R v McCosker [2010] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION: R v McCosker [2010] QCA 52

PARTIES: R v McCOSKER, Victor (appellant)

FILE NO/S: CA No 128 of 2009 / DC No 13 of 2008

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Goondiwindi

DELIVERED ON: 19 March 2010

DELIVERED AT: Brisbane

HEARING DATE: 9 February 2010

JUDGES: Keane, Holmes and Chesterman JJA / Separate reasons for judgment of each member of the Court, Keane and Chesterman JJA concurring as to the orders made, Holmes JA dissenting

ORDERS: 1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where appellant and co-accused were convicted of stealing grain valued at $159,418 from their employer – where a woman juror who became speaker was acquainted with the appellant by reason of her close friendship with his wife over many years – where the appellant’s wife had told the juror three months earlier that she suspected the appellant was “guilty of something” – where the juror did not inform the judge of this conversation or of her acquaintance with the appellant – where the appellant learned of the conversation on the second day of the trial – where the appellant did not challenge the juror – whether a fair-minded member of the public who knew of the conversation might reasonably suspect the juror may not discharge her task impartially – whether as a matter of law an accused may waive objection to a juror about whom there is apprehended bias – whether as a matter of fact the accused waived the right to object to the juror’s presence on the jury / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where a witness gave evidence of conversations between himself and the appellant’s co-accused in the absence of the appellant – where it was common ground the evidence was admissible against the appellant as statements done in furtherance of a common purpose – where counsel for the co-accused when cross-examining the witness did not challenge his evidence of the conversations – whether the trial judge misdirected the jury in relation to the evidence – whether such an error would lead to the quashing of the conviction and a retrial / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced to four years’ imprisonment for stealing $159,418 from his employer – where his offending involved persistent, systematic dishonesty – where appellant showed no remorse and maintained he had been wrongly convicted – whether sentence manifestly excessive / Criminal Code 1899 (Qld), s 604(1), s 688E(1A) / Jury Act 1995 (Qld), s 42, s 43, s 46 / Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, cited / Brown v The Queen (1986) 160 CLR 171; [1986] HCA 11, cited / Burwood Municipal Council v Harvey (1995) 86 LGERA 389, applied / Campbell v R [1996] FCA 809, cited / Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7, considered / Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied / MJD v R [2006] NSWCCA 151, cited / Millar v Dickson [2002] 1 WLR 1615, cited / Porter v Magill [2002] 2 AC 357; [2001] UKHL 67, cited / R v Abdroikov [2008] 1 All ER 315; [2007] UKHL 37, applied / R v Edwards [1995] NSWSC 92, cited / R v Eveleigh [2009] QCA 257, considered / R v Gough [1993] AC 646; [1993] UKHL 1, applied / R v Jones [2003] 1 AC 1; 2 WLR 524, cited / R v McHardie and Danielson [1983] 2 NSWLR 733, applied / R v Ward [2008] QCA 222, considered / Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, cited / Smits v Roach (2006) 227 CLR 423; [2006] HCA 36, cited / Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, cited / Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44, applied / Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, applied

COUNSEL: B Farr SC, with K Hillard, for the appellant / M Copley SC for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Qld) for the respondent

KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by Chesterman JA. I agree with the orders proposed by his Honour and with his Honour's reasons.

In particular, I agree with the assessment by Chesterman JA of the evidence of the appellant and Ms Eglington and the findings of fact made by his Honour by reference to that evidence.

On the question whether an accused in a criminal trial may waive the requirement that all members of the jury be seen to be impartial, it is true to say that authority is scant. But such authority as there is points to an affirmative answer to the question. Thus in R v McHardie and Danielson,¹ it was held that an accused person who escaped from custody while his trial was in progress had effectively waived his right to be present at his trial, even though this entitlement is considered to be a fundamental aspect of a fair trial. The court said that:

"Notwithstanding the general principle that at an indictable offence trial before a judge and jury the accused's presence is normally a prerequisite to a fair trial, his failure to appear after the trial has started, through his escape from lawful custody, can correctly be described and found to be a waiver of his right to be present at his trial …"²

It is not sufficient to deny the conclusion to which R v McHardie and Danielson points to say that the entitlement to a manifestly impartial jury is not simply a private right but a matter of public right and interest in the due administration of criminal justice. As Kirby P (as his Honour then was) recognised in Burwood Municipal Council v Harvey,³ the decision of the High Court in Vakauta v Kelly⁴ established that an individual litigant may waive the public's interest in the conduct of a manifestly fair trial.

Use of the terminology of waiver by way of a shorthand description of the legal consequences of an accused person allowing a trial to proceed without taking a point about a procedural irregularity may tend to blur the focus on the point that the principle in issue is concerned with the fairness of the trial. Where a party knows of a procedural irregularity, but knowingly stands by and takes his or her chances with the verdict, rather than calling a halt to the proceeding, there is nothing unfair in holding that party to his conduct.

HOLMES JA: I agree with Keane and Chesterman JJA that while no direct answer emerges as to whether an accused may waive the right to a jury all of whose members are free from any appearance of bias, the tenor of judicial comment generally favours the proposition. Chesterman JA has mentioned dicta in Dickason v Edwards⁵ (referred to in the judgment of Dawson J in Vakauta v Kelly⁶) and in Ebner v Official Trustee in Bankruptcy.⁷ I propose to mention some other cases which might lend support to the contention, beginning, paradoxically, with one in which waiver was held not to be possible.

In Brown v The Queen⁸ a majority (Brennan, Deane and Dawson JJ) held that s 80 of the Constitution, which provides:

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury...”

made trial by a jury mandatory and not susceptible of waiver. Each of the members of the majority considered, in reasoning to that result, United States Supreme Court authority concerning Art III s 2 (3) of the American Constitution, on which s 80 was modelled. It was in similar terms:

“The Trial of all Crimes, except in cases of impeachment, shall be by Jury...”

but, importantly, was construed in context with the Sixth Amendment, which provided that the accused in a criminal prosecution:

“shall enjoy the right to a speedy and public trial, by an impartial jury...”

The Supreme Court had regarded those provisions in combination as conferring upon an accused person the enjoyment of a personal right, which could be waived. That was in contrast with s 80, which provided a:

“constitutional guarantee ... for the benefit of the community as a whole as well as for the benefit of the particular accused.”⁹

In his judgment, Dawson J noted also that the Canadian Charter of Rights and Freedoms provided an accused with a right to trial by jury for an offence carrying more than five years imprisonment. It, too, he observed, was a provision couched in terms of personal guarantee, and the right it conferred had been held susceptible to waiver.

Thus, the majority in Brown drew the significant distinction for the purposes of waiver between a personal right to trial by jury and a constitutionally mandated requirement of trial in that form, the first being capable of waiver and the second not. The right to trial by jury in Queensland for State offences, found in s 604(1) of the Criminal Code 1899 (Qld), would seem to fall within the first description. It is expressed in the language of personal entitlement: where a plea of not guilty is entered, the accused is deemed to have demanded to have his plea tried by a jury “and is entitled to have [it] tried accordingly”; it does not possess the features which led the High Court to regard the right conferred by s 80 as incapable of waiver.

