• Webb and Hay v the Queen [1994] HCA 30; (1994) 181 CLR 41;
• R v Papadopoulos (No 2) [1979] NZCA 64; (1979) 1 NZLR 629;
• S & M Motor Repairs Pty Ltd and Ors v Caltex Oil (Australia) Pty Ltd and Anor (1988) 91 FLR 175;
• The Queen v Carbone (No 2) (1976) 14 SASR 280, applied.
• Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205;
• Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378;
• R v Williamson [1996] SASC 5954; (1996) 67 SASR 428;
• Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107;
• R v Myles & Myles (1995) 83 A Crim R 519;
• R v Rinaldi (1993) 30 NSWLR 605;
• R v Domican (No 3) (1990) 46 A Crim R 428;
• R v Sumner (1985) 19 A Crim R 210;
• R v Barber [1994] FCA 1577; (1994) 78 A Crim R 1;
• Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94;
• The Queen v Glennan [1992] HCA 16; (1992) 173 CLR 592, considered.

Counsel: MISS ANN VANSTONE QC - Solicitors: MANGAN EY & ASSOCIATES

Counsel: MR PAUL ROFE QC - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS, SA

(Court of Criminal Appeal: Millhouse, Duggan and Lander JJ)

[1999] SASC 359

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ

2 The appellant in the course of a domestic argument with his wife shot her in the forehead at short range with a revolver.

3 His daughter, Sharon Tytler (whom the Crown called) gave evidence that he was at the time talking to her on the telephone - or rather each was yelling at the other over the telephone - when he said, "I've shot her. I've shot her." Earlier in the call Miss Tytler had heard "Joan" her father's wife, talking in the background.

4 There are a number of grounds of appeal complaining of the summing up not sufficiently or appropriately putting the defence case, of the directions on voluntariness, provocation and self defence and so on. There is one other ground, though, not at all connected with the conduct of the hearing which is quite decisive.

5 According to an affidavit which we received without opposition from Mr Paul Rofe QC, the Director of Public Prosecutions, Miss Tytler had, between 1984 and 1990 run "Cleopatra's" brothel at Norwood. Nothing particularly remarkable about that. It didn't come out during the trial, nor was it relevant to the issues.

6 Unfortunately, however one of the jurors, No. 143, had been a client! He actually was the foreman of the jury!

"7. The brothel staff had an arrangement with taxi drivers in Adelaide that when a driver introduced a customer to the brothel he would be paid a 'spotter's' fee of five or ten dollars. That would be in addition to the taxi fare.

8. I recognised 'Vass' as one of the taxi drivers that used to bring customers to my brothel in Norwood.

9. Some taxi drivers would take their money immediately, whereas other taxi drivers would build up credit and then come in and see one of the prostitutes.

10. I clearly remember 'Vass' attending the brothel on three to four occasions.

11. On two occasions I had sexual relations with 'Vass'.

12. The man I know as 'Vass' was the Foreman of the jury.

13. I joked with my father Ronald Gordon Hill during the trial that I recognised one of the jurors as a taxi driver. I did not say it seriously and my father did not take me seriously.

14. I did not tell my father that I actually knew one of the jurors.

15. Several hours after my father was convicted on the 16th June 1999 I telephoned my father's solicitors Mangan Ey & Associates Pty Ltd and spoke to Mr Heath Barklay about the prospects of appeal and during that conversation I raised whether me knowing 'Vass' was relevant as an appeal point.

16. I did not advise my father's legal advisers earlier about 'Vass' as I did not think the matter was important. ..."

8 We received also affidavits from the appellant and from Mr Heath David Barklay, solicitor. In the latter Mr Barklay confirmed that neither Miss Tytler nor his client, the appellant, had said anything to him during the trial. Mr Barklay deposed to his enquiries subsequent to trial, of the Passenger Transport Board which shewed that juror No. 143 had had a permit to drive a taxi between July 1988 and March 1989. He got a new permit in March 1990 and it was renewed in March 1991, March 1992, March 1993 and March 1994. The juror also has had a licence to operate a taxi since October 1988. It all goes to confirm Miss Tytler's recollection and recognition of the juror.

