R v K; ex parte A-G [2002] QCA 260

SUPREME COURT OF QUEENSLAND

CITATION: R v K; ex parte A-G (Qld) [2002] QCA 260

PARTIES: R / v / K / (appellant) / R / V / K / (respondent) / ATTORNEY-GENERAL OF QUEENSLAND / (appellant)

FILE NO/S: CA No 24 of 2002 / CA No 67 of 2002 / DC No 18 of 2001

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction / Appeal against sentence by A-G (Qld)

ORIGINATING COURT: District Court at Warwick

DELIVERED ON: 30 July 2002

DELIVERED AT: Brisbane

HEARING DATE: 29 May 2002

JUDGES: McPherson JA, Mackenzie and Atkinson JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: Appeal allowed. Convictions and verdicts set aside. New trial of appellant ordered on counts 2 to 12 in the indictment. Application for leave to appeal against sentence and Attorney-General’s appeal against sentence dismissed.

CATCHWORDS: EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - TO REBUT DEFENCES - older child injured in similar way as victim - whether evidence admissible to rebut accident defence where there was good reason to suppose defence would be raised / EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - IN GENERAL - RELEVANT PRINCIPLES - two babies were injured in a similar way - improbability injuries were caused by someone other than accused objectively high - whether evidence of mother’s plea of guilty for causing older child’s injuries admissible to show no innocent explanation of accused’s involvement in this victim’s injuries / CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - MISCELLANEOUS MATTERS - JOINT TRIAL - two accused tried together where one has confessed to the crime but pleaded not guilty - whether the confession is admissible, although hearsay, “for what it is worth” when the crown did not intend to suggest he was guilty / CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF ISSUE ESTOPPEL - GENERAL PRINCIPLES - accused pleaded guilty to a similar crime received light sentence based on claiming accident - whether crown is bound by its behaviour at earlier sentencing hearing / CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL - PARTICULAR CASES - judge allowed evidence of opinion of investigating police officer about behaviour during interview of joint accused - whether possible prejudice justifies discharging the jury / CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - OTHER MATTERS - jury communicated problem reaching verdict to bailiff - judge gave direction to bailiff to give to jury - whether communication from jury should have been considered request for redirection in open court - whether delegation of duty contravenes s 617 and s 620 of the Criminal Code (Qld) - whether violation produces mistrial / Criminal Code (Qld) s 23(1)(b), s 568(10), s 569, s 569(10), s 572, s 617, s 620, s 621, s 668E, s 671A / Jury Act 1995 (Qld) s 54, s 54(1), s 54(2)(a), s 54(3), s 54(4) / Black v The Queen (1993) 179 CLR 44, applied / Carroll (2000) 115 A Crim R 164, applied / DPP v Burgess [2001] 3 VR 363, considered / Greatorex (1994) 74 A Crim R 406, discussed / Maxwell v The Queen (1996) 184 CLR 501, applied / Noor Mahomed v The King [1949] AC 182, discussed / Pfenning v The Queen (1995) 182 CLR 461, applied / R v Storer [1916] VLR 285, applied / R v Taiters, ex p Attorney-General [1997] 1 Qd R 333, applied / R v Zullo [1993] 2 Qd R 572, applied / Wakeley v The Queen (1990) 64 ALJR 321, considered

COUNSEL: S Hamlyn-Harris for the appellant/respondent, K / S Bain for the respondent/appellant, the Attorney-General

SOLICITORS: Legal Aid Queensland for the appellant/respondent, K / Director of Public Prosecutions (Queensland) for the respondent/appellant, the Attorney-General

[1] McPHERSON JA: The male child “S” was born on 8 May 2000. On 29 June 2000, when he was only six weeks old, he was admitted to the Mater Hospital in Brisbane on transfer from the hospital at Warwick. On examination he was found to be suffering from skull fractures on both sides of the head, with subdural haematoma and internal bleeding; fractures of six ribs; fractures of both legs; and bruises both above and below the right eye and eye lid. Medical evidence at the trial was that the head and face injuries had been caused by a blow or blows to the head, and that the other injuries were the result of what is known among paediatricians as “shaking infant syndrome” involving violent shaking and squeezing of the baby using what was described by Dr Crawford as a large amount of force similar to that encountered in motor vehicle or pedestrian accidents.

[2] S was the infant son of Gayle and Dean, who were living together at Stanthorpe. After being interviewed by the police, they were on 3 August 2000 charged with offences under the Criminal Code. The indictment that followed is dated 16 July 2001, and contains 12 counts against them, one of torturing S, two of doing him grievous bodily harm, and the remaining nine of assaults occasioning him bodily harm. The offences were alleged to have taken place between 15 May and 30 June 2000. At their trial in the District Court at Warwick in December 2001, at which neither of the accused gave evidence, the jury acquitted Dean of all charges. Gayle was acquitted of the charge of torture in count 1; but, on count 12 (bruising of the right eye), she was found guilty of common assault, and guilty of the charges in all other counts. She now appeals against her conviction on each of those charges.

[3] Four grounds of appeal were relied on. They are that the trial judge was wrong in: (1) allowing evidence of similar facts to be led at the trial; (2) failing to discharge the jury after prejudicial evidence was given at the trial by Sen Sgt Kemp; (3) refusing to order separate trials of the two accused; and (4) authorising a communication by the bailiff to the jury concerning their verdicts.

