Ground 2 - The trial judge erred in admitting the statement of Detective Sergeant Hans Rupp and failed to discharge the jury following this illegal admission
55 This ground of appeal was stated in the above way in the appellant's notice of appeal. In the appellant's written submissions the ground of appeal was said to be "the irregularity of the statement of Detective Hans Rupp in the jury room". It is clear that the real ground of appeal is that the trial judge erred in not discharging the jury, after it was discovered that a written statement of Detective Rupp had been in the jury room. Detective Rupp's statement had not been admitted into evidence, so that the allegation in the ground of appeal in the notice of appeal, that the judge had erred in admitting it, is clearly wrong.
56 Detective Rupp gave oral evidence in the Crown case. So far as the appellant Gilbert Adam is concerned, he gave evidence that on 22 April 1997 he had interviewed the appellant and on 22 July 1997 he and another police officer had arrested the appellant at the home of his cousin Mrs Salwa and conveyed the appellant to the Fairfield Police Station, where the appellant was charged with the murder of David Carty and Detective Rupp had some other dealings with the appellant.
57 Detective Rupp had made a number of written statements in the police investigation into the death of David Carty, including a statement made on 22 July 1997. This statement included the following paragraphs, in which the appellant is referred to as "the defendant".
"35. About 9.10pm on 17 April 1977 (this was a wrong date and should have been 17 July 1997) Gilbert Adam was arrested by Detective Inglis and I at 57 Nereeni Street, Fairfield Heights. The defendant was wrestled to the ground and handcuffed. At the time he was arrested the defendant said, 'Why I come to my cousin's place?' He then said something in another language. At the time both Mrs Salwa and her brother were present.
36. The defendant said, 'Please, I want to ring my family?' The defendant was then taken to the telephone and I dialled the phone number supplied by the defendant. The phone was held up to the defendant's ear. He said, 'No work." I repeated this on a number of occasions, but no contact was made.
37. A short time later other police arrived and the defendant was conveyed to the Fairfield Police Station. At the Police Station the defendant was taken to an interview room.
38. I said to the defendant, 'I intend to ask you some questions about the murder of Constable Carty on 18 April 1977. You don't have to say or do anything unless you wish but say nothing.'
39. I said, 'You are going to be charged with the murder of Constable Carty, do you understand that? He said, 'Yes'.
40. I said, 'We also require a sample of your blood for comparison purposes. I will arrange to have a police medical officer present to take the sample of your blood.
41. When Dr Moynham arrived at the police station a telephone interpreter was contacted and a request was made for the defendant to supply a sample of his blood.
42. The defendant refused to supply a sample of his blood. The defendant was then charged with murder and the telephone interpreter was again contacted.
43. I spoke with the interpreter and I read out a formal demand to the interpreter and I instructed her to translate demand to the defendant. The phone was handed to the defendant and he spoke to the interpreter. I again spoke to the interpreter and she said 'He objects to the sample being taken, but he will allow you to take it.' I said, 'Will you ask him if he is prepared to sign the consent form?' She said 'Yes'. I then handed the phone to the defendant and he spoke to the interpreter. The defendant handed the phone back to me and the interpreter said, 'Yes, he will sign the form.' I then read the form to the interpreter and handed the phone to the defendant. He had a conversation with the defendant and he returned the phone to me. I said to the interpreter, 'Is he still prepared to sign the form?' She said, 'Yes'.
44. I then handed the form to the defendant and he signed the consent form. Dr Moynham then took the defendant in an interview room and took a sample of blood from the defendant.
45. The defendant was then returned to the cells at the police station".
58 Before Detective Rupp gave evidence at the trial the admissibility of evidence by him in accordance with parts of this extract from his statement of 22 July 1997 was argued. Counsel for the appellant at the trial objected to the adducing of evidence, in accordance with par35 of the statement, that when the appellant was arrested he had been "wrestled to the ground". After some discussion the Crown Prosecutor said that he would not adduce evidence that when the appellant was arrested he was wrestled to the ground. Counsel for the appellant also objected to the adducing of evidence, in accordance with par42 of the statement, that the appellant had initially refused to supply a sample of his blood. It would appear that the Crown Prosecutor agreed not to adduce such evidence.
