TRIEU v R

12During the course of the trial, the appellant did not give or call evidence, but his co-accused, Mr King, called some evidence from the licensee of the Royal Hotel at Paddington about his employment. Counsel addressed the jury and the trial judge summed up. No complaint is made, on this appeal, about any aspect of the trial other than the failure to discharge the jury. Particularly, no complaint is made about any aspect of the address or the summing up at trial. 13At 1.03pm on Tuesday 25 May 2010, the trial judge sent the jury out to deliberate on the verdicts. The jury sent notes to the trial judge requesting the transcript of particular evidence and asking when the phone [mobile #757] was taken from Mr McCarthy and other telephone information. The jury sent these notes shortly after they had retired to deliberate. 14The second note, relating to a fourth phone, which belonged to the co-accused, was discussed with counsel at some length. A response was given to the jury, part of which included the reading of certain parts of the transcript. At 3.17pm, the jury retired to consider further their verdicts. 15The next day, 26 May 2010, the jury continued its deliberations until 12.04pm when they sent a note advising: "We the jury are unable to make a unanimous decision in regards to Trieu and King". 16At that point, his Honour gave a Black (a reference to Black v The Queen [1993] HCA 71, (1993) 179 CLR 44) direction, relating to the need to consider their verdict further and, at 12.08pm, the jury retired once more to consider their verdicts. 17After a while, his Honour reconvened the court, in the absence of the jury, and the following exchange occurred: "HIS HONOUR: I brought you back because the court officer... (recording equipment not switched on)... witness box and I won't swear her but she can tell you herself what the jury have reported to her. Thank you officer, away you go. COURT OFFICER: The jury members have told me that the last three afternoons as they have left the jury entrance or exit where they come and go all from a member who is here in the courtroom -- HIS HONOUR: A member of the public? COURT OFFICER: A member of the public has been outside and kind of taking it slow to walk past and staring at them and a couple of them seem a little worried. HIS HONOUR: Thank you officer. That was what they expressed to you? COURT OFFICER: Yes well they did actually say what would happen after the verdict when they left, does somebody go with them? HIS HONOUR: Right, okay, thank you. They were asked if they wanted to put anything down in writing and I have received nothing in writing. It is the gentleman I understand whose mobile phone went off yesterday afternoon. So who is he with, Mr Steel, Mr Pontello? Not with you? PONTELLO: No, no your Honour, no. HIS HONOUR: Mr Steel? STEEL: Your Honour I understand he is acquainted with Mr Trieu. HIS HONOUR: Right. Well what I am going to do is I'm going to have the officer report the matter to the sheriff and he can investigate matters as far as that gentleman's conduct is concerned. But that is for the future. I will certainly make arrangements when the jury are discharged that they can all get a taxi home. But I just draw it to your attention in case any of you are concerned about the jury's continued deliberations. There is nothing that I am aware of to indicate that they would think adversely against any particular person but I just brought it to your attention. CROWN PROSECUTOR: I had a similar situation arise recently your Honour and the judge directed the jury that they should not draw any adverse interest [sic] against any party keeping it neutral for the behaviour of people that are in the public gallery. I have a concern that if the jury are feeling that someone is slow to walk past them and staring and they seem worried and they are asking "What will happen after the verdict?" the three afternoons that there's been at least a perception on the verdict that they may come to. HIS HONOUR: Do you want me to give that direction? CROWN PROSECUTOR: Yes I think that your Honour should. HIS HONOUR: Mr Steel, Mr Pontello, what -- STEEL: Your Honour I'm concerned whether the perception that the jury may have, whether they've already drawn conclusions and it's influenced them. I don't know that it's a matter that can be cured by a direction. Might I just have a moment to speak to my client and my instructing solicitor? HIS HONOUR: I'll adjourn. I don't think there is any great hurry but I'll come back in ten minutes." 18When the matter resumed, counsel for each accused applied for his Honour to discharge the jury, because the jury may have impermissibly believed that one or both accused were associated with the person mentioned and that the conduct of that person disclosed a consciousness of guilt on the part of the accused. The Crown opposed the discharge of the jury. 19His Honour refused the application to discharge and directed the jury in the following terms: "Can I just say this about that topic. Look we've made some inquiries. There is no suggestion in the slightest that if he is there deliberately to see you, he's doing that at the request or the behest or under the influence of either accused. So I want to say as firmly as I can that any behaviour that you have observed should in no way influence your determination about whether the Crown's proved the guilt of Mr Trieu or Mr King not guilty. So you must put that out of your mind. As I say there is not the slightest suggestion that either of the accused is responsible for what has been going on. So just put that out of your mind okay." 20Prior to giving that direction, his Honour expressed the view that he was: "Somewhat comforted by the fact that they [the jury] haven't put anything down in writing so their concerns are not serious to that extent".

