R v Jackson & Le Gros [1994] QCA 46

By the time the appeals were heard the communications made to the jury in this case had already been the subject of extensive investigation elsewhere. In the process a considerable amount of information has been accumulated about what had happened before the verdicts were returned. Fortunately, counsel before us were, for the purposes of the appeal, able to agree on a statement of facts representing the "minimum content" of that evidence, thus avoiding the need for the Court to find facts in detail. What follows is based on that agreed statement.

The jury at the trial retired to consider their verdicts on Wednesday 28 October 1992. On the evening of the second or third day of their deliberations the bailiff asked the foreman of the jury whether they would be needing another night. The inquiry was prompted by the need to continue reserving and consequently paying for the hotel rooms they were occupying. The foreman's response was "Good grief, we've only decided on four". Regrettably, the matter was not left there. On Monday the evening of 2 November 1992 the bailiff again asked the foreman whether another night's accommodation was needed. On receiving an affirmative answer, the bailiff said, "Do you realise that when the judge gives his decision that the sentence on each count is taken concurrently?". When the foreman replied, "I don't know what you mean by concurrency", the bailiff proceeded to explain by referring to the case of a person sentenced in relation to three charges. He said that some of the charges were seen as major charges and some as lesser charges, or some were more important or less important than others. He added words to the effect that the major or more important charges would attract a longer sentence than the minor or less important charges and the lesser penalty would be wiped out during the term of imprisonment for the more serious charges.

There was a further conversation on Tuesday 3 November 1992, when the foreman said "Look, we don't know the legal system: can we have a hung jury on certain charges? Is it acceptable?". The bailiff initially told him, "No, I'm sure you've got to have a verdict, guilty or not guilty on every charge". A little later there was a further conversation between foreman and bailiff in which the bailiff said he had spoken to the police sergeant on duty, who had told him that he thought there might have been occasions in the past where hung juries had existed on certain counts. The foreman responded by saying it would be necessary to see the judge and get it clarified.

Verdicts were returned on the morning of the following day after the trial judge had given directions to the jury about how they should approach the matter of disagreements among them. It was not until some four days later on 8 November 1992 that the judge learned of the communications between the bailiff and the foreman of the jury. As he was then attending to circuit duty elsewhere in the State, he telephoned the Chairman of District Courts and then wrote a letter confirming what he had been told. From there the matter has proceeded to the present appeals.

The satisfactory functioning of the criminal justice system has as one of its essential requisites the need to ensure that juries determine guilt on the basis only of the evidence presented in court at the trial, and that in doing so they are, as far as possible, insulated from extraneous information and outside influences. Justice, as is often said in this context, must not only be done, but manifestly and undoubtedly be seen to be done : R. v. Hodgkinson [1954] VicLawRp 23; [1954] V.L.R. 140, 143; R. v. Fielding [1993] 1 Qd.R. 192, 196. Because of this juries are always sequestered when they retire to deliberate. The requirement that they be isolated until verdict has been the rule for over 500 years : see R. v. Taylor [1950] N.1 57, 67-68, per Porter L.J. It is a source of inconvenience and expense; but there is no realistic alternative to it if confidence is to be maintained in juries and their verdicts.

In Queensland many of the rules affecting juries are now embodied in ss.621 and 622 of the Criminal Code and in the Jury Act 1929. The Code sections are set out in full in the judgments in Nichols v. State of Queensland [1983] 1 Qd.R. 580 and R. v. Fielding [1993] 1 Qd.R. 192. Only their principal effect need be stated here. The jury are not to separate until verdict, but, when not in court, are to be kept in some private place under the charge of an officer of the Court. For present purposes an important part of s.621 of the Code is that:

"... no person except the officer of the court who has charge of them [the jury] is to be allowed to speak or communicate with any of them without leave of the Court until they are discharged."