As to whether attributes regarded as fundamental to trial by jury may correspondingly be waived, Keane JA has referred to R v McHardie and Danielson,¹⁰ in which it was held that an accused person who had failed to appear at his trial (because he had escaped from custody) had waived his right to be present. Similarly, in R v Jones¹¹ the House of Lords dismissed an appeal from an accused whose trial had proceeded in his absence because he had failed to surrender himself for it. The majority considered that the Court of Appeal had properly made a finding that he had waived his right to be present and put forward his defence, a right recognised by the common law and inherent in the right to a fair hearing conferred by the European Convention on Human Rights. Accordingly, he could not impugn the fairness of the trial in that regard. (The two Law Lords in the minority did not consider that an inference of waiver could properly be drawn in the circumstances of the case.)

In Millar v Dickson,¹² the Privy Council was concerned with another aspect of the Convention right to a fair hearing more directly relevant here, the right to have that hearing held by an “independent and impartial tribunal”. The appellants had had their respective cases heard by temporary sheriffs, who, it had since been held, could not, because of their lack of security of tenure, be regarded as independent and impartial. The right to a tribunal with those characteristics was, all members of the Judicial Committee agreed, properly regarded as an essential element of a fair trial; but all but one of their Lordships accepted that it was possible to waive the right. However, in the circumstances of the appellants’ cases, heard before the relevant ruling, it was held that they had not made voluntary, informed and unequivocal elections not to object.

Although there are not, so far as I have been able to discover, any Australian cases dealing with waiver of a right to object on the ground of apparent bias on the part of the decision-making entity in a criminal trial (that is, either jury or judge sitting alone), there are some decisions which concern the position of a judge sitting with a jury. In R v Edwards,¹³ in which a complaint was made of bias displayed by the trial judge, the New South Wales Court of Criminal Appeal observed, by way of dicta (since the appeal was allowed on other grounds):

“What silence at the trial may establish is a waiver of the appellant’s right to complain of such bias in this Court…”¹⁴

citing Vakauta v Kelly for that proposition.

In Barker v The Queen (No 2),¹⁵ there was similarly a claim of bias on the part of the trial judge, in the form of an alleged out-of-court remark about a co-accused’s sentence, of which no complaint was made during the course of the trial. The Full Court of the Federal Court refrained from making any “definitive statement” as to the waiver of a right in criminal proceedings; the overriding question was, it said, whether there had been a miscarriage of justice. But in that context, the court noted that if the matter had been raised with the trial judge, he could have assessed the position, reassured the defence if their apprehension were without basis, and decided whether to abort or continue the trial. In addition, the complained-of remark did not concern the accused, and there was no evidence of actual bias in the judge’s conduct of the trial, nor any suggestion that the jury’s deliberations had been tainted. The appeal was dismissed.

In MJD v The Queen,¹⁶ the trial judge made a comment in the absence of the jury which, it was said, gave rise to an apprehension of bias. The Court of Appeal took an approach similar to that in Barker. It left open the question of whether the right to make the objection to the judge’s continuing to preside could be waived, instead preferring to examine whether there was a miscarriage of justice in light of a number of matters: all that had happened at the trial, the role of the trial judge, the generally favourable nature of the summing-up and the fact that there had been no request to the judge to disqualify himself. The conclusion was that no appearance of bias was shown and there had been no miscarriage of justice.

It will, at the least, be difficult, in my view, for an accused who deliberately refrains from seeking the discharge of a juror where a ground of apprehended bias is known to him to show that the resultant trial process is unfair. But because I would make some different findings of fact from Keane and Chesterman JJA, I have come to a different conclusion as to the proper outcome in this case. While I agree that the appellant’s evidence as to what he had been told by Ms Eglington, and when, was not reliable, I would not reject any part of Ms Eglington’s evidence, including her account that she had spoken to H about the suspected thefts by the appellant from the bottle shop. In cross-examination, she explained her failure to include that evidence in her affidavit:

“Um, I don’t understand how your legal system works – or our legal system words – and I certainly didn’t want to bring any further injustice to him when he has not been charged and it was not for me to bring up.”

Pressed on the matter, she reiterated:

“I didn’t overlook it, I thought about it, and I didn’t include it because he had not been charged”.

That explanation was, in my view credible. I do not find it difficult to accept that a lay person might believe that she would unnecessarily harm the appellant’s prospects on appeal by including information about other alleged offences of dishonesty, and for that reason omit it.

Ms Eglington said that when she spoke to the appellant on the courthouse veranda during the trial, she raised H’s presence on the jury and the fact that she had told H of her belief the appellant was guilty of something. She could not remember if she told him she had raised the other dishonesty allegations with H. Although I would reject the appellant’s evidence that he was entirely ignorant of what Ms Eglington had said to H, I would conclude that she did not tell him of this aspect. It seems most improbable that, if Ms Eglington had informed the appellant that she had told H he was suspected of other dishonesty in a different workplace, he could have believed that H’s remaining on the jury could possibly favour him, or that he would have been so sanguine about the matter as not to take it up with counsel.

Accepting Ms Eglington’s account that H was told about the suspicion of other offences, the case for apprehension of bias on H’s part becomes much stronger, and I am not prepared to find that the appellant knew of that situation. Accordingly, I would hold, if waiver be the issue, that the appellant did not have the requisite degree of knowledge to justify a conclusion that he waived his right to object to H’s presence on the jury. Putting the matter another way, I do not think he can be said to have had a fair trial. I would allow his appeal.

I would add, however, that I agree with what Chesterman JA has said as to the remaining appeal ground. In particular, I share his doubt that Collins’ attempt at concealment after the enterprise had ended could properly be regarded as an act in furtherance of a common unlawful purpose and thus admissible against the other accused; but like him, I would regard the case as one for the application of the proviso had that error stood alone. I agree too with what his Honour has said regarding the sentence imposed.

CHESTERMAN JA: The appellant was tried in the District Court at Goondiwindi over five days commencing 5 May 2009 on a charge that between 6 September 2006 and 22 December 2006 he, together with Virginal Sutherland and Janelle Collins, stole grain worth more than $5,000 from Graincorp Ltd.

On 11 May 2009 the appellant and Collins were convicted. The jury by special verdict found that they had stolen 16 truck loads of grain valued at $159,418. Sutherland had been discharged at the end of the Crown case by a directed verdict of “not guilty”.

The appellant was sentenced to four years’ imprisonment. A parole eligibility date of 11 September 2010 was fixed. Collins was sentenced to three years and six months’ imprisonment. Her parole eligibility date was fixed at 11 July 2010.

The appellant has appealed against his conviction, and sought leave to appeal against his sentence. The grounds of appeal against conviction were:

The conduct on the part of a juror in not identifying her prior knowledge of the appellant or of the subject matter of the trial gives rise to a reasonable apprehension or suspicion that the jury, or juror, did not discharge their task impartially.

