Tootle v R

Judgment

1. SIMPSON JA: Over six days in May 2016 the appellant stood trial in the District Court in Parramatta on an indictment containing 11 counts of sexual offences against a single complainant, alleged to have been committed between February 2009 and November 2012, in three separate episodes. At the conclusion of the trial (in circumstances to be recounted) the jury returned verdicts of guilty on all counts. Four of the verdicts of guilty were unanimous; eight were majority verdicts given in accordance with the provisions of s 55F of the Jury Act 1977 (NSW). On 16 December 2016, under the provisions of s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW) ("the Sentencing Procedure Act"), the trial judge sentenced the appellant to an aggregate term of imprisonment for 8 years, commencing on 12 May 2016, with a non-parole period of 5 years which will expire on 11 May 2021. In accordance with s 53A(2)(b), she made a record of the sentences she would have imposed, if sentencing separately for the individual offences.
2. The appellant appealed against the convictions; he identified five grounds of appeal. He did not seek leave to appeal against the sentence imposed.
3. The appeal was heard on 20 April 2017. At the conclusion of the hearing, this Court upheld Ground 1 of the appeal and made the following orders: (1) Appeal allowed; (2) Convictions quashed; (3) There be a new trial.
4. Ground 1 of the appeal was in the following terms: "The trial judge erred in her directions to the jury regarding their role in questioning the witnesses in the trial, causing the proper bounds of the jury's role to be breached. It occasioned a fundamental breach in the integrity of the trial and a miscarriage of justice."
5. What follows are my reasons for joining in the orders made.

Background

1. Having regard to the issues involved in the successful ground of appeal, the relevant facts and circumstances may be stated briefly.
2. In 2009 the appellant, then aged 49, was a senior referee for a local district soccer competition. The complainant, then aged 12 or 13, also became involved as a junior referee. The two became friendly. The first offence was alleged to have been committed between January and May 2009, by the appellant touching and fondling the complainant. The next seven offences were alleged to have been committed on a single occasion in the appellant's home, when the complainant was visiting two brothers who were at that time temporarily living with the appellant. The offences involved various forms of sexual misconduct, which it is not necessary here to detail.
3. The last three offences were alleged to have been committed in the complainant's home, on an occasion when the appellant visited him, ostensibly for the purpose of making refereeing arrangements. At that time, the appellant was 17 years of age. Again, it is not necessary to go into the details of the allegations against the appellant.