9 Just when Miss Tytler became aware of knowing the man is not clear. She was in court when the jury was empanelled, then absent until she gave her evidence. It doesn't matter much as she said nothing to anyone but her father. They said nothing to Mr Barklay until after verdict.

10 The juror himself said nothing openly in Court. Whether he even recognised the woman, whether he said anything to his fellow jurors, whether he (or they) were influenced by his knowledge are all matters for speculation. No enquiries have been made of him and we agreed in discussion with counsel early in the hearing of the appeal that none should be made.

11 The learned trial judge has supplied us with a copy of the quite elaborate notes which, in his report, he told us he used when speaking to the jury panel before and during the picking of the jury. The reporters' custom is not even to record what the judge says at this time let alone transcribe it. Part of the notes:-

"If you have any doubts, either because you are well acquainted with any of the persons involved in the trial or the deceased (or victim or complainant) in any capacity - or for any other reason - if you have any doubts about your ability to participate in a fair and objective assessment of the evidence and the issues to be tried in this case, will you please stand after the names have been read out and I will then discuss the matter further with you by asking you to come forward and speak to me in confidence as to why you feel you may be disqualified from sitting on this jury."

12 Unfortunately the learned Judge did not go on to make the point that if during the course of the hearing, even after the trial is under way, a juror should become aware of any of these things, he should say so, not let the hearing continue without telling the Court.

13 Of course, we just do not know whether, and if so when, the juror recognised Miss Tytler. Maybe he did and was too embarrassed because of the circumstances in which he had met her, to say anything. Maybe he thought it didn't matter and it wouldn't influence him. Maybe he did say something to other jurors. Maybe he didn't recognize her. It's all speculation. That is the point: we can only speculate.

14 What should be done? Mr Rofe while arguing that the material in the affidavits fell so far short of any test which might be applied as not to upset the verdict, acknowledged that had it come out before the jurors were empanelled the man would properly have been excluded from the ballot. Had it come out during the hearing, then it would have been appropriate to discharge him, if not the whole jury. Yet, Mr Rofe argued that the verdict should stand: it is unlikely the man would have recognized Miss Tytler after ten years.

15 The decision of the High Court in Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41, is relevant. Each of the judges deals with the question and to the same effect. Brennan J (@ 57):-

"It is a valid ground of objection to the continued sitting of a judge or juror in a criminal trial that a fair-minded and informed member of the public would entertain a reasonable apprehension that the judge or juror will not discharge his or her duty impartially."

16 I also mention a New Zealand case, R v Papadopoulos (No.2) [1979] NZCA 64; (1979) 1 NZLR 629. After the trial it came out that one of the jurors was Assistant Director-General of the Department of Scientific and Industrial Research and two witnesses employed by the Department had given evidence. In the course of delivering the judgment of the Court of Appeal, Cooke J (@ 634):-

"It may also be the duty of a juror to disclose an association with a party or a witness at the beginning of a trial or during a trial when he realises the position. ... The test that seems to us right in the present case, viewing the case after the trial, is whether there is reasonable ground for suspecting that the verdict may have been influenced by bias on the part of the foreman towards the prosecution."

17 Applying those tests I have no doubt that this verdict cannot stand. I am confident "that a fair-minded and an informed member of the public would entertain a reasonable apprehension" of a lack of impartiality. Miss Vanstone QC argued that men have a low opinion of prostitutes: if the men on the jury had known of Miss Tytler's profession they may have regarded her evidence as less credible. I pointed out that juror No. 143 may have had a favourable impression of the woman: and we just don't know one way or the other. Either way, there may be a lack of impartiality.

19 That is sufficient to decide the matter but Miss Vanstone had other points which she argued, on our invitation. I shall canvass only one. There is no point in spending much time on what, for me, would be obiter dicta.

20 I mention Miss Vanstone's complaint (which she made when His Honour had finished summing up, asking that he read to the jury the whole of her client's evidence-in-chief - a request the learned Judge refused) that the defence case had not been adequately put. The complaint is not well founded. Of the ninety or so pages of transcript of the summing up, ten at least are taken up with a summary of the defence case and slabs of the accused's evidence. No one who listened to that could be in any doubt about what the defence was.

21 Finally I say something generally about summings up and the way they are scrutinized on appeal, as we were invited to scrutinize this summing up.

