R v Roberts [2004] QCA 366

Director of Public Prosecutions (Queensland) for the respondent

[1] McPHERSON JA: I have read and agree with the reasons of Cullinane J. I was at first of the opinion that the written communication referred to in para [14] of those reasons stated or implied ("we are concerned for our safety") that juror no 12 had become a threat to the safety of the other jurors. If that had been the case, it might have justified the trial judge in forming the view that, in terms of s 56(1)(a) of the Jury Act 1995, that particular juror no 12 "ought not, for other reasons, be allowed ... to act as a juror at the trial", and so should be discharged without discharging the whole jury.

[2] However, after reading what the other three jurors said in answer to his Honour's questions, I am not persuaded that there was any real justification for concern on the part of other jurors that their safety might be imperilled. Rather, it was a case in which juror no 12 seems to have formed a very definite opinion of the verdict that should be given, and was expressing that opinion, if at all, vigorously and perhaps aggressively to those who tried to change his mind.

[3] In the circumstances, it seems to me that an occasion or reason had not arisen for the judge to act under s 56(1)(a) of the Jury Act without discharging the whole of the jury.

[4] I agree with the orders proposed by Cullinane J. The conviction and verdict should be set aside. A new trial is ordered.

[5] WHITE J: I agree with the reasons of Cullinane J and the orders he proposes. In R v Orgles & Orgles (1993) 98 Cr App R 185 at 189-190 the English Court of Appeal discussed certain situations which can arise where a jury member might be discharged and for which s 56 of the Jury Act 1995 provides. Cullinane J has set out that helpful passage at para [33] of his reasons.

[6] It is a troubling procedure to "poll" selected jurors when disagreement between them has been identified. As was proposed in Orgles and endorsed by Cullinane J, the whole jury should be questioned together as to whether they are able with or without an opportunity for further discussion to reach a verdict. If the jury indicates that they will not then the jury should be discharged. To discharge only the dissentient, particularly when it was known that the other 11 held an opposing view about the verdict, would suggest a majority verdict was being permitted.

[7] CULLINANE J: The appellant was convicted on 19 May 2004 in the District Court at Maroochydore on one count of dangerous operation of a motor vehicle.

[8] A member of the jury originally empanelled was discharged by the learned trial judge pursuant to s 56(1) of the Jury Act after the jury had commenced its deliberation.

[9] The appellant appeals on the grounds that the learned trial judge ought not to have made such an order and that as a consequence of his having done so a miscarriage of justice has occurred.

[10] The evidence in the trial took a little over a day and a half and the trial judge commenced summing up to the jury a little after 3.30pm on the second day.

[11] The jury retired at 9.30am on the third day.

[12] The jury returned for a number of redirections. The first was a direction overlooked by the trial judge initially that the verdict should be unanimous. The jury subsequently sought directions about further aspects of the evidence and other matters and subsequently sought directions about what constituted a reasonable doubt.

[13] At the time when the jury sought the second redirection it was brought to the judge's attention that a juror wished to raise something with him (see page 226 of the record). Following the second redirection the jury retired at 11.31am.

[14] At 12.43pm the record relates that the learned trial judge raised with counsel a communication he had received from a juror. This was in written form and whilst it is not in the record a copy of it is with the appeal documents. It is in the following terms:

"We have 11 agree and one won't even discuss with us, he is aggressive and we are concerned with our safety. We are extremely distressed, anxious and very much in need of help from judge."

[15] After canvassing with counsel the possible alternatives he had the juror the author of the note brought in to the court and the following exchange took place (page 232 and 233):

"His Honour: Just take a seat. Would you mind sitting in front of the microphone. I'm sorry to do this to you, but there's a procedure. Now, you're not the speaker? - No, we have a new speaker now, but I'm not the new one.

All right. Now, I'm just getting - are you Miss P, is it? - Yes.

Miss P, as I say, I apologise for doing this to you. It's a very unusual situation? - Yes, I can imagine.

Without in way telling us how the jury is thinking, could you just flesh out for me, what's actually going in there: -- Okay.

