R v Myles and Myles [1995] QCA 507

A contention that the verdicts were unsafe and unsatisfactory was not pressed and plainly would have been totally without foundation. The complaints persisted in concerned the trial judge's summing-up and the conduct of the jury. It is convenient to deal first with the trial judge's summing-up to the jury.

A "catch-all" complaint was made that the trial judge's directions failed adequately to relate the law to the facts or put the defence, and were unbalanced in favour of the prosecution; by way of elaboration it was said that his Honour failed to make adequate reference to defence arguments or give them the weight of his judicial authority - instead dealing with them in the context of counsel's competing arguments - and that he unduly highlighted lies which the appellant had told. These lies are also the subject of a specific complaint which I will deal with next.

That aside, this complaint was without substance. The case was straight-forward and uncomplicated, and there was no request for redirections. The only issue which the jury would have needed to consider was whether the appellants had satisfied the Drugs Misuse Act provisions referred to above. That issue was drawn to the jury's attention, as were the matters relied on for this purpose by the appellants. His Honour gave a comprehensive summing-up of their counsel's submissions in support of their case, as well as clearly telling the jury not once but twice what that case was: appeal record pp. 199 and 207.

When the appellant's truck containing the cannabis sativa was stopped by police, each was questioned. Anthony James Myles said he was driving the truck at his brother's request and that he had no knowledge of its contents. He did not give evidence at the trial, but the other appellant, Robert Roy Myles, did give evidence; he swore that he believed that the material on the truck with the meat was shark fin, not cannabis sativa, and gave a wildly implausible account of events leading up to this capture. According to his evidence, he had told the police officers at the time the truck was stopped that there was "meat and stuff in there". The police swore that he said there was "only meat there". There was also evidence, which was uncontradicted, that although the truck was travelling south from Cairns to Mackay when the appellants were apprehended, the appellant, Anthony James Myles, had falsely stated to the butcher who had supplied the meat in the truck that he intended taking it north "up the peninsula somewhere ... to a timber cutters' camp. He was going to sell the meat up there". As noted above, the evidence was that, although he had clearly collected the meat in the truck from the butcher, Anthony James Myles claimed to have no knowledge of what was in the truck.

One submission for the appellants was that this "... particularly difficult and sensitive area ..." was unduly highlighted in the summing-up; when elaborated, this complaint was largely, if not wholly, based upon the proposition that the trial judge related the law to the evidence in his directions on the use which could be made of lies, which, it was said, he had not adequately done with respect to other aspects of the case. The error, if there was one, would have been in the latter omission, not the directions with respect to lies, but there is no weight in either contention. The only legal issue of any substance in the case concerned the prosecution's reliance on the appellants' lies, and the judge necessarily explained the legal principles applicable in the context of the evidence. Had he not done so, or if he did so incorrectly, the appellants would have cause for complaint.

Their next argument was that his Honour did err in his directions on this aspect of the case.

One submission was that the jury was not instructed that a lie told by one appellant could only be used against him, not the other appellant; that was later modified to contentions that an initially correct direction had not been sufficiently reinforced and the directions overall were capable of conveying to the jury, and did convey, that lies by one appellant could be used against the other. These propositions are factually incorrect.

Another submission was that the jury was told to take into account that the appellants were not on oath when they lied (if the jury found that they lied), without telling them how to take that into account. However, the context, as well as what was said, indicated clearly enough that this was a matter which benefitted the appellants, at least in the sense that sworn lies would, or might, have been more serious.

The appellants' main arguments with respect to the directions in relation to the jury's use of lies were that the jury should have been directed that it had to be satisfied beyond reasonable doubt of the lies alleged, and was not adequately directed with respect to the proper use of lies in relation to the matters which the appellants were required to establish on the balance of probabilities under the Drugs Misuse Act; the directions were criticised as legally erroneous and confusing.

There was plainly no requirements for proof of the lies beyond reasonable doubt in this case: cf. Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193, 210; R. v. Kirwin (C.A. No. 305 of 1993, unreported, judgment delivered 16 May 1994). The lies, if the necessary requirements for their use by the jury were satisfied, provided evidence material to the matter required to be established by the appellants under the Drugs Misuse Act. Further, the jury were correctly directed as to the matters of which they must be satisfied before the appellants' lies, if they told lies, could be used against them.

There is no substance in this or any other complaint made with respect to the summing-up.

The appellants do not seek to have their convictions immediately overturned on this basis, but ask the Court to order an inquiry to determine certain matters; it is implicit in this request that such matters, if established, would require that the appeals be allowed and the convictions quashed, and that there be an order for a new trial. Although the Jury Act 1995 has been assented to, it is not yet in force and the present appeal must be determined without reference to its provisions.