[4] In order to consider the first of these grounds, it is necessary to say something about the prosecution case at the trial. The principal difficulty confronting the Crown was to establish the identity of the perpetrator of the assaults that caused the injuries to S which were observed by Dr Crawford and others on or after his admission to the Mater Hospital on 29 June 2000. Apart from a period of three or four days when Gayle and S stayed with her parents at their home, he had throughout the period following his birth been in the care of the two accused at their house in Stanthorpe. No suspicion fell on Gayle’s parents, who gave evidence at the trial. This left as possibilities that the assaults on S had been committed either (1) by Gayle, or (2) by Dean, or (3) by both of them acting together. A fourth possibility was that some of the assaults had been committed by one of them, and some by the other, each acting independently of the other.

[5] By charging a series of specific assaults, the prosecution undertook the burden, which, by inference from the medical evidence about the injuries, it succeeded in discharging, of proving each of those assaults as a separate offence. Each of the counts in the indictment charged Gayle and Dean with having committed the offence in question, which, strictly speaking, must be read as charging them with having committed that offence together, whether as principal or secondary offender or otherwise, and not as having perpetrated it separately or severally. See Criminal Code, s 569, and R v Baynes [1989] 2 Qd R 431. As appears from that decision, if the Crown had wished to charge either of the two accused with having assaulted S separately, the proper course would have been to charge that assault in a distinct count against that individual. Subject to the power of the court to order separate trials, distinct charges of that kind could under s 568(10) have been joined in a single indictment or information against both accused. See R v Crawford [1989] 1 Qd R 443, where what is now s 568(10) of the Criminal Code was then contained in s 568(6). Such a joinder is authorised in this instance because “a substantial part of the facts is relevant to all the charges”, namely the injuries inflicted on S and the medical evidence that went to establish them. It follows that, as in R v Baynes, the defect in the form of indictment did not prevent the fair trial of Gayle, who in fact never complained of it at the trial.

[6] It is not, however, necessary to investigate this question further, both because of the course taken by the prosecution at the trial and because it was not suggested on appeal that the charges against the two accused were not properly joined under s 569(10). Having charged both Gayle and Dean jointly, the Crown nevertheless conducted its case on the footing that Gayle was the sole perpetrator of the assaults on S. In particular, the prosecution adduced evidence of the infliction of similar injuries on another child of Gayle’s which had taken place in January 1998. It was the admission of this “similar fact” evidence that generated the first ground of appeal.

[7] The similar fact evidence was that on 16 September 1997 Gayle had given birth to a baby girl of whom a young man named Lindsay was the father. At birth their daughter was some 15 weeks premature and weighed only 741 grams. She was not discharged from the Mater Hospital, where she was born, until some 14 or 15 weeks later and, after being transferred to the Toowoomba Hospital where she remained for some time, she was allowed to go home with her parents to Buffalo Gap near Stanthorpe, where they were living together. That was on or about 6 January 1998. She was re-admitted to the Mater Hospital on 28 January 1998, when she came under the care of Dr Crawford. She was then found to be suffering from swelling of the brain with bleeding into the intracranial cavities, bruising to her face, fractures of the femur and of both forearms, as well as fractures of two of her ribs. Dr Crawford’s opinion was that these injuries were characteristic of shaking and squeezing the baby using “moderate to significant force”. Dr Crawford also gave evidence at the trial concerning S that those injuries, and the mechanics of inflicting them, were the same or similar to those she later observed in S when he was admitted to the Mater Hospital on 28 June 2000.

[8] After their daughter had been admitted in this condition on 28 January 1998, Gayle and Lindsay were interviewed by Det Snr Const Hall in Brisbane. She was later charged with one count of torture and one count of occasioning bodily harm to her daughter, and on 16 April 1999 she was arraigned on those two charges before the District Court at Stanthorpe. She pleaded guilty to the second of the two counts, which the prosecution accepted in full discharge of the indictment, and on the same day she was sentenced by Judge Noud to probation for 12 months, with no conviction being recorded. Judging by his observations at the sentencing hearing, his Honour was plainly unhappy about the basis of the plea, but the Crown accepted the defence version of how the injuries were sustained, which was that Gayle had shaken her baby daughter in an effort to revive her after she had choked when feeding, and so averted a risk of her death by suffocation.

[9] At the trial at Warwick of the charges concerning S, the Crown tendered over objection from the defence the certificate of conviction and the transcript of the sentencing proceedings against Gayle, together with the sentencing remarks of Judge Noud at the hearing in April 1999 of the charge concerning her daughter. In addition, there was at the trial concerning S evidence, which was not objected to, from Lindsay and Shaun, who was a young man who was staying with Gayle and Lindsay at the time, that Gayle was quick tempered and, when in that condition, she often hit people including Lindsay. He was only 16 years old at the time, and so was some five years younger than she. At the trial he said that in feeding her daughter, she had difficulties that were not shared by Lindsay, who, on occasions when she became angry, used to take over the task from her and complete it. He and Shaun also gave evidence of an incident that had taken place some days before the occasion when the baby girl was taken to the Mater Hospital in Brisbane on 28 January 1998. He and Shaun had been out in the fields beyond the house when Gayle called them to come in. They found the baby girl was not breathing and that she had a mark or bruise under her eye. Gayle said that she had tripped over the dog in the bedroom and fallen on the cot with such force as to damage it. Lindsay held his daughter on his arm and began to shake her gently, whereupon Gayle took her from him and began to shake her forcefully without supporting her head, which was going back and forth, as he described it, “all the way back like that and all the way forward”. After that the baby girl started breathing again, and Lindsay finished feeding her. It was on a different and subsequent occasion that he and Shaun saw the ambulance arrive at the house with a doctor, and the baby girl was transferred to the Mater Hospital in Brisbane, where on 28 January 1998 Dr Crawford examined her and observed the injuries she had sustained.