That the trial judge’s directions to the jury with respect to the use to be made of conversations between a witness Payne, and the co-accused Collins, were inadequate.

Graincorp Ltd employed the appellant as a site manager at its Goondiwindi West silos. The company’s business involved the storage of grain harvested by growers. Upon receipt of growers’ grain the company undertook to return to the particular grower grain of the same quantity and quality when the grower required it. A fee was charged to growers for the storage.

To obtain his grain or to arrange for the sale of it to a third party a grower had to request a grain service order (“GSO”) from Graincorp. A GSO number would be issued by a relevant employee provided it had available grain of the quantity and quality sought, and provided the grower had paid all fees owing for storage. The grower then had to contact the Graincorp depot to advise it of the date on which he had arranged for a truck to collect the grain. He had to advise the depot of the truck’s registration number.

On the nominated day when the truck arrived company employees had to check the truck’s registration number against the GSO number. If the details matched the truck would be weighed at the inward weighbridge to ensure it was empty. A Road Movement Docket would be generated after weighing and the truck and docket would proceed to the silos where the hopper attendant would fill the truck with grain as described on the docket. At the outward weighbridge the truck would be weighed to ensure weight was right. A sample of grain would be taken to ensure grain of the correct quality had been provided. The net weight would be entered in the company’s records. A docket would be generated, two copies of which were given to the truck driver. The truck driver would use one copy to invoice the grower for haulage and the other would be given over with the grain when it was delivered to the purchaser.

Graincorp had no records to suggest that either the co-accused, Collins, or an entity called Collins Pierpoint were its customers.

Payne carried on a haulage business. He drove a truck and employed Beetham to drive another truck. Between September and late December 2006 his trucks transported about 600 tonnes of grain from the Graincorp silos where the appellant was manager.

Prior to September 2006 when Payne hauled grain he did so in accordance with the procedure described above. Payne knew the appellant from these earlier dealings with the depot. During the course of 2006 he met Collins and made her aware of the availability of his trucks for haulage work. She contacted him later that year and instructed him to go to the Goondiwindi West depot to obtain grain to cart to a feedlot in south-east Queensland. She told him to see the appellant at the depot. When Payne asked if she had a GSO number she said, "You don’t need it. It’s my aunty’s grain. See (the appellant)”. Payne went to the depot and after weighing in asked for the weight ticket. The appellant was present and when Payne asked him "what is the story with this?" the appellant said, "It’s Janelle’s aunty’s grain". Payne was instructed to get his load of wheat or barley. The hopper attendant loaded the grain. Payne was not provided with a Road Movement Docket. He then went to the outward weighbridge and the appellant weighed him out.

Payne said that he and Beetham obtained 17 loads of grain from the depot without Road Movement Dockets. He said that the appellant gave him a piece of paper which evidenced the weight of the grain he was hauling but it was not a Graincorp document. He said the grain was never sampled. He and Beetham delivered the loads to one of three destinations. He invoiced Collins for the cartage. After some time Collins told Payne to invoice Collins Pierpoint. Payne said that on every occasion that Collins directed him to go to the depot she told him to see the appellant. She never gave him a GSO number. On every occasion that he was directed to go to the depot for her or for Collins Pierpoint the appellant directed him around the site.

After Payne discovered that Beetham had been visited by the police he telephoned Collins to tell her that she owed him some money. Collins said, "Not till I find out what Charlie’s (Beetham) been saying". After Payne had been paid Collins sent him a text message which said, "Burn all paperwork with my name on it".

The first ground of appeal concerns a woman juror who became foreman, or speaker, as such persons are now called. She was acquainted with the appellant by reason of her close friendship with the appellant’s wife over many years. The appellant and his wife had separated some weeks, or perhaps months, prior to the commencement of the trial but had remained on reasonably cordial terms. They had two young children about whose welfare they co-operated. After his separation, and during the trial, the appellant lived with his sister.

Goondiwindi is a small town and the appellant had lived there for many years. He was known to many of its inhabitants. That fact gave rise to some difficulty in selecting a jury.

After a jury was empanelled the trial judge distinctly told its members the identity of the accused and the charges they faced. His Honour then invited the prosecutor to read aloud the names of the Crown witnesses. He asked the jury to “listen carefully.” When the list was read his Honour addressed the jury in the usual terms, stressing the need for impartiality, and explained what might give rise to partiality, or the appearance of it. The jurors were then invited to indicate whether they might not be seen to be impartial, or might not be impartial. One juror indicated that he/she recognised one of the accused but did not know him/her. He/she remained a juror. Another juror indicated that he/she knew one of the accused socially and was friendly with him. That juror was discharged. A replacement juror indicated a capacity for impartiality.

That having occurred another juror told the judge that one of the Crown witnesses was known to him/her and that juror too was discharged and replaced by a juror who knew both the appellant and Sutherland and was immediately discharged.

That juror’s replacement when questioned by the trial judge indicated that the accused and/or witnesses were unknown to him/her.

Another juror then indicated some slight acquaintance with one of the accused who apparently worked part time in a hotel bar. The juror had been served alcohol by the accused. The trial judge ruled the connection too slight to be a disqualification.

During this process the trial judge twice asked the members of the jury whether, having considered things, any of them thought they might not have the necessary appearance of impartiality. Having dealt with their responses as I have described, his Honour discharged the balance of the jury panel and the accused were placed in charge of the jury.

The juror, whom it is convenient to identify as H, who was known to and known by the appellant did not respond to the trial judge’s invitation and did not indicate any concerns about her capacity to be and to appear impartial.

The appellant deposes in an affidavit read on the appeal:

“3.On the morning of my trial … . My barrister gave me a list of names of the people on the jury panel. I went through the list carefully and identified about 10 or so people who were known to me and told my barrister this information.

…

H … was on the jury but she didn’t go and talk to the judge or say that she knew me. I didn’t recognise her name when I went through the jury list because she’d been remarried, but I did recognise her when she went up to be on the jury. H ended up being the speaker for the jury.

After the jury was empanelled … there were still people on the jury who I recognised. … my barrister asked me how many people I knew on the jury. I said five or six … .

I was not asked how well I knew any of the jurors or how well they knew me. … My barrister said it would be okay for my trial and may be good.

I didn’t think it mattered whether people on the jury knew me … because of what my barrister said … and because the judge had let people stay on the jury after they said they knew me and because they said they could be impartial.

I have known H for between 15 and 20 years … .

Jodie Eglington, my ex-partner, worked at the Goondiwindi nursing home … with H until about six years ago.

Jodie and I became good friends with H and her partner … . We invited one another over … and used to go out … together … .

I was never as close to H … but H and Jodie seemed to be good friends … .