The matters asserted by the appellants, on the basis of information provided by a member of the jury, are that:

(i) the jury foreman informed the other jurors that he had a military background and had assisted the Australian Federal Police in a surveillance operation on some other occasion or occasions - (in this case, the surveillance was by both Australian Federal Police and Queensland Police);

(ii) the jury foreman informed the other jurors that it would have been cheaper to send seafood - if that had been in the truck as the appellants claimed - by another method than road transport and, subsequently, that he had ascertained by a telephone call to Queensland Rail that the quantity of material in question, if seafood, could have been transported by rail in a refrigerated wagon for $375.00;

(iii) the jury foreman informed the other jurors that, because Mackay - the appellants' destination - was closer than Cairns to Rockhampton, "the heart of the meat industry", meat would have been cheaper to buy in Mackay than Cairns, and - whatever be the relevance - that he had obtained a list of all Mackay butchers from Telecom; and

(iv) the jury foreman, and two or three other jurors who lived near the shed where the appellants had loaded the cannabis sativa onto the truck, visited the site during the trial and informed their colleagues that, when loading the truck in the shed, the appellants would have been "basically obscured" by the front of the truck and there was only a "slim" risk to the appellants of their activity being seen.

Of course, the juror's information has not been found to be correct, and there is a threshold issue as to whether it should be received and, if so, what steps should be taken to determine what occurred in the jury room.

That can conveniently be postponed for the moment. The juror's statement raises three substantive issues, namely:

(b) possession by the jury of information which was not in evidence; and

(c) activities by jurors to obtain information outside the trial process.

In my opinion, (a) can be disposed of briefly. The matters referred to by the juror, alone or in combination, would not give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury foreman had not discharged his task impartially: see R. v. Webb (1994) 181 C.L.R. 43 at p. 53. At most, they might suggest that he had been assertive and perhaps somewhat boastful, and, having heard the evidence, understandably sceptical of the appellants' innocence.

While the jury's access to information which was not in evidence would have been an irregularity (see, for example, Domican v. R. (No. 3) (1990) 46 A.Crim.R. 428, 448; Barker v. R. [1994] FCA 1577; (1994) 127 A.L.R. 280), with the possible exception of the information based on the inspection by the foreman and some other jurors of the location where the appellants loaded their truck, the information was unimportant; it consisted of no more than the relative cost of meat in Cairns and Mackay, and the cost of sending seafood by rail from Cairns to Mackay. The jury's access to such peripheral information would raise neither a serious question as to the fairness of the appellants' trial, a significant possibility that an innocent person (or innocent persons) might have been convicted nor any other prospect of a substantial miscarriage of justice: see Domican (No. 3); Barker; Webb; R. v. Spencer [1987] UKHL 2; (1986) 83 Cr.App.R. 277; R. v. Emmett and Masland (1988) 14 N.S.W.L.R. 327; R. v. Jackson and Le Gros (C.A. Nos. 330 and 331 of 1993, unreported, judgment delivered 21 March 1994).

Further, evidence of the jury's reference to such information ought not be received from a juror (R. v. Rinaldi (1993) 30 N.S.W.L.R. 605; R. v. Young [1995] 1 W.L.R. 430), even on the more liberal approach evident in New Zealand (see, e.g., Tuia v. R. (1994) 3 N.Z.L.R. 553). Reference to, or reliance upon, non-essential matters based on personal knowledge or experience seems likely to commonly form part of jury discussions or to influence individual jurors, consciously or otherwise. The law quite deliberately denies itself the opportunity to know of any such departures from the trial judge's counsel of perfection to the jury because the public interest is better served by that course. Investigations into the deliberations of juries would inhibit free discussion, impose unacceptable burdens on jurors, deprive jury verdicts of finality and weaken public confidence in the criminal justice system. Adherence to the jury system, which is considered essential to the fair trial of serious offences, involves acceptance of its inherent frailties. Imperfections in the deliberative process of juries which lack any exceptional quality or significance are not seen as depriving an accused person of a fair trial. Any substantial departure from the principle reasserted in Rinaldi and Young would make the jury system, which is seen as a vital element in the administration of criminal justice, unworkable.

For similar reasons, evidence should not be received from a juror that the foreman had stated, in the course of jury deliberations, that he had made telephone calls (contrary to his oath and the trial judge's directions and see ss. 617 and 618 of the Code) to gain the information with respect to the cost of rail freight.

An inspection conducted by some jurors without authorisation by the trial judge under s. 623 of the Code, and the subsequent communication to other jurors that it disclosed that there was only a "slim" risk of the appellants being seen while they were loading the truck, would raise more difficult issues. The test of whether the verdict should be set aside if such circumstances were established has been said to be whether the verdict's integrity is thereby called in question: see Domican (No. 3) at p. 448, citing Bates [1984] NZCA 110; (1985) 1 N.Z.L.R. 326, 328 and Gillespie (unreported, Court of Appeal N.Z., 7 February 1989); R. v. Owens (C.A. No. 343 of 1992, unreported, judgment delivered 13 May 1993); cp. Kozul v. R. [1981] HCA 19; (1981) 147 C.L.R. 221, 226-227. Kirby A.C.J.'s summary in Domican (No. 3) of Gillespie suggests that it was similar to this case, and the test there adopted was whether "the jury would otherwise undoubtedly reached the same conclusion"; it was said that "the occasion would be rare indeed" when that test would be satisfied. See also Barker, where it was said at p. 290:

"The presence in the jury room of material relating to a subject of the jury's deliberations and not in evidence constitutes an irregularity: Domican v. R. (No. 3) (1990) 46 A Crim R 428 at 447-8; R. v. Rinaldi (1993) 30 NSWLR 605. Each verdict of that jury must be set aside unless the court is satisfied that the jury would have returned that same verdict if the irregularity had not occurred: R. v. Marsland (SC(NSW), 17 July 1991, unreported); R. v. Rinaldi, supra. And `[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried": Mraz v. R. [1955] HCA 59; (1955) 93 CLR 493 at 514 (per Fullagar J)."

Superimposed upon that issue in the present case is whether evidence of the irregularity upon which the appellants rely should be received from a juror, in this instance as the basis for a decision that there should be an inquiry concerning whether the alleged irregularity occurred: Rinaldi; R. v. Fielding [1993] 1 Qd.R. 192.

It was submitted for the prosecution that, while jurors may give evidence of extrinsic matters, e.g., the improper intrusion of outsiders into jury deliberations (Emmett and Masland), and evidence of irregular conduct by jurors may be given by other persons (Fielding), evidence from jurors themselves with respect to the jury's deliberations must not ( or should not) be received in any circumstances, reliance was placed on Rinaldi at p. 610 and Young. However, whatever may once have been the position, such an unqualified approach can no longer be justified and should not be accepted; the public interests in the confidentiality and finality of jury deliberations ought not be permitted to produce or hide such gross injustice as the conviction of an innocent person. An obvious example would be a case in which an innocent person was convicted by jurors frightened by threats to their lives made in the jury room by one of their number who confessed to his or her own guilt of the crime.

Further, the traditional objection to any reception of evidence from a jury member concerning jury deliberations, that if "would force the jury room wide open" (Young at p. 434) cannot be sustained; it is logically possible to keep the door firmly shut in all but exceptional circumstances and to open it then only to the extent necessary. If that were not otherwise obvious, it has been demonstrated by legislation, e.g., the English statute referred to in Young, and, in Queensland, the Jury Act 1995. Nonetheless, that Act, which as I stated earlier is not yet in force, clearly indicates that the Court should only inquire into a jury's deliberations in exceptional circumstances; apart from ensuring the proper performance of the jury's functions and permitting research, the Act provides that the Court should inquire only if there is suspected bias, fraud or an offence related to a juror's membership of the jury or performance of functions as a member of the jury.

In the absence of an applicable statutory provision, I am of opinion that a wider test might be appropriate. Even so, before the Court would receive information from a juror, it would at least require to be satisfied that, if the information was found to be correct, the verdict would be set aside despite the proviso of sub-s. 668E(1) of the Code; in the context, that seems to me to require the prosecution to establish that there is no significant possibility that an innocent person, or persons, have been convicted; if that possibility exists, the verdict is unsafe and could not be saved by the proviso: M. v. R. [1994] HCA 63; (1994) 126 A.L.R. 325. However, for the prosecution to succeed in the present case, in which the material burden of proof was on the appellants, it is required to establish no more than that, irrespective of what the jurors are said to have derived from an unauthorised view, there is no significant possibility that the jury would have been affirmatively satisfied that the appellants neither knew nor had reason to suspect that the material in the truck with the meat was cannabis sativa, or had an honest and reasonable belief that it was not cannabis sativa.

The critical issue for the jury was the appellants' state of mind. The appellants' sought to support the innocence of their knowledge and beliefs by the openness of their conduct in loading the truck. An opinion by some jurors that, from their inspection of the location, there was only a "slim risk" of the appellants being seen might theoretically be of potential significance as a basis for rejecting the appellants' contention that they had acted openly and, inferentially, innocently. That being so, the verdict could only be saved by a conclusion that the appellants' contention would not, in any event, have been accepted by a reasonable jury acting reasonably.

The best reason for the inevitable rejection of that contention, in my opinion, is that there was no evidence to support it, at least insofar as it implies any greater openness than was apparent from the video-recording and police evidence of the appellants' activities. Its genesis appears to have been no more than speculation, perhaps a speculative submission by counsel to the jury. There is no suggestion that the visibility of the appellants when loading the truck was different from what was depicted on the video-recording and described by police officers who conducted the surveillance of the appellants' activities at the shed when the truck was loaded, or that the opinion attributed to the jurors who are said to have inspected the location was materially unfavourable to the appellants when compared with the evidence. The unauthorised inspection might just conceivably have assisted the appellants if the jurors who went to the location thought their activities more open than the evidence indicated, but cannot have adversely affected them in the absence of evidence to support their contention of openness.