Bailiffs are deputies of the Sheriff (1 Bl.Com. 344), who in Australia is now considered an officer of the court. It is plain from ss.621 and 622 that while performing the functions contemplated by those provisions a bailiff is also an officer of the court. On a literal reading of the portion of s.621 quoted above, a bailiff in charge of a jury is excepted from the restriction on communicating with juries : see Nichols v. State of Queensland [1983] 1 Qd.R. 580, 591, per D.M. Campbell J.; cf. also R. v. Fielding [1993] 1 Qd.R. 192, 199, per Ambrose J. In practice, however, bailiffs are always sworn to take charge of juries by oath in the form prescribed in s.31 of the Oaths Act 1867, which, so far as relevant, is that:

"... you will keep this jury in some safe and private place ... and allow no one to communicate with them and not communicate with them yourself without leave of the court except to ask if they have agreed on their verdict."

Although questions to juries about meals and accommodation needs are conventional, the experience of all of us in criminal trials is that the prohibition in the bailiff's oath against communicating with jurors is strictly obeyed in Queensland. In the present case the bailiff was not authorised to say what he did to the jury foreman. The question to be determined now is the effect of those unauthorised communications on the verdicts and convictions.

Section 621 of the Code contains in its final paragraph a form of proviso that the validity of the proceedings is not affected by disobedience to the provisions of the section; but that, if discovered before verdict, the court may discharge the jury "if it is of the opinion that such disobedience is likely to prejudice the fair trial of the proceedings". It was partly because of this proviso, that Campbell C.J., with whom Andrews S.P.J. agreed, in Nichols v. State of Queensland [1983] 1 Qd.R. 580, 586, construed s.621 as directory only, holding that a contravention of its provisions did not automatically vitiate the trial. Accepting that conclusion in the case of a contravention coming to light before verdict or discharge of the jury as happened in Nichols v. Queensland, the result is not necessarily the same where, as happened here, it is discovered only after verdict. Giving full effect to the proviso in the final paragraph of s.621 would mean that criminal proceedings would always be immune to challenge even if the trial had been prejudiced by a contravention of s.621 that was discovered only after verdict or discharge of the jury. It is most improbable that s.621 was intended to produce that result. More likely, its purpose was to ensure only that a contravention of s.621 discovered before verdict did not make the proceedings a nullity from the beginning. At the time the Criminal Code was enacted in 1899, such a consequence remained a distinct possibility. Until 1913, when appeals first became available in criminal cases, the only remedy for errors in such cases was by venire de novo, which invalidated the proceedings from the beginning : see Michel v. Medical Board of Queensland [1942] St.R.Qd. 1, 33-34, 37-38; R.B. Cooke (1955) 71 L.Q.R. 100.

In any event a bailiff in charge of a jury is, as we have seen, specifically excepted from the prohibition in s.621 against communicating with the jury. It was therefore not s.621 that was contravened in this case, but a rule of the general law and the practice relating to juries, which is kept alive in Queensland by s.46 of the Jury Act 1929 and is exemplified in this instance in the terms of the bailiff's oath.

Although formerly quite uncommon, there have in recent times been instances of bailiffs improperly communicating with jurors before verdict. Any increase in the incidence of such reports is almost certainly due to the growing complexity and consequent duration of some criminal trials, especially those involving drugs, frauds, or corruption. Daily association between bailiff and jurors taking place over a long period often leads to familiarity and informality. That, as Lee J. has said, is a matter of human nature; but a relationship like that is at odds with what his Honour has described as the "aloofness" that the law expects : R. v. Emmett (1982) 14 N.S.W.L.R. 327, 337. The rule prohibiting unauthorised communications between bailiff and jurors is considered an essential safeguard for the integrity of the trial process. See Nicholls v. State of Queensland [1983] 1 Qd.R. 580; R. v. Emmett (1988) 14 N.S.W.L.R. 327; and R. v. Fielding [1993] 1 Qd.R. 192. It may be compared with the similar embargo on communications between judge and jury otherwise than in open court : R. v. Crowe [1985] 2 Qd.R. 389, where the authorities are reviewed. Both are really incidents of the fundamental principle in s.617 of the Criminal Code that, subject to defined exceptions, the trial must take place in the presence of the accused person in open court, and not, as it were, behind his back.