We remained friends, but lost touch when Jodie left the nursing home about 6 years ago. …

…

The last time I saw H, aside from at my trial, was when I was in hospital in February 2009. I was in hospital because I had a breakdown from stress about the charges and my relationship with Jodie. … H was one of the nurses who came in and checked on me a few times. We didn’t really talk … but she asked me how I ended up this way. I told her that I was depressed and my brain just snapped.

…

During the trial, I remember talking to Jodie about people I knew being on the jury and that I was uncomfortable about it. I told her that H was on the jury. I told her that my barrister said it didn’t matter that I knew people on the jury and that it might be good for me. … I remember Jodie coming to see me … at Court, but I can’t remember speaking to her about H … .

It wasn’t until after I was found guilty that Jodie told me that she spoke to H when I was in the hospital and that she may have incriminated me. When I asked what she meant by this, Jodie wouldn’t say anything except that she thought she told H that I might have been guilty. She hasn’t said anything more to me about this.”

Ms Eglington also swore an affidavit in support of the appellant. She explained that she had lived with the appellant between January 1994 and January 1998 and then from July 2001 to February 2009. They have two children, 14 and 12. Ms Eglington’s affidavit explains that she has known H since 1993. In that time H married and re-married several times, changing her name on each occasion. Between 1998 and 2001 they were “very close … as good as best friends”. Their friendship waned a little but remained intact “over the past five–six years”. According to the affidavit:

“16.After (the appellant) was admitted to the Goondiwindi Hospital on 6 February 2009, H went in to see (him) … .

I spoke to H for an extended period … . … at least 40 minutes to an hour possibly longer.

…

I discussed the pending court case, the Grain Corps court case.

…

I said what I thought (the appellant) had done. I recall saying … something like ‘he’s guilty of something but I don’t know what’.

I was very distressed … . I recall saying something like ‘if

he’s guilty well they’ll all go’.”

The conversation turned to a different topic. The women discussed Ms Eglington’s matrimonial difficulties and whether she ought to leave the appellant. Relevantly the affidavit continued:

“28.I didn’t attend (the appellant’s) trial until the third day and that’s when I saw H on the jury.

When I asked (the appellant) why he didn’t challenge H … he replied … that he was given a list of names and he did not recognise her name. When I spoke to (the appellant) as to why he didn’t stop the trial later, he was worried that if he stopped the trial because she knew personal things about him, it would look really bad for him and appear that he was guilty.

…

I have not told (the appellant) of my conversation with H during the time that he was in hospital other than in a general form and have not told him of her advising me to leave him.

…

I know H has a very forceful personality.”

An affidavit was also obtained from counsel who represented the appellant at his trial. He deposed:

“3.Shortly after I arrived at the Goondiwindi court house the court staff made available a small room near the court room for use by the defence lawyers. The jury panel began to assemble in an open air area between the court room and the small room we were using to continue preparing the trial. The persons on the jury panel were plainly visible from both the court room and the small room we were working in.

At some stage before the trial began (the appellant) told me that he knew a number of people on the jury panel.

When the jury list became available myself, (the appellant) and the solicitor sat in the small room. (The appellant) was asked to review the jury list and to make marks besides the names of prospective jurors that he knew.

…

(The appellant) went through the list for some minutes and made the markings as requested. I then confirmed with him which juror numbers he did not want on the jury and made a list of them. I recall that there were about 6 or 7 people who (the appellant) knew and did not want on the jury. I recall that (the appellant) told me about another further 7 or 8 people whom he knew but did not object to. I cannot recall the exact numbers.

A short time later I approached the Crown Prosecutor … and told (her) that I wanted to challenge for cause those 6 or 7 people whom (the appellant) knew and objected to their presence on the jury panel.

(The prosecutor) suggested that rather than using the lengthy process of challenging for cause that she was prepared to ‘stand by’ those persons that (the appellant) knew and did not want on the jury and that she had made a similar offer to the other defence counsel … .

I accepted this offer and gave the relevant juror numbers to (the prosecutor).

…

After my conversation with (the prosecutor), (the appellant) identified a further person that he knew and did not want on the jury. I did not have an opportunity to give that juror number to (the prosecutor) because the trial was about to start. I do not recall if that person was male or female.

During the jury empanelment I recall that one of the persons whose juror number I had given to (the prosecutor) was drawn from the barrel and (she) stood them aside. Due to the passage of time I can say no more than I think this happened. I do not recall whether the juror was a male or female. I do recall that none of the persons identified by (the appellant) as being known to him that he did not want on the jury were empanelled.

The further person, referred to in paragraph 13, whom (the appellant) had identified as being known to him and who he did not want on the jury did have his or her name drawn however I challenged him or her because I had not given his or her juror number to (the prosecutor).

…

I also recall that none of the other prospective jurors whom (the appellant) had identified as knowing him and whom he did want on the jury, were empanelled.

…

During the first adjournment, following the empanelling process I asked (the appellant) whether he knew any of the jurors on the panel because it was a small town and the jury selection process had been unusually difficult for that reason.

(The appellant) replied that he knew a number of people on the jury but did not raise any concerns with me about those jurors at that time or at any other time during the trial. I cannot recall how many people (the appellant) said that he knew. I did not ask him details about how well he knew those people.

I refer to paragraph 12 of the affidavit of (the appellant) affirmed 11 September 2009. I have no recollection of saying to (him) that if he knew some of the jurors ‘it would be okay for my (his) trial and may be good’ or any words to that effect. With the passage of time it is not possible for me to say more than I think it is unlikely that I said such a thing.

(The appellant) was obviously upset at being convicted of a crime that he said he did not commit and made a number of complaints about the evidence. I cannot recall what these complaints were precisely other than that he thought that the truck drivers had lied, that the most senior employee of Graincorp had a vendetta against him and that he did not like the police officer. I do recall that he raised some complaint about a female juror who had something to do with his wife. I cannot recall the substance of that complaint.”

The affidavits of the appellant and Ms Eglington were ambiguous about the terms of the conversation between them on the Courthouse verandah during the trial. The affidavits did not address the point directly, leaving open the possibility that Ms Eglington had revealed to the appellant the damaging statement she made to H in February at the hospital. The point had obvious relevance to whether the appellant had waived his right to object to H.

Those two deponents were cross-examined. The appellant maintained that throughout the trial he remained ignorant of the conversation. He was adamant that he knew nothing of it until he spoke to Ms Eglington by telephone two weeks or thereabouts after his conviction.

He did, however, say, when asked if had he recalled raising “a complaint about a female juror who had had some connection … with (his wife)”, that he remembered he had brought “it up through the trial”. He also said that it concerned him that H did not respond to the judge’s invitation to indicate the possibility of partiality as other jurors had done who knew him less well. He drew that circumstance to the attention of his barrister who said:

“that might be a good thing …”

but

“it still didn’t sit real well with (him) knowing that she hadn’t come forward saying that she knew (him).”

He raised his concerns on two occasions. The second time was when H was elected speaker or “head juror”, “when (his) concerns got even more”.