The trial

1. The trial commenced on Monday, 9 May 2016. The Crown case closed on Friday, 13 May. The appellant did not give evidence, but called two witnesses. One (to whom I will refer as "AB", was the father of four boys who had become acquainted with the appellant through his sons' soccer activities. The other was one of the brothers ("CD") who had lived for a time with the appellant.
2. At the conclusion of the evidence, both counsel addressed. The trial judge commenced summing up on Tuesday, 17 May.
3. The jury retired early on the morning of 18 May, and were allowed to separate at the end of the day, not having reached a verdict. They further deliberated on 19 May, but then (for reasons it is not necessary to go into) did not resume until Monday, 23 May. They asked some questions during the course of that day and the next. During the afternoon of 24 May, the jury sent the trial judge a note advising that they had reached unanimous verdicts on some counts but not others. It seems (although the transcript is not entirely clear) that unanimous verdicts were taken on the four counts on which the jury had reached agreement. The jury advised that they considered it unlikely that further deliberation would produce unanimous verdicts on the remaining seven counts. In accordance with s 55F of the Jury Act, the trial judge then directed the jury with respect to majority verdicts on those counts. At 4.42pm the jury returned to court and delivered majority verdicts on each of those counts.
4. From the beginning the trial took an unusual course. This was, in fact, the third trial of the appellant on the counts on the indictment, two earlier trials having failed to produce verdicts. That is, for present purposes, of little significance except that it means that the evidence of the complainant was given, in accordance with s 306I of the Criminal Procedure Act 1986 (NSW), via the video recording of his evidence given in the first trial.
5. The unusual features of the trial began on the first day, when the trial judge was making the customary introductory remarks to the jury concerning the roles of the various participants and procedural matters. During the course of those remarks, she said: "Something else I should tell you, ladies and gentlemen of the jury, is that you are entitled to ask questions of the witnesses but you should be aware that a particular point after the witness has given evidence - I'll just tell you what's going to happen after lunch. The Crown will open the case to you and Mr Gaitanis [counsel for the defence] will open briefly to you and then the Crown will call the first witness. In this case I'll be explaining something shortly to you about that but, generally speaking, what happens is the witness is called and then there's cross-examination and on occasion there's re-examination by the barrister who calls the witness. After that point I say, 'Mr Crown, can the witness be excused?' Why I do that is that, at that point, the witness is excused in answer to their summons, and there's no mystery about that … So if you do wish to ask a question of a particular witness, it's much, much better that you do so before I say the words, 'The witness is excused,' because once they're excused they're free to go and it's very difficult to get people back. All questions or notes, I think I explained to you, have to be put in writing and put inside an envelope and just seal the envelope and give it to the court officer, and also, if you have any notes, it's much better that you give the note to the court officer before you come back in again. It doesn't matter if you forget or you're writing a note quickly, but if the note is there it's better to give it to the court officer rather than come in give the note to me because then you've got to go back out again because I have to discuss it with counsel and read it onto the record, so if you could bear that in mind … Anyway, I'll just remind you of this; I don't know that I did. If you have any questions about the evidence or the procedure during the trial or you have any concerns whatsoever about things that are happening with the trial, you should direct them to me and only to me. The sheriff's officers and court officers are there to attend to your general needs but not there to answer questions about the trial itself. Should you have anything you wish to raise with me or to ask me, please make a note and give it to the officer. The note will be given to me and, after I have discussed the matter with counsel, I shall deal with the matter."
6. It was the direction contained in the first three paragraphs of this passage, and what followed, that gave rise to Ground 1 of the appeal. The course of the trial shows that the jury took the direction at face value.
7. On 10 May the video recording of the evidence of the complainant was played to the jury. This appears to have taken a good proportion of that day. The father of the complainant was then called, and, at the conclusion of his evidence, he was excused from further attendance. At the commencement of the following day (11 May), the jury sent three notes to the trial judge, one of which was clearly prompted by the complainant's father's having been excused from further attendance. One of the notes concerned references in the recording of the complainant's evidence to s 41 of the Evidence Act 1995 (NSW). (From this it may be inferred that the video recording played to the jury included mention of this section.) Another concerned the date of the video recording of the complainant's evidence and the timing of a call made to the emergency number on 29 November 2012. The third was in the following terms: "… we the jury would like you to clarify how we can ask questions of a witness if you dismiss them immediately after they answer questions by the Crown Prosecutor and defence. Can you explain the process in case we want to discuss questions before asking them?"
8. The questions were discussed before the jury returned to court. Counsel for the appellant signalled some concern about the process that had begun. He said: "The tenor of the questions that have been submitted to your Honour thus far seem to suggest that the jury is now inclined towards taking an investigative role in these proceedings as opposed to listening to the proceedings. Your Honour, there should be some direction from your Honour that they should be forbidden from trying to investigate what this case is about and to come - that's the tenor of what is happening at the moment. They want to know about the time of the triple-0 call, they want to ask questions of the father potentially. … They're trying to make enquiries about what s 41 of the Act is, the Evidence Act. In my respectful submission their enquiries at the moment are precipitous, they should just listen to the evidence and take it all in rather than trying to investigate what really happened on these occasions. It's treading down a dangerous path at the moment, they're going to try to solve the case if I can use that in a colloquial sense as opposed to taking in the evidence and trying to determine guilt or otherwise beyond a reasonable doubt. At the moment they're trying to investigate what's happened and in my respectful submission they're going beyond what their duty is or what their duties under their oath is. I raise that for your Honour's consideration." As events unfolded, counsel's concerns proved to be percipient.
9. The trial judge declined to give the direction sought. This was notwithstanding that the Crown prosecutor said: "I sympathise to a certain extent with my learned friend's submissions in the sense that there could on one level be seen to be something of a contradiction between the role of the jury in the sense that they are here to decide facts but not to determine what evidence is led, but by the same token they are invited to ask questions. They're told not to investigate and yet they are entitled to ask questions, whether to clarify or not it can be fine line perhaps but that--"
10. He expressed his concerns to have been alleviated when the trial judge said that she would tell the jury that every question should be reduced to writing, would be discussed with counsel in order to determine whether there was any objection, and, in the event of an objection (presumably an objection she upheld), the question would not be asked.
11. The jury then returned to court. The trial judge gave an uncontroversial answer to the question about s 41 of the Evidence Act, and then turned her attention to the question about the procedure for dealing with the jury's questions, a question that, addressing the jury directly, she described as: "… a very valid point, very valid …"