When regard is had to the strength of the prosecution evidence, the evidentiary burden on the appellants, the lack of any evidence from the appellant, Anthony James Myles, and the implausible evidence from the appellant, Robert Roy Miles, it is plain that the Court should not inquire into whether there was any irregularity since an inquiry could not produce material of assistance to the appellants.

As to the issues other than that of the jury's conduct, I am in agreement with the conclusions and substantially with the reasons of the President, which I have read. With respect to the jury's conduct, I prefer to express my own reasons.

The matters complained of by the appellants set out in the reasons of the President were, in summary, four: the foreman's assertions about his own background and experience of surveillance; the information he transmitted to the other jurors about the cost of transporting the seafood; that the foreman gave the jurors information about the state of the meat industry in Mackay; and that the foreman and other jurors visited the site where the truck was loaded and told the other jurors of conclusions they formed. The first of these was not pressed, so that three topics remain for consideration.

The information the Court has is principally that contained in a statement of a Ms Jennifer Cann of Cairns, a member of the jury. The issues raised in that statement could be investigated on behalf of the Court, as in Fielding [1993] 1 Qd.R. 192 and other cases, but that could hardly be done in any useful way other than by having an authorised person approach members of the jury to ascertain their version of events. Such an inquiry might be limited to the incident alleged to have taken place outside the jury room - the visit to the site at which the truck was loaded - or extended to discussions within the jury room on some or all of the three topics.

One thing which seems to me plain is that the initial question in the case is whether any further inquiry should be made, or whether on the other hand the Court should deal with the matter purely on the material we presently have, an unsworn statement by a juror. A point which is equally plain is that if, as information in the possession of the Court suggests, a private inquiry agent has been engaged to approach jurors, quite independently of the Court, to ascertain what went on in the jury room, that is a most undesirable situation; it would be improper for any legal representative to institute inquiries into jury deliberations without the Court's authority: Rinaldi (1993) 30 N.S.W.L.R. 605 at 612, Jackson [1976] 2 N.S.W.L.R. 457; in an article entitled "Deliberations, Secrecy, Policy and Law of Contempt" (1986) Vol. 2 Aust. Bar Rev. 114, McHugh J refers to authority on this point (at 126). I note that the Jury Bill currently before the State Parliament allows the obtaining of information of the present kind but only in certain narrowly-defined circumstances: Cl. 70.

Two principles which, the authorities show, underlie the Court's reluctance to inquire or to permit inquiries designed to find out how a jury arrived at its verdict are first, that it is undesirable that jurors be subjected to examination as to the mode or performance of their duties, because that practice would impose an additional burden on jurors and might inhibit free discussion among them; secondly, it is thought that the public interest requires that in general, jury verdicts be final and the process by which they are arrived at inscrutable, partly because any other course might reduce public confidence in such verdicts.

The authorities also show that a distinction is generally drawn between inquiries into the course of discussions in the jury room on the one hand, and those into extrinsic matters on the other. That distinction is of importance in the present case; the source of the information contained in Ms Cann's statement, as I read the statement, appears to be solely discussion in the jury room. The statement says for instance that the jury foreman, during discussions in the jury room, told the jurors that he had made telephone inquiries about the cost of freighting seafood from Cairns to Mackay, and the results of those inquiries; what the foreman said was said in the privacy of the jury room as part of the jury's discussions, but it related to matters which had taken place outside that room. The trend of the authorities is generally in favour of the view that discussions in the jury room and other deliberations of the jury, whatever their content, should not be inquired into or made a ground for upsetting a verdict. Examples of statements of the rule are to be found in the reasons of Bankes LJ in Ellis v. Deheer [1922] 2 K.B. 113. There, a juror complained that he had not assented to the verdict on which the foreman claimed the jury had agreed; the critical event - the delivery of the verdict - took place in court, not in the jury room, so that what was said by the judges about matters taking place in the jury room was obiter. Bankes LJ, referring to statements of what occurred in the jury room, remarked:

"With regard to the latter class of statements I desire to make it clear that the Court will never admit evidence from jurymen of a discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself." (117, 118)

Both Bankes LJ (at 118) and Warrington LJ (at 119, 120) expressed strong disapproval of publication of discussions in the jury room. Atkin LJ remarked (121):

"I wish to express my complete agreement with what has fallen from my Lord with regard to the general rule that the Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of a statement as to what he believed its effect to be."

It may be noted that Atkin LJ referred to the rule as "general" and it needs little consideration of the matter to justify the conclusion that it cannot be absolute. If one of the jurors were credibly alleged to have conveyed to the others, in the jury room, threats of physical retaliation if they acquitted an accused, it is inconceivable that that could not be gone into by way of inquiry. It seems evident, also, that if the inquiry disclosed that the verdict had been arrived at as a result of such intimidation the Court would have the right to upset it. The present case is not in that extreme category, but is in a marginal area, where there is ground for differences of view as to whether what is said to have been disclosed during the course of discussions in the jury room is sufficiently serious to warrant further inquiry.

