HIS HONOUR: The trial of Anthony Sarkis commenced on Wednesday of this week. The trial was short. At about 11.30am yesterday, Thursday, the jury commenced their deliberations.
Mr Sarkis is charged with attempting to break and enter a dwelling house belonging to Keith Godley at Lalor Park, New South Wales, with intent to commit a serious indictable offence, therein namely larceny.
It is fair to say that the trial in the way it was conducted was very much focused on the question of whether the accused was one of the two men identified in CCTV footage engaged in conduct which is said by the Crown amounts to attempting to break and enter into the premises.
The second man in the footage has been identified by fingerprints and has since been charged with offences arising from the same facts with which this trial is concerned and has been convicted.
The Crown's case as to the identity of the accused is inferential or circumstantial. It is based on the fact that he and the other man in the CCTV footage are known to each other, that there were texts and other messages between them on the morning of the relevant day. Telecommunications records are said to demonstrate the accused was at least in the vicinity of the Lalor Park property on the day, and the person in the CCTV footage looks like the accused, even though his face is obscured, in particular, that there is an identifiable tattoo on the leg of the person in the footage, which is, it is said by the Crown, consistent with a tattoo on the same part of the accused's body.
The jury in this matter has been attentive and diligent. From almost the moment they commenced their deliberations, they have asked a series of thoughtful, sensible, and insightful questions. Relevant to this application is a question they asked, which became MFI 6, which I will quote:
"If we can't agree on the purpose for 'break and enter' as larceny, should we acquit? Or should we focus on intent to 'break and enter' and commit a serious indictable offence (that could be something other than robbery?)"
After hearing submissions in the absence of the jury from the parties, and in particular, from the Crown in relation to that question, it became clear that the Crown's case was that a finding beyond reasonable doubt of intent to commit larceny as opposed to an intent to commit an unidentifiable serious indictable offence of some kind was and is an essential part of the Crown's case.
Upon that basis, I directed the jury to that effect.
Shortly after that question was answered, another question came in, which became MFI 8. I will quote it:
"One of the video clips had sound that wasn't played in court. Not everyone heard the sound. Does this matter that we heard it?"
Then it says, "Lalor Park", what the word is, "Ankle, exhibit I."
As is clear from the note, when the CCTV footage was played to the jury in Court, and the disc containing that footage was tendered, there was no suggestion that there was any audio attached to that footage.
I pause to say that it is clear to me, and I accept it as a fact, that none of the lawyers involved in the case knew about the audio at all, and therefore, the audio got into the jury room by an unfortunate mistake. The type of mistake that, notwithstanding the best will in the world, sometimes happens when busy lawyers are conducting trials of this type. I do not criticise anyone in relation to that mistake, and make a finding that it was inadvertent.
It is a great credit to the jury and consistent with one of the directions I had given them, that having heard the audio, they brought it to the Court's attention. In the absence of the jury, the parties then listened to the audio and did the best they could, in the very limited time available, to prepare a rough transcript of what they thought could be heard. That transcript became MFI 9 before me. I will set it out in full, although I should record that having listened to the audio myself, whilst the transcript is tolerably accurate, it is not completely accurate, nor is it complete. The transcript reads as follows:
"1. One guy pulls his hand back does realise you can't get fingerprints from crooks
2. You said the detectives came for him before
3. You said they are connected to Matthew.
4. He's a druggo idiot
5. Used to keep letters of his then I started chucking them
6. The detectives come before looking for him
7. So that's Matthew
8. Yeah, so they must know him
9. He's picked up for drugs Marayong area, Quakers Hill police got him
10. For drug related thing in someone else's car
11. He was in the back of a car, seats were taken out he was sitting there trying to set a date
12. He was supposed to go to Penrith or Blacktown court
13. They said they located him over in Liverpool area
14. That was one of the last things that I've heard about him
15. Definitely picked up Quakers Hill
16. They have a record of it, his last name
17. That would have been 6 months ago
18. It was registered her,
19. I suppose his only unemployment work was
20. I didn't have the housing commission contract
21. He did steal money off me, and he didn't know I had money
22. This one stole a 100
23. Both of them did
24. Back at that stage I used to have money in the kitchen
25. did forensics dust your window, yes. Next to the door
26. Cause he's actually put his hand
27. The striped shirt didn't put his hand on the window
28. If you look at it closely he he points it a few times
29. Quite a few times
30. He broke door, gives it a good go
31. He looked at it before for tattoos, this one didn't put his collar up.
32. This one had a neck tattoo, it was suspicious
33. Eventually knocked at the door
34. Eventually hopped in the door, if they spotted cameras just before that."
As I have said, I have listened to the actual audio, and whilst the transcript is tolerably accurate, it is not completely accurate, nor is it complete.