12. The transcript records that she then said: "Yes, I just repeat I do apologise, that's a very valid point. As it turns out, and I'm not suggesting you will or you won't, the gentleman who gave [evidence] yesterday is available today. If you wish to ask a question of any witness, you should reduce the question to writing and put it into the envelope. Then the question will come into Court and I will read the question out. Everything that you write has to be read onto the record in your absence in case the counsel, which the[y] normally do, want to make some contribution and then all these notes are also kept. We would receive the question, then I'll discuss it with counsel; if there's any objection to a particular question then I can rule on that. If not, the question will be asked. So what I'll do is before I say the words 'Can the witness be excused?', I'll say to the jury, 'Do you want to ask any questions?' or 'If you do, would you like just go back to the jury room to formulate your question.' I should have explained that to you. And you would go back to the jury room to be able to discuss what you wish to ask." She then dealt with the question concerning the date of the video recording, telling the jury that that also was "a very good question". She added: "So if you have any questions, that's an example of it, then that evidence will come out as long as it's not objected to, and even if it is objected to I have to rule on it." That set the course of the trial.
13. Evidence was then given by the complainant's mother.
14. Later on the same day the jury sent a note setting out five questions to be asked of the complainant's father. The questions were: "(1) how would you describe [the complainant's] personality and character, (2) how did [the complainant] get to friend's houses, was he always driven by family or did he make his own way there, (3) what is your occupation, (4) why did [the appellant] visit your house when his house was broken into, (5) how would you describe your relationship with [the appellant]?" A substantially similar set of questions was directed to the complainant's mother.
15. The trial judge discussed the questions at some length with counsel, and both witnesses were recalled to give evidence on the voir dire, in order to ascertain the answers they would provide to the questions posed. In the course of that discussion, the Crown prosecutor said: "Well, your Honour, it is a difficult position because it does bring into stark relief the question if a jury is entitled and indeed commonly directed that they may ask questions of a witness what is the purpose of permitting jurors to do that if when it comes to probative evidence, evidence which may be probative, either advancing the Crown case or the accused's case, that the questions are disallowed. If there is no inherent prejudice in the answer in the sense of - it probably comes down to this in the Crown's submission, without having had a chance to look at the usual directions and to research this unusual aspect, surely the question is, your Honour well knows the distinction between unfair prejudice because it helps to prove the case, which isn't really unfair prejudice, and truly unfair prejudice, which is evidence that shouldn't be allowed before a jury. … The Crown submission is that that would make a nonsense of the invitation to jurors to ask questions if that was the distinction, if it proved something then they're not allowed to ask it, if it's innocuous and it doesn't prove anything for one party or the other then it's permitted. It rather does make a nonsense of the right …"
16. In the result, the trial judge permitted certain of the questions to be asked of the witnesses in the presence of the jury, and those questions were put by the Crown prosecutor.
17. The next witness (to whom I will refer as "EF") was also involved in the soccer competition. At the conclusion of his evidence, he was asked to wait outside court for a time, the intention being that the jury would be given an opportunity to formulate any questions they wished to have asked of him. At the end of the day's proceedings, and before the jury was released for the day, the transcript records that the trial judge said: "Ladies and gentlemen of the jury, the jury [sic] will be adjourning shortly. If you can, but if you can't it doesn't matter, could you just go back to the jury room for a moment and see if you have any questions for [EF]? Yes if not he can come back tomorrow but if not he can be excused, thank you."
18. The jury took up the invitation and notified the judge of eight questions (in two separate notes). The first note read: "1 - Have you ever received any complaint about or by [the appellant]? If 'Yes' please elaborate by whom and describe the complaint. 2 - Have you ever received any complaints about or by [the complainant]? If 'yes' please elaborate by whom and describe complaint; 3 - Can you verify that there was a valid Working With Children check for [the appellant]?; 4 - Re summer comp. Can referees be nominated by superiors instead of self-volunteering via email? Do you recall an email from [the complainant] expressing his interest?" The second note read: "1. Does the term or phrase 'tormenting' mean anything to you. Have you heard it used in your football association or have any people used it reference [sic] to their interaction with other members? 2. What prior football experience does [the appellant] have prior to coming to [the area]? Why did he leave the previous club if he did have a prior club? 3. What have been your observations of the nature of [the appellant's] interactions and treatment of trainee and junior referees? 4. Can you describe some practical jokes that happened in your association? Is that part of the club's culture?"
19. I do not propose to go into the questions directed by the jury to the remaining Crown witnesses. The pattern did not vary in any material respect: at the conclusion of the evidence of each witness, the trial judge invited the jury to formulate questions; when the jury did so, she discussed the admissibility of the questions with counsel, made rulings, and, where she allowed the questions, the questions as formulated by the jury were put to the witnesses by the Crown prosecutor.
20. As indicated above, two witnesses were called in the defence case. The first was AB. At the conclusion of his evidence, and following the same pattern as she had in relation to the Crown witnesses, the trial judge invited the jury to consider whether they had any questions they wished to ask. The jury did. They posed the following questions: "1. Has [the appellant] ever given gifts to your son? If yes please describe these gifts. 2. Have your sons visited [the appellant's] house? If yes for what reason, how frequently? 3. Has [the appellant] ever visited your house? If yes under what circumstances? 4. Did you ever visit [the appellant]'s … houses? If yes can you describe the layout of the houses at all?"
21. Counsel for the appellant again raised concerns. He said: "Your Honour, the nature of those questions is suggesting to me, your Honour that the way the jury's minded is that [the appellant] needs to explain his innocence and I have a real problem with that your Honour. The inference being that if he has to vouch for his conduct every time he sees or talks to someone or goes anywhere."
22. AB was recalled for questioning on the voir dire, the four questions were put to him, and defence counsel, in answer to a question from the trial judge, indicated that he did not object to the questions being put to him. However, the transcript records that he then said: "I objected your Honour to the, I suppose it was a complaint about the continuing messages and the tender [sic - tenor] of the jury's messages, I'll think about that over the weekend, your Honour. The answers can be moved, these answers can be moved. I want to have a think about my position regarding these continuing questions, your Honour."
23. The Crown prosecutor, however, took a different view. He said: "Your Honour I've changed my view to the extent that I think I can change my view, having heard the answers and in my submission the evidence of the witness has gone far enough and I'd be submitting that your Honour should perhaps inform the jury that you've taken careful consideration of the questions they want to ask but perhaps say that the parties have had an opportunity to fully examine the witness and cross-examine as they wish and I propose to disallow the questions, the further questioning."
24. As recorded in the transcript, counsel for the appellant responded: "Your Honour that then puts the jury [sic - ? accused] in a bad position because the balance of the questions - most of the questions have been answered and there's going to be an inference drawn as against the accused now if these questions aren't answered in the way that the witness did in the voir dire. In other words they're going to be left with a position where we're not providing them with any evidence about what [the appellant] does when he goes and sees his kids, the witness's kids. I think the answers are benign, there's no prejudice to the Crown and certainly if we don't answer them now the jury is going to think that there is something suspect as between [the appellant] and [AB's] children which was my initial concern your Honour but it needs to be rectified with those answers."
25. The questions were then put to AB and answered.
26. Ten questions were posed to the applicant's second witness, CD.
27. As I have said, it is unnecessary to go into further detail of the quantity or content of the jury's questioning. It is sufficient to say that the trial judge gave every encouragement to the jury to involve itself in the investigative process, including by describing questions they asked as "very valid", or "a very good question". In all, the jury posed 56 questions of various witnesses, 11 of which were directed to the parents of the complainant, eight to EF, and a number to other Crown witnesses and defence witnesses.