22 This was, given the narrowness of the facts and the shortness of the hearing, a long summing up, over ninety pages of transcript, given during one afternoon and well into the next morning. As well, the learned Judge gave to the members of the jury a three page memorandum with the headings - murder, manslaughter - unlawful self defence, manslaughter - provocation, manslaughter - unlawful and dangerous act, manslaughter - criminal negligence and verdicts.

23 Each judge has his own style, as this Judge remarked in discussion with counsel, but, whatever the style I wonder how much of a summing up the jury ever understands? For how long is the average juror able to concentrate on what the Judge is saying? Not much and not for long, I fear. Judges may overlook that jurors are laymen who before their jury duty know little, if anything of the Courts system and even less of the law which we administer in the Courts. Yet they are expected to grasp, at one hearing, the most complex legal concepts! I'll bet not one juror in a hundred does grasp them!

24 On appeal a summing up is scrutinized, examined and analyzed by judges as if they were marking it in an exam with the utmost strictness. Counsel may seize on the most trivial points, even one word, which almost certainly will have gone right over the heads of the jurors anyway. It is an exercise which may be undertaken and completed to the satisfaction of lawyers and judges but which does not do much to advance the cause of justice.

25 The system has become too refined, artificial and is continuing to be so.

26 What is to be done? I acknowledge that this Court cannot itself do much about it. We are bound by the High Court. On the last occasion, I expect, on which I shall have the opportunity I simply draw attention to what I believe has become a travesty of common sense and of justice.

27 As it is, I suggest that the appeal be allowed, the conviction quashed and that there be a new trial.

28 DUGGAN J. The appellant was convicted of the murder of his defacto wife. It was alleged by the prosecution that he shot the deceased in the course of a domestic dispute.

29 It was common ground at the trial that the deceased died as a result of a single gun shot wound to the head discharged from a revolver held by the appellant. According to the prosecution case, the appellant went to a safe in the laundry of the house occupied by the appellant and the deceased and took out a revolver registered in the name of the deceased who engaged in pistol shooting as a sport. It was claimed that the appellant then loaded the revolver, returned to the bedroom, argued with the victim and shot her between the eyes at close range.

30 The appellant said in evidence that there was an argument between himself and the victim. He said that in the course of the argument he picked up the revolver which he said was loaded and lying in a bag on the floor of the bedroom. He said he cocked the gun in order to frighten the deceased. He had the telephone in his left hand and the gun in his right hand. He said that at the time of the incident he was talking to his daughter over the telephone. The deceased started to come around towards the appellant from the other side of the bed and the appellant said he swung his right arm in a movement which is not described in the transcript of evidence but was said to be a sudden movement to ward off the deceased. He said the gun went off accidentally.

31 When questioned by the police, the appellant said that he had shot the deceased accidentally. He said that they had argued for a time and then he went to the safe and took out the revolver. He put some live rounds in it. The argument continued and he cocked the gun. However it went off by accident. In evidence the appellant said he lied to the police about finding the gun in the safe because he wanted to protect the deceased who should not have left the gun lying around in the bedroom.

32 The appellant's version focused attention on whether the prosecution had proved that the victim died as a result of the conscious and voluntary actions of the appellant and, if so, whether the appellant intended to cause death or grievous bodily harm. The learned trial judge also left self-defence and provocation to the jury.

33 The appellant's daughter was called by the prosecution to give evidence. She said that on the night of the alleged offence the appellant rang her. She heard yelling in the background. The appellant asked her a question about the matter which was the subject of the argument between the appellant and the deceased. She said the appellant was agitated. She answered the question and she heard the appellant say "See Joan (the deceased)". Her father then terminated the call. Approximately five minutes later the appellant rang again and yelled at his daughter. He told her not to speak about the past in front of the deceased. The witness said she could hear the deceased's voice in the background. The deceased was laughing and at one stage called out "No no". The witness then heard her father say "I've shot her. I've shot her". The witness said "Are you sure?" and the appellant said "Yes, she's dead". Immediately prior to this she heard a loud "pop".