The parties agree, and I think this is the only inference available of what is actually going on here is that the detective is in the process of filming the CCTV footage with his mobile phone. He is sitting or standing next to Mr Godley, who is now deceased, and Mr Godley is giving him a running commentary of some of the things that can be seen in the video, but also other opinions and information.
I make the following findings about what can be heard on the audio, which, as I have said, at least some, if not all of the jury have now heard. I am not suggesting that what can be heard is direct evidence of any fact, but what can be heard is Mr Godley's explanation of various things that at least Mr Godley believed to be true. They are:
1. Both of the gentlemen that are seen in the video are known to someone called Matthew.
2. Matthew is a "druggie", by which I would take to mean he is a known drug user.
3. Matthew is known to the police.
4. Matthew has been arrested by police previously for drug offences.
5. Matthew has previously stolen money from Mr Godley from the premises at Lalor Park (and whilst this is not entirely clear, I think a reasonable inference is that Matthew used to live at the Lalor Park premises as some sort of lodger with Mr Godley.)
6. Mr Godley, at the time Matthew stole money from him, used to keep money in the kitchen at the Lalor Park premises."
It is because that material, which was not intended to get before the jury, and which counsel for the Crown concedes was inadmissible and ought never have been before the jury, nonetheless inadvertently got before the jury, that counsel for the accused has applied to discharge the jury.
After taking instructions, counsel for the Crown took a position that she did not oppose that application. When I pressed her for her legal submission in relation to the matters before me, she contended that in all the circumstances, there was a "real risk" of a miscarriage of justice because of the impermissible material having got before at least some of the jury.
Counsel for the accused submits that the circumstances are such that I must discharge the jury, notwithstanding the heavy onus and strong presumption against judges taking this step.
Before resolving the question, I understand that what I need to be satisfied of before making such an order is that it is the only option available in order to prevent a miscarriage of justice: see, for example, Crofts v The Queen (1996) 186 CLR 427. In that case, the plurality at [440] said that whilst the question will always be an evaluation of all relevant matters, the question should be determined by reference to at least the following: First, the seriousness of the occurrence; second, the stage of the trial at which the occurrence occurred; third, the deliberateness of the conduct; and fourth, the likely effectiveness of a judicial direction designed to overcome its apprehended impact on the jury.
In Hameed v R [2019] NSWCCA 219 at [114], the Court of Criminal Appeal added to that shopping list of relevant considerations the proposition that when considering the effectiveness of any proposed direction to overcome the relevant matter, attention must be paid to whether such a direction will do more harm than good, and that one needs to consider the question whether the suggested direction only highlights the very problem it has sought to overcome and therefore exacerbates it.
In Ahola (No 6) [2013] NSWSC 703, Button J observed at para [17], by reference to the leading authorities, that they, "Do not require or encourage trial judges to take an overly sensitive approach to the accidental receipt by juries of prejudicial material."
All of the relevant authorities were reviewed helpfully and comprehensively by Bellew J in R v Rogerson (No 34) [2016] NSWSC 259 between paras [39] to [49]. I do not need to reiterate what his Honour said there.
Ultimately, it seems to me that the relevant steps for me to take are to identify the incident that occurred so as to give rise to the application, and then whilst applying the various criteria that have been identified in the cases, to form my own judgment as to whether, if the case proceeds before the current jury, notwithstanding a strong direction that they disregard the material, there will be a miscarriage of justice, or to put it in the negative, the discretion should be exercised only if I find it to be necessary to prevent a miscarriage of justice.
It follows, notwithstanding the concession by the Crown that there is a "real risk" of a miscarriage of justice, that does not satisfy the high threshold described by the cases. What I need to be satisfied of is that unless I discharge the jury, there will actually be a miscarriage of justice.
There is a large body of cases extracted by Bellew J in Rogerson that make it clear that the critical question will always be whether the prejudicial nature of the material can be overcome or cured by a direction.
As McHugh J reminded us in the High Court in Gilbert v The Queen (2000) CLR 413 at para [31], the criminal justice system depends, to a very large degree, on the acceptance by the Courts and the public that juries do listen to, understand, and comply with directions given to them by trial judges. So much may be accepted.
However, on the other hand, there is another, equally compelling body of cases to which I have referred that make it clear that there is a category of circumstances where it is accepted that even the most impeccable direction by a judge to a jury will not be sufficient to overcome the prejudice caused by the material that has found its way inadvertently to be before the jury.
