Zraika v R [2016] NSWCCA 125
Crofts v The Queen [1996] HCA 22
(1996) 186 CLR 427
House v The King [1936] HCA 40
(1936) 55 CLR 499
Munn v R
Source
Original judgment source is linked above.
Catchwords
Zraika v R [2016] NSWCCA 125
Crofts v The Queen [1996] HCA 22(1996) 186 CLR 427
House v The King [1936] HCA 40(1936) 55 CLR 499
Munn v R
Judgment (3 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (Applicant)
File Number(s): 2013/389461; 2013/390044; 2013/390066
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 5 July 2016
Before: Hoy SC DCJ
File Number(s): 2013/389461; 2013/390044; 2013/390066
[2]
Judgment
THE COURT: At the conclusion of the hearing of an application for leave to appeal against the decision of a District Court judge to discharge all of the members of a jury towards the end of a criminal trial, this Court made the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
This judgment constitutes our reasons for making those orders. Because we have thought it important that these reasons be given before the jury returns to the District Court on Monday 11 July 2016 (his Honour having adjourned proceedings for a number of days, as against the possibility of an appeal), our judgment will be concise.
Although the Crown was the applicant before us, and the three accused were the respondents, for ease of comprehension we shall refer to them by their roles in the proceedings at first instance.
Background
The background of the application may be shortly stated.
On 20 June 2016, the three accused were arraigned before Judge Hoy SC and a jury panel in the District Court at Sydney on an indictment containing two counts.
The first count averred that, on 21 December 2013 at Narrabri, they entered a dwelling house with intent to commit the serious indictable offence of intimidation, in circumstances of aggravation (in that each was in company of others), and in circumstances of special aggravation (in that each recklessly inflicted grievous bodily harm upon the complainant). The indictment contained a lesser, alternative, count, and we infer from the judgment of his Honour under consideration that other alternatives were to be left to the jury as well.
We infer, again from the judgment of his Honour, that the Crown case against at least some of the accused was founded upon principles of joint criminal enterprise.
The trial was a special fixture, had proceeded for 11 days, and his Honour was part way into his summing-up when the question of discharge was raised. That occurred as follows.
On Tuesday 5 July 2016 his Honour received a note from the jury. In its entirety, it was as follows:
This morning one juror was entering the carpark opposite the juror entrance to the courts. Waiting at the ticket machine was Mr Joey Lam. The juror then parked his car, which took a few minutes and Mr Lam was still waiting at the carpark entrance when the juror emerged. He followed the juror across the lights and into the jury entrance to the courts, where he spoke to another juror on this case and said "Is this the juror entrance?" She ignored him, and he turned and left through the glass doors (approx. 10.05).
We are uncomfortable, as we feel that this was an attempt to intimidate the jury. In addition, he knows which vehicle one juror drives.
[underlining in original]
It was subsequently confirmed that the person to whom the note referred was the accused Mr Joseph Lamb.
As one would expect, his Honour discussed the note with all four legal representatives. By agreement, the foreman was examined on oath by his Honour, but in the absence of the rest of the jury. The following portions of the transcript of that examination are relevant:
Q. Mr Foreperson - forgive me if I use that, that's the way we do it - as you probably know we've received a note. Yes?
A. Yes.
Q. Are you aware of its contents and the concerns expressed?
A. I am aware of those.
Q. Is the balance of the jury aware of its contents and the concerns
expressed?
A. Yes, they are.
Q. I've got another question, do more than one juror presently have those
concerns?
A. Yes.
Q. Do more than two jurors presently have those concerns?
A. No, but may I check with you the concerns expressed at the end of that
note?
…
Q. You see there in the last paragraph that's written there, "We are uncomfortable as we feel that this was an attempt to intimidate the jury. In addition he knows which vehicle one juror drives."
A. Yes.
Q. That's the concerns that I was referring to.
A. There is some discomfort amongst the jurors, but mainly it's between two of them and they have expressed that it's only of minor concern to them. That they would be -I don't want to go on too much and say too much if it's not required, but they're happy to continue if that's - -
Q. But they've expressed concerns?
A. Yes.
Q. And more than two have expressed concerns?
A. No, just two.
Q. Are they the two who were those nominated in this note?
A. Yes.
Q. That is the car park person and the other person near the entrance? A. Yes.
…
Q. Mr Foreperson, thank you, I wanted to clarify those issues. I thought I would do it just in the absence of everyone else because I wanted to get you as the foreperson your overview, so that certainly makes sense to me now when I read the note, but I wanted to clarify.
A. Can I add - if you don't mind, clarify a bit more about the uncomfortable nature. They don't feel overly uncomfortable. They're uncomfortable at what happened, but they're not uncomfortable to the point where they're not willing to continue. They're happy to continue.
HIS HONOUR: Okay, thank you very much for that. Leave that, you pop outside. We'll get back to you all as soon as I can.
