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Queensland Judgments
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R v Peter; R v Anau; R v Ingui; R v Banu

 

[2020] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

R v Peter; R v Anau; R v Ingui; R v Banu [2020] QCA 228

PARTIES:

In CA No 157 of 2019:

R

v

PETER, Francis

(appellant)

In CA No 162 of 2019:

R

v

ANAU, Aaron

(appellant)

In CA No 163 of 2019:

R

v

INGUI, Tom Banu

(appellant)

In CA No 166 of 2019:

R

v

BANU, Jeffrey Tibau

(appellant)

FILE NO/S:

CA No 157 of 2019

CA No 162 of 2019

CA No 163 of 2019

CA No 166 of 2019

DC No 141 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Convictions: 17 May 2019 (Fantin DCJ)

DELIVERED ON:

Date of Orders: 20 October 2020

Date of Publication of Reasons: 23 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2020

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDERS:

Orders delivered: 20 October 2020

In each of the proceedings CA No 157 of 2019, CA No 162 of 2019, CA No 163 of 2019 and CA No 166 of 2019:

  1. The appeals be allowed.
  2. The convictions be set aside.
  3. A re-trial be ordered on all counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where the appellants were convicted of four counts of rape of a 16 year old complainant – where three of the appellants were charged with one count of rape as aprincipal offender and three counts as a party to rape – where one of the appellants was charged solely on the basis of being aparty to the four rape offences – where, during the jury empanelment process and after six jurors (one female and five males) had been selected, the learned trial judge interrupted the process and in the presence of the six selected jurors and the remaining jury panel, made comments as to the availability of the discretion to discharge the entire jury pursuant to s 48 of the Jury Act 1995 (Qld) (the Act) – where, following the reference to the discretion under s 48, the learned trial judge stated that she would consider a jury entirely comprised of men or almost entirely comprised of men to be a jury of acomposition that may cause the trial to appear to be unfair – where the appellants submit that the learned trial judge’s comments constituted error in impermissibly restricting or interfering with the right of the accused to peremptory challenge and negatively impacted on the community’s perception of the integrity of the system, by creating an impression that proper procedures were not being followed – where it was also submitted that the learned trial judge’s comments may have given rise to areasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury was being composed in a manner that meant it would not discharge its task impartially – where the respondent submits that the jury which convicted the appellants was constituted in compliance with the Act and the comments were most likely based on avery wide understanding of s 48 – where the respondent submitted that circumspection is required in attaching error to the comments given the absence of authority and in any event, the error had no material consequence on the fairness of the trial or legitimacy of the verdicts – whether the comments made by the trial judge during the selection of jurors in the empanelment process resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where, on day 5 of the trial, the learned trial judge informed the prosecutor and defence counsel that the bailiff had informed her that a juror (Juror X) had reported concerns about incidents involving encounters with two different appellants outside of court and had raised concerns about the incidents – where the first incident involved an encounter with one of the appellants at the entrance to the court building, where the juror heard him say in a “half whispering intimidatory voice” the words “I’ll see you later”, which Juror X felt was directed towards him – where the second incident occurred on day 5 of the trial when JurorX was about to enter a lift in the court building and another one of the appellants said something “in his native tongue” then “grub” in English, and the juror did not enter the lift – where, on direction of the learned trial judge, JurorX provided a note setting out the incidents – where Juror X said that he was not that concerned for his own safety but was concerned for the safety of other, particularly female members of the jury, but also recorded being concerned about being recognised at ashopping centre where he regularly shopped, particularly in relation to “retaliatory actions” of the accused or their family or friends, to the extent that he was considering not shopping at that shopping centre for the next two to three months – where counsel for all appellants made an application to discharge Juror X and Juror X was subsequently discharged pursuant to s 56(1)(a) of the Act – where subsequently all defence counsel made an application pursuant to s 60 of the Act for the entire jury to be discharged, which was opposed by the prosecution – where the learned trial judge refused the application for the discharge of the whole jury – whether there was areasonable apprehension or suspicion that Juror X’s lack of impartiality arising from the encounters with the appellants also potentially coloured the jury’s discussions of the evidence and undermined the perception in the eyes of a fair-minded and well informed member of the public of the jury’s impartiality as a whole – whether the failure to discharge the whole jury resulted in a miscarriage of justice

Jury Act 1995 (Qld), s 41, s 42, s 43, s 45, s 46, s 47, s 48, s 53, s 54, s 56(1), s 60

Johns v The Queen (1979) 141 CLR 409; [1979] HCA 33, cited

Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50, considered

R v Boland [1974] VR 849; [1974] VicRp 100, distinguished

R v Cherry (2005) 12 VR 122; [2005] VSCA 89, cited

R v Edwards & Ors [2002] 1 Qd R 203; [2000] QCA 508, applied

Rv Fraser [2001] QCA 187, cited

R v Hall [1971] VR 293; [1971] VicRp 35, cited

R v Matthews [1999] 1 VR 534; [1998] VSCA 2, cited

R v Panozzo; R v Iaria (2003) 8 VR 548; [2003] VSCA 184, applied

R v PAR [2015] 1 Qd R 15; [2014] QCA 248, cited

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, applied

COUNSEL:

S A Lynch for the appellant Peter

J R Jones with R Berry for the appellant Anau

B J Power for the appellant Ingui

P Feeney for the appellant Banu

D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant Peter

PRH Lawyers for the appellant Anau

Legal Aid Queensland for the appellant Ingui

Osborne Butler Lawyers for the appellant Banu

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT: The appellants were charged with four counts of rape of a 16 year old complainant. The appellants MrPeter, MrAnau and MrIngui were each charged with one count of rape as a principal offender and of three counts as a party to rape. The appellant, MrBanu, was charged solely on the basis of being a party to the four rape offences. They were all convicted on each of the counts after a trial by jury. The appellants appealed against their convictions. The following issues are raised on the appeals:
  • whether comments made by the learned judge during the selection of jurors in the empanelment process resulted in a miscarriage of justice;
  • whether the learned judge erred in failing to discharge the jury pursuant to s60 of the Jury Act 1995 (Qld) (the Act);
  • whether the learned judge erred in failing to exclude certain evidence as inadmissible;
  • whether the conviction of the appellant MrBanu was unreasonable.

Error by the learned judge in comments made in the jury selection process

  1. [2]
    Ground 2 of the grounds of appeal as stated in MrAnau’s notice of appeal raised the following error:

“The learned trial judge erred in commenting before the jury which had been selected at that point and the remaining jury panel that the learned trial judge was considering discharging the entire jury pursuant to section48(1) of the [Act] on the basis that the composition of the jury may cause the trial to be, or appear to be, unfair”.