Authorities can be found in which broadly similar complaints, to the effect that the jury had access to and may have reached its verdict on the basis of material other than that advanced in evidence, have been rejected without further inquiry. An early example is the decision of the Privy Council in Murphy [1869] L.R. 2PC 535, where there were allegations that the jury, in a capital case, had access to newspaper reports of and comments on the trial. The Supreme Court of New South Wales had granted a new trial on that ground, but the Privy Council held that this should not have been done, partly because the evidence was hearsay and partly because of the Court's reluctance to receive "the separate statements of any of the individuals who had in combination formed a jury, in order to impeach the verdict" (549). But in Rinaldi (above) the New South Wales Court of Criminal Appeal was offered affidavits to show that relevant documents which had not been tendered were in the jury room. The Court declined to receive evidence of statements attributed to a member of the jury concerning the matter, but adjourned the case to allow the Crown to inquire. The inquiries confirmed that the documents in question which were "clearly capable of influencing the jury adversely to the appellants" had been in the jury room, so the Court held that the jury's verdicts could not be sustained.

The present situation is in essence like that in Rinaldi, with the possible exception that there the Court might have been able to be satisfied that the irregularity alleged had occurred other than by information from the jury itself; the report does not disclose by what means the matter was inquired into. Here, it is likely, although not certain, that no inquiry other than from members of the jury would be fruitful.

A similar case is Tuia [1994] 3 N.Z.L.R. 553, where again material not tendered was taken into the jury room; that came to light when a juror told her neighbour about it. The New Zealand Court of Appeal declined a request from the Crown to have the members of the jury interviewed to determine whether they had taken the extraneous material into account and, on the basis that it was unlikely that the jury had not done so, set the conviction aside. It seems to me that we could not, at this stage, properly take that course here; all we have is a statement purporting to be from one of the jurors as to what she said occurred in the jury room. But it may be that if further inquiries were made, it would be confirmed that information which was not in evidence and which could have influenced the verdict of the jury was indeed placed before them. There is in my view power in the Court to have such inquiries made.

If one is to preserve, so far as practicable, the principle that jurors should not be vexed by inquiries, after verdict, as to the mode in which the verdict was arrived at, the power to direct inquiries into an alleged irregularity must be exercised cautiously. If every allegation of irregularity is to be inquired into, there will be nothing much left of the principle I have mentioned. Authorities relating to the reluctance of courts to require jurors to make statements about their discussions are discussed in L K Murphy (Cantor J, Supreme Court of New South Wales, 19 July 1985, unreported) and Emmett and Masland (1988) 33 A.Crim.R. 340 at 343-345.

Where an irregularity relating to the conduct of the jury suggests partiality, the irregularity is not fatal to the proceedings unless the circumstances would "give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror": Webb [1994] HCA 30; (1994) 181 C.L.R. 41 at 47 per Mason CJ and McHugh J; see also per Deane J at pp. 73, 74 and per Toohey J passim. Here, the question does not relate to partiality, but to the possible use in arriving at the jury's verdict of information, not being evidence in the case, obtained by members of the jury for the purposes of their deliberations; the situation is analogous to one in which evidence has been improperly admitted. The question whether an allegation of this kind should be the subject of an inquiry by or at the direction of the Court depends, perhaps, on a number of factors; but in my view this Court should not ordinarily make or direct an inquiry of the jury after verdict, in such a case as this, unless it appears likely that if the allegation prompting the inquiry were shown to be correct the verdicts would be set aside. The appropriate test of that, as it appears to me, should be whether if the jury obtained information in the way alleged, the verdict would inevitably have been the same or (a formulation which seems to be treated as equivalent), the applicant lost by the jury's acting as alleged a chance which was fairly open to him of being acquitted: Glennon (1994) 179 C.L.R. 1 at 9. Of course if one assumes an irrational jury no verdict is inevitable; cf. the discussion of "inevitably" in Mraz [1955] HCA 59; (1955) 93 C.L.R. 493 at 515. We received little assistance from the parties on the factual question of the inevitability, or otherwise, of the guilty verdicts in this case.

It is clear that on 6 August 1994 the appellants went in a truck to a shed in Cairns and there loaded onto the truck 62 bags of cannibis sativa weighing well over a tonne; they were filmed doing so. The two then travelled south in the truck, the appellant Anthony James Myles driving, and were apprehended by the police, whereupon Robert Roy Myles told the police, according to him, that there was meat "and stuff" in the truck. That was true, the "stuff" being 1.378 tonnes of cannabis. The police version was that R R Myles said, when it was put to him that there was cannabis in the back of the truck: "There's only meat in there".