Counsel for Mr Lamb provided the trial judge with an innocent explanation for the conduct. It was that Mr Lamb was waiting for his cousin outside the courthouse, was a little lost, recognised a juror, started walking in the same direction as the juror towards the court, and then enquired of the juror whether the door in question was the jury entrance. But it was said that that enquiry was made due to confusion, not with intent to intimidate.
Thereafter, his Honour received submissions in the absence of the entirety of the jury. Ultimately, it was agreed by all parties that the two jurors who had had contact with Mr Lamb should be discharged, pursuant to s 53B(b) and s 53B(d) of the Jury Act 1977 (NSW)(the Act).
The point of contention before his Honour was whether his Honour should go further, and discharge the remaining 10 jurors. That question called for consideration of s 53C(1)(a) of the Act. The entirety of that section is as follows:
53C Discretion to continue trial or coronial inquest or discharge whole jury
(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must:
(a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or
(b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.
(2) A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912.
(3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order.
As recorded in the judgment of his Honour, the position of the Crown was that there was no real sense of discomfort on the part of any of the jurors, particularly the 10 remaining, and that the trial judge should not exercise his discretion to discharge the remainder of the jury.
The Crown submitted that the innocent explanation put forward on behalf of Mr Lamb was within the range of possibilities, although the Crown did not concede that that explanation should be accepted. It was also submitted that the trial judge could ensure a fair trial by providing the jury with the innocent explanation given by Mr Lamb, and thereafter giving a strong direction to the jury that they disregard the occurrence and focus upon the evidence.
The Crown submitted that the other two co-accused were not prejudiced in any way, although it was accepted that the Crown case alleged a joint criminal enterprise.
The position of Mr Lamb, and the other two accused, was that there remained a risk of contamination of the balance of the jury, and that, pursuant to s 53C(1)(a) of the Act, the remainder of the jury must also be discharged.
Judgment of the trial judge
In a judgment that was necessarily delivered ex tempore, but is, with respect, cogent and comprehensive, his Honour recounted the factual and procedural background, and summarised the contending submissions of the Crown and the three accused.
His Honour referred explicitly to the test contained in the sub-section to which we have referred. His Honour also noted two decisions of this Court with regard to the question, namely Trieu v R [2012] NSWCCA 169 and Munn v R; Miller v R [2006] NSWCCA 61, and referred briefly to the facts of those decisions. With regard to Trieu v R (an unsuccessful appeal against conviction founded in part on a ground that the jury should have been discharged but was not), his Honour noted that this Court had emphasised the fact that a trial judge is undoubtedly in a better position to judge the atmosphere in a trial court room than this Court. With regard to Munn v R; Miller v R (a successful appeal against conviction founded in part on the refusal of the trial judge to discharge a jury), his Honour noted that its facts were broadly similar to those here, but did not analyse it more deeply.
The trial judge also noted that the concern of the jury, expressed explicitly in the note, was to do with an attempt at intimidation of its members. His Honour regarded as important the fact that the primary count in the indictment was an offence of violence, and featured, as an explicitly pleaded element, intimidation.
His Honour also placed some emphasis on the fact that the centrepiece of the Crown case was an alleged joint criminal enterprise, and took the view that the allegation of the three accused working together in a criminal purpose could have the effect of causing the jury to come to the view that the alleged actions of Mr Lamb reflected adversely on the other two accused as well.
Ultimately, his Honour came to the view that the test contained in the relevant sub-section had been made out.
In the result, however, his Honour did not formally discharge the jury, but rather adjourned the trial for a short period. That was done so that the Crown could, if it wished, pursue an application for leave to appeal against that decision, pursuant to s 5G of the Criminal Appeal Act 1912 (NSW). In the event, that is precisely what has occurred. The provision is as follows:
5G Appeal against discharge of whole jury
(1) The Attorney General, Director of Public Prosecutions or any other party to a trial of criminal proceedings before a jury may appeal to the Court of Criminal Appeal for review of any decision by the court to discharge the jury, but only with the leave of the Court of Criminal Appeal.
(2) The Court of Criminal Appeal is to deal with an appeal as soon as possible after the application for leave to appeal is lodged.
(3) The Court of Criminal Appeal:
(a) may affirm or vacate the decision appealed against, and
(b) if it vacates the decision, may make some other decision instead of the decision appealed against.
(4) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.
(5) This section does not apply to the discharge of a jury under section 51, 55E, 56 or 58 of the Jury Act 1977.
Evidence before this Court
The matter came before us at 10am on Thursday 7 July 2016. In the circumstances, we make no criticism of any party for the fact that the materials with which we were provided were quite limited. We had before us the indictment, a Crown case statement, the transcript of the questioning of the foreman, the judgment of 5 July 2016, and a report to this Court from his Honour. We did not have a transcript of the entirety of the trial, a copy of any exhibits, or the transcript of the submissions that had been made to his Honour before and after the examination of the foreman, and before the delivery of the judgment in question.
