrested, and 9 May 1997, when it appears that there was a formal revocation of the bail previously granted to him in respect of the charge of attempted murder at the Gold Coast. It was still outstanding against him at the time the subject offences were committed and later tried.

It is said that his Honour should have made a similar declaration in respect of the balance of those 371 days. The submission is rested on two alternative bases. One is the provisions of s.161 of the Penalties and Sentences Act 1992, under which, in specified circumstances, such a declaration is mandatory; the other is the recent decision of the Court in R. v. Skedgwell (C.A. 434 of 1997), in which it was held there is a discretion to take account of periods of pre-sentence custody falling outside the strict confines of s.161.

As to the first of these matters, s.161(1) of the Penalties and Sentences Act provides in effect that, in sentencing an offender to a term of imprisonment, any time during which he was held in custody in relation to proceedings for the offence "and for no other reason" must be treated as imprisonment already served under the sentence. It was accepted by the applicant that sub-s.(1) has no application to his sentence in the present case. Reliance is, however, placed on s.161(4) which is as follows:

(a) an offender is charged with a series of offences committed on different occasions; and

(b) the offender has been in custody continuously since arrest on charges of the offences and for no other reason;

the time held in presentence custody must be taken, for the purposes of subsection (1), to start when the offender was arrested even if the offender is not convicted of the offence for which the offender was first arrested or any other offences in the series."

It was submitted on behalf of the appellant that s.161(4) operated as an extension of the principle embodied in s.161(1). It may for the present be accepted that, for the purpose of s.161(4)(a), the subject offences now under appeal constituted a series of offences with which the appellant was charged, and that they were committed on different occasions. Such a conclusion may be warranted by the fact that the charge of attempting to murder Horrex was committed at a different place and at a slightly later time of the day from the offences charged in the other counts on the indictment. However, it is a prerequisite for the application of s.161(4)(b) that the offender should have been in custody continuously since his arrest "on charges of the offences and for no other reason". From the time of his arrest in February 1997 until his trial in January 1998, the appellant's custody was continuous, and was referable to the series of charges of which he was convicted at that trial. The difficulty is that his custody during that continuous period was not solely for that reason. From and after 9 May 1997, when his bail was revoked, his custody was referable at least in part to the earlier charge still pending against him for the attempted murder alleged to have been committed on the Gold Coast. The conclusion that, in consequence, s.161(4) does not apply depends in part upon reading the expression "charges of the offences" in s.161(4)(b) as referring back to "the series of offences" described in s.161(4)(a); but it is scarcely possible to construe the provision in any other way. It was his arrest on those charges, which are now the subject of this appeal, that initiated the period of custody which from early February 1997 was continuous but which, from 9 May 1997, was not "for no other reason". From and after the latter date the appellant's custody was also related to the earlier charge of attempted murder on the Gold Coast for which his bail had been revoked on that date.

Section 161(4) is therefore of no assistance to the appellant. Section 158, which has a similar operation or effect, contains an identical provision restricting its application to custody in relation to proceedings for the offence "and for no other reason". The decision in R. v. Skedgwell recognises the existence of a discretion independently of s.161 to take into account periods of pre-sentence custody in arriving at an appropriate sentence. See also R. v. Holton (C.A. 382 of 1996) and R. v. Jones (C.A. 63 of 1997). The discretion is not, as are the provisions of s.161(1) and s.161(4), bounded by the requirement that the relevant period of custody should be referable only to the charges or offences for which sentence is being imposed. While, however, this Court in Skedgwell held that the provisions of s.161 were not to be considered an exhaustive statement of the extent to which pre-sentence custody may be taken into account in arriving at an appropriate penalty, it did not decide that a sentencing court was entitled to "backdate" a sentence to the beginning of a period of such custody that was not exclusively referable to the offences or charges being considered for that purpose. To do so would conflict with s.154(a) of the Act, which provides that a term of imprisonment on conviction on indictment starts on the day it is imposed. The particular mechanism by which the result in Skedgwell was achieved was by adding to the sentence a recommendation for early consideration of parole that took account of a period of pre-sentence custody that did not qualify for the benefit extended by s.161(1). An alternative method available in appropriate cases would be to reduce the length of the head sentence, as was done in R. v. Jones (C.A. 63 of 1997).

Neither of these two approaches is available in the case of a sentence of imprisonment for life like that imposed here. In the case of a person subject to such a sentence, the term that is to be served is specified in s.166(1) of the Corrective Services Act 1988, which in paras. (a) and (b) fixes the time that has to be served before the prisoner becomes eligible for parole. To such a sentence the power of the court under s.157 of the Penalties and Sentences Act 1992 to make a recommendation of eligibility for early parole does not extend. It follows that, in the case of the appellant, it is not open to this Court, any more than it was to the trial judge, either to reduce the period to be served under the head sentence of life imprisonment, or to accelerate the date of eligibility of parole, by reference to the period spent in custody after 9 May 1997. In making the declaration that 98 days of that period of custody was to be treated as time served under the sentences imposed, his Honour acted in accordance with R. v. Blake [1994] QCA 77; [1995] 2 Qd.R. 167; but the law allowed him to go no further than that in recognising and giving effect to the 371-day period of pre-trial custody. It seems pointless to continue urging that the drafting and interaction of these provisions is obscure, and in need of legislative attention: see R. v. Blake [1994] QCA 77; [1995] 2 Qd.R. 167, 170; but little harm can be done by repeating the plea on this occasion.

The extension of time sought by the appellant should be granted; but his application for leave to appeal against sentence, as well as his appeal against conviction, must be dismissed.

I am authorised by Thomas J. to say that he agrees with these reasons and with that result.

I have read the reasons of McPherson J.A. and agree with them and with the orders his Honour proposes. Section 161(4)(a) of the Penalties and Sentences Act 1992, discussed by McPherson J.A., uses the expression "a series of offences", but does not make clear what is meant by it. The word "series" implies some sort of connection between the offences. Plainly, the offences mentioned in para. (4)(a) need not be committed on the same occasion; nor, as appears from the concluding words of the subsection (". . . the offence for which the offender was first arrested or any other offences in the series"), is it contemplated that arrests in respect of all the offences must have taken place at the same time. The use of the expression "and for no other reason" in subs. (1) and (4) of s. 161 implies that an offender who is in pre-sentence custody in respect of offence "A" may lose the benefit of s. 161(1) because he is also in custody for offence "B", during the same period. It must follow that not all offences are part of the same series for the purposes of s. 161(4)(a). I have thought of various ways of interpreting the expression "a series of offences" but have, in the end, to confess that I can reach no conclusion about it. Obviously, some alleviation of the position of an offender who is in custody in respect of more than one offence was contemplated, but the subsection does not explain what that alleviation is to be.

I would add that I note that in Bafico (C.A. No. 195 of 1995, C.A. No. 282 of 1995, 3 November 1995) this Court rejected an argument that a judge may recommend early parole for a person sentenced to life imprisonment.