Smith v R

Katsuno v The Queen [1999] HCA; 199 CLR 40 Maher v The Queen [1987] HCA 31; 163 CLR 221 CASES CITED : R v Brown & Tran [2004] NSWCCA 324; 148 A Crim R 268 R v Dempster [1924] SASR 299 R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134 R v Short (1898) 15 WN (NSW) 140

PARTIES: Jay Smith (Applicant) Regina (Respondent)

COUNSEL: Mr J Trevalliion (Applicant) Ms S Dowling (Crown)

SOLICITORS: Archbold Legal Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2008/11949

McCLELLAN CJ at CL McCALLUM J R A HULME J

21 December 2010 Jay SMITH v Regina Judgment 1 McCLELLAN CJ at CL: I agree with R A Hulme J. 2 McCALLUM J: I agree with R A Hulme J. 3 R A HULME J: On 27 April 2009 the appellant was arraigned before his Honour Judge Nield and a jury and pleaded not guilty to charges of detaining for advantage (s 86(1) Crimes Act 1900), doing an act with intent to influence a witness to withhold evidence (s 323(a)) and indecent assault (s 61L). The second charge was in the alternative to the first.

4 On 11 May 2009 the jury returned verdicts of guilty in respect of the first and third charges.

5 On 4 September 2009 his Honour sentenced the appellant for the s 86 offence to imprisonment for seven years, with a non-parole period of four years six months, with effect from 22 April 2008. In respect of the s 61L offence the appellant was sentenced to a fixed term of imprisonment of six months with effect from 22 January 2008. The overall sentence was thus one of seven years three months with a non-parole component of four years nine months.

6 Mr Smith appeals against the convictions and also applies for leave to appeal against sentence.

7 It is unnecessary to say much about the respective cases presented at trial as the appeal against conviction is brought in relation to a discrete procedural aspect. It relates to what might be termed a jury irregularity.

8 It was common ground that the appellant and complainant entered into a relationship in about October 2007. There was an incident on 11 December 2007 which led to the appellant being charged with having assaulted her. He was admitted to bail and an interim apprehended violence order was made. Despite the terms of those orders there was continued contact between the two. The appellant was allowed to attend the complainant's home on 23 December and she agreed to permit him to stay over for the Christmas period.

9 The Crown alleged that in the early hours of 30 December 2007 the appellant imprisoned the complainant within her own house for a period of about three hours. It alleged that during that period he was threatening, abusive and violent towards her. It also alleged that he sought to induce her not to give evidence in relation to the pending assault matter.

10 The defence case was that the appellant had not detained the complainant at all. There had been an incident with the complainant's cousin earlier in the night and the appellant had locked the doors and closed the curtains in case that man returned to the house. The appellant asserted that he and the complainant spent the next three hours discussing some aspects of their relationship.

11 There are three grounds of appeal against conviction: 1. His Honour erred in not discharging the jury once it had become apparent that one of the jurors had conducted an independent inquiry in respect to a part of the evidence.

2. His Honour erred in not conducting an examination pursuant to section 55BA (sic - 55DA) of the Jury Act to determine what, if any, prejudice was caused to the Accused by one of the jurors conducting an independent inquiry, in respect to one part of the evidence.

3. His Honour failed to direct, or adequately direct, the jury in respect to any information that may have been obtained from the Internet in respect to the independent inquiry of one of the jurors.

12 The grounds of appeal relate to evidence that the appellant was an adherent to the Falun Gong (or Falun Dafa) system of beliefs and practices.

13 The topic first arose in the course of the complainant's evidence chief. She was describing the various events that occurred in the course of the incident. At one point she said that she was sitting on a lounge and the appellant was sitting on a coffee table facing her with a knife presented at her chest. She said: He had it at my chest, the point of it he was - he went into some tangent about religion and all this stuff I didn't understand and he was running the knife up and down my chest telling me it only takes three centimetres, three centimetres is all it takes. (28.4.09 T38.15)

14 A little later she was asked what the appellant had said about religion and she replied: He was into some Falun Gong or Buddhism type of religion and we often had a lot of conversations about it with my religion being parallel to just the same sort of beliefs, but different ways of doing things and we often used to talk about it. (28.4.09 T38.45)

15 Nothing more was said on the subject until it was raised in cross-examination by the appellant's counsel. Reference was made to discussions she agreed had occurred in which the appellant had told her that the Chinese government did not like Falun Gong and that people involved with it had been the subject of persecution in that country. The complainant confirmed that the appellant had told her that he had experienced some (unspecified) problems with Chinese government agents. She said that he had told her of his involvement in protecting a dignitary in China and she understood that this had lead to him changing his name. She was not clear as to whether this had anything to do with Falun Gong. (29.4.09 T21-22).