  1. [3]
    A similar ground[1] was raised by MrIngui and MrPeter, who contended that the comments made by her Honour during the empanelment of the jury improperly fettered an accused’s right to challenge potential jurors without cause. The written submissions of counsel for MrAnau were adopted by those appellants. If the ground is made out, it applies equally to MrBanu.

The learned judge’s comments and the jury selection process

  1. [4]
    The jury was empanelled on 2 May 2019. During the empanelment process and after six jurors (one female and five males) had been selected, the learned judge interrupted the process and in the presence of the six selected jurors and the remaining jury panel,[2] made the following comments:[3]

“Counsel for the prosecution and all the defendants, I want to remind you that I have a discretion under section48 of the Jury Act 1995, to discharge all the persons selected to serve as jurors if I consider that the challenges made by the persons selected on the jury or as reserves have resulted in a jury of a composition that may cause the trial to be, or appear to be, unfair. I would consider a jury entirely comprised of men or almost entirely comprised of men to be a jury of a composition that may cause the trial to appear to be unfair. I indicate that at this stage. Thank you.” (emphasis added)

  1. [5]
    The empanelment process then continued to completion without any counsel applying for a discharge of the jury.

The appellants’ submissions

  1. [6]
    The appellants contended that the learned judge erred in making the quoted comments as they had the effect of restricting or interfering with the right to peremptory challenge contained in s42(3) of the Act. In addition, it was submitted that the comments were of a nature which negatively impacted on the community’s perception of the integrity of the system, by creating an impression that proper procedures were not being followed. The comments gave rise to a perception that defence counsel were acting in a way that was not consistent with proper procedure, or that they were manipulating the system to benefit their respective clients. Further, it was submitted that the judge’s comments may also have given rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury itself was being composed in a manner that meant it would not discharge its task impartially. Given the importance of community confidence in integrity of process and regularity of procedure in the jury system, it was submitted that the impact of her Honour’s comments on community perception assumed importance in this context and gave rise to a further irregularity.
  2. [7]
    It was submitted that if any of the propositions advanced was accepted, the nature of the error resulted in a defect in the constitution of the tribunal of fact. A defendant’s fundamental right to a trial according to law encompassed the right to a jury.[4] That jury is required to be properly selected in accordance with the requirements of the Act. Referring to a line of authorities including Johns v The Queen,[5] Katsuno v The Queen,[6] R v Hall,[7] R v Cherry,[8] R v Panozzo; R v Iaria,[9] it was submitted that in the present case there was a fundamental failure to observe the requirements of the criminal process which went to the root of the trial, resulting in a substantial miscarriage of justice in circumstances where the proviso was not applicable.

Respondent’s submissions

  1. [8]
    The respondent argued that the jury which convicted the appellants was constituted in conformity with the provisions of the Act. The comments by the learned judge were most likely based on a very wide understanding of s48 of the Act. Circumspection was required in attaching error to them where there is an absence of authority concerning the provision.
  2. [9]
    Further, even if her Honour erred in making the comments, and accepting the proposition that the process for selecting jurors is an important one, the error “had no material consequence for the fairness of the trial or the legitimacy of the verdicts”.[10] The respondent filed an affidavit attaching the instructing solicitor’s notes regarding the jury selection process. The respondent submitted that on the bare record of the jury selection process, there did not seem to be an indication that any impact was made upon the right of challenge. Although it was accepted that after the comments, the prosecutor increasingly exercised the standby in respect of male members of the panel, challenges were also made by the appellants. The appellants had not brought any evidence that would suggest that counsel was impeded or restricted in the way that they continued challenging the jury. Neither counsel raised an issue as to any perceived restriction, nor as to any other aspect of the process that followed.
  3. [10]
    Further, it was contended that her Honour’s comments were to be considered in the context that, following the completion of the empanelment of the jury, her Honour gave the usual instructions relating to the need for impartiality, including that the jury must not be prejudiced against the appellants because they were facing a number of charges;[11] that they were to ignore sympathy for or against the appellants or the complainant or any other party;[12] and to “keep an open mind and weigh all the evidence in an unbiased, and unprejudiced and rational way”.[13] Katsuno was distinguishable and many of the cases relied upon by the appellants had factual features unique to their determination.
  4. [11]
    Having made those submissions, counsel for the respondent, in the course of oral argument, also accepted that even if the comments were not shown to have an actual effect on counsel’s exercise of the peremptory right of challenge, if they had the capacity to deny or undermine the peremptory right of challenge, that would constitute an irregularity that was material and would constitute a fatal defect in the jury selection process. It was thus accepted that if it were found that the comments gave rise to such an apprehension concerning the right of challenge, irrespective of proof of an actual influence on the exercise of the right of challenge, it followed that there was a substantial miscarriage of justice to which the proviso did not apply.[14]

Consideration

  1. [12]
    The jury’s role is central to the criminal justice system, as stated in Panozzo:[15]

“The integrity and the perception of the integrity of that system is a matter of considerable importance. Only if the community can be entirely confident that the proper procedures have been followed will the reality and perception of integrity of the process be maintained.”

  1. [13]
    The impartiality of the jury is fundamental to a fair trial. It requires not only that the jury are, but also that they are seen to be, impartial by all fair-minded people. The actual and apparent impartiality of the jury is promoted by a number of processes and provisions of the Act, including the random selection of the jury panel and the random selection of the jury from the panel as provided in s41, the peremptory right of challenge in s 42, the entitlement to challenge for cause in s 43 and special procedures for challenge for cause in s 47. In addition, the integrity of the system is preserved by the power conferred on a judge to discharge a juror, or the jury, prior to the final stage of jury selection (that is, when all jurors and reserve jurors are selected and sworn but the jury panel is not yet discharged: s 45). A judge may at that stage discharge a juror pursuant to s 46 if it is considered there is reason to doubt the impartiality of the person selected. A judge may also discharge the entire jury at that stage, pursuant to s 48, which provides:

“(1)Before the court finishes the final stage of the jury selection process, the judge may discharge all the persons selected to serve as jurors if the judge considers that the challenges made to persons selected to serve on the jury or as reserve jurors have resulted in a jury of a composition that may cause the trial to be, or appear to be, unfair.