Could you identify for me who the juror is? - Was the speaker before.

Yes? -- Basically we - 11 of us agree on one thing -----

Yes? -- He disagrees, but is quite forceful, aggravated -----

Yes? -- Quite anxious and yelling at us, and it's very, very uncomfortable in there.

Mmm. And you, obviously, are very distressed? - All the girls especially - the females especially.

Yes. I mean it's just so undesirable. It's just ----? -- yeah.

And you say here that he won't discuss the evidence with you? - No.

And ----?-- But this has been actually since day one.

Has it? Mmm. All right. Look, I really appreciate you coming out. I'll have to discuss it with the barristers, and - are things quietened down in there at the moment? - Touch wood.

Would it be - well, I might have the Bailiff stand outside ----? --Yeah.

---- the jury room, so if there's any concerns, you immediately call out for her, all right? - Mmm-hmm. Okay.

Thank you, very much Miss P, we'll talk to you in a moment."

[16] The matter was further discussed with counsel and at that time his Honour was disposed to discharge the jury as a whole.

[17] However counsel for the prosecution submitted that the learned trial judge should poll two jurors selected at random in view of the information that had been given by juror 7 to the effect that "the juror who has given information to the Court indicated that his position has been the same as since day one of the trial." Obviously the reference here is to the position of the dissenting juror.

[18] Counsel for the appellant (who appeared both at the trial and on appeal) had asked for the jury to be discharged.

[19] Another juror was brought to the court. But this juror it appears was the dissenting juror and been brought in by mistake. After he was sent back to the jury room, another juror (No 8) was brought into the court and the following exchange appeared:

"Mr L, I've probably mispronounced your name. How do you pronounce your name? - L.

Yes. No, I did get it right?-- Okay. They do get it wrong sometimes.

I did get it right. Mr L, this is a most unusual situation. I apologise for putting you in this position? - That's all right. That's no problem.

As you know I have a note here from the young lady Miss P, a member of the jury----? - Yeah.

---- which has caused me a great deal of concern. She came in and she's told me in open Court that Juror 12, Mr S, who was your former speaker who's now been replaced effectively has not been prepared to discuss the evidence with any member of the jury since the trial started? - That's correct.

And has formed a view of the evidence contrary to the remaining 11 who are agreed? - Yes.

And won't discuss the evidence with you and has been aggressive and overbearing and argumentative, et cetera? - Yeah.

Now, that's what she said. Do you disagree with that? - No, I don't disagree with that.

Without - I don't want to inquire of you and I don't want you to tell me how the jury are thinking? - Well, the jury a [sic] feeling very frustrated at the moment.

Yes? - We've tried to explain the facts to him. We've shown him the photos, but he's just not willing to look at anything. He just ----

Thank you, Mr L. I really appreciate your effort. It's an unusual situation for all of us ----? - We're very frustrated now though.

Yes. I'm sorry to put you in this position? - That's all right.

But I really appreciate you coming in. Thank you very much? - Thank you."

[20] Juror No 3 was then brought to the court and the following appears at page 237:

"Is it Miss B? Just take a seat there and look I apologise for putting you in this position, but it's a most unusual situation that's arisen? - Yeah.

It's new in my experience too and I'm sorry that you've been put in this situation. As you know Miss P sent me a note and she's come into Court and fleshed out what she said in the note. The note caused me a great deal of concern. Essentially she has said that Mr S who was the former speaker, juror no 12, has from the start of the trial refused to discuss the evidence with the rest of the jury and during the deliberation has taken the view that ultimately is contrary to the rest of the jury and that he refuses to discuss the evidence or his views with the rest of the jury and that he's become very aggressive, such that it's causing all of you - and she said particularly the female jurors - a great deal of distress: -- Mmm.

Yes, all right. Well, once again I'm sorry that you've been put in this position? - Okay.

So, would you mind going back to the jury room? -- Okay."