The contentions of the parties

1. Counsel for both parties provided helpful written and oral submissions with respect to this ground of appeal. The argument put on behalf of the appellant was, essentially, that the invitation of the trial judge to the jury to submit questions to be asked of the various witnesses drew the jury into an investigative role which transformed its proper role (as impartial arbiter) to that of a participant in the process, thereby compromising its impartiality, and that the trial therefore did not meet the standard that the law requires of a criminal trial.
2. Counsel for the Crown adopted the position that, although the process was unusual, and even undesirable, the law permitted juries to ask questions and the process did not give rise to a miscarriage of justice.

Determination

1. The investigation of an offence takes place well before any trial, as does the assembly of the evidence upon which the prosecution will rely to prove the offence. It is the proper role of the prosecution to determine the witnesses who will be called, and the evidence in chief that will be adduced from them, just as it is the proper role of defence counsel to determine what, if any, further evidence will be adduced in cross-examination or in the defence case.
2. If what might appear to a bystander to be a relevant question is not asked, it may be assumed that there is legitimate reason why it is not asked. A third party, whether judge or jury, in ignorance of the full brief of evidence, may, by asking an ill-advised question, blunder into the arena. This is not to suggest that questioning by a judge or jury necessarily signifies partisanship - a question may be completely neutral, at least in the mind of the questioner. But it may disrupt a carefully laid strategy on the part of either party. It is not to be encouraged.
3. The fundamental question is whether the process adopted in this case rendered the trial unfair. If it did, there was a miscarriage of justice (Ratten v The Queen (1974) 131 CLR 510 at 525; [1974] HCA 35, per Menzies J). Whether any practical injustice could be demonstrated was immaterial; a miscarriage of justice occurs where a trial departs from "the very nature of a criminal trial and its requirements in our system of criminal justice" or is "altered in a fundamental respect": Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [43]. Such a miscarriage of justice may be seen where a person is prejudiced in his or her defence because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case (Lee at [41]).
4. It is therefore appropriate to consider what is "the very nature of a criminal trial and its requirements in our system of criminal justice" - the essential elements of such a trial (Lee, at [43]).
5. The system of criminal justice places considerable faith in the adversarial process. A criminal trial conducted in accordance with well-established principles follows a conventional path. Each participant has a distinct role to play. The prosecution presents such evidence as is admissible to establish the guilt of the accused (although a prosecutor has particular obligations of fairness that go beyond the obligations of counsel in party/party litigation (Whitehorn v The Queen (1983) 152 CLR 657 at 663-4, 675; [1983] HCA 42; see also Lee, at [44])) and to seek (again within well-established rules including as to fairness), to persuade the jury of the guilt of the accused. The role of defence counsel is to seek (also in accordance with well-established rules) to cast doubt on the evidence adduced by the prosecution or the inferences the prosecution seeks to have drawn from the evidence, and to put the case for a reasonable doubt as to the guilt of the accused, whether this is done by adducing evidence in the defence case or by challenging the prosecution case. The role of both judge and jury requires that each maintains a position of impartial arbiter, the judge as to procedural, evidentiary and legal issues, and the jury as to the facts and the final determination of whether the prosecution has established, to the requisite standard, the guilt of the accused. Crucially, neither has any investigative or inquisitorial role.
6. It is also of prime importance (but may not readily be apparent to the jury) that the accused knows, well in advance of its presentation in court, what the case of the prosecution is and the evidence by which it proposes to make that case, and therefore what evidence he or she needs to adduce (whether by cross-examination or by calling evidence) in order to meet the prosecution case.
7. Only the parties and their legal representatives have, at the commencement of and during the trial, a complete overview of the evidence to be called. Neither judge nor jury is privy to the case as a whole. The structure of the trial is undermined if the jury is permitted to take on an inquisitorial role, and steer the trial in a direction different from that laid out by the prosecution, and known to the defence.
8. Many years before Lee, a differently constituted High Court considered in more detail the respective roles of various participants in a criminal trial: Ratten at p 517. Barwick CJ endorsed a proposition stated by Smith J in the Full Court of the Supreme Court of Victoria (Re Rattan [1974] VR 201) in the same case, in the following terms: "Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence." He went on to say: "It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he wiII call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not …" (at p 517) These remarks were made in the context of a consideration of whether a miscarriage of justice had occurred because of the absence from the trial of evidence subsequently obtained, but they are apposite to the present issue. The observations about the role of the judge are, for present purposes, equally applicable to the role of the jury. These formulations leave little, if any, role for the jury in the determination of the evidence that is adduced.
9. Guidance may also be obtained from a number of cases in which the necessity for the judge to maintain a distance from the participants has been emphasised. A comprehensive discussion is to be found in the judgment of Wood CJ at CL in R v Esposito (1998) 45 NSWLR 442 at 460-473. The authorities there discussed in that case establish (hardly controversially) that it is ordinarily inappropriate for a judge to "descend into the adversarial arena": R v Damic [1982] 2 NSWLR 750 at 762. (I interpolate that it is equally inappropriate for a jury, the tribunal of fact in a criminal trial, to do so.) Excessive participation by a judge in the questioning of witnesses may result in a miscarriage of justice, for any of the reasons given in R v Mawson [1967] VR 205.
10. Any practice of a trial judge allowing a juror or jurors directly to question witnesses has long been frowned upon by this Court: R v Pathare [1981] 1 NSWLR 124; Damic, at 763; Sams v R (1990) 46 A Crim R 468 at 472-473.
11. No doubt in recognition of the attitude towards direct questioning of witnesses by jury members stated by this Court in the cases cited above (although in the initial direction, extracted above, the trial judge expressly advised the jury of what she called their entitlement to ask questions of the witnesses), the trial judge in fact instituted a procedure whereby the jury submitted to her the questions they wished to be asked of various witnesses, which were then subjected to examination by counsel, and were put, in the absence of the jury, to the relevant witness in order to ascertain what evidence would be elicited.
12. The Appeal Division of the Supreme Court of Victoria, in R v Lo Presti [1992] 1 VR 696, formulated five propositions concerning questioning by juries of witnesses - whether directly or through the judge. The propositions are: "1. Juries should not be told of any right possessed by them to question a witness. 2. A juror who wishes to put, or have put, a question to a witness has a right for that to be done provided that the question or questions is or are limited to the clarification of evidence given or the explanation of some matter about which confusion exists. 3. It is not essential that the question asked be formulated by the foreman. 4. It is highly desirable that the question sought to be asked first be submitted to the judge so that he may consider its relevance and admissibility. 5. If the judge allows the question it is immaterial whether it is actually asked by the juror or the judge. However, if the judge puts the question there will be removed the risk that exists when a layman is the questioner of the generation of a spontaneous exchange of questions and answers in the course of which improper material may emerge." (p 702)
13. Those propositions arose in the circumstances of a case in which the foreman of the jury had been permitted directly and extensively to question three prosecution witnesses, and another member of the jury appears to have been permitted to intervene (p 700). Notwithstanding those propositions, and the extent of questioning, the court dismissed an appeal against conviction.
14. The High Court refused to grant special leave to appeal against the decision, saying: "On the issue arising from the questioning of witnesses by members of the jury, we are not persuaded that there is a firm rule of law prohibiting the asking of questions by jurors. Clearly enough, such questioning is undesirable and in this case it seems to have been permitted to an extent which we find surprising. However, it did not result in any miscarriage of justice." (Lo Presti v The Queen (1994) 68 ALJR 477) Counsel was not able to identify any case in which this Court has explicitly adopted the rather prescriptive statements in R v Lo Presti (in the Victorian Court), and it may be that, at least in propositions (1) and (2), it is overly prescriptive.
15. The question for present determination is whether the adoption of the process of having the questions submitted to the judge, subjecting them to a voir dire process, and having those deemed permissible asked by the Crown prosecutor was sufficient to avoid the adverse concomitants of questioning by the jury that renders direct questioning of witnesses impermissible. That question must be considered in the wider context of authorities dealing with the role of the judge and the proper limits on his or her participation in the questioning of witnesses. As has been seen, the law has taken a narrow view of the extent to which a judge may participate in the process of adducing evidence. There is no reason why that narrow view should not apply also to the participation of the jury.