  1. (2)
    If all the persons selected to serve as jurors are discharged, another jury must be selected from the jury panel.”
  1. [14]
    Furthermore, the judge has a discretionary power to discharge a juror or the jury at any later stage where the integrity or the perception of the integrity of the system is compromised. Thus, a judge may discharge a juror for contravention of a condition as to separation or restriction of communication pursuant to s 53(10) and s 54(4) if the judge considers “the contravention appears likely to prejudice a fair trial”. The judge may also pursuant to s 56(1)(a) discharge a juror where it appears to a judge that the juror is not impartial or ought not, for other reasons, be allowed to act as a juror at the trial. Significantly, a judge, under s 60 of the Act, may also discharge the entire jury without it giving a verdict where they cannot agree on a verdict or “the judge considers there are other proper reasons” for doing so.
  2. [15]
    The complaint raised by the appellants concerning the learned judge’s comments as to her Honour’s discretion to discharge the jury pursuant to s 48 does not assert a denial of, or actual interference with, the exercise of the right of peremptory challenge. Rather, the complaint goes to the perception of the integrity of the selection process. The real issue raised in the present case is whether the comments made by the judge had the capacity to influence the peremptory right of challenge and thus to undermine confidence in the perception of the integrity of the jury selection process so as to give rise to a miscarriage of justice.
  3. [16]
    In Cherry,[16] the Victorian Court of Appeal referred to the “fundamental nature of the right of peremptory challenge and its non-amenability to infringement, interference or limitation”, referring to the following statement by BarwickCJ in Johns,[17] which was endorsed in Katsuno:[18]

“The right of challenge, and particularly the right of peremptory challenge, lies at the very root of the jury system as it now exists. That the challenge is peremptory means that the accused need not in any wise justify his challenge. It need represent no more than his personal objection to be tried by the person whom he sees before him and whose name he has heard.”

  1. [17]
    It was observed in Hall[19] that “[w]here a departure from regular and duly recognized process of law is involved, the question of miscarriage of justice depends not upon the effect of the departure on the verdict, but on whether there has been a serious departure from the essential requirements of the law”.
  2. [18]
    Section48 reserves, to the judge, a discretion to discharge the entire jury on the basis of the judge’s view of the composition of the jury as a result of the challenges made and whether the composition may cause the trial to be, or appear to be, unfair. However, consistently with the fact that, by its nature, an accused’s right of peremptory challenge may be made for any reason, whether good or bad, s 48 only authorises the discharge of a jury on the basis of apparent unfairness due to its composition at the conclusion of the selection process. It is at that stage that the composition is to be considered for the purpose of the power under s 48 and a decision made as to whether the power conferred by s 48 should be exercised.
  3. [19]
    There is no reported decision as to the nature of the power in s 48, which is rarely used, and as to the concept of unfairness it invokes. This is not the occasion to embark on such an analysis. Nor does the present case invite consideration of the exercise of the power under s48 on the basis of the jury’s gender composition. We would reject the assumption that “a jury comprised of men or almost entirely comprised of men to be a jury of a composition that may cause the trial to appear to be unfair”. It is unnecessary to examine the falsity of this assumption for, if one makes the assumption that male jurors are liable to be dishonest to their oaths by being partial to the accused, there must be the inherent corollary assumption that female jurors selected to decide guilt of a male accused for the rape of a female victim might be partial in the opposite direction. As practitioners with long experience conducting criminal trials know, both assumptions are false.
  4. [20]
    The concept of the fairness of a trial is also invoked in s53 and s 54 of the Act and was considered in R v Edwards & Ors.[20] It was emphasised in that case that it was the decision of the judge that was determinative of the issue of apparent fairness, rather than the apprehension of a fair-minded member of the public, although that did not mean that a judge could not have regard to what might be taken to be the “public perception” of a fair-minded, reasonable and informed member of the public regarding the irregularity.[21] It was held that it was, therefore, sufficient if the judge was satisfied that there appeared to be a reasonable suspicion about the fairness of the trial, which may be the case even though there is no evidence of real danger of bias or inability on the part of the jury to arrive at a verdict uninfluenced by the irregularities.[22] In that regard, the use of the term “appears” in those provisions was considered to underline the relevance of “perception” including public confidence in the proper administration of criminal justice.[23]
  5. [21]
    Clearly, a wrongful denial of the right to a peremptory challenge is a fundamental defect in the proceedings such that there has not been a trial according to law,[24] a view endorsed in Katsuno. And a conviction cannot stand if the trial process is flawed in a fundamental respect.[25] As mentioned, the issue raised in this case is not one of denial of the peremptory right of challenge, nor of demonstrated interference with counsel’s exercise of that right on behalf of an appellant. The issue was whether the comments had the capacity of denying or undermining the right of challenge (in which case, the respondent accepted there would be a miscarriage of justice).[26]
  6. [22]
    In the present case, the learned judge made three comments concerning the discretionary power to discharge the jury under s 48. The first was a statement reminding counsel as to the power to discharge a jury if because of the challenges made the unfairness criterion was not met. The second comment was to convey her Honour’s view as to what she “would” consider satisfied the criterion for the exercise of the discretion; namely that challenges made “may cause the trial to appear to be unfair”. The third was to underline that that view was being made known “at this stage”. That stage was when the selected jurors comprised five men and one woman, the appellants having exercised the peremptory right of challenge in respect of seven female and two male members of the panel) with the balance of the jury yet to be selected.
  7. [23]
    What is significant in this case is that the interruption by the learned judge of the selection process was not confined to merely reminding counsel of the discretion in s 48. The second comment amounted to a caution as to the learned judge’s view as to the challenges that “would” result in a composition of the jury that would meet the unfairness criterion under s 48. Her Honour thus provided an advance intimation before the completion of the selection process, of what challenges would, in her Honour’s view, enliven her discretion to discharge the jury under s 48. Those challenges were the exercise of the peremptory right of challenge against female members of the panel so that the jury was comprised almost entirely of men.
  8. [24]
    The learned judge’s intervention intimated the consequence of counsel challenging female jurors so that the jury was predominately male, notwithstanding that by its very nature, the peremptory right of challenge entitled counsel to exercise the challenge on any basis including as to gender. As stated in Katsuno,[27] it may be made for any reason whether good or bad.
  9. [25]
    Both the fact and the perception of integrity in the selection process are of utmost importance. Given the nature of and stage in the selection process when the comments were made, they were reasonably capable of being understood as acautionary intimation as to how the appellants’ right of peremptory challenge should be exercised. They were thus capable of being perceived as intending to influence the exercise of the peremptory right of challenge. That is, the learned judge’s comments were capable of giving the appearance of seeking to influence the exercise of the peremptory right of challenge and the resultant composition of the jury. Indeed, it is difficult to see how the learned judge’s intervention in the jury selection process was capable of being understood as other than seeking to influence the exercise of the peremptory right so as to influence the composition of the jury, a matter not authorised by s 48.
  10. [26]
    The trial having been rendered unfair by the learned judge’s statement during jury empanelment, the parties’ failure to seek the discharge of the sworn jurors and the discharge of the panel did not constitute a waiver of their right to a fair trial. Unlike civil cases, where to a large degree the parties are the masters of their fate at a trial, in a criminal trial the community has an ineradicable interest in the integrity of the criminal process. For that reason, in many cases, and this is one of them, the failure to object at the time was incapable of constituting a waiver of the right to complain after conviction.
  11. [27]
    In the circumstances, the learned judge erred in intervening in the process of the selection of jurors to make the comments concerning s 48 of the Act. It resulted in amiscarriage of justice which went to a fundamental defect in the composition of the jury and as such is outside the purview of the proviso.[28] It follows that on that basis the convictions should be set aside and a retrial be ordered.