34 The witness rang her father a short time later and he was upset and crying. He said it was an accident. In a later telephone conversation he told her to call the police. She drove to the house and the appellant repeated that it was an accident. She gave evidence that she had frequently seen firearms lying around on the bedroom floor of the house occupied by the appellant and the deceased. She said the appellant's voice sounded "horrified" when he said "I've shot her".

35 The prosecution presented the appellant's daughter as a witness of truth and did not suggest to the jury that she should be disbelieved. The appellant's counsel relied on her evidence in relation to her assertion as to the practice of leaving guns lying around the house. Defence counsel also placed reliance on the inference which might be drawn from the witness's evidence that the appellant was speaking to her at the time of the shooting; that the argument between the appellant and the deceased was in progress at that time; and that the appellant was horrified when he said "I've shot her". It was argued that these events were inconsistent with the appellant going to the safe and getting the gun; rather, it was argued, her evidence was consistent with the version given by the appellant.

36 The facts arising from the affidavit evidence tendered on the hearing of the appeal are summarised in the judgment of Millhouse J. It is claimed by the appellant's daughter that the foreman of the jury had sexual intercourse with her on two occasions at a brothel which she ran some years ago. The acts of intercourse would have taken place approximately 10 years ago. She said the foreman was one of a number of taxi drivers who took customers to the brothel.

37 One of the grounds of appeal complains that the verdict is unsafe and unsatisfactory by reason of the matters referred to by the appellant's daughter in her affidavit.

38 The test to be applied by an appeal court in deciding whether it should set aside a verdict in circumstances such as these was laid down by the High Court in Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41. In that case one of the jurors arranged for the delivery of a bunch of flowers to the deceased's mother during the trial of the accused for the murder of the deceased. The majority held that this incident did not justify setting aside the verdict of guilty. However all members of the court were agreed on the test which should be applied for intervention on appeal, namely, whether "a fair minded and informed member of the public would entertain a reasonable apprehension that ... the juror will not discharge his or her duty impartially" (supra at 57).

39 The circumstances which might give rise to disqualification by reason of apprehended bias were set out by Deane J in the following passage of his judgment (74):

"The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third (e.g., a case where a judge is disqualified by reason of having heard some earlier case: see, e.g., Livesey v NSW Bar Association [1983] HCA 17; (1983), 151 CLR 288; Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias."

40 The present case, as it was presented by the appellant, gives rise to a consideration of two of these categories. It was argued that the fact of the relationship and the personal knowledge by the juror that the witness had been a prostitute were such as to require this court to intervene and set aside the verdict.

41 In considering the issue of relationship, it is important to take into account those considerations referred to by Kirby P in S & M Motor Repairs Pty Ltd and Ors v Caltex Oil (Australia) Pty Ltd & Anor (1988) 91 FLR 175 at 184:

"Necessarily, where what is alleged is a reasonable apprehension of bias, the fact situations will greatly vary. Thus the apprehension of bias may be grounded in prior judicial activity (as it was in Livesey) or in family, financial or professional relationships with one of the parties. The determination of whether there is, by the stated test, a reasonable apprehension of bias depends upon a full understanding of the facts from which it is suggested that such apprehension arises. In so far as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it."

42 (See also R v Papadopoulos (No 2) [1979] NZCA 64; [1979] 1 NZLR 629.)

43 In my view the following matters are relevant in the present case. The association was not between a party and the juror, but between a witness and the juror. It took place approximately 10 years ago and was limited to the two incidents referred to in the affidavit of the appellant's daughter. There was no evidence of animosity deposed to in the affidavit material. The relationship did not give rise to any interest of the juror which might be served by a decision one way or the other. Most importantly, the credibility of the witness was not in dispute. The prosecution called her, presented her as a witness of truth and did not resile from this stance throughout the trial. The defence relied upon her evidence as supporting the appellant's case.

44 In some cases it might be relevant that the juror did not raise the matter with the trial judge. However I do not think any inference can be drawn from the juror's silence in this case. The learned trial judge asked the jurors to advise him if any of them were well acquainted with any of the persons involved in the trial. This was prior to the selection of the jury. Even if the juror recognised the witness, there is no suggestion that he would have done so prior to the selection of the jury. The jury were not advised to bring such a matter to the court's attention if it was discovered during the trial.