[21] Mr Cummings for the prosecution then adopted the position that the proper course to take was to act under s 56(1) to discharge the dissenting juror. Counsel for the accused indicated that his view was that the jury should be discharged but asked for some time to look at some authority before expressing a final view.

[22] Each agreed that at least as a first step the dissenting juror should be discharged.

[23] The learned trial judge did this and juror No 12 was discharged without being brought back into the court. A report of his reaction to this and his actions immediately following his leaving the court appear at page 242 of the record.

[24] After hearing argument from counsel for both parties with counsel for the accused seeking discharge of the balance of the jury the learned trial judge proceeded to take a verdict.

[25] In the course of argument the learned trial judge said the following which appears at pages 243 and 244 of the record:

His Honour: "Well, I mean they all take an oath and if what we've been told is correct this gentleman has refused to even consider the evidence or to discuss the evidence or his difference of opinion with the other jurors.

His Honour: And that's not really I would have thought consistent with the oath that he's taken.

His Honour: The thing is that you are also conscious of his position, but - see the trial's virtually over. The jury have indicated that the other 11 have reached a verdict and I suppose it's not a relevant consideration, but it could well be a verdict of not guilty and-----

His Honour: ---------------if I discharge the jury then it's all got to be done again.

Mr Cummings: That's so. And in the circumstances it's day 3 of the trial, that it's not in the public interest and the Crown submissions is that there is no indication that an unfair trial would eventuate if the matter proceeded with the remaining 11 jurors, in fact quite the contrary.

Mr Cummings: The other remaining jurors can, in the Crown submissions, be trusted to adhere to their oath and --------

His Honour: I mean it's not as if in the spectrum of things this is a controversial trial.

His Honour: You're not dealing with a serious crime of violence. You're not dealing with the cases that often evoke a great deal of emotion in these driving cases where someone's died and - or someone's been serious [sic] injured. It was a straight forward case where there were diametrically different views. It's not the sort of case that ordinarily you'd think, you'd expect that would provoke, you know, really severe emotional reactions in people, but -------."

[26] Section 56 of the Jury Act provides:

(a) it appears to the judge (from the juror's own statements or from

evidence before the judge) that the juror is not impartial or ought

not, for other reasons, be allowed or required to act as a juror at

(b) the juror becomes incapable, in the judge's opinion, of

(c) the juror becomes unavailable, for reasons the judge considers

the judge may, without discharging the whole jury, discharge the juror.

(2) If a juror dies or is discharged before the trial begins, the judge may

direct that another juror be selected and sworn."

[27] His Honour did not expressly state the basis upon which he acted under s 56.

[28] Before us counsel for the respondent contended that his Honour was entitled to act under s 56(1)(a) because the information he had been provided with demonstrated a lack of impartiality on the part of the juror concerned or warranted the conclusion that the juror ought for other reasons not be allowed to continue to act as a juror justifying his discharge under the wider discretion conferred by s 56(1)(a). Alternatively it was suggested that the juror's conduct constituted a form of constructive incapacity justifying his discharge under s 56(1)(b).

[29] The appellant argues that in discharging the juror and taking a verdict from the remaining eleven, His Honour took the wrong course. The correct course was to discharge the jury as a whole. As a result it was said, the trial miscarried and the conviction should be set aside.

[30] In Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 the High Court, when considering whether the constitutional right of trial by jury contained in s 80 of the Commonwealth Constitution permitted the taking of a majority verdict as provided for by legislation of a State in the case of a federal offence emphasised the historical importance of the right to a unanimous verdict of a jury of 12. Put in the negative, that is the right not to be convicted except by a unanimous verdict of a jury of 12.

[31] Section 56 of the Jury Act (which has counterparts in other Australian jurisdictions) obviously qualifies this right. However such a power, should be exercised only where the circumstances clearly call for its exercise.