Where that line is, it seems to me, is something that is never really identified in any of the cases. Rather, it comes down to an evaluative balance between, on the one hand, an understanding that mostly, juries are understood to comply with directions, and on the other hand, an understanding that there is a category of cases, although rare, where the material is just so prejudicial that the jury just will not be able to put it out of their mind, no matter how hard they try. I think this is one of those cases.
I do not think the material is particularly prejudicial at all against the accused insofar as what, as the case ran, was the central issue; viz, his identity. Mr Godley does not say anything that in any way suggests that he knows the accused, or identifies the accused, or even thinks that the second man in the footage is the accused.
I think if that was the only matter of concern, the material could be dealt with by a direction to the jury to the effect that it was inadmissible irrelevant material that got before them by mistake, and that they should disregard.
The next level of the suggested prejudice I think could also be dealt with in that way; that is that Mr Godley does say that he thinks "they", ie, the two men, are in some way connected to someone called "Matthew", who, in turn, Mr Godley believed to be a "druggie", who was known to the police and has previously stolen from Mr Godley. I do not think any of that in any way touches on the issue of the identity of the accused. It could be cured by a similar direction.
The real prejudicial nature of this material is that it needs to be understood in the light of the earlier question asked by the jury which raises two matters. Firstly, the jury was obviously and appropriately turning their minds to the question of whether it was open to them to infer from the material before them that there was an intent by the accused to commit larceny if the break and enter was successful.
At the moment, the Crown's case as to that element is, if I may say so, and to put it mildly, weak. True it is that my assessment of the evidence is that there is an overwhelmingly strong case that the people seen in the footage did have an intention to break and enter and did attempt to break and enter. There really is very little evidence over and above the fact that during the period that they were outside the premises, they peered through the windows a few times, as to what they intended to do, if and when they got inside. Obviously enough, they were up to no good, but whether they had an intention to commit larceny or to do something else is, to my mind, something which serious consideration would need to be given to by the jury. The question they ask shows that they were clearly doing that, so as to satisfy themselves as to whether there is sufficient evidence to justify that conclusion.
The material that has got before the jury identifies that, firstly, Mr Godley was in the premises at the time of the attempted break in (presumably asleep); secondly, that he thinks the people in the video footage were associated with Matthew; thirdly, that Mr Godley used to keep money in the kitchen; and finally, that Matthew had previously stolen money from the premises. It strikes me that material, if taken into account by the jury, would greatly enhance the Crown's prospect of proving beyond reasonable doubt an intention to commit larceny.
In that way, it can be seen that it extremely prejudicial to the accused, and of course, has come before the jury in circumstances where the case has not been conducted in any way, shape or form upon the basis of those asserted facts. In other words, the accused has not had any opportunity to answer the suggestions that some person called Matthew might have been known to the gentleman that can be seen in the CCTV footage, and that Matthew, having robbed cash from the premises before, might have told them that there was cash in the premises, usually located in the kitchen.
The fact that the accused had no knowledge that that was a way the Crown might put the case (and, indeed, the Crown didn't put the case that way) seems to me to lead to irreconcilable prejudice.
If that be a correct analysis, and I do not think I can rule it out, then the critical nature of this material becomes stark.
I have taken into account the fact that the trial has been extremely short, and therefore, the material, as a proportion of the whole of the material before the jury, cannot be said to be an insignificant moment in the trial to which the jury would not perhaps give much notice. I have also taken it into account that the earlier question asked by the jury strongly suggests to me that the jury was very much interested in the last element. I have taken into account the fact that the jury itself noticed the matter and thought it appropriate to bring to my attention, which I think allows me to infer that they, or at least some of them considered the material to be of some importance. I also, as I have said, accept entirely that the process by which the audio got before the jury was entirely accidental.
Acknowledging the very high threshold and that I should only take this step as a last resort, I am satisfied that to allow the matter to proceed before the current jury would amount to a miscarriage of justice.
I say that with all respect to the jury and understanding that if the matter proceeded and I gave a direction to them to the effect that the material got before them by accident, that it was not admissible, that it was not something anyone intended them to take into account, and they therefore should be put it entirely out of their mind, that they would do their very best to follow that direction. I just do not think that the most honest person in the world would be able to perform that task; that is to segment their mind, and to put the information to one side.
Accordingly, and with regret because there is a considerable amount of public resources wasted, and, of course, the time of the jury is wasted, I have come to the conclusion that I have no other alternative but to discharge the jury.
Because this has been a short trial, and because I have time in my diary next week, I am going to direct that the matter be retried before a new jury and myself commencing at 10am on Tuesday of next week.
[2]
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Decision last updated: 10 November 2023