16 On the morning of the fourth day of the trial the judge informed counsel that a juror was ill and he was inclined to discharge her. He then proceeded to say: The second thing is this: In a passing comment this morning by a juror to the court officer in control of the jury, mentioned having accessed the internet about Fa-Long Gong. It is my error, I failed to tell the jury, as I ought to have told them, not to access, among other things, the internet about anything .

Having said that, the persecution of the Fa-Long Gong followers by the Chinese authority is something well known. Indeed, one of my close friends, a former solicitor, uses the Fa-Long Gong technique in meditation and indeed it's been mentioned in this trial by the accused's counsel. I do not see any problem with the jury accessing the internet about the Fa-Long Gong movement. Indeed, it might assist the accused. I leave that for your consideration also. (Emphasis added).

17 After a short adjournment to permit counsel to consider the matter, the court reconvened and the appellant's counsel applied for a discharge of the jury. The application was put on a dual basis. It was contended that there should be a discharge of the entire jury because of the need to discharge the ill juror on the basis that the jury would be reduced in number at a stage when only the evidence of two witnesses had been taken. The second basis was that it was not known what information the other juror had accessed and that "there is a real risk that highly prejudicial material may have at least come to one member of the jury in relation to that aspect". The Crown Prosecutor had made an internet inquiry during the short adjournment and the judge was told that he had found a reference to Falun Gong as "an evil cult". The appellant's counsel also alluded to the possibility that the information may have passed from that juror to other jurors.

18 The trial judge announced his decision to discharge the ill juror and then said: Frankly, I do not see any problem with the matter proceeding with a jury of eleven. We've proceeded for three days, today is the fourth day. The principal witness has given her evidence. Unfortunately, it was not video recorded. If the trial proceeded in front of another jury with the audio recording they would not see the complainant and it is clear this is a case in which the complainants should be seen by the jury and the reference to the Fa-Long Gong movement, it is unfortunate that I failed to tell the jury about not accessing the internet. I failed to do so , that is my fault, but nonetheless it was raised by Mr O'Connor in his cross-examination of the witness and I cannot see, in the circumstance in which it was raised, any prejudice to the accused in a juror or indeed every one of them accessing the internet in relation to the Fa-Long Gong movement .

I do not propose to discharge the jury. (Emphasis added).

19 When the jury returned to the court room the judge told them of his decision to discharge the ill juror. He then gave them a direction that they should refrain from making inquiries for themselves about anything to do with the trial. He said: Now, it came to the attention of the court officer this morning that one of you has used the internet to access detail of a Fa-Long Gong movement. I should have told you when you were sworn in to be a jury for this trial that you should not use any outside source and that includes the internet to obtain information about anything . I omitted to do that and that is my error. The fact is you should not use any outside source. Someone at home, the newspapers, a dictionary, encyclopaedia, the internet, to obtain information about anything and that's because you must make the decisions in this trial, whatever questions you have to answer at the end of the trial, wholly, solely and only on the evidence presented in the courtroom during the trial.

As the Fa-Long Gong movement and its persecution not only in China but in other places was raised by the accused's counsel in the cross-examination of the complainant, and it's something that is notorious, that means it's something widely known, I have decided to continue the trial notwithstanding one of you having accessed the internet . What I ask from now on is that none of you go to any outside source; someone at home, I've mentioned that already, a dictionary, an encyclopaedia, or the internet, to find information about anything.

As I said to you at the beginning of the trial, if any one of you wants anything explained to you about anything that happens in the trial or anything that's said in the trial, all you need do is ask through your representative and with the assistance of counsel I will answer any question that comes from any of you in that way.

So, we are now down to a jury of eleven and we're about to resume the trial. Remember from here on in, no access to anything outside the courtroom and the decisions you have to make must be based wholly, solely and only on the evidence presented to you in the course of this trial. (Emphasis added).

20 The appellant gave his evidence on the sixth and seventh day of the trial. At the commencement of his evidence he gave his name and confirmed that he had been previously known by another name. He was asked the reason for the change of name and he replied that it was because he had been a "security operative" for about ten years and (presumably in that capacity) had been the subject of the Chinese government's persecution of Falun Gong adherents. Nothing more was said on the subject in his evidence in chief and it was not raised by the prosecutor in cross-examination.

21 It is remarkable that counsel did not take the trial judge to relevant provisions of the Jury Act 1977 ("the Act"). It seems to have been assumed by both the judge and counsel that the only question was whether the juror might have discovered some information that would have been prejudicial to the interests of the accused. There was more to be considered than that.