Submissions of the Crown
In this Court, the Crown prosecutor accepted that the decision of his Honour could only be impugned upon the well-known principles enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. She submitted that, in the circumstances we have outlined, the result was "unreasonable or plainly unjust". She emphasised that, by the end of the evidence of the foreman, it was clear that the remaining 10 jurors were untroubled by what had occurred. She also submitted that any remaining problem could have been dealt with by way of an appropriate direction to the remaining 10 jurors ameliorating any residual concerns that they may have held.
As for the test to be applied by the trial judge, the Crown submitted that, despite the existence of an explicit statutory test in the sub-section to which we have referred, the well-known test for the discharge of a jury enunciated by the plurality in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 had a role to play; namely, whether there was "a high degree of necessity for the jury's discharge". She submitted that that test could inform the meaning of the phrase a "substantial miscarriage of justice" contained in s 53C(1)(a) of the Act.
In short, she submitted that error had been established, the order discharging the remainder of the jury should quashed, and the trial should continue to verdict.
Submissions of the accused
Before us, Mr Lamb was represented separately from Mr Mason and Mr Hill, but it is convenient to consider the submissions made on behalf of the three of them together.
Counsel simply submitted that the decision of his Honour was soundly based, both factually and legally. It was said that his Honour was perfectly entitled to take into account the prima facie import of the note that the whole jury was concerned, whatever the foreman may subsequently have intimated. Emphasis was placed upon the reference by the foreman to "discomfort… mainly… between the two of them" [emphasis added], which suggested that the other jurors were also not entirely comfortable.
His Honour was also entitled, it was said, to take into account the conjunction between the count contained in the indictment (founded on intimidation), and the concern of the jury (founded upon alleged intimidation).
Contrary to the submission of the Crown, it was said that Parliament has prescribed a particular statutory test that is to be applied in the particular circumstances that pertain when one or more jurors has been discharged, and thereafter the trial judge needs to consider the question of the discharge of the remainder. In other words, it was said that, in these circumstances, the general test in Crofts v The Queen was not the relevant one, nor does it inform the statutory test.
Counsel emphasised the fact that the statutory test does not focus upon satisfaction that a substantial miscarriage of justice would occur, but rather upon whether continuation of the trial would give rise to the risk of such an outcome.
In short it was said that, applying the principle in House v The King to a decision that must to be characterised as either an exercise of discretion or an evaluative judgment with regard to a statutory test, error had not been demonstrated.
Determination
The procedure adopted by his Honour of deciding that the jury should be discharged but thereafter adjourning proceedings for a short time was appropriate, in that it permitted the parties to exercise their rights with regard to the decision, and permitted this Court to exercise its jurisdiction: Barber v R; Zraika v R [2016] NSWCCA 125 at [49].
Secondly, the joint submission of the parties before us that only House v The King error will suffice to overturn a decision of this kind is soundly based: see Trieu v R at [21]; and Barber v R; Zraika v R at [24].
Thirdly, in the circumstances, we do not feel it necessary to resolve the subsidiary controversy as to whether or not the statutory test contained in s 53C(1)(a) of the Act is to be considered on its own, or whether it can be informed by the seemingly higher test contained in Crofts v The Queen. The matter was not fully argued before us in any event. It is sufficient to observe that, whatever be the correct position, we would have come to the same conclusion.
Fourthly, minds may differ about what could have been the way forward in the trial after the discharge of the two jurors. Factors that argued against the course adopted by his Honour included that the trial had proceeded for 11 days; it had been specially fixed in Sydney. No doubt the witnesses had travelled a lengthy distance from the place of the alleged offence. His Honour was part way through the summing-up. Whatever the contents of the note, one could have interpreted the evidence of the foreman as a whole as having been that the remainder of the jury were not unduly troubled. The trial judge could have come to the view that a firm direction against distraction or prejudice would have sufficed, and that the trial should have proceeded thereafter.
Having said that, merely because a different judge may have come to a different view in all of the circumstances, does not mean that the test in House v The King for appellate review of the exercise of judicial discretion (or the making of an evaluative judgment) has been made out.
To the contrary, we consider that, just as there was no error of fact or law demonstrated in the judgment of his Honour, neither can it be said that the result itself bespeaks error, in that it is "unreasonable or plainly unjust". That is especially so when one takes into account that we did not have the benefit of a transcript of the entirety of the trial, and, even if we had been provided with that transcript, the trial judge would have been in an immeasurably better position than we to judge the atmosphere in the courtroom at the time when the decision needed to be made: see Crofts v The Queen at p 458 (Dawson J) and p 464 (Toohey, Gaudron, Gummow and Kirby JJ); and Trieu v R at [28].
Conclusion
The question raised in this appeal was important, including with regard to the correctness of the procedure adopted by the trial judge. For that reason, we were content to grant leave to appeal.
For the reasons we have provided above, however, we came to the view that the appeal should be dismissed.
[3]
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Decision last updated: 08 July 2016