The appellants were charged with possession of the cannabis. Because of the terms of s. 57(c) of the Drugs Misuse Act 1986 ("the Act") and the definition of the word "place" in s. 4 of that Act, if the Crown proved that the cannabis was -

" . . . at the material time in or on a place of which [the person charged] was the occupier or concerned in the management or control of "

- then the cannabis must have been found to be in possession as charged unless the person charged "neither knew nor had reason to suspect that the drug was in or on that place". The knowledge which is relevant for the purpose of s. 57(c) is knowledge of the presence of a substance which is in fact a drug, not knowledge of the nature of the substance: Clare [1993] QCA 558; (1993) 72 A.Crim.R. 357 at 380, 382; but the state of mind of the appellants is, as the decision in Clare recognises, made relevant by s. 24 of the Criminal Code, as affected by s. 57(d) of the Act, which is applicable to a charge of possession and reads:

" the operation of section 24 of the Criminal Code is excluded unless [the person charged] shows an honest and reasonable belief in the existence of any state of things material to the charge ".

The circumstances were, then, such that it was clear that both appellants had possession of the cannabis, as charged; they must have been convicted unless they satisfied the onus placed on them by s. 57(d) of showing an honest and reasonable belief that the 1.378 tonnes of cannabis they loaded onto the truck was not cannabis. A J Myles gave no evidence.

R R Myles gave evidence that the "stuff" to which he referred, according to his evidence, in conversation with the police about the load, was in his belief shark fin. There was no evidence on which the jury could have been satisfied that the other appellant A J Myles had any such belief; and there was uncontradicted evidence that A J Myles gave an account of the purpose of the trip, to one T J English, which account was quite inconsistent with the version of R R Myles; further, when the police intercepted the truck, A J Myles told them he did not know what was in the rear of the truck. It would, as it seems to me, have been absolutely perverse on the jury's part to acquit A J Myles; the question, which I have found one of some difficulty, is whether the same applies to R R Myles.

The story he told at the trial was extremely implausible. One could not deny, however, the possibility that a jury might be found consisting of persons so afflicted by gullibility as to give it credence. The case is an unusual one in that the question whether a chance of acquittal has been lost falls to be considered when the only substantial issue is whether the person charged has established, on the balance of probabilities, a certain state of facts; is it always enough, to create a relevant chance of acquittal, that a witness has sworn to that state of facts? In my opinion the answer must be no; in the ordinary case, where the live issue is one in respect of which the onus is on the Crown, it can hardly be right that the existence of any evidence in denial of the Crown case requires a finding that there was a chance of acquittal. That is, I proceed on the basis that the question is whether there was, as a matter of common sense and not merely in theory, a chance of acquittal which may have been destroyed by the conduct in which some members of the jury are alleged to have been involved.

One impression created by reading the evidence of R R Myles is that he was concerned to produce explanations for journeys, to the Philippines and later to Cairns, which he made at relevant times and of which he perhaps assumed the Crown had knowledge. It appears that he must have travelled to the Philippines some weeks before the appellants took possession of the cannabis in Cairns. No doubt to allay any suspicion that this trip was connected with importation of cannabis, he explained that he went to the Philippines to investigate markets for the importation of crabs into that country. For that purpose, he said, he spent eight days calling on business people in the Philippines and his investigations were recorded in documents which he brought back with him; none of those documents were produced, nor could the witness give the name or address of any of the persons he had approached in the eight days, with a view to investigating markets for crabs. According to the witness, he made contact in the Philippines with one Anderson, the owner of a yacht.

About the end of July R R Myles was "in the Whitsunday area" when, he said, he received a phone call from Anderson, from Cairns. He arranged with Anderson that he (R R Myles) would travel to Cairns to repair Anderson's yacht, which had been badly damaged; but when he got to Cairns he found Anderson did not have the money for the job and Anderson told Myles that he would return to the Philippines to obtain it. In the meantime, the evidence went, Anderson asked him to do some carrying for a friend of Anderson.

There were some oddities about these two engagements - one to do boat repair work and the other carrying work. As to the former, Myles was not in the boat repairing business, nor was he then engaged in or close to Cairns, where the boat to be repaired was located. As to the latter, Myles was not in the carrying business either and he had neither a truck nor a licence to drive. Nevertheless he asserted that, without any hesitation, he accepted Anderson's request to do some carrying, because Anderson explained that -

" he had a friend of his in the south that had a truck he wanted some gear - you know, picked up from there and taken back down and I said `Fine, no problem' ".

The "gear", which turned out to be meat and, as Myles claims to have thought, sharkfin, was loaded onto a (refrigerated) truck and the appellants were as I have explained apprehended in possession of it. The truck was loaded with the meat placed nearest the door, although the meat had been loaded first, and the bags of cannabis were concealed, in part, by empty cardboard cartons and by meat cartons.

The evidence was that A J Myles had ordered the meat and the cartons; at that stage, according to R R Myles, they had no money from Anderson. The goods - "the meat and stuff" - were to be taken, he said, to a caravan park; there was no suggestion that the occupants of the park were thought likely to ingest over a tonne of sharkfin, so presumably the jury was intended to think that the park was a suitable sharkfin distribution point. So that, in essence, the explanation given by R R Myles was that he and the other appellant loaded the cannabis into the truck thinking it was sharkfin and, that as a favour to Anderson, they had purchased meat and cartons as his agent with a view to transporting them in a truck, not belonging to the appellants; the Myles brothers were to be reimbursed for their expenses, including fuel and purchases of cartons, by Anderson's friend, whom they did not know.