22 Section 68C (inserted by the Jury Amendment Act 2004) renders it an offence for a juror to make certain inquiries: 68C Inquiries by juror about trial matters prohibited (1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. (2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings. (3) This section does not prohibit a juror: (a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or (b) from making an inquiry authorised by the court. (4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror. (5) For the purpose of this section, making an inquiry includes the following: (a) asking a question of any person, (b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet), (c) viewing or inspecting any place or object, (d) conducting an experiment, (e) causing someone else to make an inquiry.

23 The information relayed to counsel as to what the juror had said to the court officer was not in a satisfactory form. There is no suggestion of the judge receiving a note from the juror. It is unknown whether the judge was given a verbatim account of precisely what the juror said. As best as can be gleaned from the transcript, the judge does not appear to have been providing to counsel a verbatim account of what the court officer had said. Further, it is not clear whether the court officer passed the information directly to the judge or via the judge's associate. What was relayed to counsel was either second or third hand hearsay.

24 Despite these difficulties, it can at least be said that the judge was on notice that there may have been a transgression by a juror of the terms of s 68C. I hasten to add that without the judge having informed the jury in his opening remarks of the substance of the provision, the juror's actions were most likely unwitting. Nevertheless, the possibility of such a transgression should have given rise to consideration of some further provisions of the Act.

25 Section 53A was inserted by the Jury Amendment Act 2008 which took effect on 1 July 2008. The trial in the present case commenced on 27 April 2009. This section provides: 53A Mandatory discharge of individual juror (1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest: (a) it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was disqualified or ineligible to serve as a juror or was otherwise not returned and selected in accordance with this Act, or (b) the juror becomes disqualified from serving, or ineligible to serve, as a juror, or (c) the juror has engaged in misconduct in relation to the trial or coronial inquest. (2) In this section: misconduct , in relation to a trial or coronial inquest, means: (a) conduct that constitutes an offence against this Act, or Note . For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror. (b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.

26 It is clear enough that if a trial judge is satisfied that a juror has "engaged in misconduct in relation to the trial", there is no course available other than to discharge that juror. The terms of the section do not appear to permit a consideration of whether anything in the conduct of the juror could work to the disadvantage of the prosecution or defence.

27 A question was raised in the present case as to whether the trial judge was, or could have been, satisfied that such misconduct had occurred.

28 For the Crown it was submitted that before a judge is required by s 53A to discharge a juror for misconduct, the information available must be sufficient for the judge to be satisfied beyond reasonable doubt that an offence against s 68C had been committed. I do not accept that submission. There is nothing in s 53A, or elsewhere in the Act, that requires the criminal standard of proof to apply. Certainly it would in a prosecution of a juror for an offence against s 68C but that is a different matter.

29 There was considerable debate at the hearing of the appeal as to whether the judge had made a finding at all as to the conduct of the juror. I do not regard this issue as determinative but it seems most likely that his Honour did make a finding as to at least one aspect of what was required to be considered.

30 Although no such finding was articulated in express terms, the portions I have emphasised in the extracts from the transcript above indicate that the judge was satisfied that the juror had made an inquiry on the internet. The reference to his error in not having told the jury at the commencement of the trial that inquiries of that nature were impermissible supports the inference. The judge's conclusion that there was no prejudice occasioned to the accused further supports the inference.

31 For there to have been misconduct, as defined in s 53A, requiring mandatory discharge of the juror, there must not only have been an inquiry made by the juror but one that was "for the purpose of obtaining information about … (a matter) relevant to the trial": s 68C(1). There is nothing in what the judge conveyed to counsel about the juror's "passing comment" to indicate what the juror's purpose was. The correct construction and scope of this part of s 68C(1) may raise questions but they do not need to be resolved here. It can either be assumed that the juror's "purpose" was of the type the provision is concerned with, or there was error in not inquiring as to what it was.

32 This brings me to the next provision that is relevant - section 55DA: 55DA Examination of juror - juror making private inquiries about trial matters (1) A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention of section 68C.

(2) A juror is not excused from a requirement to give evidence on such an examination on the ground that the evidence may tend to prove that the juror has committed an offence against section 68C.

(3) However, if the judge is satisfied, after the evidence has been given, that the evidence may tend to prove that the juror has committed an offence against section 68C, the judge is to cause the juror to be given a certificate under this section in respect of the evidence.

(4) In any proceedings for an offence against section 68C, evidence given by a person in respect of which a certificate under this section has been given cannot be used against the person.