59 When Detective Rupp subsequently gave evidence, the Crown Prosecutor led him through these parts of his evidence. The following questions and answers occurred in Detective Rupp's evidence in chief:-
CROWN PROSECUTOR: Q. Detective Sergeant, is it the case that on 17 July 1997, Gilbert Adam was arrested by you and Detective Inglis at Mrs Salwa's premises at (ADDRESS GIVEN)?
A. That's correct.
Q. Was it 9:10pm?
A. Yes, it was.
Q. And subsequently was he conveyed to the Fairfield Police Station?
A. He was.
Q. And was he subsequently charged with murder?
A. Yes, he was.
Q. And is it the case that he subsequently signed a consent form for a sample of his blood to be taken by the police medical officer, Dr Moynham?
A. That is true.
Q. And a sample was taken and submitted to Mr Goetz at the Division of Analytical Laboratories?
A. Yes, that's correct.
Q. As I said before, there is no suggestion any blood was found on any of the items of clothing."
60 The trial judge concluded his summing-up on 22 December 1998 and the jury commenced deliberating. In the late afternoon of 22 December 1998 the jurors were permitted to separate. At 9 o'clock the following morning the jury re-assembled and resumed deliberating. The jury were in the court room between 10.15am and 11.05am, while questions they had asked were being answered, including a question the answer to which involved reading to the jury much of the evidence of one of the witnesses.
61 The transcript records that after a short adjournment the trial judge said to counsel in the absence of the jury:-
"As I have informed counsel, so they could get instructions about it, it has been brought to my attention by one of the jurors, that somehow or another a statement by Detective Sergeant Rupp of 22 July was found by them this morning amongst their papers - their papers, as I understand it, in that jury room, being confined to the exhibits, the transcripts which we have given to them, plus the document that Mr Foord had prepared (a chronology), and the written directions"
62 Counsel for the appellant at the trial applied for a discharge of the jury. Counsel submitted that Detective Rupp's statement contained prejudicial material. He submitted that "a natural inference" from par35 was "that he was either resisting arrest or taking flight, leading to a logical inference of consciousness of guilt", in a case where the Crown Prosecutor was seeking to rely on other evidence as being evidence of consciousness of guilt. It was submitted that the material also suggested that the appellant was a violent person.
63 Counsel for the appellant also submitted that par42 of Detective Rupp's statement was prejudicial to the appellant, because there was a risk of a jury inferring from the appellant's refusal to give a sample of his blood that he had a fear of the truth and because counsel for the appellant in his address to the jury had, in attacking the evidence of the Sako brothers, based a submission on an alleged refusal by the Sako brothers to give samples of their blood. There was no doubt that this submission had been put to the jury by counsel for the appellant but the trial judge raised the question of whether there was in fact any evidence that the Sako brothers had refused to give samples of their blood.
64 It was further submitted by counsel for the appellant that it was in any event prejudicial for a police officer's evidence to be before the jury in written form, that the material had gone to the jury without counsel having had an opportunity of dealing with it by cross-examination of Rupp or in counsel's address to the jury and there was no direction the trial judge could give which could overcome the prejudice the appellant had sustained.
65 The application made by counsel for the appellant for a discharge of the jury was opposed by the Crown Prosecutor.
66 The trial judge refused the application for a discharge of the jury. In his judgment on the application the trial judge set out pars35-45 of Detective Rupp's statement and summarised the events which had happened, the argument about the admissibility of evidence in accordance with parts of the statement, the evidence given by Detective Rupp and the submissions made on the hearing of the application. The trial judge, having had an opportunity of checking the transcript, observed that there was no evidence that either of the Sako brothers had declined to supply samples of blood.