[10] This was in substance the prosecution evidence against Gayle. The complaint on appeal that the similar fact evidence was inadmissible is answered in two ways. One is that it was admissible to rebut a possible defence of accident. Under the provisions of the Code, doing bodily harm or grievous bodily harm are offences of which intention is not an element or ingredient. It is nevertheless open to someone charged with such offences to rely on accident under s 23(1)(b) of the Code, and, if accident is sufficiently raised on the evidence, it rests with the prosecution to displace it by proving beyond reasonable doubt that the accused had foreseen, or that an ordinary person in the position of the accused would reasonably have foreseen, that such vigorous shaking a small baby might result in injuries like those proved to have been sustained by S. See R v Taiters, ex p Attorney-General [1997] 1 Qd R 333, 337-338. In the present case Dr Crawford’s opinion was that the injuries observed on S were injuries of a type that are generated by shaking an infant of that age. The fact that similar injuries were observed on Gayle’s daughter tended to reduce the possibility that in S’s case his injuries were inflicted by accident; that is, that they were caused by some other accidental mechanism, such as tripping over a dog, accidentally dropping the child from a height, or using undue pressure to burp him. I mention these explanations of her injuries because they were among the possible explanations that were suggested in the course of the trial for the injuries he had sustained.

[11] In Noor Mahomed v The King [1949] AC 182, 192, Lord du Parcq said that it was wrong for the prosecution “to credit the accused with a fancy defence” as a device to enable the Crown to present rebutting evidence as part of its case against him. This was, however, not a case in which the Crown was artificially anticipating a defence that was not going to be raised. So far as Gayle was concerned, she had, in being sentenced in April 1999, already relied on her action in shaking to resuscitate the baby as an explanation of the injuries which she claimed were accidentally inflicted on her daughter in January 1998. As well, there was the earlier incident recounted by Lindsay and Shaun at the S trial, in which Gayle had told them that the facial bruising seen on her daughter was the result of her tripping over the dog. In addition, on the day after S was admitted to the Mater Hospital on 29 June 2000, Gayle was interviewed by Det Sgt Kemp (as he then was) at the Warwick police station. She made no incriminating admissions on that occasion, but said that the bruises on his face had happened when she accidentally hit S with a ring on her finger, and that she had accidentally hit the top of his head against the side of the plastic bath. She also claimed that Dean had told her that, when changing his nappy, he had heard a “click” in S’s leg, and in addition that Dean had been inclined to burp the baby “hard”, in a way, she said that was “harder than what I’d do it”.

[12] The evidence about the injuries sustained by Gayle’s daughter was ruled admissible in pre-trial proceedings in reliance on R v Smith (1915) 11 Cr App R 229 (the Brides in the Bath murder) to rebut a potential defence of accident, which there was good reason to suppose might well be raised by Gayle at her trial concerning the injuries to S. Evidence at the trial was in fact subsequently given by Gayle’s parents that one of their other children had previously sustained a broken arm when a dog jumped on him in the car, and there was also a suggestion that a cat or cats might somehow have contributed to some of S’s injuries. Meeting in advance a possible defence of accident was, however, not the only basis for admitting similar fact evidence in the prosecution case against Gayle. In Pfennig v The Queen (1995) 182 CLR 461, 531, McHugh J viewed R v Smith as a case where similar fact evidence was admitted “for the reason that the association of the accused with so many similar death, injuries or losses, as the case may be, makes it highly improbable that there is any innocent explanation for the accused’s involvement in the matter”.

[13] It is apparent that this was a function capable of being served by the evidence concerning the injuries sustained by Gayle’s daughter that was admitted at the trial concerning S. The plea of guilty and associated evidence was admissible against Gayle in the character of an admission made by her at the sentencing hearing before Noud DCJ in April 1999 of having injured her baby daughter by shaking her. At the trial concerning S’s injuries, it tended to show that it was she rather than anyone else who had caused those injuries even if, as she claimed in the case of her daughter, they had happened accidentally. Dean was not involved in the injuries to Gayle’s daughter, and it was never suggested that Lindsay was responsible for them. The evidence that she had caused her daughter’s injuries by shaking her might, at the trial concerning S, perhaps be impugned as being no more than propensity evidence. If so, then, according to what was said by Mason CJ, Deane and Dawson JJ in Pfennig v The Queen (1995) 182 CLR 461, 481-482, evidence of that character is admissible if, and only if, “the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged”; or, as their Honours stated it later in their reasons (182 CLR 461, 484), if “there is no reasonable view of the evidence consistent with the innocence of the accused”.

[14] The improbability that the injuries sustained by either of the two babies were caused by someone other than Gayle was, objectively speaking, high. They each suffered serious injuries that were physically the same or similar and that were attributed by Dr Crawford and other medical experts to what they described as “shaking infant syndrome”. On the evidence at the trial, Gayle was the only person who had had the opportunity to inflict injuries of that kind on both of her babies. She admitted having done it to her daughter in order to revive her, and she was seen by Lindsay and Shaun shaking her vigorously on the earlier occasion when they were called to the house where they were all living at Buffalo Gap. It perhaps remained a possibility that it was not Gayle but Dean who had forcefully shaken S, although nothing of that kind was ever suggested by Gayle. For a natural mother, as distinct from a father, or more often a step parent, to inflict such serious injuries on her own baby is, as a matter of common human (and certainly judicial) experience, still sufficiently unusual for the injuries inflicted on S to be considered “strikingly similar” to those which Gayle admitted having caused to her daughter when she was of a similar age some two and a half years previously, and so tended to confirm that she was the perpetrator of the assaults on both babies.