The version given by R R Myles is riddled with implausibilities, but requires to be read in full to obtain a true impression - that of a witness valiantly attempting, without much success, to add "corroborative detail intended to give verisimilitude to a bald and unconvincing narrative". Perhaps the central weakness was that the jury had to accept, in order to acquit, that R R Myles loaded many bags of cannabis onto the truck without noticing it was cannabis and, further, in the positive belief that it was sharkfin, material with which R R Myles was quite familiar. There was evidence, which would have occasioned no surprise, that during unloading of the cannabis by the police a pungent cannabis odour was emitted; one could to some extent see the contents through the material of the bags, and could see into some of them through gaps in the top.

The question remains whether, if the alleged irregular conduct on the part of members of the jury occurred, that cost either of the appellants a chance of acquittal, which in this case meant a chance of satisfying the jury of the substantial truth of the version of events given by R R Myles. I have already expressed my view that there is no difficulty with respect to A J Myles; I have also concluded, with respect to R R Myles, that it would be unrealistic to hold that a rational jury might have accepted, but for the alleged irregularities, that appellant's account.

I have had the advantage of reading the reasons prepared by the President and Pincus J.A. I agree with their conclusion that the appeal should be dismissed.

It was submitted on behalf of the appellant that there were two principal reasons why the verdict should not be allowed to stand. One was the unauthorised inspection which was had by three, or perhaps four, members of the jury during the trial; the other that information not in evidence at the trial was introduced into the jury room by the foreman. In referring to these matters, I am relying on what is said in the written statement or letter dated 20 March 1995. For present purposes it will be assumed that its contents are, or are capable of being shown to be, substantially correct.

As to the first matter, the prosecution evidence at the trial included a video tape of a truck being loaded at a shed at White Rock near Cairns. It and other evidence showed the material being loaded to be cannabis and the appellants participating in that activity. On the face of it, there was therefore evidence to justify the conclusion that they were guilty of the offence of possession with which they were charged. However, at the trial the appellant R.R. Myles testified that he thought the material being loaded consisted of shark fins. With respect to that matter, the burden of proof rested on the appellants under s.57(d) of the Criminal Code. The evidence of R.R. Myles that he held such a belief was not accepted by the jury. A.J. Myles did not give any evidence at the trial.

I have read what Pincus J.A. has written about the implausibility of the account by R.R. Myles, and I agree with it. In particular, there was evidence that the cannabis gave off a distinctive odour. It would be surprising if it resembled the odour of shark fins, and the appellant did not suggest that it did.

The question which remains is whether the inspection of the shed site that was carried out by some members of the jury is fatal to the verdict. Judging by the written statement from the juror, the significance of the inspection was, or was considered by her to be, that it bore on the possibility that R.R. Myles was telling the truth when he said the material was shark fins. In support of his account, some reliance was placed at the trial on the fact that the loading operation took place openly outside the shed, where it would have been visible from the road to any one who happened to look when driving or passing by. However, the inspection, according to those jurors who took part in it, showed that from the road the view of the two men working in the shed and loading the truck would have been "basically obscured" by the front of the truck. The jurors in question claimed that all that would have been visible was the front of the truck and not the character of the load being placed in the back of it.

From what has been said here, it is apparent that the information derived from the inspection was communicated to the other jurors. The inspection of the scene was unauthorised. It ought to have taken place, if at all, only pursuant to an order of the Court acting under s.623 of the Criminal Code and subject to such directions as might have been given. According to that section, disobedience to any such direction if discovered before verdict may, but would not necessarily, result in the discharge of the jury. Under s.623 the trial judge is invested with a discretion in the matter.

Reported cases in which the judges or jurors have taken part in an unauthorised view of the scene are by no means uncommon. The editors of the third Australian edition of Cross on Evidence s1295, at p.1135, say that in Scott v. Numurkah Corporation [1954] HCA 14; (1954) 91 C.L.R. 300, the High Court held that a demonstration, which had not been jointly agreed upon, could not be used to determine the credibility of two conflicting bodies of evidence. However, the reasons of their Honours in that case also suggest that the position would have been different if what had taken place was not, as in that instance, a demonstration, but simply an inspection or view of the scene in its static condition. See 94 C.L.R. 300, at 314. The decision in Kristoff v. The Queen (1968) 42 A.L.J.R. 232 does not, in my opinion, touch the point because in that instance the judge had not only conducted a demonstration himself, but had also drawn inferences from what he concluded was a tampering with the scene that he thought had taken place during the trial.