67 In his judgment his Honour said:-
"It is a matter of great regret that the document should have found its way into the jury room, but that of itself is not determinative of the question which arises. The test for a discharge of the jury is not in any doubt; there needs to be a high degree of need for such a discharge. See R v Boland (1974) VR 849 at 866-7 and R v George (1987) 9 NSWLR 527 at 532-3.
It is appropriate for a trial judge to take into account the length of time which a trial has occupied, along with any inconvenience to witnesses and the cost of another trial, see R v Gallagher (1987) 29 A Crim R at 41. That matter, however, must take second place where the Court takes the view that there is a tangible risk that an accused would be denied a fair trial by reason of the event which has occurred, and is further satisfied that the problem cannot be appropriately cured by a direction to the jury. In this latter regard, it is to be assumed that the jury will accept the direction given: R v Masland (Court of Criminal Appeal New South Wales 1992, unreported) and R v Lansdell (Court of Criminal Appeal New South Wales 22 May 1994, unreported).
68 His Honour then referred to R v Domican (1990) 46 A Crim R 428 (reversed but not on this aspect, in Domican v The Queen (1991-1992) 173 CLR 555). His Honour continued:-
"In that case, six photographs, which were not exhibits, found their way into the jury room. The photographs were themselves apparently innocuous and were similar to others which had been tendered and admitted into evidence. As Kirby ACJ observed at 448:
'There is no doubt that the presence in the jury room of material which was not in evidence, was an irregularity. Its importance in the context of the trial was a matter for the assessment of Roden J. This Court would only disturb that assessment where it was convinced that the judge had made a mistake or, otherwise, that a miscarriage of justice had occurred, see Ball (1961) SR (NSW) 37 at 40-41. See also Owen (unreported Court of Criminal Appeal, New South Wales 7 July 1988), Smithson (unreported Court of Criminal Appeal New South Wales, 29 September 1989)'
His Honour concluded that the trial judge had not erred in the exercise of his discretion, in refusing to discharge the jury, although:
'Fortified by hindsight, I believe that it would have been preferable for his Honour to have withdrawn the photographs from the jury room and not to have returned them to the jury. I also believe that he should have given a specific instruction that the non-exhibit photographs were to be entirely ignored.'
His Honour concluded in relation to this aspect of the appeal:
'As the New Zealand Courts have said in Bates (1985) 1 NZLR 326 and Gillespie unreported Court of Appeal NZ, 7 February 1989, the extra curial information must be on a 'vital' or at least important issue before discharge is required. It is not every irregularity that requires that drastic course'".
69 His Honour the trial judge concluded his judgment by saying:-
"I have come to the conclusion, having regard to the somewhat peripheral and inconsequential nature of the paragraphs in question, that the case is one where the error can be dealt with by way of appropriate direction to the jury to ignore the particular paragraphs and to not draw any inference adverse to the accused from them. In particular, I am satisfied that none of this statement goes to a vital or important issue in the trial.
So far as the provision of a blood sample is concerned, a direction could be given, if Counsel seeks it, that they are to proceed upon the basis that the accused did, this day, allow a sample to be taken.
So far as the arrest is concerned, the paragraph is silent as to the nature of the response by the accused, as distinct from the response by the police. There is no suggestion in paragraph 35, for example, that the accused attempted to depart from the scene or initiated a struggle. It is equally open to the inference that the police reacted in a peremptory way. The paragraph does not, on its face, indicate that the accused did anything either to resist arrest or to escape. His comment is entirely neutral.
As I observed, the matter is extremely unfortunate, but I take the view, in all the circumstances of the case, that the application should be refused. The document should now be withdrawn from the jury, accompanied by an appropriate instruction to them".
70 After the trial judge had given his judgment refusing the application for a discharge, counsel for the appellant asked the trial judge to give the jury a direction to "totally ignore" Detective Rupp's statement. When the jury returned to the court room, the trial judge gave the following direction:-
"Members of the jury, I am grateful to you for bringing to my attention this morning that amongst your papers somehow or other there appears to have been a statement by a police officer. It was not an exhibit in the trial. It is not evidence in the trial. It should not have been in the jury room with you. Presumably it has been picked up somewhere amongst the papers as they have been passed around the court, or some other fashion, but it should not have been there.