33 This is a provision clearly designed to meet a situation such as was presented to the judge in this case. The juror could have been examined to confirm the making of the "passing comment" to the court officer and to ascertain precisely what he or she had meant by it. It could have been determined with clarity whether the juror had in fact made a type of inquiry that was prohibited by s 68C. If so, the juror would have been discharged and the issue whether the trial should continue with a reduced number of jurors (s 22 of the Act) considered. If not, the trial could have continued with any question as to the continued participation of the juror dispelled.

34 There have been a number of cases dealing with the question of a person being a member of a jury when for some reason the person should not have been. For example, in R v Brown & Tran [2004] NSWCCA 324; 148 A Crim R 268 a woman received a jury summons but attended court on a day earlier than required. A series of administrative errors led to her premature attendance not being detected and she was sworn as a member of a jury. The error became known during the course of the trial but there was agreement between the parties that it was of no significance and the trial judge acquiesced. On appeal it was held that the trial had been a "nullity".

35 It is unnecessary to explore the detail but, in essence, it was held that the jury in the trial had not been of "12 persons returned and selected in accordance with (the Jury) Act": s 19 of the Act. Sperling J, with whom Mason P and Sully J agreed, reviewed a number of authorities, including in the High Court of Australia, for the proposition that a failure to comply with mandatory provisions governing the constitution and authority of a jury will result in any conviction being set aside on appeal.

36 R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134 concerned a person being on a jury who was "disqualified" to serve as a juror. This became apparent mid-trial. The trial judge discharged the juror and determined in accordance with s 22 to continue the trial with a reduced number of jurors. The accused brought an appeal to this Court pursuant to s 5F Criminal Appeal Act 1912. It was held by Simpson J, Hoeben J agreeing but McClellan CJ at CL dissenting, that: [61] … Section 19 is explicit in its terms: a jury in a criminal trial is to consist of 12 persons returned and selected in accordance with the Jury Act . This jury was not returned and selected in accordance with the Jury Act . It included one member (purported member) who was disqualified from serving. The trial process was flawed from the outset.

37 The view of the trial judge, and of McClellan CJ at CL, was that s 22, which authorised the continuation of a trial with a reduced number of jurors, had the effect that the trial was not vitiated. Simpson J held (at [67]), with the agreement of Hoeben J, that s 22 is predicated upon a jury having been returned and selected in accordance with the Act (s 19) and did not encompass the circumstance that one purported member of the jury was not qualified to serve.

38 The point of departure between Simpson and Hoeben JJ on the one hand and McClellan CJ at CL on the other was as to the application of s 22. There was no disagreement as to the general principles that applied. McClellan CJ at CL provided (at [32]) a useful summary of those emerging from the most recent of the High Court of Australia authorities dealing with the issue, Katsuno v The Queen [1999] HCA 50; 199 CLR 40: · "[T]he failure to observe mandatory provisions relating to the constitution and authority of the jury" are failures "to observe the requirements of the criminal process in a fundamental respect" (at 60 [35])

· "A conviction simply cannot stand if the trial process is flawed in a fundamental respect." (at 60 [35])

· There will be a failure to observe the requirements of the criminal process in a fundamental respect if there has been a failure to comply with a mandatory provision relating to "the constitution and authority of the jury." (at 62 [41])

· Not every legislative provision is mandatory. However, provisions relating to the summoning and number of jurors are mandatory. (at 61 [41]-[42])

· In Maher, Short and Dempster there was non-compliance with legislative or mandatory procedures which resulted in a person or persons sitting on the jury when not entitled to do so. In those circumstances there has been a relevant fundamental failure in the trial process. (at 62 [43])

39 The reference to cases in the last point are to Maher v The Queen [1987] HCA 31; 163 CLR 221, R v Short (1898) 15 WN (NSW) 140, and R v Dempster [1924] SASR 299.

40 In the present case, it can at least be said that there was a distinct possibility that there was a person serving as a member of the jury and involved in the return of its verdicts who should not have been. If, as seems likely, the juror had made an inquiry that was prohibited by s 68C, mandatory discharge of that juror was required. A failure to discharge the juror would amount to "a failure to comply with a mandatory provision relating to the constitution and authority of the jury".

41 The issue was not properly explored by the trial judge by the use of the power to examine the juror pursuant to s 55DA. As a result, there was a possibility of a miscarriage of justice and this Court is in no position to say that it did not occur. I am of the view that the trial miscarried for this reason.