45 I have no doubt that if a matter such as this were raised prior to the empanelment of the jury most judges would stand the juror aside. However that is not to say that the conviction should be set aside if the matter did not become apparent until after the trial. Judges take a naturally cautious approach in such circumstances prior to trial and it is a simple expedient to stand the juror aside. It is unnecessary for the judge to give consideration to whether the test in Webb and Hay would render it appropriate to stand aside the juror in these circumstances. This is reflected in the approach taken by the New Zealand Court of Appeal in R v Papadopoulos (supra at 633) which applied the same test as that adopted in Webb and Hay. In Papadopoulos the Court said:

"In general it is obviously undesirable that a person closely connected with a prospective witness should be a juror: see the Practice Note in [1973] 1 All ER 240; [1973] 1 WLR 134 and R v Hubbert (1975) 31 CRNS 27, 38, in the Ontario Court of Appeal. Such a person might well be open to challenge for cause under s 363 (1) (b) of the Crimes Act on the ground that he is not indifferent between the Crown and the accused. Moreover if a close connection is known to counsel it will be the duty of counsel to take appropriate steps. Crown counsel can ask the person to stand aside if called; defence counsel can invite Crown counsel to take that course. Whether the connection is sufficiently close to disqualify the person as a juror is a question of degree. The significance in the trial of the evidence of the witness is among the factors relevant to that question. It is a factor that may be more easily assessed after the evidence is given. If called upon to rule on it by a challenge for cause, the Judge may well be disposed to the safe course of upholding the challenge or suggesting that the Crown exercise its right to stand aside a person called."

46 When considered against the background of the circumstances to which I have referred, I do not think that the association itself gives rise to an apprehension of bias. I recognise the force of one of the important principles underlying the approach of the law in these cases, namely, that there should be the appearance as well as the fact of impartiality. However there is nothing in the nature of this particular relationship which would give rise to an apprehension that the juror might decide the case in a particular way by reason of the relationship.

47 There remains the argument that the witness might have been regarded by the juror as less worthy of credit by reason of the juror's knowledge that she had been a prostitute. I have pointed out that the credibility of this witness was not an issue between the prosecution and the defence. It would be quite perverse for a juror to overlook this consideration and to reject her evidence in whole or in part to the detriment of the appellant on his trial for murder simply because the witness had been a prostitute. I reject the suggestion that this knowledge might give rise to, or contribute to, a reasonable apprehension or suspicion that the juror would not discharge his task impartially.

48 For these reasons I am of the view that this ground of appeal fails.

49 The next ground of appeal complains that the learned trial judge failed to adequately explain the concept of voluntariness to the jury and to relate it clearly to the facts in issue. In the early stages of his summing-up the learned trial judge told the jury that the prosecution was required to prove that the actions of the appellant which caused the death of the deceased had to be conscious and voluntarily. He said that these actions had to result from the exercise of the will or the mind. However he went on to direct the jury in such a way as to suggest that the only basis for involuntary action would be by reason of automatism which he described as an extreme and exceptional situation. He then said:

"So it is a matter for you, but you may have little difficulty in this case, ladies and gentlemen, in concluding perhaps that the accused knew what he was doing when he picked up the gun, and waved or pointed it towards the deceased, however the pistol may have discharged, whether it was a deliberate and carefully aimed shot, or whether it was just part of the accused lowering his forearm in the way he demonstrated.

I will come to that aspect of it in a minute, but you may have little difficulty in concluding that whatever he was doing was a conscious and voluntary exercise of the will, but that is a matter for you to decide. He told you what he was doing; he told you why he did it. He said it was to frighten Joan. So you might think that there is no serious suggestion that he was not acting consciously and wilfully, at least in handling and pointing the firearm.

The real question, of course, in this case is whether he intended to cause the revolver to discharge, and that brings me to the third element of murder: that the accused intended to cause death or grievous bodily harm."

50 If these directions had stood uncorrected, the conviction for murder could not be upheld. There was a need in this case to draw the jury's attention to the necessity for identifying the act or acts which caused the death of the deceased and then to relate the requirement of voluntariness to that act or those acts. (cf Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205; Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 386 and R v Williamson [1996] SASC 5954; (1996) 67 SASR 428 at 453). In the directions referred to above, the learned trial judge appears to have identified a series of acts which did not include the pulling of the trigger of the gun. His Honour then advised the jury that they might have no difficulty in deciding that the appellant's actions, thus identified, were conscious and voluntary.