Error in failing to discharge the jury pursuant to s 60(1) of the Act

  1. [28]
    There is a further basis for allowing the appeal which concerns the ground alleging error by the learned judge in failing to discharge the jury pursuant to s 60 of the Act. Her Honour’s ruling not to discharge the jury arose in the context of her Honour having discharged a jurorpursuant to s 56(1)(a) of the Act which provides that after a juror is sworn, a judge may discharge a juror without discharging the whole jury, if “it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial”.

Background

  1. [29]
    The circumstances in which her Honour was required to make her ruling as to the discharge of the jury arose as follows. On day five of the trial (9 May 2019), the learned judge informed the prosecutor and defence counsel that the bailiff had told her that a juror (to whom we will refer as juror X) had reported concerns about incidents involving encounters with two different appellants outside of court and had raised concerns about the incidents.[29] Having discussed the matter with counsel, her Honour took the agreed approach of asking jurorX to set out in a note what had occurred and what his concerns were.
  2. [30]
    The contents of the note[30] were summarised by the learned judge as follows. The juror stated he had experienced a couple of “unsavoury comments directed towards me since commencing the current jury service”. Her Honour set out the first incident referred to in the note as having occurred on the first day of the trial during alunchbreak, when most of the jury were walking out to the street from the main entrance of the court building. The juror reported that the appellant, MrIngui, was smoking with his family and supporters nearby and the juror heard him say, in what was described as a “half whispering intimidatory voice”, the words “I’ll see you later”. The juror stated in the note, “I felt it was directed towards me. I don’t know if other jurors heard it”.
  3. [31]
    Her Honour set out the second incident referred to in the note which was reported as having occurred on day five of the trial when the juror was about to enter a lift in the Court building. The lift door opened and the appellant, MrPeter, and a male friend or supporter said something “in his native tongue”, then “grub” in English. The juror did not enter the lift, as he was not comfortable. The note stated that MrPeter did not speak, only his associate did.
  4. [32]
    Her Honour also set out that the note recorded that the juror was “not that concerned for his safety, but was concerned for the safety particularly of female jurors and older jurors during this time”. Her Honour noted that the juror also recorded “being concerned about being recognised at a local shopping centre where he regularly shopped” and “being concerned of what he described as ‘retaliatory actions’ of the accused or family or friends who may recognise him in the coming months”. Her Honour stated, “Finally, he records that he had been considering not going to that shopping centre to shop for the next two to three months and that the accused and associates may or may not shop at that shopping centre”.
  5. [33]
    Having been provided with a copy of the note, counsel for all appellants made submissions applying for the discharge of the juror pursuant to s 56(1) of the Act.
  6. [34]
    Counsel for MrAnau reserved his position to make an application for the discharge of the jury until some further inquiry had been made. He had earlier placed on the record a concern that, even without having discussed his concerns with the other jurors, jurorX may have tainted the jury by forming a view of the evidence discussed by the jury that was influenced by his experience and which rendered him potentially biased.[31]
  7. [35]
    Counsel for MrBanu,[32] however, made an application for discharge of the whole jury on the basis that the note indicated that incident 1 occurred in the vicinity of most of the jury. Further, the first incident occurred on the first day of the trial and jurorX may have formed a view at an early stage in the process of the trial that may have coloured discussions with the jury over the following days. That was compounded by the possibility that jurorX had concerns on that issue which suggested some discussion with the other jurors around safety. In any event, jurorX potentially harboured concerns from day 1 of the trial and may have formed a view, not only about MrIngui but, by association, the other appellants, in circumstances where there had been a lot of time over the following days for the jury to discuss the evidence. In making these submissions, counsel emphasised that the issue extended beyond whether or not the juror specifically discussed the incidents with the other jurors to one of “whether his attitude towards the discussions that have been going on has been coloured by what had occurred to him and that has coloured other juror’s views”.[33] In those circumstances, whether or not the jury knew about what had happened concerning the first incident, it was submitted that the entire jury should be discharged.
  8. [36]
    Counsel for MrPeter[34] also joined in applying for the discharge of the jury on the basis raised by counsel for MrBanu and submitted that there was a risk that jurorX had influenced, albeit inadvertently, the jury’s attitude to the appellants and had impacted adversely on the jury’s ability to deliberate impartially.
  9. [37]
    The prosecutor opposed the applications for the discharge of jurorX on the basis that there was nothing in the note to cause concern as to that juror’s impartiality. Further, the application for the discharge of the jury as a whole was opposed on the basis that it was not known to what extent the juror had discussed the matters in the note with other jurors.
  10. [38]
    At that point, the learned judge advised counsel that she would indicate her position in respect of the applications to discharge jurorX, but defer her decision on the applications to discharge the entire jury until he had been questioned and potentially also the other members of the jury. In relation to the applications to discharge the juror, her Honour stated that it seemed appropriate that he be discharged, regardless of what further information was provided and that her reasons would be given in due course.[35]
  11. [39]
    JurorX had been separated from the other jurors. As it was late in the day, the judge directed that the jurors other than jurorX be allowed to leave the court. After discussion with counsel, the learned judge determined that jurorX should be questioned via video link as to the incidents and whether he had discussed them with other jurors.
  12. [40]
    Immediately after jurorX was questioned and gave evidence, and without further submissions, her Honour discharged him from remaining as a member of the jury.
  13. [41]
    The following day, the learned judge empanelled the reserve juror. Her Honour then told the jury that a situation had arisen that resulted in jurorX being discharged and that they were not to speculate about the reasons for that. Her Honour reminded the jury of the importance of impartiality in the jury’s discussions and decision making. Her Honour asked the members of the jury to indicate if they had any concern that they may not be or be, seen to be, impartial by other fair-minded members of the community. No one indicated any such concern, nor any other concern about continuing as a juror.[36]
  14. [42]
    Applications were then made by all defence counsel pursuant to s 60 of the Act for the entire jury to be discharged. Counsel for MrPeter referred[37] to evidence given by jurorX that he spoke to the jury and at least two members of the jury responded to his comments relating to incident2 concerning the remark by MrPeter’s associate. There was an inability on that evidence to discern the number and identity of the jurors that heard what jurorX said, given the vagueness of his evidence, but it seemed that two jurors agreed that he should speak with the bailiff. Further, jurorX’s evidence only reflected his opinion as to whether or not others heard his comments.[38] (Counsel for MrAnau also submitted that jurorX could not speak for what other members of the jury heard or took from his remarks.) Counsel for MrPeter also raised that jurorX indicated that he had raised with the jury whether anyone was concerned about their safety and that he would change his post-trial shopping habits to avoid any encounter with the appellants or their friends and family. Counsel for MrIngui[39] argued that the comment attributed to his client was taken by jurorX to be in the nature of an implicit threat directed to him when other members of the jury were in the vicinity and that, if her Honour were to place weight on the absence of evidence that any other juror heard MrIngui’s comment, inquiries should first be made of the other juror’s as to their proximity on that occasion and as to whether they had heard anything. After hearing submissions, the learned judge made a ruling giving reasons for dismissing the applications for the discharge of the jury, although no reasons were included for the discharge of jurorX.[40]