[32] Before us, the appellant objected to the course which His Honour took in speaking to the jurors, (two of whom were chosen at random) contending that it was inappropriate. It was also said that on the information before the court, the court was not justified in discharging the juror_._

[33] We were referred to the judgment in R v Orgles & Orgles (1993) 98 Cr App R 185. In that case, two members of the jury separately complained to court staff about friction amongst the jury as a whole. This occurred at a stage when evidence was being given. The recorder questioned each complaining juror individually as to whether each felt able to fulfil their oath or affirmation to reach a true verdict according to the evidence. Each confirmed that he/she could do so. The jury as a whole then returned to the court and the recorder asked whether they as a whole could continue to fulfil their duties. The foreman indicated that they were able to do so. The trial then proceeded. The accused was convicted and appealed. One of the grounds of appeal concerned the course taken by the trial judge in speaking to the jurors individually. The Court of Criminal Appeal set out a number of propositions or observations for the benefit of judges conducting criminal trials:

"(a) Each member of a properly constituted jury has taken an individual oath to reach a true verdict according to the evidence; or have made an affirmation to the like effect.

(b) Circumstances may subsequently arise that raise an inference that one or more members of a jury may not be able to fulfil that oath or affirmation.

(c) Normally such circumstances are external to the jury as a body. A juror becomes ill; a juror recognises a key witness as an acquaintance; a juror's domestic circumstances alter so as to make continued membership of the jury difficult or impossible - so far, we give familiar, inevitably recurring circumstances. Less frequent, but regrettably not unfamiliar, is the improper approach to a juror, alternatively a discussion between a juror and a stranger to the case about the merits of the case - in short, that which every jury is routinely warned about.

(d) Occasionally, as in the instant case, the circumstances giving rise to the jury problem are internal to such as a body. Whereas the duty common to all its members normally binds the 12 strangers to act as a body, such cannot always occur. From time to time there may be one or more jury members who cannot fulfil the duty, whether through individual characteristics or through interaction with fellow jury members.

(e) However the circumstances arise, it is the duty of the trial judge to inquire into and deal with the situation so as to ensure that there is a fair trial, to that end exercising at his discretion his common law power to discharge individual jurors (to a limit of three, see s.16 of the Juries Act 1974) or a whole jury (see Hambery (1967) 65 Cr. App. R. 233).

(f) The question arises as to whether and in what circumstances that duty should be exercised by the trial judge in the absence of the jury as a body. As to this, first, there is no doubt but that the judge's discretion enables him to take the course best suited to the circumstances (see Richardson (1979) 69 Cr. App. R. 235, [1979] 1 W.L.R. 1316 for an extreme course) and frequently it is appropriate to commence and continue the inquiry with the juror concerned separated from the body of the jury. Such a course cannot readily be faulted if the circumstance giving rise to the inquiry is external to the jury as a body; indeed if the problem is an approach to a juror, alternatively some external influencing of a juror, only such a course is feasible. The "infection", actual or potential, of one juror must be prevented if possible from spreading to the rest of the jury, and it is common form to have the individual juror brought into open court with the rest of the jury absent so that the trial judge may make an inquiry in the presence of the accused and counsel without jeopardising the continued participation of the rest of the jury.

(g) However, in our judgment, such separation of a juror for the purposes of an inquiry cannot be justified if the circumstances are internal to the jury. It may be that just one member of the jury is complaining about all or some of the rest - or, as here, two members - but the problem is not the capacity of one or more individuals to fulfil the oath or affirmation, but the capacity of the jury as a whole. When this type of problem arises, then the whole jury should be questioned in open court through their foreman to ascertain whether, as a body, it anticipates bringing in a true verdict according to the evidence. It will be a matter for the judge's exercise of discretion as to how he reacts to the response, that is whether he makes no order, whether he discharges the whole jury, or whether he discharges individual jurors up to three in number.

(h) That which the recorder eventually did, we cannot fault; what we regard as irregular was the initial separation and questioning of the individual members which, given the nature of their respective complaints, should not have happened. The point can be tested. Let it be supposed that one or both had individually intimated an inability to return a verdict, having regard to friction within the jury - what should follow? It could not be right to discharge one or both and leave the rest of the jury to continue - arguably the wrong person or persons would then be discharged, namely those who did heed the nature of the duty. In our view the inquiry could only be with the jury as a whole.