Ms Eglington blurted out a very different story. She went, she said, to the Courthouse, she believed on the Wednesday, which she thought was the third day of the trial. In fact the trial started on Tuesday 5 May 2009 so Wednesday 6 May was the second day. The precise day is immaterial. Evidence was led on each of the first, second and third days. The fourth day was taken up with legal argument, addresses and the commencement of the summing up which continued, after the weekend, on Monday 11 May.

Ms Eglington was asked about her conversation with H at the hospital in February 2009. She elaborated on it by saying that she told H not only of her suspicion that the appellant was guilty of “something” with respect to the theft of grain, but of something else discreditable: she had learned only hours before that he was suspected of stealing from the Royal Hotel where he was employed part time in the bottle shop. She feared, and told H, that the appellant’s thefts may have been recorded on a security camera.

Not a hint of this conversation appears in her affidavit.

When asked about the conversation which is referred to in the affidavit, concerning the theft from Graincorp, she added to that, too. She said she told H of two episodes in which she noticed the appellant acting suspiciously. She “indicated” to H that the incidents “were a part of … (her) suspicious feelings of something going on …”.

These details do not appear in the affidavit.

I do not accept that Ms Eglington told H of the details of the appellant’s conduct which caused her to be suspicious of his involvement in the theft of grain.

Ms Eglington also said that she talked to H about the appellant “having a gambling problem … (and) spending time at the pub.” The latter habit “had increased significantly over the past year.”

The revelation about the appellant’s gambling habit added further suspicion that he might have stolen from Graincorp. It provided a motive. This conversation does not appear in the affidavit.

Ms Eglington may have mentioned that the appellant was gambling and drinking to excess when complaining to H about the appellant’s conduct. I do not accept that those complaints were voiced in the context of expressing her suspicions about the appellant’s implication in the theft of grain.

About her conversation with the appellant on the Courthouse verandah she said that she asked him why he was not “doing something about (H) being on the jury”. His answer was that he had no confidence in his lawyers and did not want to “appear guilty” in front of the jury by objecting to H’s membership of the jury.

When pressed she admitted that she told the appellant of her conversation with H at the hospital and “gave him a summary of the conversation”.

Eventually Ms Eglington gave this evidence:

“What did you tell him exactly? To be completely honest I can’t exactly remember … but … I was sort of affirming the fact that I didn’t think she should be there because of … discussions that we’d had in the hospital.

But what did you tell him of the discussions? – It was just a general overview, really. … I perhaps mentioned that I’d said that he was guilty of something but I wasn’t sure what. … I wouldn’t have given him any details.”

Another fact which emerged unexpectedly in the testimony was that the appellant’s sister with whom he was living during the trial was present during the conversation. That fact did not appear in either the appellant’s affidavit or Ms Eglington’s. The omission is significant. There was a witness to the conversation whose presence was concealed by both deponents.

The appellant’s evidence that he knew of no basis for objecting to H continuing as a member of the jury was shown to be false by Ms Eglington’s testimony under cross-examination. The falsification did not appear in her affidavit.

I regard both the appellant and Ms Eglington as most unsatisfactory witnesses. I would reject the appellant’s testimony as false. In particular I reject his evidence that he expressed concern to his barrister about H’s presence on the jury by reason of his and his wife’s friendship with her, and her failure to respond to the judge’s invitation to disclose possible basis for partiality. Had he had such a concern, and had he expressed it to his barrister, he would surely have brought his disquiet forcibly to his counsel’s attention when he learned, as he did, of the more specific ground of objection. In any event his evidence sits uneasily with counsel’s affidavit that there was, after empanelment, no juror about whose presence the appellant was concerned. Counsel was not required for cross-examination so the fact may be accepted.

I reject Ms Eglington’s evidence that she told H that the appellant was suspected of stealing cash from the hotel bottle shop. The evidence has all the hallmarks of invention. Her affidavit was prepared, as she surely knew, to demonstrate that H should not have been a juror on the appellant’s trial by reason of the private communications, damaging to the appellant, she had received from Ms Eglington. She cannot have forgotten she had told H of the theft when the affidavit was drawn. She had no trouble remembering it and, indeed, volunteering it, in evidence-in-chief. There was no prior notice of it. The appellant’s counsel did not open the evidence to alert the court, or his opponent to it.

Nor do I accept that Ms Eglington told H that the appellant had a gambling problem in the context of her expressing suspicion about the appellant’s guilt. It appears from other material that the appellant did have a gambling addiction but, again, if that had been a topic of conversation with H it would have appeared in the affidavit.

I have no doubt that Ms Eglington was a partial witness doing her best to assist the appellant’s case. I reject her evidence which does not conform to her affidavit. I accept that when speaking to H about her unhappy and unsatisfactory domestic relationship she mentioned her belief that the appellant was implicated in some form of dishonesty in his employment with Graincorp and that she believed him to be guilty of “something”.

I would make the following findings of fact by reference to the evidence which I have discussed.

H and Ms Eglington had a close personal friendship extending over many years and lasting up until shortly before the appellant’s trial.

By reason of the friendship in (i) the appellant and H were well known to each other and on friendly terms.

H did not respond to the trial judge’s invitation to inform him of any reason why she might not be thought impartial in the discharge of a juror’s duty, as might have been expected.

The appellant knew of facts (i), (ii) and (iii) when, or just after, H was empanelled on the jury. The fact that he did not recognise her most recent married name is immaterial. He knew who she was.

The appellant did not challenge H’s selection, nor inform his counsel of any of facts (i), (ii), or (iii).

In the course of a lengthy conversation about her matrimonial difficulties with the appellant, dissatisfaction with his behaviour and unhappiness in the relationship, Ms Eglington told H, with reference to the charge against the appellant, that she believed him to be “guilty of something” and that if he was guilty so were the others charged with him.

Ms Eglington did not tell H anything else suggestive of dishonesty or criminal activity on the appellant’s part.

On the second or third day of the trial Ms Eglington told the appellant the gist of the information in (vi).

The appellant did not inform his solicitor or counsel of what Ms Eglington had told H, and sought no advice with respect to it.

The first ground of appeal squarely raises a point which appears never before to have arisen for consideration: may a party to litigation, or an accused on his trial, waive objection to a juror about whom there is apprehended bias?

Paradoxically, senior counsel who appeared for the appellant conceded that an accused could waive an objection to a juror who might be disqualified by reason of apprehended bias, but argued that there had been no waiver in fact. Senior counsel for the respondent agued that an accused could not waive such an objection which could be taken after verdict to impugne the trial process.

There is no doubt that the appellant could have objected to H’s service on the jury by reason of such bias. She had received by way of a private communication from the appellant’s wife the latter’s belief, or suspicion, that the appellant was guilty of the charge brought against him.

Objection may be taken to a juror if a fair minded person might reasonably suspect that the juror has prejudged or might prejudge the case.

“… the test to be applied … for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror … is whether the incident is such that … it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially;” Webb v The Queen (1994) 181 CLR 41 at 53 per Mason CJ and McHugh J.