Ruling as to discharge of jury

  1. [43]
    As mentioned, the applications for the discharge of the jury were made against the background of the discharge of jurorX pursuant to s 56(1)(a) of the Act. No reasons were provided by the learned judge for his discharge, in particular as to whether jurorX was discharged on the basis that it appeared to her Honour that he “was not impartial” (and, if so, whether that lack of impartiality commenced after incident1) or whether he was discharged for some other reason. Presumably, her Honour proceeded on the basis that it appeared to her that he was not impartial.
  2. [44]
    In considering the applications for discharge of the jury, the learned judge observed that the applicable test for determining whether an irregular incident involving a juror warranted the discharge of the juror or the jury was that stated in Webb v The Queen:[41]

“… whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”

  1. [45]
    Her Honour referred to the statement in R v Boland[42] that there must be evident a high degree of need for the discharge of the jury and the observation in R v Matthews[43] that a reasonable apprehension of bias is one of the circumstances that constitutes ahigh degree of need.
  2. [46]
    Her Honour summarised the evidence given by jurorX in response to questioning relevant to her ruling as follows. When asked whether he had discussed the incidents or his concerns with any other jurors, he said, “Yes, only briefly though”.[44] As to incident1, he said that he was walking in the courtyard in front of the Court and about to walk onto the footpath. He said he did not recall telling any other jury members about that incident he had only spoken to them about incident 2.[45] As to incident 2, jurorX said that he did say something to the other jurors as follows:[46]

“Well, just basically that – that it had happened and perhaps keep an eye out yourselves, or kind of putting it out there that, look out for that yourselves, or, has anybody had this – had that occur to them? But nobody answered.”

  1. [47]
    He said he gave them as much detail as he had provided in the note. He said:[47]

“[P]eople didn’t really seem concerned about themselves…I kind of thought I could mention it to them just to see if anybody had anything happen like that, but they hadn’t…nobody said anything.”

  1. [48]
    He said that he had mentioned to the jury that it was not the appellant MrPeter who said “grub” to him but his associate.[48] He described his demeanour when he spoke to the others as perfectly calm and said, “I was really more concerned about other people, not so much myself, due to the fact we’ve got females and older men, but Iwasn’t that concerned about myself, directly, at that point in time”.[49] He confirmed when asked again that he did not mention incident1 to the other members of the jury. He said that when he mentioned incident 2 to the other jurors, they did not reply or answer and none of the other jurors seemed to want to carry on the conversation or listen to him.[50]
  2. [49]
    As to whether there was any discussion amongst the jurors in relation to juror safety given the presence of the appellants or their families in court, he said:[51]

“No, not specifically. I haven’t heard anything like that. So I only briefly mentioned what I’ve told you. But nobody wanted to share or give me any feedback about what they had seen or heard.”

  1. [50]
    He said that he told the other jurors that he would not shop at the local shopping centre (which he named) for a while, to which nobody replied or commented.[52] He said that there were no other incidents or encounters that he had with the appellants or their associates, other than those he identified in his note.
  2. [51]
    When her Honour, at the request of counsel, further questioned jurorX about incident1 and how many other jurors were with him, he replied “there was approximately about half of us semi-grouped together as we walked out and then dispersing”. None of the other jurors said anything or told him that they heard anything. When he heard the comment by MrIngui, he was approximately two to two and a half metres away from MrIngui. He heard it with his right ear and he was the closest of the jurors to MrIngui and his friends. The comment was said in a “kind of a whispery voice”. JurorX said, “because I did not make eye contact, I took it a certain way, as I’ve described”.[53] He brought up that he did recall saying to the other jurors once, “Icould personally, Icould do without crossing paths with the [appellants] and their friends and family”.[54] Nobody replied to this statement.
  3. [52]
    In concluding that there was not a high degree of need for the discharge of the jury on the basis of a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury had not or would not discharge its task impartially, her Honour made the following findings with respect to jurorX’s account:[55]
  • “There is no evidence that the comment in incident 1 was, in fact, directed to Juror [X]. No eye contact was made with the [appellant] when it occurred. [He] perceived that it was, but that does not mean that it was, in fact, directed to him”.
  • “Second, there is no evidence that the jury was aware of the first incident involving the [appellant], MrIngui, at all”.
  • “Third, the second incident did not involve the [appellant], MrPeter, saying anything but rather, someone he was standing next to who appeared to Juror [X] to be his associate. MrPeter is not alleged to have done anything”.
  • “Fourth, to the extent some jurors were told about incident number 2, their responses are telling. They said nothing in response, in effect they appeared disinterested. They did not engage with Juror [X] about that at all and made no reply”.
  • “Fifth, when conveying that information, Juror [X’s] demeanour was calm. There is no suggestion that he was distressed or that he conveyed that to any other jurors”.
  • “Sixth, there is no evidence that any juror feels uncomfortable at all or has any concerns about continuing to sit in the trial, let alone any evidence to suggest they may have abandoned their oath and proceeded with some form of bias or impartiality”.
  • “Seventh, in fact, the opposite is true. The jury has diligently performed their duty to date in a long and difficult trial. They have indicated their willingness to continue the trial into next week, well beyond the date their panel period ends”.
  1. [53]
    Her Honour also stated:[56]

“For completeness, I record that I did consider whether to ask specific questions about what juror [X] had disclosed to the court, but Ideclined to do so. I have no reason not to believe the evidence given by juror [X]. Asking a specific question, would have had the effect of drawing to the jury’s attention [to] the conduct of [an appellant] or his associate that they, on the current evidence, were either unaware of or had no concerns about.

In short, no juror indicated that they had any problem continuing. All jurors indicated that they wished to continue, including in circumstances where the trial was going to take significantly longer than the original estimate.