21The terms of the ground of appeal seek to have this Court interfere with the exercise of a judicial discretion by the District Court. The manner in which such an appeal is determined is governed by established principles which require more than that the judges of this Court determine that, were they in the position of the trial judge, they would have taken a different course: House v The King (1936) 55 CLR 499 at 504. 22Counsel for the appellant accepted that the foregoing is the appropriate test. Where the exercise of discretion results in a miscarriage of justice, as is alleged here, even where express error cannot be identified, latent (or manifest) error may be disclosed: House v The King, supra, at 505. 23It is submitted that the jury's deliberations and consequent verdict were infected by the concern expressed by the jurors, and the inference they may have drawn from the conduct (hereinafter "the conduct") that gave rise to that concern. If this Court were to form the opinion that there has been, as a consequence of the conduct, a miscarriage of justice, then, subject to a proper application of the proviso in s 6(1) of the Criminal Appeal Act 1912, it should intervene. 24The appellant's submission is that the concern expressed to the sheriff's officer was serious. Further, it is submitted that the trial judge dealt with the concern inadequately and ought to have enquired of the foreperson as to how much information had been shared amongst the jury; to what extent this had been a topic of conversation amongst members of the jury; how much of an impact the matter had on deliberations; and whether there was a real risk that jurors had concluded this was some attempt by the appellant to pressure them into finding him not guilty. 25The appellant complains that the trial judge made no such enquiry. Further, the appellant complains that the direction given, and recited above, was inadequate. The kernel of the submissions of the applicant is that absent any enquiry of the kind to which I have referred, it is impossible to say that the irregularity did not affect the jury's verdicts.

26When a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question for this Court is whether, in the circumstances of the case, there was a miscarriage of justice: s 6(1) Criminal Appeal Act 1912. 27The issue on appeal is whether there was such a high degree of necessity for the discharge of the jury that the failure to order such a discharge has resulted in a mistrial: Crofts v The Queen [1996] HCA 22; 186 CLR 427 at 440. It is for the appellate court to determine whether a miscarriage of justice has occurred: Crofts v The Queen at 441; Samadi v R [2008] NSWCCA 330; 192 A Crim R 251 at 277-279 [133]-[138]. 28However, much leeway must be allowed for the trial judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v The Queen at 440-441. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining whether there has been error in the exercise of discretion: El Hassan v R [2007] NSWCCA 148 at [15]. 29The strength of this ground of appeal, particularly the submission that the trial judge should have enquired further of the jury as to the effect of the conduct on deliberations, depends very much on an assessment of the members of the jury and the seriousness with which they treated the conduct. 30The trial judge was correct to invite the members of the jury to express their concern in writing, if they considered the conduct an issue. Notwithstanding that request by the trial judge, the jurors did not express their concerns in writing and, in the view of the trial judge, with which view I agree, this indicated that the jurors were not overly concerned about the conduct. Further, the refusal to raise the matter formally indicates that the concerns raised with the sheriff's officer were in the nature of an alert to a possibility, rather than the expression of a view, that they were being intimidated. 31As has been accepted by counsel for the appellant, in his written submissions, it is insufficient for the purpose of determining that there has been a miscarriage of justice or an unfairness in the trial process that there is the mere possibility of a juror having acquired prejudicial or extraneous knowledge: R v Glennon (1992) 173 CLR 592 at 603. 32There is no evidence, or material, that goes beyond a mere possibility or that establishes that any juror was affected by the conduct in the manner suggested or otherwise. Particularly in circumstances where the trial judge is an experienced criminal law judge, with an extensive criminal law background and extensive experience with juries, the assessment of the trial judge must be given great weight. 33The circumstances of this case are significantly different from that with which Barr J was concerned in Munn & Miller [2006] NSWCCA 61. In Munn & Miller there was evidence that a particular juror had been subject to pressure overnight in order to intimidate him. In those circumstances, the Court found that a juror, whose task included evaluating the version of each accused, believed that one or more of them were trying to intimidate him. This was considered by the Court on appeal to involve a strong possibility that the juror would see the intimidation as an admission of guilt by one or more of the accused, or independent and extra curial evidence of guilt. 34In my view, in these proceedings, the manner in which the jury dealt with the issue points inescapably to the proposition that, in their minds, there had not been any intimidation or attempt at it. They were being cautious. 35The jury were concerned that this man's loitering be brought to the attention of the sheriff and dealt with appropriately. Preserving their anonymity after verdict seemed of more concern than any other issue. There is no evidence or suggestion that any member of the jury felt intimidated or associated this man's conduct with any one of the co-offenders. 36In those circumstances, the actions of the trial judge were appropriate and dealt with all of the issues of which there was concern. The trial judge's directions made clear to the members of the jury that the person they had noticed was not connected with any of the co-offenders, but, given the importance of their anonymity, they would be provided transport that would allay any issue in that regard. 37In my view, the jury have dealt with the matter most appropriately and the trial judge has, in turn, preserved the integrity of the trial and the verdict arising therefrom. 38In my view, the trial judge has dealt with this matter in a manner, which was wholly within jurisdiction and totally within his discretion. The issue raised is not one which involves a question of law alone and the appeal requires leave. The ground of appeal is insufficiently arguable to bring the matter within the range of those for which leave should be granted and I propose that leave be refused: see s 5(1)(b) of the Criminal Appeal Act 1912. 39For the foregoing reasons, I propose that the Court make the following order: (i) Leave to appeal refused.

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