51 There was some discussion concerning these directions between the judge and counsel during the overnight adjournment and when the judge resumed his summing-up he redirected on this issue. He told the jury that it was for them to decide what acts caused the death of the deceased. One of the alternatives which he left to the jury incorporated the pulling of the trigger and he directed the jury that if the pulling of the trigger was one of the acts which caused death then it had to be voluntary. His Honour said:

"The prosecution must prove beyond reasonable doubt that there was a voluntary action of the accused in discharging the gun; that it was as an act of the will he pulled the trigger, if indeed that is how you find the gun went off. It is the death-causing act that must be voluntary.

If you are satisfied that the death-causing act was the cocking of the gun and the pulling of the trigger, in order to find the accused guilty of murder, you must find that there was a consciousness on the part of the accused that was what he was doing, that he was pulling the trigger.

Now, I do not want you to think that any expression I may have used yesterday on the topic meant that the requirement of proof was anything less than that. Of course, that is not the same as intention to kill or cause grievous bodily harm, which I will come to in a moment."

52 The learned trial judge also referred to his previous direction on automatism. He said:

"I gave you yesterday some examples of involuntary acts like sleepwalking and other automatic acts divorced from the will, and I should point out that involuntary acts do not only arise from medical conditions of automatism or severe drunkenness or like conditions. They do not only arise from someone else guiding or forcing the hand of another into some fatal action."

53 It is true that his Honour could have been more forceful in repudiating the earlier misdirections. However it is my view that the subsequent directions were sufficient to dispel from the minds of the jury the directions in relation to this issue which had been given on the previous day.

54 Despite the further criticisms made of the summing-up, I am also satisfied that this issue was related sufficiently to the facts of the case and, in particular, the appellant's version of events. It was made clear to the jury that the appellant had asserted that the gun discharged accidentally. A lengthy passage taken from the appellant's evidence which set out his version of the crucial events was read out to the jury in the course of the summing-up. The jury were directed to consider the arguments of counsel. They were not reminded of a number of the defence arguments, but it was unnecessary for all arguments to be repeated in the summing-up. The Queen v Carbone (No. 2) (1976) 14 SASR 280 at 286.

55 Ms Vanstone QC, for the appellant, complained that the crucial issues arising out of the defence case became lost in what was, admittedly, a lengthy summing-up. The fact that the summing-up was lengthy was due in large part to the difficulty of performing the task required by cases such as Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 of deciding whether there is material on which the jury could properly find in favour of an accused person on issues such as provocation and self-defence which are not relied upon by the accused and, in some cases, expressly disavowed.

56 In my view it was appropriate to leave provocation to the jury. However I cannot see that there was sufficient material on which to leave the issue of self-defence. The evidence disclosed little more than the fact that the deceased and the appellant were arguing and the deceased started to walk around the bed towards the appellant. The directions on self-defence added to the considerable load which the jury were already required to bear.

57 However the summing-up took place against the background of the addresses which concentrated on the issue of voluntariness and intent and, as the directions on those issues were adequate, I can see no reason for upholding the appeal on this ground.

58 Finally, attention was drawn to the fact that on at least three occasions his Honour posed the question as to whether the jury "accepted" a particular aspect of the accused's case. It was suggested that this amounted to a reversal of the onus of proof. Clear and accurate directions were given elsewhere on the onus of proof and in my view the terminology used in the impugned passages would not have misled the jury as to the correct position in relation to either the onus or the standard of proof.

60 LANDER J. I have had the advantage of reading, in draft, the reasons of Millhouse J and Duggan J.

61 The appellant's case, on appeal, was that the previous association or relationship between the appellant's daughter and the foreman of the jury was such that a miscarriage of justice had occurred and that thereby the appellant was entitled to have the jury's verdict set aside and a new trial.

62 The circumstances of the relationship are outlined in the reasons of Millhouse J and Duggan J. Briefly the appellant's daughter has asserted that whilst she was the proprietress of a brothel some ten years ago she had sexual intercourse on two occasions with the foreman of the jury. The two acts of sexual intercourse were as a reward for the foreman, who was a taxi driver, delivering customers to that brothel.