[15] Against this must be put the fact that the accused Dean himself admitted to having caused the injuries to S. On 30 June 2000 he attended at the front counter of the Warwick Police Station, where he spoke to Det Sgt Kemp and said “I … did unlawful grievous bodily harm to one S…”. In consequence, the police conducted interviews with Dean, which were recorded and tendered as exs 28, 29, and 30, in which he claimed to have inflicted various injuries on S. Unfortunately for the integrity of those admissions, his explanation of what he had done was not borne out by the injuries themselves, or the mechanics of their likely cause, as they were observed and assessed by the medical experts who later testified at the trial. In consequence, neither the police nor the prosecution, nor even his own legal advisers (ex 46), were prepared to accept the truth of what Dean told them about his participation in those acts.

[16] Having those admissions of guilt, which were admissible only against him, the Crown decided to prosecute him, and he was indicted jointly with Gayle. At the committal and the trial, he was represented by Mr Scott Lynch of the Bar, who, consistently with his duty to his client, adopted the course of cross‑examining witnesses for the prosecution in a way that was unhelpful to Gayle’s defence. In short, he suggested that she was to blame for S’s injuries. Eventually, however, when Mr Martin of counsel for Gayle had completed his opening address, Mr Lynch and his solicitors were given leave to withdraw, and Dean proceeded to represent himself. After the case for Gayle was closed, Dean elected not to give or call evidence. His closing address to the jury was recorded by the trial judge in his summing up in the following terms:

“I’d like to tell you gentlemen here, and the gentleman who was working for me have also mentioned, that I don’t lie. I’m an honest and loving person and I would not make up stories for any sake going to gaol. So that’s one thing I’d like you to remember whilst choosing either myself or Gayle.”

[17] On behalf of Gayle on appeal, Mr Hamlyn-Harris of counsel submitted that it was not proper for the Crown to charge Dean jointly with Gayle, when, despite his confession, it was never the intention to suggest that he was guilty. As to that, the fact remained that, although on arraignment he pleaded not guilty, he had previously admitted his guilt in a series of recorded interviews with the police, as well as making the unrecorded confession to Snr Sgt Kemp at the counter of Warwick police station on 30 June 2000. There were reasons for doubting the truth of those admissions; but, once he gave them, it could scarcely have been wrong to charge him with committing the offence to which he confessed. In Queensland, R v Zullo [1993] 2 Qd R 572, 574, is authority that, despite decisions to the contrary in other jurisdictions including the House of Lords and the Supreme Court of the United States, an out of court confession by a person not charged with an offence is, although hearsay, admissible at the trial of the accused “for what it is worth”. In Greatorex (1994) 74 A Crim R 406, the decision in R v Zullo was not followed by the Court of Criminal Appeal of New South Wales; but, until it is overruled, it remains binding in Queensland. In passing, I notice that, in Greatorex, Simpson J (74 A Crim R 496, 507-508) remarked that, from the report of Zullo in [1993] 2 Qd R 572, it is not possible to say whether or not the evidence of the “third party” confession in that case had been admitted over objection. Having myself been a dissenting member of the Court in an earlier appeal in R v Zullo (Qld CA 343 of 1992) in which a new trial was ordered, and after refreshing my memory from the unreported reasons in that case, I can say that the third party confession was made to police by a man called Beard. He was not charged, nor did he give evidence either at the first trial of Zullo, or, it seems, at the second trial. The success of Zullo’s appeal from conviction at the first trial was based at least in part on what was said to be counsel’s incompetence in failing to adduce evidence of the existence of that confession. It was primarily on that ground that I dissented in that appeal.

[18] On this appeal, Mr Hamlyn-Harris submitted that it was not open to the Crown at the trial of Gayle for causing the injuries to S to depart from the basis for sentencing which had been agreed in sentencing Gayle for the injuries inflicted on her daughter. The Crown, he contended, was bound by its conduct at the sentence hearing in April 1999, which was that those injuries were not caused intentionally, whereas at the trial concerning S it set out to show that the injuries to Gayle’s daughter were deliberate. No authority for that proposition was cited by counsel for the appellant. No question of issue estoppel arises in criminal proceedings: see Rogers v The Queen (1994) 181 CLR 251; nor does any question of autrefois acquit or double jeopardy arise in this case: see R v Degnan [2001] 1 NZLR 280; and Carroll (2000) 115 A Crim R 164. Once his Honour Judge Noud accepted the plea of guilty by Gayle on 16 April 1999, it operated as a conviction or judgment of her guilt in respect of the charges to which she pleaded: Maxwell v The Queen (1996) 184 CLR 501, 508. The same cannot, however, be said of the facts on which the sentencing process took place. In any event, in adducing evidence at the S trial of the injuries inflicted on her daughter and of their likely cause, the prosecution was not seeking to set aside that conviction or to increase the penalty imposed for the offence for which Gayle was sentenced on that occasion; which is not to say that, if misrepresentation were proved to have taken place at the sentencing hearing, it would not have been open to the Crown to set aside the sentence and substitute another and heavier one. See R v Beldan, ex p Attorney-General [1986] 2 Qd R 179, recently applied in DPP v Burgess [2001] 3 VR 363.