16. Mr Angelov, counsel for the appellant, helpfully provided to the Court copies of a number of decisions of courts of the United States of America in which a similar question has arisen. It is necessary only to refer to one of those, State of Minnesota v Gerard J Costello 646 North Western Reporter, 2d Series 204 (Minn 2002), which sets out the competing arguments in favour of and against permitting jury questioning of witnesses. As the opinions demonstrate, what had occurred in the relevant trial was not dissimilar to what occurred in the present trial. The trial judge began by informing the jury that they would be allowed to submit questions for the witnesses, in writing. The judge would determine whether the question could or could not be asked. The jury took up the invitation. In my view, the opinions in Costello set out with clarity both sides of the argument, but are persuasively against the case for allowing the jury to involve itself in questioning witnesses, whether directly or through the judge. The reasons given are sufficiently compelling to warrant careful consideration. Rather than attempt a restatement or paraphrase of the reasoning, I set out below what the court said.
17. The arguments in favour of permitting jury questioning were identified as: "(1) trials are a search for truth and juror questions facilitate that search; (2) jurors may need clarification in complex cases to understand the facts; (3) the jury is the finder of fact and these questions help the jury perform that function; (4) increased juror attentiveness; and (5) increased juror satisfaction."
18. However, the court found the counterarguments to be more persuasive. After referring to a number of previous authorities (not directly concerning jury questioning) the court said: "Each of these cases reflects a deep concern that jurors maintain independence from those involved in the case, objectivity with respect to the evidence, and a clear understanding of their role as deciding whether the state has met its burden of proof. Juror questioning must be evaluated in light of its effect on these principles."
19. The court went on: "To maintain independence and objectivity, it is a tenet of our criminal justice system that adjudicators should 'postpone or suspend the final formation of opinion until the parties have "had their day in court" and have presented all the information that they consider relevant in the context of adjudication.' … This principle is particularly important in criminal trials, in which the state presents all of its evidence first, and it is sometimes only after several days of listening to mounting evidence against a defendant that the jury may hear any exculpatory evidence … But in order to ask a question, a juror must first develop a hypothesis or, at the very least, respond to a perceived flaw in a party's presentation of the case before the time to deliberate has arrived. To the degree jurors are encouraged to ask questions about facts and legal issues, they are encouraged to form 'at least a prior tentative opinion because one cannot investigate unless one has a hypothesis about what happened in the particular criminal case.' … 'Although it is impossible to guarantee that jurors will remain open-minded until the presentation of all of the evidence and instructions, passive detachment increases that probability.' … In addition to our concern about the impact that juror questioning will have on juror impartiality, we also are concerned that the practice may affect the burden of proof and production. Due process requires that the state prove beyond a reasonable doubt the existence of every element of the crime charged … Allowing jurors to pose questions could, in some cases, elicit testimony from a witness that sufficiently proves an element of a crime, therefore relieving the state of its burden. The assistance provided to the state by juror questioning may be direct or indirect. Juror questioning can directly assist the prosecution when - as the state approvingly exclaimed in its brief - 'evidence could be revealed by a juror question!' Juror questioning can indirectly assist the prosecution when it simply illuminates a facet of the case that interests the jurors … … Whether one side is benefited more than the other is of secondary concern. Our concern is not in equalizing the number of notches in the belts of advocates but, rather, whether the jury is being lured into a role that is inconsistent with its responsibility to be an impartial arbiter of justice. As we have previously said: [T]he jury's role is not to enforce the law or teach defendants lessons or make statements to the public or to 'let the word go forth'; its role is limited to deciding dispassionately whether the state has met its burden in the case at hand of proving the defendant guilty beyond a reasonable doubt."
20. Recognising the limitations upon the use of statements of principle from jurisdictions in which law and procedures may be very different, the reasoning strikes me as persuasive and applicable to the present circumstances.
21. In this State, it is customary, at the commencement of a trial, and usually immediately after the jury is empanelled, for the trial judge to give a series of general directions concerning procedure, evidence, and the role of the various participants. Some judges include in those directions a caution to the effect that the jury can expect the evidence to unfold gradually and, therefore, that its members should withhold judgment until the evidence is complete. To give such a direction is, in my opinion, a wise and fair precaution. It is often (and, in my opinion, ought to be) reinforced at the conclusion of the Crown case, especially so if it is known that the accused will go into evidence. It may be given again at the end of the Crown's address, if there is to be a break before the defence address commences. These warnings are scarcely compatible with an invitation to the jury to participate in the questioning, which potentially involves anticipation of evidentiary issues.
22. It is true that, in modern times, it is seen as important that the jury be accorded respect, and not treated as passive recipients or mere observers of the trial process. Demonstration of that respect may involve providing explanations for procedural decisions that are made during the course of the trial, and attempting to ensure that the jury is fully informed (so far as it can be, consistently with laws of evidence and procedure) of the course the trial is taking and the reasons therefor. The demonstration of that respect does not, however, include drawing the jury into the process of questioning.
23. Juries are also frequently (and wisely) told (if and when told that they may ask questions) to bear in mind that the parties' legal representatives have a complete overview of the case (which the jury cannot have during the course of evidence), an appreciation of the issues between the parties, and an understanding of the rules of evidence. Juries are commonly, and properly, told that, in the ordinary course, counsel can be expected to ask all relevant questions, and that if a question is not asked which might appear to a jury or juror pertinent, there is probably a very good and legal reason for that omission. These are directions that keep the jury informed, but without inviting them into a role that is incompatible with their function.
24. It is not to the point that the questions asked by the jury may not indicate that they had, at the time of asking, adopted any particular position. As suggested in Costello, the mere fact of their involvement in the eliciting of evidence can, and can be seen to, compromise their function.
25. Nor is it necessary, to reach the view I did in joining in upholding Ground 1, to examine the content of the jury's questions, although such an examination is capable of raising concerns that that questioning may have steered the trial in a direction different from that that the parties had anticipated. For example, there was no hint in the Crown opening of a case to be made by reference to tendency evidence. Yet the tenor of some of the questions posed by the jury was susceptible to the interpretation that the jury were thinking along tendency lines. And the willingness of the Crown prosecutor to accept questions along those lines (see [23] above) is demonstrative of the very thing that should not be allowed to happen - the diversion of the case the prosecution proposes to make to one influenced by the exposure of the jury's thinking.
26. I was satisfied that the process undertaken in the present trial crossed the boundary to the point in which the very nature of the trial was altered in a fundamental respect (Lee, cited above at [40]). The trial was not a trial according to law. That in itself constitutes a miscarriage of justice.
27. At the conclusion of the argument, the Court announced the orders it proposed to make. Counsel for the appellant asked for reconsideration of the order for a new trial, pointing out the history of the prosecution of the applicant (see above at [12]). That history may be thought to be a powerful case for no further proceedings to be taken against the applicant. But the decision to prosecute is one entrusted to the Director of Public Prosecutions, and may involve considerations other than those that are before this Court. In my opinion, only rarely should this Court intervene in what is essentially an administrative function of determining whether or not a person is to be prosecuted. Having considered the application, or request, I maintained my original view.
28. For those reasons I joined in the orders made.
29. McCALLUM J: I agree with the reasons stated by Simpson JA, which accurately reflect my reasons for joining in the orders made on 20 April 2017.
30. FAGAN J: I agree with Simpson JA that a miscarriage of justice, within the third category of appeal grounds recognised in s 6(1) of the Criminal Appeal Act 1912 (NSW), was occasioned by the learned trial judge's encouragement of the jury to formulate questions of each witness beyond those which either the Crown or the accused had seen fit to put.