All I can do, I think, is to tell you that you must totally ignore it. It is not evidence from which you may draw any inference of any kind; just put it entirely out of your minds. It is as though it didn't exist. I think that is all I can say. It just does not exist for your purposes and you must not use a single portion of it in any way, either in advance of the Crown case or otherwise. It simply must be ignored."
71 On this appeal it was submitted that the trial judge had erred in not discharging the jury. The submissions which were made on behalf of the appellant were similar to the submissions which had been made at the trial.
72 In his judgment on the application at the trial the trial judge referred, appropriately, to the judgment of Kirby ACJ in R v Domican. The general subject of the principles to be applied on an application for a discharge of the jury on the grounds of "an inadvertent and potentially prejudicial event that occurs during a trial" were discussed by Toohey, Gaudron, Gummow and Kirby JJ in their joint judgment in Crofts v The Queen (1996) 186 CLR 427 at 440-441. In Crofts a complainant had given evidence of acts of sexual misconduct by the accused, which were not the subject of charges and in respect of which the trial judge had given an earlier ruling that evidence of them should not be given.
73 At pp440-441 their Honours said inter alia:-
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript".
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice".
74 Later in their judgment their Honours said at p441:-
"…it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account".
75 In R v Philip Harold Bell (unreported, Court of Criminal Appeal 8 October 1998), in which this Court dismissed an appeal from a refusal to grant a permanent stay of criminal proceedings on the grounds of pre-trial media publicity, this Court referred to a number of authorities in which confidence has been expressed by courts in the ability of juries to decide cases on the evidence they hear in the court room, to ignore other prejudicial information and to comply with directions given them by the trial judge.
76 We do not consider that in the present case the trial judge made any error in the exercise of his discretion or that his refusal of the application for a discharge of the jury occasioned the risk of a substantial miscarriage of justice.
77 The principles applied by the trial judge were the proper principles to apply and the factors his Honour referred to were factors he could properly take into account.
78 As his Honour found, neither of the matters particularly relied on, that the appellant was wrestled to the ground when he was arrested and that the appellant initially refused to give a sample of blood, went to a vital or important issue or was "serious in the context of the contested issues". Each was properly described by the trial judge as "peripheral" or "inconsequential". The assertion that the appellant was wrestled to the ground by the police stated nothing about the conduct of the appellant and was as consistent with over-zealous action by the police, as with the appellant resisting arrest. There was no assertion of flight by the appellant. The conduct of the appellant relied on by the Crown as constituting evidence of consciousness of guilt was different, unrelated conduct. After his initial refusal the appellant had agreed to provide, and had provided, a sample of his blood. The appellant's English was imperfect and he had had the assistance of a telephone interpreter only in responding to Detective Rupp.
79 The trial judge was entitled to take into account the stage the trial had reached and that the mishap had occurred apparently inadvertently.
80 The trial judge was able to give, and gave, directions to the jury, which referred specifically to Detective Rupp's statement and which directed the jury to totally ignore the statement. The trial judge was in a superior position to this Court in being able to evaluate the likely effectiveness of the directions. His Honour was entitled to proceed on the basis that the jury could be relied on faithfully to comply with directions given to them. That the jury had itself brought to the trial judge's attention the presence of Detective Rupp's statement in the jury room of itself suggested that the jury had an appreciation of their obligation to reach a verdict, only on the evidence that was properly before them. The trial judge had Detective Rupp's statement withdrawn from the jury.
81 This ground of appeal should be rejected.
Ground 3 - The learned trial judge erred in admitting the evidence of the witness Thaier Sako.