63 The appellant's daughter was called by the Crown. In evidence in chief she gave evidence of a telephone conversation between herself and the appellant during which the appellant shot the deceased dead.

64 She was not challenged in cross examination in relation to her evidence in chief. The appellant's counsel accepted her evidence in its entirety. She was, however, led in cross examination in relation to other topics; the relationship between the appellant and the deceased; the deceased's drinking habits; the mutual interests of the appellant and the deceased; hand guns in the house and injuries which her father had suffered in an accident.

65 The appellant's daughter's credibility was simply not an issue in the case. Throughout the trial the Crown presented the appellant's daughter as a witness of truth and relied on her evidence in the final address. So also did the appellant's counsel rely upon her evidence for the purpose of the defence case. Both parties proceeded upon the basis that her evidence was reliable and could be accepted.

66 The question then raised is whether a previous relationship of the kind described between the foreman of the jury and a witness, whose evidence is admittedly important but not contested, leads to the conclusion that the appellant has been denied a fair trial.

67 This Court assumed that the relationship was of the kind described by the appellant's daughter. It was accepted that it would be inappropriate to interview the juror for the purpose of confirming whether there was a relationship as claimed or determining whether he had a memory of the relationship or whether the relationship affected his deliberations in the jury room; R v Rinaldi (1993) 30 NSWLR 605 at 610. et seq; c.f. R v Sumner (1985) 19 A Crim R 210.

68 The appellant will not have received a fair trial if any one of the jurors has failed to discharge his or her duty impartially. Because no inquiry has been carried out then there is no evidence in this case that the juror has failed to discharge his duty impartially.

69 The accused will also have not received a fair trial if:

"A fair minded and informed member of the public would entertain a reasonable apprehension that ... the juror will not (have) discharge(d) his ... duty impartially."

70 Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41.

71 In that case the Court was concerned with whether a juror should have been discharged because she arranged for the delivery of a bunch of flowers to the victim's mother during the trial. The question, in that case, was whether that act gave rise to a perception of bias on the part of that juror.

72 Deane J indicated four distinct categories of case which might give rise to disqualification of a juror by reason of a perception of bias. In this case the two categories which need to be considered are those which Deane J described as "disqualification by association" and "disqualification by extraneous information". As Deane J demonstrated whilst they are distinct categories of cases they often overlap. In this case they do.

73 Accepting the appellant's daughter's assertions it must be understood that the foreman would have been aware that the appellant's daughter operated a brothel and practised as a prostitute. That was extraneous information which was not introduced at the trial. He also had an association with her of the kind to which I have referred.

74 I do not think that there is any doubt that if this juror had disclosed prior to the commencement of trial, or even during the trial, that the juror had an association of the kind alleged with this witness and was aware of her personal history that the judge would have excused the juror from jury duty. The question remains, when neither the juror nor the witness has brought to the attention of the trial judge the previous association or the extraneous knowledge, whether the fair minded and informed member of the public would entertain a reasonable apprehension that the juror has not discharged his duty impartially.

75 The juror might not have disclosed the previous association for a number of reasons. It may be because there was no association. That however, should not be assumed in considering whether there has been a fair trial. It must be assumed, I think, for the purpose of this appeal because there is no evidence otherwise that there was an association of the kind deposed to by the appellant's daughter. He may not have disclosed the association because he has no memory of the appellant's daughter. That is a possibility. He may not have disclosed the association because he did not think it was important. That is unlikely because it is clear, from the information provided to this Court by the Trial Judge, that the Trial Judge impressed upon the jury panel before the jury was selected the need for impartiality on the part of the jurors. The Trial Judge required the prosecutor read the names of the witnesses on the information to the jury panel. Both the prosecutor and counsel were identified so that if any of the accused, Crown counsel or defence counsel or the witnesses were known to the jurors the jurors might bring that to the attention of the Judge so that they might be excused. In those circumstances it is unlikely that the juror would have believed that the matter was unimportant. He may also not have disclosed the association because he was unaware of the appellant's daughter's name when her name was read before the jury was selected and, when he became aware of who she was, he was too embarrassed to raise the matter.