Judicial discretion to allow jury questions

1. The discretion of a trial judge whether to have questions from jurors put to witnesses was referred to by Street CJ in R v Pathare (1981) 1 NSWLR 124 at 125B: "The juror [who desires to have some further material elicited] should ask the judge, who will, if he thinks the question to be proper, ask it himself."
2. Street CJ restated the limited scope for questioning by jurors in R v Damic (1982) 2 NSWLR 750 at 763D: "… it is permissible practice for a judge, at the request of the jury, to ask a question or questions of a witness where such questions relate to relevant and admissible matter which the judge, as a matter of discretion, thinks it appropriate to put to a witness".
3. The discretionary aspect was subsequently reaffirmed by Hunt J in Sams v R (1990) 46 A Crim R 468 at 473, in these terms: "If a juror wishes to ask a question, he should first ask the judge who, if he thinks it is appropriate, will then ask it himself".

Trial judge's encouragement of jury questions

1. Seen against these pronouncements, which have not subsequently been qualified or abandoned by this Court or overruled by the High Court, it was a procedural error for her Honour the trial judge to have told the jury "you are entitled to ask questions of the witnesses" (see the passage from the opening remarks quoted by Simpson JA at [13]). The procedural error commenced to cause a miscarriage of justice when her Honour encouraged the jury to formulate their own questions in exercise of their supposed entitlement and when that encouragement was acted upon by the jury.
2. The course adopted by her Honour, from immediately after the Crown had called the first of its witnesses to give oral evidence, was to allow the jury to withdraw at the conclusion of each witness' re-examination for the purpose of conferring and drafting questions. This procedure must necessarily have given the jury the impression that pursuit of their own enquiries, through questions to the witnesses going beyond the evidence adduced by the Crown and the accused, was routine and was expected of them.
3. The strong encouragement of jury questioning afforded by her Honour's unorthodox procedure was not countered or qualified by any specific direction. Her Honour did not, for example, direct the jury that they should generally accept that counsel had full knowledge of the case and could be expected to adduce all evidence which they considered would advance their respective contentions, within the adversarial framework of the trial.
4. As Simpson JA has identified at [16] and [17], the learned trial judge declined to issue any instruction which might have dampened the jury's enthusiasm for their own questions. Her Honour rejected an express and well articulated request by defence counsel and an expression by Crown counsel of his own reservations about the procedure being followed.
5. Her Honour informed the jury that whether or not their questions would be put to the respective witnesses and answered would depend upon whether objection was taken by one of the parties. This appears at page 52 of the trial transcript (T 52). That is, after the Crown had played back to the jury the recording of the complainant's evidence from an earlier trial and after the first Crown witness had given evidence orally. At that point, when explaining the procedure of submitting notes to the trial judge which would be adopted to facilitate jury questioning, her Honour said: "We would receive the question, then I'll discuss it with counsel; if there's any objection to a particular question then I can rule on that. If not, the question will be asked."
6. Her Honour did not tell the jury that there would be any disallowance of questions through exercise of her own discretion, independently of objection from one of the parties. In what followed it does not appear that any such discretion was exercised. Of the 56 questions submitted to the jury, 33 were allowed and put to the witnesses. There were jury questions submitted to her Honour in respect of all Crown witnesses who gave oral evidence and two witnesses called by the accused. After a voir dire on each set of jury questions, in most cases the jury were brought in and told which of their questions would be asked. They were informed that the others were "disallowed" or "cannot be asked" or were "not admissible".
7. On one occasion, when the jury were told which of their questions (directed to the complainant's parents) would be asked they were instructed in these terms (at T 185): ".. if any of these questions are disallowed you must not speculate in any way as to what the answer may or may not have been. It's very important, thank you."