I would add to the matters that I consider particularly relevant these. The public interest demands that criminal trials be prosecuted with aminimum of delay. The jury has already heard the entire Crown case, considerable expense has been incurred by the prosecution in the prosecution of the matter, and to the defence for each of the [appellants]. In addition, in cases concerning the conduct of an accused, it is not in the public interest to permit [an appellant] who behaves badly in front of a jury to have the entire jury discharged.

I take into account, with respect to that particular matter, the decision of the Court of Appeal in R v Blair [2015] QCA 281, in which the Court of Appeal upheld the trial judge’s refusal to discharge the jury in circumstances of misbehaviour by an accused. The court said that lengthy directions given by the trial judge were sufficient to overcome any prejudice to the appellant. The court also said, at paragraph 41, quote:

‘Were it otherwise, an appellant could have a jury discharged simply by behaving badly in front of the jury, irrespective of the resulting judicial directions to the jury.’”

Relevant principles

  1. [54]
    Section 60(3) provides that a decision of a judge under that section is not subject to appeal. However, it is well established, as this Court has previously observed in RvFraser,[57] that when a trial judge has refused an application to discharge a jury and the accused has been convicted, the appeal is against the conviction and not the exercise of the learned judge’s discretion not to discharge the jury and it is for the appellate court to decide whether, on consideration of the whole of the evidence, there has been a miscarriage of justice.[58]
  2. [55]
    There is no dispute that her Honour applied the appropriate test in considering her discretion to discharge the jury under s60, being that set out in Webb.[59] In endorsing the reasonable apprehension test as the appropriate test rather than a test based on a“real danger” of lack of impartiality, in Webb, Mason CJ and McHugh J observed that the former was more appropriate for protecting the appearance of impartiality. Their Honours also observed[60] that since the reasonable apprehension of bias test was the test applicable in relation to a judge, it was not easy to see why a different test should apply to a juror, given that their function is of great public importance. Their Honours stated:[61]

“The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias. It is true that, unlike the judge and persons exercising quasi-judicial functions, the juror is subject to the directions of a third party – the trial judge. In considering whether areasonable apprehension of bias exists, it is therefore necessary to consider the likely effect of the judge’s directions (if any) as well as the irregularity in question. But that difference does not seem to us to be sufficient to distinguish the test for juror bias from the test for judges and persons who exercise quasi-judicial functions.

It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”

  1. [56]
    The principle behind the reasonable apprehension or suspicion test is that it is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.[62] Their Honours stated:[63]

“… the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the ‘lay observer’, the ‘fair-minded observer’, the ‘fair-minded, informed lay observer’, ‘fair-minded people’, the ‘reasonable or fair-minded observer’, the ‘parties or the public’, and the ‘reasonable person’ abound in the decisions of this Court and other courts in this country.”

  1. [57]
    Their Honours observed[64] that the authorities indicated that it is the “court’s view of the public’s view, not the court’s own view, which is determinative”. For, if “public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored”.
  2. [58]
    Further, in Webb, it was said that the judge’s decision as to whether there is a reasonable apprehension of bias is a discretionary judgment in the sense that it involves a value judgment.[65] Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for that of the learned judge.[66] Thus, considerable weight should be given to a trial judge’s conclusions on the issue and as stated in Webb:[67]

“The fair-minded and informed observer would place great weight on the judge’s view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge’s findings.”

  1. [59]
    While the authorities such as Webb[68] emphasise that considerable deference is paid by appeal courts to the judgment of a trial judge in determining whether or not to discharge a jury, as stated in Crofts v The Queen,[69] the appellate court is not confined to examining the reasons given by the learned judge to make sure the correct principles were kept in mind. The appellate court must also decide for itself whether, in the circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.
  2. [60]
    It has been said that in cases like the present the “test” is whether there is a “high degree of need for the discharge of the jury”. In Australia, that expression appears to emanate from the decision of the Full Court of the Supreme Court of Victoria in Boland[70] in which the Court said:

“The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor. v R. (1866), L.R. 1Q.B 390. The principle is really one of necessity. There must be evident “a high degree of need for such discharge”, that high degree being “such as in the wider sense of the word might be denoted by necessity”: per Erle, C.J., at p. 394.”[71]

  1. [61]
    Winsor v The Queen[72] is a now-archaic case about whether it was open for a trial judge to discharge a jury that had become deadlocked and then order a retrial before a different jury. The Court of Exchequer Chamber concluded that it was. The plaintiff (who would be the appellant under today’s system of appeals against conviction) argued that “a jury sworn and charged in case of life or member, cannot be discharged by the court or any other, but they ought to give their verdict”.[73] Not surprisingly, the court rejected the submission that this represented an absolute rule and said that this rule, if taken to its literal extreme, “seems to command the confinement of the jury till death if they do not agree”. Erle CJ referred to a statement by Blackstone[74] that it was to avoid this consequence that an exception was “introduced in practice” described by the words “except in case of evident necessity”.[75] Winsor was decided long before there was a general right of appeal upon the ground that there has been a miscarriage of justice and it was decided long before the formulation of the present law relating to the discharge of juries.
  2. [62]
    The Full Court’s dictum in Boland was cited with approval in Crofts.[76] That was a case in which a witness inadvertently let slip that the appellant had previously offended against her. The Court said that the question for an appellate court when considering the correctness of a judge’s decision not to discharge a jury was whether the refusal to discharge the jury had occasioned the risk of a substantial miscarriage of justice.[77] The majority concluded that the potential prejudice to the accused caused by the inadmissible evidence, the danger to the fairness of the trial and the risk that that danger could not be eradicated by any direction, “necessitated, in this case, an order of discharge”.[78]
  3. [63]
    In Webb, the ground relied upon in an application to discharge the jury was the conduct of a juror who, during the trial, proffered a bunch of flowers to the mother of the deceased who was alleged to have been murdered by the accused. Each judge said that the issue to be considered in a case in which an incident involving a juror is said to give rise to actual or apprehended bias was “whether the incident is such that, notwithstanding the proposed or actual warning of a trial judge, it gives rise to areasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially”.[79]
  4. [64]
    It would be a mistake to ask, as a test to determine an application for discharge, whether there is a “high degree of need for discharge”. The question cannot be answered unless, in the particular circumstances of a case, the necessary anterior questions are first answered. In the case of the admission of inadmissible evidence, the question will be whether there is such improper prejudice to the accused’s chances of acquittal and such risk that the trial will for that reason be unfair, that even a strong instruction to the jury would be incapable of restoring the balance. In the case of an incident like that which was considered in Crofts or the incidents in this case, the question will be whether the incident gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially. In cases involving other bases for an application to discharge a jury the questions will be different yet again. An affirmative answer to the relevant question in a particular case will then admit of an affirmative answer to the question whether there is a “high degree of need for discharge” but, by the time that final question is posed and answered, it has become otiose. It represents no more than a succinct conclusion for the necessary preceding analysis.
  5. [65]
    The point is that the expression “high degree of need for discharge” must not be permitted to be the substitute for the substantial issue raised by such an application. In particular, the words “high degree” must not be regarded as imposing some kind of severe standard to which an application must conform. The question in each case will be, rather, one that is based upon the ultimate principle that a trial must be a fair trial. Fairness might be affected in an infinite variety of ways and it is the alleged unfairness in its particular factual context that must be addressed by a trial judge.
  6. [66]
    In this particular case, the comments of the learned judge during the jury’s empanelment and, as demonstrated below, the conduct of the juror both rendered the trial unfair, each for its own particular reasons. That unfairness could not be expunged by any instruction to the jury or by any other step and so the jury had to be discharged.