76 I think the likelihood is that the juror did not identify himself because he either did not remember the appellant's daughter or alternatively he was too embarrassed to disclose the association.

77 In those circumstances can it be said that his continuing to act as a juror led to a miscarriage of justice because the appellant was denied a fair trial?

78 An apprehension of bias could only arise in the mind of the fair minded observer if that observer believed that there was a possibility that this juror would arrive at a decision without reference to the whole of the evidence or by reference to the association or the extraneous knowledge.

79 In this case the relationship was between a juror and a witness. It would be quite different if the relationship had been between the juror and the accused. The particular relationship or the association was not advanced or affected by the decision which the juror had to give in the trial because the relationship or association no longer existed. The witness's evidence was uncontroversial. Her evidence did not contradict any evidence given by the appellant. In some respects it supported the appellant's evidence.

80 The juror brought into the jury room some extraneous material relating to this witness. Usually access to information which is not in evidence will give rise to an irregularity; R v Myles & Myles (1995) 83A Crim R 519; R v Domican (No. 3) (1990) 46 A Crim R 428; R v Barker [1994] FCA 1577; (1994) 78 A Crim R 1. But if the information is not important in the determination of the jury's verdict then access to that information could not give rise to an irregularity. The information was not relevant to the circumstances surrounding the offence with which the appellant was charged. The information was, in a sense, irrelevant to the charge. Its only relevance, if it had any, was that it was of a kind which might be said in the minds of some would have affected the witness's reputation. It was put by appellant's counsel that the appellant's daughter's previous profession was such as to lower her reputation in the mind of this juror.

81 It is not easy to assess the strength of that submission. It is undoubtedly the case that some men and women would think less of a woman who engages in prostitution. Whether that is so of men who have engaged in relationships with prostitutes is less obvious. It would be somewhat illogical for a man who paid a woman for sexual services to thereby believe that the woman was of ill repute. I do not think it can be assumed that this juror thought less of this witness because of her previous profession. In any event, even if he did, it does not seem to me to matter much in the circumstances of this trial because her evidence was not controversial and her reputation really did not bear upon in the assessment of that evidence.

82 I do not think, in the end result, that the previous relationship between the juror and the witness was such as would lead a fair minded observer to believe that it was likely that that relationship and thereby his knowledge of her previous profession might give rise to a perception of bias.

83 That fair minded observer would, of course, understand that the trial was conducted with all the safeguards attendant upon a fair trial including appropriate directions from the Trial Judge.

84 In this case the learned Trial Judge gave appropriate directions. He said:

"I remind you of your obligation to bring in a true verdict according to the evidence, and that means only according to the evidence, and to approach the evidence with an open mind, free of any prejudices or sympathies or preconceptions.

I remind you of the need to bring a fair, impartial and dispassionate mind to bear on the issues in the case. Whatever natural sympathies you might have for the victim or, for that matter for the accused, you may well have developed sympathy for some person or persons in the case. You might well have a natural prejudice against what some people do or how they live. You may have an abiding hatred of firearms. I must ask you to put all those aside and stand back and view the evidence and the issues in the case as dispassionately as you can and to bring an independent mind to bear on the issues in the case."

85 It seems to me that that direction was appropriate, and although unknowingly, apposite, in the circumstances of this case. The juror would have heard the Trial Judge's direction that he must put aside any prejudice held against the witness by reason of what she did or how she might live. He was directed, as were all members of the jury, to make his decision only upon the evidence.

86 Of course, it cannot be said because the judge has given a direction that the jury will necessarily follow it. In Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 101 Mason CJ and Toohey J said:

"It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial."

87 In The Queen v Glennan [1992] HCA 16; (1992) 173 CLR 592 at 614 Brennan J said:

"Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. In Munday, Street C.J. repeated an unreported passage from one of his Honour's earlier judgments:

'... it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to ajudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.'

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial."

88 In my view in the circumstances of this case, having regard to the evidence which the witness gave, the knowledge possessed by the jury foreman and his previous relationship with the appellant's daughter could not give rise in the mind of the fair minded observer to a perception of bias on the part of that juror.

89 In my opinion, that ground of appeal should fail.

90 On those grounds of appeal relating to the Judge's summing up, I agree with the reasons of Duggan J.