Miscarriage of justice in consequence of the unorthodox procedure

1. In my view a miscarriage of justice flowed from the following aspects and consequences of her Honour's procedure: 1. The encouragement to formulate questions to elicit evidence beyond that which the parties had seen fit to lead inherently and necessarily fostered speculation and an inquisitorial approach. 2. Hunt J said in Sams v R at 473 that jury questioning "is likely to produce embarrassment when objection is inevitably taken to the form of the question, and even more embarrassment when objection is taken to its relevance". Here, the jury were informed that their questions would be disallowed if objection was taken and upheld. They were not present to hear the objections and did not know from which party they came or on what grounds. That left them with more to speculate about - for example, which of the parties did not want an answer to a question which the jury themselves considered of sufficient importance to warrant submitting it to the trial judge. 3. The instruction not to speculate about what answers might have been given to jury questions which had been disallowed (quoted at [77]) could not overcome the curiosity and speculation which would have been excited by the trial judge's invitation, taken up with such alacrity by this jury, to pose questions. It would ordinarily be quite sufficient to instruct a jury not to speculate about the possible answer to any question which one of the parties may have asked but which may have been disallowed. But jury speculation may well not have been quelled by such a direction with respect to a question which they had themselves formulated, pursuant to the trial judge's encouragement. 4. The procedure of inviting the jury to withdraw to confer about questions would have encouraged discussion amongst them, witness by witness, of how the case was developing and where it might be heading. Such discussion would be a rational preliminary step to jury speculation upon what further information might be obtained from the most recently called witness and how such information might have a bearing on the issues as they saw them unfolding. Such preliminary evaluation and analysis of the case, in the course of formulating questions for witnesses, is the antithesis of the usual expectation that the jury will passively listen to the evidence and defer judgment until they have heard all of it and until counsel have completed their addresses. 5. The appearance of jury detachment and reservation of judgment until the close of evidence and the presentation of final addresses was destroyed in this case by the jury exposing, through questions posed over the course of the trial, their perception of matters extraneous to the evidence adduced, which they appeared to regard as material and perhaps influential.