[19] The offence to which Gayle pleaded was occasioning bodily harm to her daughter, which is an offence into which intention does not enter as an ingredient. Complete absence of intention to cause harm is, however, capable of going some way in mitigation of the offence when it comes to imposing a sentence. The fact that the Crown was induced or disposed to accept Gayle’s explanation for her daughter’s injuries for the purpose of sentencing in April 1999 avoided the need for an inquiry or determination by the Court to establish the truth of the matter. It was simply an assumption which, in the absence of cogent evidence to the contrary, the Crown was prepared to accept, and on which the Court acted, on that occasion for the purpose of sentencing Gayle following her plea of guilty. It represented no obstacle to proof by the prosecution at the S trial that that assumption, as it turned out, may have been unfounded in fact or untrue. In my opinion, the similar fact evidence was both admissible and rightly admitted at the trial of Gayle. Had it been rejected, a serious injustice might have been done to Dean. Ground 1 of the appeal by Gayle therefore fails.

[20] The final addresses to the jury of counsel at the trial are not reproduced in the appeal record. It is, however, safe to assume that the prosecution did not actively press for a verdict of guilty against Dean. The submission of Mr Hamlyn‑Harris on appeal was that, in those circumstances, the prejudice against Gayle was such that it was incumbent on the trial judge to direct a separate trial of Gayle. This is the subject of Ground 3 of the notice of appeal. That question will, however, not arise again if the outcome of this appeal is that a new trial is ordered on the charges against Gayle. Dean was acquitted of all charges arising out of the injuries inflicted on S and he cannot be tried again, whether jointly with Gayle or otherwise, for the same offences. The evidence given by Sen Sgt Kemp that is the subject of Ground 2 is, however, in a somewhat different position from Ground 3. It is possible, if a new trial is ordered, that it or similar evidence may be given again, and that the same objection to it may be raised to it at a future trial of Gayle.

[21] The evidence complained of first emerged in the course of the cross‑examination by Mr Martin for Gayle of Snr Sgt Kemp. He was reminded of the declaration by Dean at the Warwick police station on 30 June that he had done unlawful grievous bodily harm to S. Mr Martin then proceeded to elicit that, when Gayle was charged before Judge Noud with injuring her daughter, the charge against her was read out to the court in the form “Gayle…did unlawful bodily harm to” her daughter. His reply was: “Yes. That’s right, yes. And in fact, that’s where I thought he got it from”. If the second part of that answer was not responsive to the question, it was not objected to by Mr Martin. Indeed, his next question, which was “Yes?” shows that he was expecting Kemp to confirm that to be so. Counsel then referred the witness to the occasion when the last police interview (ex 30) with Dean was conducted on 4 July 2000, and asked:

“He [Dean] seemed to be sniffling or in tears?”

To this, Kemp replied:

“No, neither of them, to me, showed any emotion whatsoever and my gut feeling is that neither of these accused showed any emotion or concern for that baby whatsoever.”

As regards Gayle, that answer was plainly unresponsive; but, instead of objecting to it or asking that it be struck out as unresponsive, Mr Martin requested that the video recording ex 30 be replayed. After it had been done, Snr Sgt Kemp agreed that on that occasion Dean had “sniffled”, adding, however, that Dean was a timid or quietly spoken person. Mr Martin’s purpose of contradicting by replaying ex 30 had thus achieved its purpose.

[22] Snr Sgt Kemp was then cross-examined by Mr Lynch on behalf of Dean. With respect to the admission by Dean that he had done unlawful grievous bodily harm to S, he drew from Kemp the statement that he had thought that Dean’s admission was “quite rehearsed and staged”. He was asked if it was apparent to him that there were “different levels of intellect between Gayle and Dean”. His answer was that he felt Gayle was “quite shrewd; in fact, cold and calculating is what I see that accused as”. It was at that point that Mr Martin objected. The trial judge in the presence of the jury said he would allow the answer, but subject to the jury understanding that it was opinion, and not fact, that was being asserted, and that they would be able to form their own opinion from the video taped interviews of Gayle, which at that stage they had already seen on at least two occasions. Mr Lynch went on to elicit from Kemp the further opinion that Gayle had a higher intellect than Dean and was the “dominant partner” in the relationship. He also confirmed that, even before he saw the full results of the examination of S at the Mater Hospital, he was “dubious” about this person [Dean] wanting to come forward so openly, and sceptical about Gayle’s “involvement in this, and who really was responsible”. It was, he said, as if Dean was trying to convince him that he, and he alone, was responsible for this action.

[23] After further cross-examination by Mr Lynch about the reasons for his suspicions, and following an overnight adjournment, Mr Martin asked that the jury be discharged on the ground that things had been said that were “so inflammatory that they could not be overcome by any direction” by the trial judge. After hearing submissions, the application was refused by the judge, who said that he considered that the jury was intelligent enough to recognise that Kemp had been giving evidence about his opinion and that his answers about his reasons for that opinion were not probative of guilt. Ordinarily, of course, counsel for the accused is often permitted to ask the investigating police officer questions like those put in cross‑examination by Mr Lynch, either because they go to the credit of the prosecution or to the reliability of the investigation that preceded it, or because of the latitude that is generally allowed to defence counsel in cross-examination. See Wakeley v The Queen (1990) 64 ALJR 321, 325. In this instance, it was the reliability of Dean’s confessions or admissions of guilt that was in issue. It is difficult to see how Mr Lynch could have performed his duty to his client adequately without investigating the circumstances in which those statements were given, and the impression they made on the police officer who received them, except by asking questions of the kind he did. If he had failed to do so, it might on the authority of R v Zullo (CA 343 of 1992) have been said that he had acted incompetently. If doing so had the effect of shifting the blame for S’s injuries on to Gayle, it was no more than his function as defence counsel for Dean to bring about that result. The complaint, if any, of Gayle against the adoption of that course by counsel for her co-accused may be relevant to the prejudice she suffered from being tried jointly with Dean; but, for reasons to which I now turn, it is a prospect that she will not be forced to undergo again.