There can, I think, be no doubt that a fair minded member of the public who knew of the conversation between Ms Eglington and H would have a reasonable apprehension or suspicion that H would not discharge her task impartially. The conversation falls into the fourth category of reasons for disqualification for apprehended bias described by Deane J in Webb at 74. His Honour described this category as “disqualification by extraneous information”, and went on:

“It … consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.”

Ms Eglington’s confidence to H that the appellant was “guilty of something” in respect of the theft of grain was prejudicial. The person apparently in a position to know a great deal about the appellant’s activities and what he said about them had concluded he was guilty. The substance of the remark was apt to give rise to the apprehension that it might influence a juror called upon to determine that question.

There was another aspect to Ms Eglington’s conversation with H at the hospital. The separate topic appears to have been the predominant matter of discussion. It was Ms Eglington’s unhappiness in her relationship with the appellant, the reasons for it, and what she should do by way of response. H advised Ms Eglington to leave the appellant.

I do not regard this part of the conversation as giving rise to a reasonable apprehension of bias. It may have depicted the appellant as a bad husband and poor domestic partner but it had no connection with the events which led to his being charged with theft, and gave no indication of his guilt.

In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ said (at 345):

“The apprehension of bias principle … requires the identification of what it is said might lead a … juror … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”

There is, I think, no logical connection between Ms Eglington’s reasons for dissatisfaction with her partner in their domestic relationship and the subject matter of the charges such as to give rise to the possibility, or apprehension, that H would not discharge the duties of a juror impartially.

The question is whether the appellant waived his right to object to H’s presence on the jury. There are two points. The first is whether as a matter of fact he waived the right to object. The second is whether, as a matter of law, an accused may waive such an objection, or whether, despite his knowledge and inactivity he is entitled to insist upon a jury none of whose members is apparently biased.

Counsel for the appellant argued that there was no waiver in fact because the appellant did not know of the existence of the ground for objection. The argument involves accepting the appellant’s evidence that he was not told of the conversation until after his conviction. I have set out the evidence at some length and rehearsed why I would reject the appellant’s contention. By no later than the luncheon adjournment on the third day of the trial, perhaps by that adjournment on the second day of the trial, the appellant knew that his wife had told H she believed him to be guilty and that she thought that by reason of her communication H could not properly serve on the jury. With that knowledge the appellant did nothing. He did not give his solicitor or barrister the information and sought no advice with respect to it. His conduct amounts, in my opinion, to waiver in fact. The clear inference is that with the requisite knowledge, he took his chances that H would look on his cause favourably, or at least, not be influenced by the communication. It should be remembered that the appellant took no objection to H’s selection despite his knowledge of her friendship with Ms Eglington, and himself.

There are plausible reasons why the appellant would have taken that course though it is not necessary to make any finding in that regard for waiver to be proved. The appellant knew H to be a long standing and close friend of his wife’s. He knew she had not revealed her acquaintanceship with the appellant to the judge as other jurors, with lesser connections, had done. He did not express any concern about H’s presence on the jury to his barrister. It is likely, therefore, he had no such concerns. He may well have thought that his wife’s friendship with H would work in his favour.

The more difficult question is whether the appellant’s waiver in fact was effective in law. Can an accused in a criminal trial waive the requirement that all members of the jury, sworn to try the issues between him and the prosecution, be seen to be impartial? The point does not seem to have been decided.

It is well established that the parties to civil litigation may waive an objection to their case being decided by a judge about whom there might be a reasonable apprehension of bias. The point was decided in Vakauta v Kelly (1989) 167 CLR 568. Dawson J said (577):

“There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J, in Dickason v Edwards … was clearly of the view that a party may waive the objection.”

Importantly for this appeal in Dickason v Edwards (1910) 10 CLR 243 Isaacs J said, (260) in the passage quoted by Dawson J:

“So that the principle seems to me to be this – that, if the person whose presence is challenged can fairly be said to be biassed (sic), either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications. Even in a public prosecution a party may waive the objection. One of the strongest examples of this is the case of Wake**field Local Board of Health v West Riding and Grimsby Railway Co … . There the Statute provided that the justices should be disinterested parties, but the words were held not necessarily to prevent waiver. A distinction has been drawn between public judicial tribunals and private judicial tribunals, but I am not satisfied that that is a sound distinction.”

The test for determining the existence of apprehended bias in a judge has been extended to jurors: Webb so decided. The reason for adopting the same test was explained by Mason CJ and McHugh J (181 CLR 41 at 47):

“The principle behind the reasonable apprehension or suspicion test is that it is of ‘fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’. … Although the role of the juror is not the same as that of the judge, a commissioner or a member of a quasi-judicial tribunal, we do not think that the difference between the role of the juror and the role of those persons warrants any different test for alleged bias” (footnote omitted).

At 53 their Honours said:

“In criminal trials in particular, the jury’s function is of great public importance. It is certainly no less important than that of the judge sitting alone in a civil trial, a commissioner determining an industrial dispute or a member of a statutory tribunal inquiring into conduct in an industry which it supervises. The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias. It is true that, unlike the judge and persons exercising quasi-judicial functions, the juror is subject to the directions of … the trial judge. … But that difference does not seem … to be sufficient to distinguish the test for juror bias from the test for judges …”.

Deane J expressed the same opinion (68-69):

“The ‘reasonable apprehension’ test has, however, been applied by the Court in cases involving a statutory officer other than a judge … and there is no convincing reason of principle why the test applicable to a case involving an allegation of an appearance of bias on the part of a juror entrusted with the discharge of the curial function of deciding questions of fact should be different from that applicable to a judge. In my view, the ‘reasonable apprehension test’ should be applied regardless of whether a question of the appearance of bias arises in relation to a judge, a statutory office holder who is obliged to observe the requirements of procedural fairness … or a juror” (footnotes omitted).

Mason CJ, McHugh and Deane JJ all regarded the judgment of Lord Goff in R v Gough [1993] AC 646 as expressing the same opinion. In fact Lord Goff did not refer specifically to judges, a point noted by Deane J (181 CLR 41 at 70) who thought that:

“… the tenor of his Lordship’s comments … seem to indicate that he considered that the test of a real danger of bias was to be applied generally to cases involving any person ‘who sits in a judicial capacity’…” (footnote omitted).

Lord Goff (with whom Lords Ackner, Mustill, Slynn and Woolf agreed) said ([1993] AC 646 at 660):

“My initial reaction … was one of surprise that it should be necessary to draw a distinction between cases concerned with justices and those concerned with jurymen, and to conclude that different criteria fell to be applied in investigating allegations of bias in the two categories of case. … Of course, there are some distinctions between the two groups of cases. For example, in the case of jurymen there is the inhibition … against investigating the state of mind of a juryman when reaching his decision in the privacy of the jury room. There is also the fact that the possibility of bias may come to light in the course of a jury trial … . Situations such as these have to be dealt with by the judge when they arise; and he may be able to deal with the situation on the spot, for example by issuing a warning to the jury, or by discharging the particular juryman involved. And, if a verdict is challenged before the Court of Appeal on the ground of bias, the ultimate principles to be applied are to be found in section 2 of the Criminal Appeal Act 1968. But, even taking these matters into account, I am left with the feeling that there should be no reason, in principle, why the test of bias should be different in the two groups of cases – those concerned with justices and those concerned with juries.”