Similar prohibitions obtain in jury trials in the United States. Some jurisdictions in that country also have statutes prohibiting communications between court officials and jurors unless authorised by the court, or for the purpose of performing administrative duties : 75B Am.Jur. 2d s1568, at 322-323. A criminal conviction is liable to be reversed if the unauthorised communication was prejudicial to the accused. Some United States federal courts presume any communication to be prejudicial until it is shown to be harmless : Wheaton v. United States 133 F.2d 522, 526-527. In other jurisdictions, the presumption has been held to apply only if the communication concerns the matter that is pending in the court.

The result is similar to that in Australia, although our courts have approached the question a little differently. In R. v. Chaouk [1986] VicRp 70; [1986] V.R. 707, where there was a failure to keep the jury together during deliberations, the test applied by Fullagar J. (at 715) was whether there was "a reasonable possibility that the jury was in some way influenced in arriving at its verdict against the accused person by reason of any conversation or events which actually or might have occurred"; and by Kaye J. (at 712) whether the incident was "likely to give rise to a reasonable suspicion concerning the fairness of the trial". That was the test applied by Enderby J. in R. v. Emmett (1988) 14 N.S.W.L.R. 327, 339, and it is supported by the approach adopted in R. v. Fielding [1993] 1 Qd.R. 192, 196. Consistently with it, where there is no possibility that the jury has been influenced against the accused the conviction is not disturbed, as in Arnold v. The King [1946] WALawRp 13; (1946) 48 W.A.L.R. 83, where the only communication consisted of confirmation that the verdict of the jury must be unanimous, which was then the law in Western Australia.

Considered according to these standards, it can scarcely be doubted that here the bailiff's communications 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. The advice given by the bailiff in this case was aimed at resolving an apparent disagreement among the jury about verdicts on some of the counts in the indictment. The degree of care that must be taken by a judge when directing a jury in relation to that matter is stressed in the very recent decision of the High Court in R. v. Black (22 Dec. 1993). In the present instance the bailiff's advice directed attention particularly to the sentencing process as an avenue for resolving the disagreement. Even if the sentencing principles had been correctly stated, a suggestion of that kind was obviously impermissible. Sentencing is entirely a matter for the judge that falls to be considered only after a guilty verdict is brought in, and is not something for the jury to consider in deciding on guilt. A communication of that kind can therefore not be characterised as harmless.

However the matter is approached, the case is one in which the verdicts of guilty cannot stand. The communication to the foreman concerned a matter in respect of which the jury were deliberating at that time. It was obviously intended to be circulated to the jurors, and there is therefore good reason to suppose it reached them. It had the potential to influence their verdicts, or the verdicts of any one or more of them. To express it in another way, 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.

We do not consider that the proviso to s.668E(1) can be invoked to save the convictions in a case like this. It is not possible to be confident that the result would have been the same if no such communication had taken place. The case is not, like Nichols v. Queensland, one in which the contravention was discovered before verdict and so could be cured by an appropriate warning or direction to the jury in the course of the trial. The communication here was by its very nature liable to affect the outcome of the proceedings. It therefore trenched upon the right of the accused to a fair trial and did so in a respect that was fundamental to it. In those circumstances, it is not possible to regard the communication as minor, or as a mere irregularity : R. v. Chaouk [1986] VicRp 70; [1986] V.R. 707, 717.

The appeals must be allowed and the verdicts of guilty and convictions must be set aside. There must be an order for a new trial of those counts in the indictment. Expense may be relevant in deciding whether use is made of that order; but it is a matter for the Attorney-General and his advisers.

Counsel agreed that some of the matters that appear in exs. MJS1 and MJS2 to the affidavit of Mr Scott sworn on 25 January 1994 are inadmissible in these proceedings. In that regard we will order that the replacement copies that have been provided of those two documents be substituted on the file for exs. MJS1 and MJS2, which the Registrar is directed to seal up in appropriate manner.