82 As the above recitation of the factual chronology makes clear, Thaier Sako was a critical witness. He was one of only three people (one being the appellant) present at the time of what was described as the first wave of the attack. He received an injury to his neck which caused some considerable amount of bleeding. This injury was inflicted during the period that led immediately to the murder of Constable Carty.
83 As the trial proceeded, the Crown did not know what evidence Sako would give if called. A voir dire was conducted before Wood CJ at CL. During the course of this voir dire it became clear that the witness, if called, would not adhere to statements he had made in a police interview. Indeed, if called he would give evidence which would harm the Crown case. Prior to giving evidence Sako was given an indemnity by the Attorney General. Furthermore Wood CJ at CL gave a certificate under s128 of the Evidence Act. The evidence he eventually gave before the jury was in substance that given during the course of the voir dire.
84 Thaier Sako was called by the Crown. During the course of his evidence he indicated that when he left the Cambridge Tavern he walked along the path in front of the hotel and passed a person whom he did not know. The person swore at him, grabbed hold of his neck and pushed him over. Sako then gave the following evidence:
"Q Did you get up?
A Yes.
Q What did you do then?
A That when I get up, I saw blood coming from my neck.
Q Did you see anybody else near you and that man?
A No I didn't. I didn't feel when I fell off and I saw blood I didn't see nothing.
Q Before you fell did you see anybody else?
A No."
85 Thaier Sako's evidence at this point was contrary to the evidence given, or to be given, by a number of other Crown witnesses to the effect that Thaier Sako received his wound in the course of an altercation between himself and two other persons with the deceased Constable Carty.
86 The Crown Prosecutor sought and was granted leave under s38 of the Evidence Act to cross-examine on a prior inconsistent statement. The Crown Prosecutor put to Sako a statement that he had made to the police on 2 July 1997. During the course of his examination by the Crown on this statement, he acknowledged that he had said to the police interviewer:
· when he left the tavern he saw the appellant and Eddie Esho talking to Constable Carty at his car.
· he was pushed to the ground by one or both of them during which he sustained the injury to his neck.
· he saw both the appellant and Esho punching the deceased. At this time he saw blood coming from the deceased's body - "spitting out" or "sprinkling".
· during the acts he described as "punching", he saw that there was something in the appellant's hand. Eddie Esho did not have anything in his hand.
87 His evidence in Court was that, although admitting that he had told the interviewing officer all the matters recorded, he asserted that he was simply reciting what he had been told by others.
88 For example, when his statement that he had seen the two men punching Constable Carty was put to him, he admitted that he had said that, but added:
"A No I've said that, I haven't seen nothing. Whatever I've said, I've heard from other people.
Q So you say you saw nothing, is that right?
A Yes."
89 Eventually, in the following questions and answers he contradicted the key statements he had made in his interview:
"Q You saw him on the ground before you went unconscious, didn't you?
A No I didn't.
Q And you saw Gibbey and Eddy hitting him, didn't you?
A No I didn't.
Q And you saw that Gibbey had something in his hand, didn't you?
A No I didn't."
90 In the course of this cross-examination, he was referred to the statement in his record of interview as to the way in which Eddy was punching down on Constable Carty. He again said that that statement was based on "whatever I've heard". Then the following questions were put:
"Q Who told you how the punch was thrown?
A No nobody no I don't know they say it "this is the way they hit him".
Q Who is 'they'?
A I just say, nobody told me, I just.
Q You made it up did you?
A Yes."
91 Immediately after this, he was asked to demonstrate the punch in the way that he had done to the interviewing officer and then said:
"This is what I heard."
92 A few questions later he said with respect to the same demonstration:
"Yes I made it up by myself."
93 Sako's evidence was also of significance to provide the context in which to assess the evidence of other witnesses. He was able in his police interview to locate a number of witnesses at the scene and describe their behaviour.
94 For example, he had made reference in the course of his interview, to a woman and had told the interviewing officer:
"Yeh when I was bleeding I saw that girl coming out of the car screaming. She saw how Gibbey and Eddy were punching the police."