Consideration

  1. [67]
    A number of the findings on which her Honour exercised her discretion were challenged.
  2. [68]
    The learned judge found that it was only the second incident that was discussed with the other members of the jury. However, it was argued by counsel for MrIngui that that was left in real doubt, given the vagueness of jurorX’s evidence and the uncertainty as to how many discussions about his concerns had occurred. It is true that jurorX gave some contradictory evidence on that matter. Initially, he said that when he was discussing his concerns, two jurors took notice and agreed he should mention it to the bailiff. When asked what he said to them, he replied, “just basically, as I’ve written here” and referred to “one of the [appellants] having a – little bit of acomment as the jurors were walking past” as they were going to lunch “on the very first day”.[80] That suggested he discussed incident 1. However, when the learned judge referred to the incident that occurred on the first day, asked what he said about that incident, the juror responded saying, “I don’t recall mentioning that specifically … to the other jurors, just the second one today which is the other one listed [in the note]”. The learned judge questioned juror X as to whether he had any memory of telling another juror about incident1 and he replied, “No, not really. Just the one today”.[81] The juror was asked again a little later about whether it was possible that he discussed incident 1 at any time during jury deliberations and it was then that he responded, “Not specifically, but I did recall saying to the other jurors once, ‘I could personally, I could do without crossing paths with the [appellants] and their friends and family’, but no one replied”.[82] While the evidence was confusing, it was open to the judge to find that incident1 was not discussed with the jury.
  3. [69]
    It was also submitted by counsel for MrIngui that, while the learned judge found that there was no evidence that the other members of the jury were aware of MrIngui’s comment the subject of incident 1, there was a high probability that it had been heard by some members of the jury, given that jurorX said that at the time about half the jury was “sort of semi-grouped together” but “dispersing”.[83] Whether the other jurors heard the comment and the extent that jurorX spoke about his concerns with the jury was not explored with the other jurors by the learned judge for the reasons given. As her Honour stated, it may be expected that had any other juror heard the incident, it would have been mentioned when her Honour invited the jury to raise any matter of concern.
  4. [70]
    Counsel for MrIngui further submitted that, although the learned judge found that, after jurorX had told other jurors about the second incident, none replied,[84] that finding was not correct. It was submitted that jurorX, in response to a leading question from the learned judge, said that no one was really listening or replied when he told them of his safety concerns, but that concerned a different conversation from the conversation jurorX had with the other jurors about incident 2.[85] The evidence given by jurorX as to his discussion of incident2 was indeed that two jurors paid attention and did respond by agreeing that he should mention his concerns to the bailiff.[86] Their response was fairly neutral but the finding that no one replied (which her Honour considered significant) did not accord with that evidence.
  5. [71]
    Significantly, these matters distracted the learned judge from the proper application of the test in Webb. The observations of the learned trial judge referred to in [52] and [53] above, which supported the learned trial judge’s refusal to discharge the jury, show that her Honour misapprehended the applicable principle. It was not to the point that there was no evidence that the other 11 members of the jury were aware of the first incident identified by the juror. Nor was it material that, in the second incident, it was not one of the accused men who spoke to the juror but, rather, a man in company with that accused. Similarly, the fact that the jurors said nothing by way of reaction to the juror who related one of the incidents to them is immaterial.
  6. [72]
    This is because the question was not whether the appellants had proved that a threat was made to a juror by an accused nor whether the appellants had proved that the impartiality of the other jurors was affected. The question was also not whether the appellants had satisfied the learned judge about the existence of bias.
  7. [73]
    The question was whether, having regard to what the juror said had happened, there was a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially. It is not answered by whether the remaining jurors did not raise a concern as to their impartiality. As Mason CJ and McHugh J said in Webb,[87] a juror involved in an incident may seek to put the best light on the matter and may even feel defensive about his or her role. There is seldom any detailed cross-examination of ajuror for the very good reason that there is a risk that the juror might not be discharged; and, as Brennan J observed, it is “not practically open to counsel for either accused to cross examine the juror as to her state of mind”.[88] For these reasons, MasonCJ and McHugh J said, “[o]ne can never be certain … whether all the circumstances have been elicited by the trial judge”.[89]
  8. [74]
    Nor was it in the least degree relevant to consider that the “public interest demands that criminal trials be prosecuted with a minimum of delay” or that “considerable expense has been incurred by the prosecution in the prosecution of the matter and to [sic] the defence for each of the [appellants]”. The overriding public interest is that atrial be a fair trial.
  9. [75]
    In the present case, the learned judge failed to consider the critical question of whether, given that juror X was discharged because he appeared not to be impartial, the impartiality of the jury as a whole was also tainted given that he remained a part of the jury and its discussions over a five day period. As the learned judge gave no reasons for discharging jurorX, there are no findings that his lack of impartiality stemmed from day1 of the trial, but that conclusion is inevitable on the basis of the matters that emerged from jurorX’s note and evidence.
  10. [76]
    In that regard, jurorX’s evidence was that he perceived the comment by MrIngui to be intimidatory and directed to him. He remained sufficiently concerned about the incident to include it in his note on day 5 of the trial as one of the unsavoury comments directed to him. When the learned judge questioned juror X further about incident1, he was prompted to disclose for the first time that he had told other jurors, “Icould ­– personally, I could do without crossing paths with the – the [appellants] and their family”. JurorX made contradictory statements as to his concern for his safety. While he stated in his note that he was “not that” concerned for his safety at the courts but more for the female and older jurors, he answered a question raised by counsel as to whether he discussed concerns for his own or others’ safety by saying, “No… not specifically. Really, my own”.[90] In his note, he raised concerns of “being recognised” at a particular shopping centre and of “retaliatory actions” by the appellants or their family and friends who may recognise him in the coming months. Indeed, his note and evidence revealed that prior to the second incident he had been thinking about changing his shopping habits for the following two to three months to avoid encountering the appellants.
  11. [77]
    Those matters were likely to cause a fair-minded and well informed member of the public to have a reasonable apprehension or suspicion as to juror X’s impartiality from day1 of the trial as to Mr Ingui. Further, although it was MrIngui who made the remark perceived as a threat by juror X, the basis of criminal liability of the appellants included being a party to the offending by a coaccused by aiding in that offending.[91] In those circumstances, the suspicion as to juror X’s impartiality reasonably extended to all the appellants. Indeed, it is difficult to see how afairminded and informed member of the public would but reasonably suspect that jurorX’s experience from day1 may have impacted on his assessment of the evidence and his view of MrIngui or the other appellants and that he may have formed an opinion at an early stage of the trial, influenced by his experience and concerns, which coloured his view of the evidence and the appellants and his discussions with other jurors.
  12. [78]
    It follows that there was a reasonable apprehension or suspicion that juror X’s lack of impartiality also potentially coloured the jury’s discussions of the evidence and thus undermined the perception of the jury’s impartiality as a whole. Failing to discharge the jury in the circumstances that arose resulted in a miscarriage of justice and one to which excluded the application of the proviso, regardless of the strength of the Crown case.
  13. [79]
    It is unnecessary to consider the ground of appeal going to inadmissibility of evidence which, if made out, would not necessarily exclude the application of the proviso. Nor is it necessary to consider the ground of unreasonable verdict raised by Mr Banu.