[24] In my view, and leaving aside Ground 3 concerning possible prejudice arising from the joint trial, the answers elicited from Snr Sgt Kemp in cross-examination were not such as to justify discharging the jury in this case. This leaves for consideration the communication between the bailiff and jury, which is the subject of Ground 4 of the appeal. It is best introduced by setting out the report given to this Court by the learned trial judge, which, so far as material, is in the following terms:

“In the absence of particulars of this ground, I can only say that no counsel raised with me any criticism of the conduct of the bailiff. I go on to speculate that this ground may refer to an event which occurred some time about 9 pm on the last day. I had returned from a late evening meal. The bailiff informed me that the foreman of the jury had told him that verdicts had been reached but another juror disagreed that that was so. It appeared from what I was told that there was a view that, were the jury unable to reach an unanimous verdict in respect of an accused person, the verdict should be not guilty. Acting under s 54(2)(a) of the Jury Act 1995, I instructed the bailiff to inform the jury that, in respect of any verdict, unanimity was required but, if the jurors were disagreed, that fact should be announced to the Court. I understand that information was passed on. I also told the bailiff to inform counsel what had occurred, as I understand he did.

No objection was raised in the period before the jury delivered its verdicts.”

[25] At the hearing of this appeal, Mr Hamlyn-Harris tendered a report by the bailiff dated 20 January 2002, to the admission of which Ms Bain for the Crown on appeal did not in the end object. After giving his name and his experience as a District Court bailiff for courts at Warwick, Stanthorpe and Goondiwindi, the material part of the report proceeds:

“I recall a second incident when the jury had been deliberating for some hours. There was a knock at the Jury room door and I attended as normal. The Jury foreman said to me ‘We have a situation where we have say an 8 to 4 balance - is that a “not guilty” situation?’ I said to him, ‘No’ and immediately another male juror spoke up in an agitated voice and said ‘Yes it is - the Judge said to us just before we came out here “If you can’t decide if it is A or B you must acquit both”.

I then said ‘Look, I have to be very careful when I say anything at all to a jury in this situation. Tell me exactly what it is you want to know and I’ll see the Judge’.

The foreman reiterated what he had said earlier about the 8-4 situation and asked if that was the same situation as that to which the other male jury member was referring. I then went to the Judge in chambers and told him of the situation. Judge Wylie then said to me ‘Go and tell them that their verdict has to be unanimous. Explain to them that a unanimous verdict is different from a situation whereby they can’t decide if it is either A or B’. I then said ‘Do you want me to tell them that?’ He said ‘Yes’.

I returned to the jury room and told the jury exactly that. I then said ‘does that satisfy your question’ and the foreman said ‘Yes’ and I left the room

I had no other conversation with the jury that evening before they returned their verdicts.”

[26] The authority under which a trial judge is requested by the Registrar for and provides a report to the Court of Appeal about a case that is the subject of appeal is now to be found in Rule 94 of the Criminal Practice Rules 1999, which replaced or enlarged a provision originally introduced as s 671A of the Criminal Code by The Criminal Code Amendment Act of 1913 which first allowed appeals against conviction in criminal cases in Queensland. The status of a judge’s report under that provision was considered by the Court of Criminal Appeal in R v Challinger [1989] 2 Qd R 352, where, however, the Court does not seem to have been referred to the Australian decisions on that question. They are or include R v Tucker (1915) 15 SR (NSW) 504; R v Storer [1916] VLR 285; and R v Murray [1924] VLR 374. Their effect is probably best summed up in the words of Madden CJ in R v Storer [1916] VLR 285, 287, that the Court should always be very cautious in declining to act upon a statement contained in the report of the trial judge. However, his Honour said, where:

“… it is quite plain that a mistake has been made by the Judge other evidence should be regarded. Nonetheless, it is clear that unless the evidence to the contrary is very convincing the report of the Judge should have a ready acceptance.”

[27] In the present case it is not a matter of choosing between the accuracy of the trial judge’s report and that of the bailiff. Rather it is a question of whether the difficulty that the jury was experiencing was fully conveyed to and understood by the judge from what the bailiff told him. The fact that, as the bailiff was informed by the jury, there was “an 8 to 4 balance” suggests that the jury had not reached a verdict and might have been having difficulty in doing so. If so, a direction in the terms laid down by the High Court in Black v The Queen (1993) 179 CLR 44, 51‑52, would seem to have been called for. It was not a case in which the foreman thought that verdicts had been reached but another juror disagreed that this was so. Nor, in consequence, was it one that could be cured by the simple expedient of telling them that their verdict must be unanimous, or they were bound to acquit. Directing them to that effect might well have led the four dissenters to compromise their views in favour of the majority opinion. In fact, if his Honour’s estimate of 9 pm is adopted as the time at which the bailiff approached him, it was only about half an hour later that the jury returned their verdicts of guilty against Gayle.