Lord Goff summarised his opinion on this point (at 670):

“I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn … .”

The test adopted in Gough for determining bias in a juror was whether there appeared to be a real danger of bias. The High Court in Webb disapproved the formulation and preferred the “reasonable apprehension” test. The House of Lords have since adopted a test identical to, or almost identical, to that laid down in Webb; see R v Abdroikov [2007] 1 WLR 2679, apparently under the influence of the European Court of Human Rights: see Porter v Magill [2002] 2 AC 357 at 494.

These observations do not affect the reasons for Lord Goff’s acceptance of the same test for both judges and jurors.

If the rationale for applying the same test to both judges and jurors is that both alike must attract and maintain public confidence by the appearance of impartiality one may conclude that a party may waive the appearance of bias in a juror as well as in a judge. If the waiver in one case does not diminish public confidence it ought not in the other.

In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ addressed the “fundamental principle” that a trial be “conducted by an independent and impartial tribunal”, and said (at 344):

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (footnote omitted).

Although the present point was not in issue, it is, I think, of considerable significance that in their Honours’ careful exposition the principle as to disqualification, and waiver, was said to apply equally to judges and jurors. The passage supports the view that apprehended bias in a juror may be waived.

A similar indication appears in Abdroikov, though again the indication is indirect. The case involved the challenge to a jury verdict convicting Abdroikov of attempted murder. Legislative amendments allowed policemen to serve on juries. One member of the jury was a policeman. This fact became known only after the jury retired to consider its verdict. The conduct of police officers was not in question at the trial. There was “a minor issue concerning one aspect of the evidence of a police witness.” The conviction was upheld on the basis that there was insufficient basis to find an apprehension of bias.

In so ruling Lord Bingham noted, apparently as a further ground for rejecting the appeal, that “defence counsel raised no objection” to the police officer continuing on the jury once his occupation was revealed. There would, of course, be no occasion for the remark if apprehended bias of a juror in a criminal trial could not be waived. Lord Carswell made the same point that “counsel were made aware that the officer was a member of the jury and raised no objection at the time to his serving.” The same observation applies. Baroness Hale and Lord Mance agreed with Lord Bingham.

Authority being scant one must have regard to principle. Underlying the principle is the requirement that justice be done and be seen to be done. The principle:

“… reflects a concern with the need to maintain public confidence in the administration of justice;” per Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351.

Would the public confidence in the administration of criminal justice be diminished if an accused could waive his objection to a juror about whom there was a reasonable apprehension of bias? I would answer that question in the negative for the reason given by Dawson J in Vakauta. The test is what a fair minded and fully informed member of the public would think when possessed of all relevant facts. Such a person is not, I think, likely to apprehend that the trial is not fair, or that the tribunal is not impartial, where an accused legally represented and with full knowledge of the facts about the basis for the apprehension of bias chooses to proceed with the trial. The fair minded observer aware of the facts who saw the accused waive his right to object to the juror would not doubt the integrity of the trial process. After all the person with most at stake and full knowledge of the facts choose to accept the adjudication of the tribunal, including the juror.

There are sound reasons for not permitting an accused with knowledge of the ground of objection to take it until after an adverse verdict is brought in. The reason was expressed in the joint judgment of Brennan, Deane and Gaudron JJ in Vakauta (167 CLR 568 at 572). Their Honours said:

“Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then … attack the judgment on the ground that … there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time … or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias … or … may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment … .”

The passage was quoted with approval by Gleeson CJ, Heydon and Crennan JJ in Smits v Roach (2006) 227 CLR 423 at 439-440.

The censure applies with equal force to a criminal trial. The fair minded and informed observer is more likely to lose confidence in the administration of criminal justice if an accused could behave as described: reserve the right to object to a juror about whom he knows there is an apprehension of bias until after verdict and then object only if it be guilty. The fair minded and informed observer would think that such conduct amounted to manipulation of the processes of the criminal law to the accused’s unfair advantage and the detriment of the due prosecution of offenders. Such a conclusion would erode confidence in the administration of justice, and serve to bring it into disrepute. The fair minded and informed observer, being a citizen, has an interest in common with fellow citizens in the due prosecution of those charged with serious criminal offences. The trial process must be fair, and be seen to be such, but there is no unfairness in requiring an accused who has a right to object to the selection of a juror, and knows of the right, to take it or forgo it. There is no unfairness, or appearance of unfairness, in holding an accused to an informed acceptance of the constitution of the court which is to try him.

Although the appellant did not become aware of the ground of apprehended bias until the second or third day of the trial it was not too late to take objection. Section 46 of the Jury Act 1995 (Qld) allows for the discharge of a juror “if the judge considers there is reason to doubt the impartiality” of the juror. The discharge may occur at any time between the selection of the jury and its discharge whether on delivery of verdict or earlier. Had the appellant instructed his counsel to take the objection the trial judge would, no doubt, after proper inquiry have discharged H and continued the trial, or discharged the whole jury and retried the appellant (and his co-accused) with a fresh jury.

If it be right that an accused cannot be held to have waived objection to a juror on the ground of apprehended bias the trial process could be frustrated. If waiver does not apply to an accused it does not apply at any stage of the trial. An accused knowing of a ground which would disqualify a juror may decline to exercise his rights of challenge, peremptorily or for cause, given by s 42 and s 43 of the Jury Act, and seek a retrial after conviction by then revealing the apparent bias of the juror. The process could be repeated several times in a small town such as Goondiwindi with a limited pool of jurors many of whom might be known to an accused. There are strong pragmatic reasons for holding an accused to his initial choice.

There are no doubt aspects of a criminal trial which are legally necessary and cannot be waived. A judge and jury free of actual bias may be such a requirement. There are, no doubt, others. But when one is concerned with the appearance of fairness to maintain confidence in the legal process it is not necessary, in my opinion, for the law to mandate that an accused may not choose to take his chances with the particular juror to whom he could have objected, but did not.

The relationship between H and the appellant might itself have given rise to an apprehension of bias. The particular ground of objection would seem to fall in Deane J’s third category, disqualification by association, which (at 74):

“… 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 … the proceedings.”

This point was not taken by the appellant, who did not rely on the relationship between H and the appellant as constituting a basis for apprehending bias. Presumably the argument was not advanced because of the obvious riposte that the appellant knew of the ground when the jury was selected and did not exercise his undoubted rights of challenge to exclude H from the jury. If the presumption be right the disavowel of the argument is a tacit acceptance that the appellant had waived, and therefore could waive, the right to object to H.

I make the last observation as an aside. The point was not argued so not much can be made of it.