[34] As is pointed out there, where a jury cannot agree, there are obvious difficulties and risks associated with seeking the views of individual members. In the present case, all of those spoken to were, as was known, in the majority. It can be assumed that had the dissenting juror been spoken to, it is highly likely that a different view would have been expressed. This is not to suggest that the court should engage in a process of confronting a juror or jurors against whom allegations are made with those allegations so as to enable a response to be given. To embark on such a process carries the risk of the court being caught between accusation and counter accusation.

[35] Rather it is to underline the wisdom of the course suggested in the above passages in Orgles particularly (h).

[36] Whilst this is an area in which prescription should be avoided and flexibility is important I think that His Honour should have had the jury as a whole brought into court and asked whether it was likely that the jury would be able to reach an agreement if given more time, and whether the court could be of any assistance to the jury.

[37] The course then to be taken would depend very much upon His Honour's assessment of the situation. A direction in accordance with Black v R [1993] HCA 71; (1993) 179 CLR 44 might have been given and the jury asked to further consider the matter or the court might have immediately discharged the jury. It is possible given the contents of the note that a report might have been obtained from the bailiff to see whether he or she could provide any information.

[38] I am also of the view that on the rather sketchy information available, it cannot be clearly concluded that the power to discharge the individual juror arose.

[39] The conduct of the discharged juror which concerned His Honour was that he had not been prepared to discuss matters with other jurors from the start of the trial and that at a time when the other 11 jurors were of one view and he of another, he was not prepared to discuss matters and was acting aggressively towards the other jurors.

[40] As to the first of these matters I would not think that alone, refusal to discuss the evidence prior to deliberations, would suggest a lack of impartiality or constitute a basis for discharging a juror. Whilst it is the practice in our courts to tell jurors from the outset that they may discuss matters between themselves as much as they wish there are other parts of the common law world where jurors are warned against discussing the evidence until it has all been presented. Whilst free and open discussion between the jurors from the outset may be commendable I do not think the fact that a juror refuses to discuss the evidence at that time constitutes a basis for his discharge. There may be cases in which information shows that a juror is acting perversely but the evidence does not establish that here.

[41] As to the second matter, again I think that either with the matter just referred to or alone it would not give rise to a ground for discharge under s 56(1). No doubt strongly held opposing views can lead to a deterioration of relations between jurors and aggressive behaviour may accompany this. However this would not necessarily provide a basis for discharge under s 56(1)(a) or under any other part of the section. Jurors are drawn from cross sections of the community and will include from time to time personalities ranging from those who are intolerant of others' views and who are overbearing to the other end of the scale, those who are over-readily influenced to any point of view.

[42] No doubt the greatest cause for concern on the information which His Honour had was the view expressed by juror no 7 about concerns for the safety of other jurors. These concerns called for some action to be taken. However in my view the course that should have been followed for the reasons I have already given is to have the jury as a whole brought into the court. An assessment following the taking of one or more of the steps referred to in [36] and [37] of these reasons could then have been made and appropriate action taken.

[43] His Honour referred to a number of matters in the course of concluding that it was appropriate to discharge the juror. These included the fact that the offence was not a serious crime of violence, nor was it a "controversial trial" which I take to be an expression of belief that the evidence should not give rise to strongly held opinions or views.

[44] In my view, neither of these are relevant considerations when considering s 56(1). If, arguably, the discretionary power conferred by s 56 arose, it was exercised by reference to irrelevant considerations.

[45] This is an area in which public perceptions are of particular importance. See Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 50 (per: Mason CJ, McHugh J) and R v Edwards, Heferen & Georgiou [2002] QCA 206; [2002] 1 Qd R 203 at 205 (per: de Jersey CJ).

[46] To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict, something which the law of this State does not permit.

[47] The public perception includes as well as the general perception of the public that of the accused and the jurors concerned.

[48] In my view the course which His Honour took has resulted in a miscarriage of justice. The verdict should be set aside and a new trial ordered.