Orders

  1. [80]
    The orders of the Court are:
  1. The appeals be allowed.
  1. The convictions be set aside.
  2. A re-trial be ordered on all counts.

Footnotes

[1]See ground 2 of their amended Notices of Appeal.

[2]The jurors and panel were present by video link.

[3]Transcript 2 May 2019, p 4.

[4] Criminal Code (Qld), s604.

[5](1979) 141 CLR 409.

[6](1999) 199 CLR 40.

[7][1971] VR 293.

[8](2005) 12 VR 122.

[9](2003) 8 VR 548.

[10]R v PAR [2015] 1 Qd R 15 at [27] per Fraser JA (with whom Atkinson and Jackson JJ agreed).

[11]AB at 352.45-47.

[12]AB at 354.38-42.

[13]AB at 358.18-19.

[14]Appeal transcript 1-54(10); 1-68(30); 1-70(35).

[15]Panozzo at 555.

[16]Cherry at 125.

[17]Johns at 418.

[18]Katsuno at 58.

[19]Hall at 299.

[20][2000] QCA 508.

[21]Edwards at [40].

[22]Edwards at [41].

[23]Edwards at [42].

[24]Katsuno at 60 citing Johns at 421.

[25] Katsuno at 60 citing Jago v District Court (NSW) (1989) 168 CLR 23 and R v Glennon (1992) 173 CLR 592. See also Wilde v The Queen (1988) 164 CLR 365 at 373.

[26]Appeal transcript at 1-68.

[27] Katsuno at 62, 63.

[28]See Wilde v The Queen (1988) 164 CLR 365; Panozzo at 556.

[29]AB at 792.

[30]The note was marked “M” for identification.

[31]AB at 676-677.

[32]AB at 680-681.

[33]AB at 681.6-8.

[34]AB at 681.

[35]AB at 683.18.

[36]AB at 719.5.

[37]AB at 723.40‑45.

[38]AB at 724.1-4.

[39]AB at 73‑731.

[40]AB at 799.

[41](1994) 181 CLR 41 at 53.

[42][1974] VR 849 at 866.

[43][1999] 1 VR 534 at 537.

[44]AB at 793.21-22.

[45]AB at 793.25-29.

[46]AB at 793.34-36 and 794.7-10.

[47]AB at 793.41-43.

[48]AB at 793-794.

[49]AB at 794.8-10.

[50]AB at 794.

[51]AB at 795.4-6.

[52]AB at 795.21-22.

[53]AB at 796.1-5.

[54]AB at 793.13-14.

[55]AB at 799.

[56]AB 798.24-799.6.

[57][2001] QCA 187 at [37], referring to Maric v The Queen (1978) 20 ALR 513 at 520.

[58]In R v Fox [1998] QCA 121 at [9] referring to R v Thompson [1983] 1 Qd R 224 at 227, it was observed that under the comparable provision under the repealed s626 of the Criminal Code in relation to such a decision, an appeal “can succeed only if it is shown that there has been a miscarriage of justice resulting from the failure to discharge the jury” and that it is not to be regarded as an appeal against that failure itself.

[59]The test in Webb has also been applied as the test for the discretionary power under s56. R v Hamade (2011) 220 A Crim R 151 at [10]; R v Gately [2010] QCA 166 at [7]; R v Burgess [2014] QCA 290 at [18].

[60] Webb at 52.

[61] Webb at 53.

[62] Webb at 47, citing R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 and Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351-352.

[63] Webb at 51-52.

[64] Webb at 52.

[65]However, obiter remarks were made by Gleeson CJ and HayneJ in Wu v The Queen (1999) 199 CLR 99 at103-104, that where there is a reasonable apprehension of bias, no discretion arises and a trial judge is bound to discharge any jury member of whom such an apprehension arises. The issue was unnecessary to decide in the circumstances of that case.

[66] Webb at 53-54.

[67] Webb at 52.

[68] Crofts v The Queen (1996) 186 CLR 427 at 441.

[69](1996) 186 CLR 427 at 441.

[70] Boland at 866.

[71]Other citations omitted.

[72][1866] LR 1 QB 390.

[73] Winsor at 394.

[74] Blackstone’s Commentaries , Vol. 4, at 360.

[75] Winsor at 394.

[76] Crofts at 432 per Dawson J, at 440 per Toohey, Gaudron, Gummow and Kirby JJ.

[77] Crofts at 441.

[78] Crofts at 442.

[79] Webb at 53 per Mason CJ and McHugh J; see also at 67 per Brennan J, at 75 per Deane J, at 87 per TooheyJ.

[80]AB at 690.5-10.

[81]AB at 691.29.

[82]AB at 793.13-14.

[83]AB at 696.

[84]AB at 794.24.

[85]AB at 695.30.

[86]AB at 689.45‑690.2.l

[87] Webb at 52.

[88] Webb at 62.

[89] Webb at 52.

[90]AB at 692.31.

[91] R v Schipper & Fieret [1961] NZLR 852 at 854.

Close

Editorial Notes

  • Published Case Name:

    R v Peter; R v Anau; R v Ingui; R v Banu

  • Shortened Case Name:

    R v Peter; R v Anau; R v Ingui; R v Banu

  • MNC:

    [2020] QCA 228

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Philippides JA

  • Date:

    23 Oct 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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