Possible variations in light or the physical state of the site may be significant even where the inspection is limited to its static condition. It is not easy to see how such factors could have affected the inspection here. In England, viewing the locality (which is now being called a "visit") is coming close to being judicially applauded. See Salsbury v. Woodland [1969] EWCA Civ 1; [1970] 1 Q.B. 324, 344, 346, 349-350. In delivering the Privy Council opinion in Tameshwar v. The Queen [1957] A.C. 476, Lord Denning went so far as to say that "in a case of motor manslaughter, any member of the jury could go in the evening and look at the place by himself if he wished, without being guilty of any irregularity".

Our law on what constitutes a view may in some respects now have diverged from the law in England; but the fact that the place inspected or visited is public, or that in the course of travel jurors may pass by it, has been treated as a relevant consideration in Australia: R. v. Lawless [1974] VicRp 49; [1974] V.R. 398, 421; as it now is in England: Salisbury v. Woodland [1970] 1 Q.B. 300, 349-350. There are obvious difficulties in trying to persuade jurors to drive along a road with their eyes shut, or not to take a route to which they are accustomed. According to the juror's written statement in the present instance, two of the jurors who visited White Rock are persons who in fact live in that area.

It may be that the real vice of the "visit" in the present case is that not all jurors had the benefit of it. The majority of the jury simply relied, if at all, on the impressions reported to them by the three or four jurors who went to White Rock. A similar state of affairs was considered in Menzies-Stuart v. MacLeod (1901) 18 W.N. (N.S.W.) 82, where the Bulletin described the plaintiff actress in a play at the Tivoli as "wandering about clothed in her naked soul". In the course of the ensuing libel action, three members of the jury were prompted by this description to attend the play themselves accompanied by their wives. The Court refused to interfere with the verdict for the defendant. It appears from interlocutory remarks by G.B.. Simpson J. in the Full Court that the view had taken placed by arrangement with the parties, although, plainly enough, not all jurors had attended the view or demonstration on that occasion. Similarly in Way v. Way [1928] NSWStRp 9; (1928) 28 S.R. (N.S.W.) 345, 346, where, of their own accord, some jurors visited the scene of the alleged adultery, Street C.J. said it was "an irregular or improper proceeding for any member of the jury to go on his own account to visit the locality". The appeal failed, however, because the fact that the visit had taken place was made known in court during the trial and neither party applied to have those jurors warned against saying anything to the others about what they had seen, or the inferences they had drawn from it.

The present case differs in that respect, as well as being an appeal from a criminal and not civil trial. However, the decisions referred to suggest that unauthorised "visits" of this kind tend to be regarded as irregularities. In Polykarpau (1985) 18 A.Crim.R. 288, the judge's failure to arrive at the scene until after the inspection was over was held not to vitiate the verdict, in the absence of evidence that something in the nature of an irregularity had taken place before her Honour's arrival. The decision may be contrasted with R. v. Hunter [1985] 1 W.L.R. 476, where evidence was taken at the scene in the absence of the judge; and Tameshwar v. The Queen [1957] A.C. 476, where, without the jury being in attendance, witnesses demonstrated their positions at the time of the robbery. In both cases, the departure was held to be fundamental. In Queensland, even matters like that may perhaps fall within the discretion of the trial judge under s.623.

In my respectful opinion, the inspection of the site of the shed carried out by some of the jurors in this case, although greatly to be regretted, was not so serious a violation of the fundamental conditions of a fair trial as to prevent the application of the proviso to s.668E(1) of the Code, particularly in view of the strength of the Crown case and the implausibility of the appellant's claim that he was mistaken about what he was engaged in loading.

From this I turn to the information introduced by the jury foreman.

For my part, I am unable to identify anything in what the foreman said that would, viewing it objectively, have influenced the jury or diverted them from their duty of determining the question of guilt on the evidence before them at the trial. The fact that it could have been cheaper by some unspecified amount to despatch sea food to Mackay by rail rather than by truck, or that it would have been less expensive to buy meat in Mackay rather than Cairns, can scarcely have had any perceptible impact on the verdict. It is something which, it may be supposed, might well have been surmised by the other members of the jury if they had turned their minds to it, and which, so far as one can gather, made no impression on those who heard the foreman's remarks. In saying this, I ought perhaps to add that, from all that appears in the juror's statement dated 20 March 1995, the jury foreman is one of those individuals who are not inhibited by unnatural reticence on any topic, and who are commonly recognised as having that character by their fellow citizens. The system of trial by jury must, if it is to survive, be capable of tolerating a proportion of such persons within its ranks.

The only way in which it would be possible to know whether any member of the jury had been directly influenced by what was said would be to interrogate each juror separately. To adopt such a course would, in my opinion, go well beyond anything so far sanctioned by decisions in this area. It would call for an inquiry of a kind from which, ever since the decision in Bushell's Case (1670), jurors have been constitutionally immune. For the present, it is enough to say that in this instance the information allegedly relayed by the foreman is not such as to give rise to a reasonable suspicion concerning the fairness of the trial or the impartiality of the verdict.

On other matters I agree with what has been written by my colleagues.