[28] When the hearing on appeal was concluded the trial judge had, of course not seen the bailiff’s report dated January 2002. The members of the Court of Appeal therefore thought it right that he should have the opportunity of seeing and reporting on it. His Honour’s response was received on 17 June 2002. He commented on the bailiff’s report as follows:

“At this time - six months later - I cannot give the exact words used by the bailiff when he explained to me the jury’s problem. I can however say that the bailiff informed me that there was a division among the members as to the appropriate verdict to return against one or both of the two persons on trial. Again, while I cannot give the exact words I used, I have the strongest recollection that I emphasised to him to tell the jury that, if it were disagreed as to the verdicts in the case of either of the accused, then they were to inform me (or the Court) of that circumstances and that any verdict of guilty or of not guilty in respect of either of the accused and on each charge had to be unanimous. Having read the bailiff’s statement, I accept that, more likely than not, I did tell him to tell the jury that a disagreement as to the appropriate verdict could not result in a unanimous verdict of not guilty, or that I used words to that effect.”

[29] In the end, however, the question for this Court is not one of choosing between the trial judge’s report and the report of the bailiff, or of trying to determine from those reports what it was that was said on the critical occasion. The real source of the problem was that the jury’s inquiry to the bailiff should have been regarded as a request for a redirection and dealt with in the appropriate way; that is, by reconvening the court in the presence of the accused and counsel for Gayle, and ascertaining by inquiring from the jury in the court room and in the presence of court reporters or recorders what it was that was troubling them. If that had been done, it would or ought to have disclosed what the difficulty was and, in conjunction with counsel, how best it could be resolved. That, however, was not the course adopted. Instead, the judge chose to use the bailiff as the medium of communication between him and the jury, with all the possibilities of error or misunderstanding which that course involved.

[30] It appears that, in adopting that course as legitimate, his Honour was acting on s 54(2)(a) of Jury Act 1995. Section 54(1) begins by stating as the rule that, while the jury is being kept together, a person other than a juror must not communicate with any of the jurors without the judge’s leave. Section (2) then provides:

“(2) Despite subsection(1) -

(a) the officer of the court who has charge of the jury may communicate with jurors with the judge’s leave; and

(b)if a juror is ill - communication with the juror for arranging or administering medical treatment does not require the judge’s leave”.

As appears from s 54(2)(b), the kind of “communication” contemplated by s 54(2) is not one that consists of directions to the jury about how their verdict in the case is to be arrived at, but rather of matters of an administrative kind concerning the health or welfare of jurors, such as medical treatment; or, I would add, no doubt also arrangements of a personal or domestic kind that may require communication with a juror’s relative, such as the fact of being sequestered overnight, the provision of night attire and so on; as well as more obvious matters like the times at which jurors are to be provided with a meal; or, if locked up for long periods, whether they may be taken for a walk outside, or may attend a church service. This list is not intended to be exhaustive, and I mention these simply as examples of matters that have arisen during my own experience as a trial judge.

[31] Ordinarily such matters would be dealt with by leave of the judge under s 54(1)(a), subject to such safeguards as the judge may see fit to impose. In authorising communication by the bailiff or other officer having charge of the jury, s 54(2)(a) is plainly not intended to authorise a delegation of the trial judge’s duty and function under s 620 of the Criminal Code of directing the jury on the law. Nor is it designed to displace the fundamental principle that, under our legal system of trial by jury of indictable offences, the trial must proceed in open court in the presence at all times of the accused and his or her legal representatives, excepting only those rare instances when it becomes impossible for the trial to continue in their presence. See, on this s 617 of the Criminal Code, of which subsection (1) states the general rule that the trial must take place in the presence of the accused. The succeeding subsections of s 617 set out some of the exceptions to that rule.

[32] The communication in the present case is not within the ambit of any of those exceptions. It follows that the particular step in the trial now being considered took place in contravention of the general rule laid down in s 617(1). The trial of Gayle was still in progress at that time because the jury had not then returned their verdicts on the indictment which they were sworn to try. The direction communicated by the trial judge through the bailiff was not one that the judge was authorised by s 54(2)(a) of the Jury Act to make through the medium of the bailiff. It is true that s 54(4) of that Act provides that the validity of proceedings is not affected by a contravention of s 54; but, in the case of this trial, it was not s 54 of the Act but s 617 of the Code that was contravened. Quite apart from the confusion that may have been engendered in transmitting the communication between judge and jury concerning their verdicts, the principles laid down in s 617 and s 620 of the Code are so fundamental as to produce a mistrial and to require that the conviction and verdicts in this case be set aside. It is a defect that cannot be cured by the acquiescence of counsel or by the application on appeal of the proviso to s 668E of the Code.

[33] It follows that the appeal on Ground 4 must be allowed and a new trial ordered on counts 2 to 12 in the indictment. Because Dean has been acquitted of all charges, the question raised by Ground 3 in the notice of appeal will not arise at any future trial of Gayle on those counts. The other grounds of appeal may arise for consideration at that trial and have been determined here in deference to the decision of the High Court in Jones v The Queen (1989) 166 CLR 409. It is also a necessary consequence of these conclusions that Gayle’s application for leave to appeal against sentence and the Attorney-General’s appeal against the inadequacy of the sentence imposed on Gayle have now become otiose, and must be dismissed.

[34] MACKENZIE J: The relevant facts are comprehensively stated in the reasons of McPherson JA. I agree with him that the evidence concerning injuries to a second child was admissible. I also agree that the evidence described as “non responsive prejudicial answers” in the ground of appeal was not such as to require the learned trial judge to discharge the jury. It is, however, important to ensure that when giving evidence, a witness does not respond in a way that crosses the borderline into a category of gratuitous prejudicial evidence, which may require a trial judge to discharge a jury if the consequences are potentially unduly detrimental to the accused. To the extent that the problem was caused because the trial was a joint trial it will not recur for that reason in the retrial, since the alleged co-offender was acquitted.