Examples of jury questions

1. This irregularity of procedure was in my opinion capable of affecting the verdict. It is reasonably possible that the jury may have acquitted the appellant if it had not occurred. I do not base that conclusion upon the content of particular questions taken in isolation or upon discernment that any specific bias or speculation is definitively exhibited in any of them. It would be impossible for the applicant to demonstrate such a precise causal connection. However consideration of a few examples of questions, including some which were rejected, reveals that the jury may have been distracted from considering solely the evidence adduced. The content of the questions overall suggests the jury may have evaluated the case at least in part by speculation about the character of the complainant or the appellant; practices, habits or tendencies of the complainant or the appellant; the general nature of relationships between persons relevant to the case and/or which of the parties may have objected to the jury's questions about these matters and why.
2. One example concerns the complainant's parents. Both of them were called by the Crown. The complainant's mother gave evidence in chief that on one occasion in about 2011, during the period in which the complainant performed duties as a referee in the soccer competition for which the appellant was a senior referee, the appellant had come to the complainant's home and said that his house, some 4 to 5 km away, had been broken into (T 57 - 58). Defence counsel did not cross-examine her on this.
3. The jury's questions for each of the complainant's father and mother included the following: "Why did [the appellant] visit your house when his house was broken into?" "How would you describe your relationship with [the appellant]?"
4. The learned trial judge allowed these questions. The father answered them before the jury at T 111 - 113. He agreed the accused had visited the complainant's home and announced that his own house had been burgled. The father said he did not know why the appellant visited on that occasion. He considered that his own relationship with the appellant was "casual" prior to the complainant making allegations of sexual assaults. These answers prompted defence counsel to elicit in further cross examination evidence that the visit by the appellant on this occasion may have lasted as long as one and a half hours.
5. When the complainant's mother was asked the same questions before the jury she answered that it was a complete mystery to her why the appellant had visited on this occasion, which was at night. With respect to her relationship with the appellant she said (at T 103): "If I saw him at soccer, he'd wave, we'd talk, he'd seek us out. We talked to him. We didn't socialise with him."
6. In chief the mother's reference to this visit was fleeting, apparently irrelevant and no more than a neutral event in her narrative. The encouragement the jury had received to pose their own questions apparently caused them to explore and expand the event. In light of the witnesses' answers about their casual and superficial relationship with the appellant, his attendance at their home, at night, purportedly to inform them of a quite personal matter which did not in any way concern them, was potentially suspicious. The jury may have inferred from the witnesses' answers to their questions that the accused's explanation of his attendance at their home was untrue or incomplete and that the visit may really have been attributable an interest in the complainant (who, as it happened, was not at home at the time).
7. This example exhibits a further problem with evidence being adduced in this way. If the Crown had sought to lead it defence counsel would have understood that a forensic purpose lay behind the questions. Counsel would have analysed what that purpose might be and would either object or take steps to neutralise any adverse inference. Neutralisation might have been effected by asking further questions of the witness, calling explanatory evidence in the defence case or advancing suitable arguments in final address. Under her Honour's procedure defence counsel had no way of knowing for what purpose the questions were asked or what use the jury might think they could make of the answers. That is because they came from the tribunal of fact itself, which was not aligned with either party and therefore inscrutable as to the purposes which lay behind the questions. It would not be readily apparent to defence counsel whether he needed to respond to the additional evidence elicited in this fashion.
8. EF was the secretary of the association of referees for the competition in which both the appellant and the complainant performed refereeing duties. In examination-in-chief by the Crown prosecutor he was asked whether police had requested him to look at the association's records to refresh his memory about the appellant and the complainant (T 117). It is apparent from the next question that the prosecutor's question was concerned with records of dates and times when the appellant and the complainant might have been together at training sessions or for the purpose of coordinating joint responsibilities in relation to matches. However the witness at first answered as follows: "The only information that was requested [by police] was working with children check forms that we keep records of."
9. The subject of working with children check forms was not followed up with the witness, either in chief or in cross examination. After the witness had been re-examined and the evidence of another witness taken, as recounted by Simpson JA at [25] the jury were invited to withdraw to the jury room "and see if you have any questions for [EF]". This resulted in the 8 questions which Simpson JA has quoted at [26]. At T 169 both counsel agreed that questions 1, 2 and 3 on the jury's first note should not be asked. At T 184 the jury were informed that "as a matter of law [questions 1, 2 and 3] cannot be asked". Of these, question 3 was: "Can you verify that there was a valid working with children check for [the appellant]?".
10. This is an illustration of the jury being excited to probe and to speculate about a matter which, had they not been invited to formulate questions, would (appropriately) have been simply disregarded by them. It was an area of speculation potentially damaging to the appellant. Having been told by her Honour that she would determine whether the jury's questions should be asked according to objection, the jury may well have been left with the impression that there was no "valid working with children check" for the appellant and that his counsel must have taken the objection to keep this fact from them. As a matter referred to only in passing and gratuitously in the evidence in chief of this Crown witness, it is not likely the jury would have attached any significance to it if normal procedure had been followed. The jury would likely have accepted that if the Crown did not follow up on the answer it was not material. On the other hand, once the jury had been encouraged to dwell upon possible answers to questions which had not been asked by either counsel, they would likely attach an enduring significance to enquiries which they came up with themselves.
11. Question 1 of the first series quoted by Simpson JA at [26] and questions 2 and 3 of the second series quoted in the same paragraph reflect the development of a jury preoccupation with tendencies of the appellant and uncharged conduct on his part. Again the jury were told at T 184 that "as a matter of law [two of] those questions cannot be asked" and that the third of them "is not admissible and will not be allowed". This was followed, shortly afterwards, by the brief direction quoted at [77]. That was a wholly inadequate antidote.
12. By being encouraged to think of questions that counsel had not asked, it appears the jury may have identified for themselves the possibility that tendencies in the appellant might be probative of his alleged (and contested) sexual interest in the complainant. Necessarily, the task of effectively directing them that speculation about tendencies was irrelevant, in circumstances where they had themselves identified it as an area of interest, would have been much more difficult than if they had never been encouraged (as they were) to adopt an independent inquisitorial role.
13. The questions formulated by the jury for the defence witness AB, quoted by Simpson JA at [28], revealed an ongoing interest of the jury in the appellant's conduct on occasions other than those charged and with respect to persons other than the complainant. All of these questions were answered in the presence of the jury at T 317 - 318. Simpson JA has described at [29] - [32] the difficult position in which her Honour's procedure placed both counsel, with potential for significant unfairness and pressure on the defence, when the jury was invited to pose questions for defence witnesses. Defence counsel was driven not to resist the jury's questions being asked of his own witnesses. As the questions did not come from his opponent and he could not ask or divine the purpose for which the evidence was being elicited, he was hopelessly handicapped in trying to counter or neutralise the evidence, against the possibility that the questioner (the jury itself) may perceive some detriment to the appellant from the answers obtained.

The proviso to s 6(1) of the Criminal Appeal Act

1. I have considered the application of the proviso to s 6(1) of the Criminal Appeal Act. Should this Court conclude "that no substantial miscarriage of justice has actually occurred"? When application of the proviso is considered in relation to errors of that nature the High Court in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 has said, at [41], that this Court's task is: "to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty." [Footnotes omitted.]
2. Their Honours further said: [45] Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for the court not to dismiss the appeal [that is, not to apply the proviso], even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of that kind. [46] It is unnecessary in this appeal to examine the issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form of criminal appeal provision with its proviso: [Wilde v The Queen and other authorities cited]. …" [Emphasis added.]
3. I view this as a case of the type which the High Court found it unnecessary to consider in Weiss v The Queen. The error identified here was different in character from errors such as reception of inadmissible or prejudicial evidence, or failure to give a warning about potentially unreliable testimony or omission to correct a prejudicial and unwarranted submission. That is, it is a case "where there has been a significant denial of procedural fairness at trial" or, in other words, a case where there has been "a serious breach of the presuppositions of the trial". In the equivalent language of earlier authorities, what occurred was "so irregular that no proper trial had taken place, in that 'there had been a serious departure from the essential requirements of the law'": Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29, at pp 600 - 601. "[A]n irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings": Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 at 371 - 373. See also Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 per McHugh J at [74] - [76].
4. Faced with an error of this nature it is unnecessary for this Court to examine the entire trial record in order to form an opinion whether the guilt of the appellant was proved beyond reasonable doubt, as envisaged by the High Court in Weiss v The Queen (the passage quoted at [92]). The error involved in her Honour's encouragement of jury questioning and in the course of events which followed from the jury's acceptance of that invitation affected fundamentally the nature of the trial, in such a way that the appellant was denied a determination of the charges against him in a trial according to law. In this way a significant miscarriage of justice actually occurred and the proviso is not engaged.
5. For these reasons, in addition to those given by Simpson JA, I joined in the Court's orders of 20 April 2017 upholding the appeal, quashing the convictions and requiring a new trial.

Amendments 30 May 2017 - Name of counsel corrected, coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2017