42 For completeness there should be mention of another provision of the Act. Section 73 is directed to the preservation of jury verdicts despite certain irregularities: 73 Verdict not invalidated in certain cases (1) The verdict of a jury shall not be affected or invalidated by reason only: (a) that any juror was, after being required by summons to attend for jury service, mistakenly or irregularly empanelled, whether because the juror was disqualified from serving, or was ineligible to serve, as a juror or was otherwise not returned and selected in accordance with this Act, or Note . For example, this paragraph prevents the verdict of a jury from being invalid if, as in R v Brown & Tran [2004] NSWCCA 324, a juror who received a jury summons reported for service a day early and was mistakenly empanelled. (a1) that any juror became disqualified from serving or ineligible to serve as a juror in the course of the trial or coronial inquest, or (b) of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act, or (c) that any juror was misnamed or misdescribed (where there is no question as to the juror's identity). (2) Subsection (1) does not apply: (a) in respect of a juror if the juror impersonated, or is suspected of impersonating, another person, or (b) if there is evidence of any other attempt to deliberately manipulate the composition of the jury.

43 None of the circumstances in s 73 apply in the present case. It should be noted that the reference to "disqualified" or "ineligible" jurors in s 73(1)(a1) is inapplicable because those are terms used to describe categories of persons listed in Schedules 1 and 2 of the Act who are disqualified generally (for example, persons with certain criminal antecedents) or who are ineligible generally (for example, a judicial officer).

44 Finally, a large part of the argument presented in written submissions by both parties was devoted to whether the irregularity was a matter that impugned the verdicts, the Crown contending that "the irregularity has not affected the verdicts; and that the jury would have returned the same verdicts had the irregularity not occurred". It is unnecessary to deal with these submissions as they are not to the point. I simply observe that the subject matter of the juror's apparent inquiry was a matter that was not in issue, was referred to in a relatively fleeting manner and, in my view, was highly unlikely to have given rise to any risk of prejudice to the appellant. This simply serves to highlight that it is most regrettable that the issue was not dealt with in the manner for which the Act provides.

45 The foregoing reasons are directed to grounds 1 and 2 but it is appropriate to direct some brief remarks to ground 3. This ground asserts that the judge failed to adequately direct the jury in respect of any information that may have been obtained through the juror's internet inquiry. I am not persuaded that this ground has been made out.

46 Nothing was said on the subject of Falun Gong in the course of the judge's summing up to the jury. However, at a very early stage he identified the oral testimony and exhibits in the trial as the "evidentiary material" and directed the jury that this was the "only material" upon which it could act to reach its verdicts. (SU 2.10). This was repeated in almost identical terms a short time later (eight pages later in the transcript).

47 There were further references to the verdicts being based upon the "evidentiary material" throughout the summing up. The following passage gives the flavour: If it should be, members of the jury, upon your consideration of the evidentiary material , you are satisfied beyond reasonable doubt of the guilt of the accused, and that applies in relation of (sic) the three charges, you have a duty and your duty is to find the accused to be guilty. On the other hand if upon your consideration of the evidentiary material you have a reasonable doubt about whether the accused is guilty of the charges, then you have a duty, it is to give the benefit of the doubt to the accused and to find him to be not guilty. (Emphasis added). (SU 22.5)

48 The judge then directed the jury that the accused was presumed innocent and explained: So, members of the jury, the starting point is, the accused is innocent of the charges unless and until his guilt is proved by the evidence beyond reasonable doubt. So, members of the jury, if upon your consideration of the evidentiary material you reach the moment in time when you become satisfied beyond reasonable doubt of the guilt of the accused, and that applies to all of the charges, then the accused loses the presumption of innocence. But on the other hand if upon your consideration of the evidentiary material , the moment in time is never reached when you become satisfied beyond reasonable doubt of his guilt, then the accused remains presumed innocent, that is the third rule. (Emphasis added). (SU 22.9)

49 So frequent was the judge's use of the term "the evidentiary material" that, in light of his definition of the term as comprising the oral testimony and the exhibits, the jury can have been left with absolutely no doubt that their verdicts could not be based or influenced upon anything that was not evidence in the trial. I have earlier set out what the judge said on the fourth day of the trial about the impermissibility of jurors acquiring information from other sources. Further, the topic of Falun Gong was a most peripheral matter. In all of these circumstances I do not believe there is any prospect that the jury did not apply itself to its task in an appropriate manner.

50 Whilst two grounds of appeal were notified only one was pressed. It was that "the sentence was manifestly excessive in all of the circumstances. It is unnecessary to deal with it because of the outcome of the appeal against conviction.

I propose the following orders: 1 The appeal against conviction is allowed.

3 Direct that there be a new trial. **********

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