In my opinion the first ground of appeal should be rejected.

The second ground is that the trial judge failed to give any directions about what use the jury could make of evidence given of conversations between the accused Collins and the witness Payne in the absence of the appellant. The evidence was quite brief. Payne said that he met Collins by chance at a service station. He mentioned to her that “work was a little bit quiet” and said that if “she had any extra work … to give (him) a call.” Some time later she did, in fact, telephone Payne and asked him to “do some work for her”. The work:

“… involved going to Goondiwindi West Graincorp, seeing (the appellant) and going and loading out and transporting the grain to a feedlot.

… (Collins) rang (him) up and said there was a load to go to a … feedlot, to go and see (the appellant) …”.

Mr Payne explained that prior to each occasion on which he loaded grain from the Graincorp silo he received a telephone call from Collins who told him to “go and see (the appellant)”. On each occasion he saw the appellant who gave him some documents and instructed him to load grain.

On the first occasion, he asked for a GSO number, but Collins replied:

“You don’t need it. It’s my aunty’s grain. See (the appellant).”

The last conversation Payne had with Collins followed a disagreement between them over payment for his cartage. It was also after the last occasion on which he carried grain at Collins’ request. At the time police were investigating the theft of grain. Following the conversation Collins sent him a text message:

“Burn all paperwork with my name on it.”

Initially the trial judge ruled his evidence of conversations with Collins to be inadmissible against the other accused. The ruling was later revised. His Honour said:

“… I rule with respect to the admissibility of the evidence of the conversations of Mr Payne and Mrs Collins that they are admissible … against (the appellant) … and I will be instructing the jury accordingly.”

The trial judge duly instructed the jury:

“… I directed you during the trial that evidence of what Mr Payne said Mrs Collins told him was not admissible in the case against (the appellant). I was wrong in that respect. That evidence of what Mr Payne said Mrs Collins told him can be used in the case against (the appellant) … .”

The evidence in question was that Collins said to Payne:

(i)go and load grain from the Graincorp Goondiwindi West Depot and see the appellant there;

(ii)the grain is my aunt’s;

(iii)burn all paperwork with my name on it.

It was, in the end, common ground that the evidence was admissible against the appellant. The prosecution case was that the appellant and Collins acted in combination to effect the theft of grain using what was described as “the innocent agency of … Payne and (his driver) Beetham.” Therefore the statements of both accused done in furtherance of their common purpose were admissible against the other to prove the offence charged; see Tripodi v The Queen (1961) 104 CLR 1 at 6-7; Ahern v The Queen (1988) 165 CLR 87 at 99. In Tripodi (at 7) it was explained that such evidence was admitted because by combining together for an unlawful purpose each participant impliedly authorised the other to speak on his behalf in furtherance of the common purpose.

The appellant complains the trial judge did not explain what use they could make of the evidence, or caution them that they should scrutinize it carefully and be cautious about accepting it. The need for the second warning was, it was submitted, particularly strong in a case where the accused Collins did not give evidence and could not be cross-examined by the appellant’s counsel.

The submission was that the jury should have been given a direction in accordance with the Benchbook:

“Ordinarily … evidence … of … things said by another … out of the … hearing of the accused, would not be admissible against the accused … . However, in the case against each accused, evidence of … things said … out of the presence and hearing of a particular accused, in furtherance of the common purpose, can be considered by you as proof of the accused’s guilt, in cases in which it is alleged that a number of persons … have entered into an agreement to do something unlawful.

If you are satisfied the … things alleged were … said … in furtherance of the agreed common unlawful purpose you may use this evidence in deciding whether the prosecution has proved beyond reasonable doubt that the combination … existed and that the accused participated in it.”

Such a direction, while it may have been helpful, was not necessary to the jury’s understanding of the case or the use to which they could put the evidence of the conversations. The trial judge instructed the jury that the conversations were evidence against each accused, as they were. In this case it was not necessary to explain the legal theory for their admissibility. It was obvious. The prosecution case was of a scheme between the appellant and Collins. The latter engaged Payne to collect loads of grain and told him to seek out the appellant at the depot. He organised the loading of the truck and the provision of documents to satisfy Payne that his activity was lawful but which circumvented Graincorp’s system of recording the discharge of grain. The explanation that the grain was Collins’ aunt’s was obviously meant to allay any suspicions Payne might have about Collins’, and the appellant’s, activities.

Without any explanation the jury would have clearly understood that the case against the appellant and Collins was that they were “in it together”, and that what they said and did was intended to facilitate their theft. No request was made to the trial judge for a redirection on the point.

The complaint that the trial judge did not warn the jury to scrutinise the evidence of conversations carefully is met by the point that counsel for Collins when cross-examining Payne did not challenge his evidence that conversations (i) and (ii) occurred. As to conversation (iii) it was put that the context in which the message was given was different but there was no challenge to the evidence that Collins made such a request.

In that circumstance there was no particular need to regard the evidence sceptically.

It may be doubted that conversation (iii) falls within the principle described in Tripodi. An attempt by one participant in a joint criminal activity to destroy evidence in order to conceal his participation may not be in furtherance of the common purpose and therefore not admissible evidence against the other participants.

If that be right then the evidence was not admissible against the appellant and the trial judge misdirected the jury in that regard. Such an error would not, in my opinion, lead to the quashing of the conviction and a retrial. The case would be a suitable one for the application of the proviso, s 668E(1A) Criminal Code 1899 (Qld). The prosecution case was compelling. The impugned evidence was, in context, inconsequential.

Neither ground of appeal has been made out. The appeal should be dismissed.

The appellant also applied for leave to appeal against his sentence but advanced no submissions in support of it other than to note:

at the time of the offence the appellant was addicted to gambling;

he had no relevant prior convictions;

he had a good work history; and

his relationship with Ms Eglington ended as a result of his being charged.

One should not, however, overlook that the appellant was convicted after a trial, showed no remorse for his very substantial theft from his employer; and maintained that he had been wrongly convicted. His offending involved persistent, systematic dishonesty from which his employer lost $150,000 in round figures.

The decisions of R v Ward [2008] QCA 222 and R v Eveleigh [2009] QCA 257 make the applicant’s complaint about sentence impossible to accept. The application for leave to appeal against sentence should be refused.

Footnotes

1. [1983] 2 NSWLR 733. ↩

2. [1983] 2 NSWLR 733 at 745. ↩

3. (1995) 86 LGERA 389. ↩

4. (1989) 167 CLR 568 at 587. ↩

5. (1910) 10 CLR 243. ↩

6. (1989) 167 CLR 568. ↩

7. (2000) 205 CLR 337. ↩

8. (1986) 160 CLR 171. ↩

9. At 201. ↩

10. [1983] 2 NSWLR 733. ↩

11. [2003] 1 AC 1. ↩

12. [2002] 1 WLR 1615. ↩

13. [1995] NSWSC 92. ↩

14. At [23]. ↩

15. (1996) FLR 1. ↩