[35] The acquittal of the other person charged makes the ground that the learned trial judge had erred in not ordering separate trials or that it was an abuse of process in having both accused tried together academic. Although the form of the indictment, which is appropriate to joint and several liability, is academic for the same reason it should be noted that one possibility open on the facts of the case, and, in reality, the way in which the Crown conducted its case, was that it was not a case of joint and several liability but of several liability. While the inclusion in s 572 in 1997 of power to amend an indictment to allow counts to be added to it after the accused has been put in charge of the jury has removed a difficulty identified in Maher v The Queen (1987) 163 CLR 221 it is still important to frame the indictment in a way that has regard to the principle explained in R v Potter & McKenzie [1959] Qd R 378, R v Warry & Kelly [1959] Qd R 486, and R v Baynes [1989] 2 Qd R 431. The question of prejudice to defence on the merits still remains a live issue even though the obstacle identified in Maher v The Queen has been removed.

[36] In my opinion the appellant is entitled to succeed on the ground that the bailiff communicated with the jury about their verdicts. The effect of s 54(1) of the Jury Act 1995 is that subject to the exceptions in s 54(2) a person who is not a member of the jury or a reserve juror may not communicate with any of the other jurors without the judge’s leave. Section 54(2) provides that the officer of the court who has charge of the jury may do so with the judge’s leave.

[37] The ordinary practice in the Trial Division is to give, at an early stage in the trial, leave to the officer of the court in charge of the jury (“the bailiff”) to speak to the jury about a range of administrative arrangements during the course of the trial. The limited nature of that leave is often reinforced by advising the jury to the effect that they are not to attempt to discuss issues arising in the trial itself with the bailiff and that he or she is not to discuss such issues with them. The bailiff’s role as a means of conveying communications to the court from the jury while they are out of court is emphasised.

[38] Contravention of s 54(1) is punishable as a contempt of court (s 54(3)). The validity of proceedings is not affected by a contravention but if it is discovered before the verdict is given the judge may discharge the jury if he or she considers that the contravention appears likely to prejudice a fair trial. In a case where the contravention is not discovered before the verdict is given the court’s duty under s 668E of the Criminal Code would come into play, enlivening the question whether there was a miscarriage of justice because of what had happened.

[39] Section 620 of the Code imposes a duty on a trial judge to instruct the jury as to the law applicable to the case. If, as often happens, the jury seeks further directions on matters of law, those directions are part of the instructions to the jury as to the law applicable to the case. It follows that the redirections must be delivered by the trial judge. It is inherent in the way in which ch 62 of the Code is expressed that, in accordance with long-standing principle, a trial is to be conducted in open court in the presence of the accused. This principle is, of course, subject to specific provisions to be found elsewhere requiring or permitting the court to be closed or allowing the trial to proceed in the accused’s absence, as in ss 617(2)-(4) of the Code.

[40] The full text of the learned trial judge’s report pursuant to r 94 of the Criminal Practice Rules 1999 and the relevant part of the bailiff’s statement as to his recollection of what happened are set out in paras [24] and [25] of McPherson JA’s reasons. The learned trial judge was afforded the opportunity to report further on the issue. The statement from the bailiff was admitted without objection by counsel for the respondent.

[41] Looking at the documents as a whole, the bailiff’s understanding was that there was confusion in the minds of the jurors over the application of the principles that the verdict in respect of a particular accused person had to be unanimous on any count, and that if the jury as a whole was satisfied that an offence had been committed but could not decide beyond reasonable doubt which of the two possible offenders had committed it they must acquit both. While the learned trial judge’s recollection of the detail of the conversation is imperfect due to the lapse of time, it is clear that he too understood the problem to relate to unanimity. After a conversation between the learned trial judge and the bailiff, the bailiff communicated to the jury, in good faith, what he believed he had been instructed and given leave to say.

[42] While there is High Court authority (Milgate v The Queen (1964) 38 ALJR 162) that a direction as to unanimity is not a fundamental requirement of a trial, the jury was directed on the subject in the present case and the redirection required related to it. In my opinion a redirection on the issue was a matter for the learned trial judge. It was so fundamental an issue that the procedure followed to inform the jury about it caused the trial to miscarry. In my view s 54 of the Jury Act does not purport to extend to giving leave to a bailiff to convey a direction of law out of court to the jury. Prior to enactment of s 54 a like provision existed in s 621 of the Criminal Code. It is not necessary to resolve whether they are to identical effect. The important point for present purposes is that s 621 of the Code and now s 54 of the Jury Act fit into a context to be derived from ch 62 of the Code. That context does not authorise leave being given to the bailiff to impart the kind of information involved in this case in a communication with the jury.

[43] The case illustrates why the practice usually followed in the Trial Division of inviting the jury to reduce at least the substance of its request for redirections to writing has the benefit that any ambiguity or obscurity may be exposed and discussed by the learned trial judge and counsel and, ultimately, with the jury if that appears necessary, for the purpose of deciding the scope of the redirection requested.

[44] In my opinion the appeal against conviction must be allowed, and a new trial ordered. The appellant’s application for leave to appeal against sentence and the Attorney-General’s appeal against sentence are in the circumstances also dismissed. The orders proposed by McPherson JA should be made.

[45] ATKINSON J: For the reasons given by McPherson JA and Mackenzie J, I agree with the proposed orders.