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R v BDL

 

[2020] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDL; BDL v Director of Public Prosecutions (Qld) [2020] QCA 249

PARTIES:

In CA No 297 of 2019:

R

v

BDL

(appellant)

In Appeal No 3654 of 2020:

BDL

(appellant)

v

DIRECTOR OF PUBLIC PROSECUTIONS (QLD)

(respondent)

FILE NO/S:

CA No 297 of 2019

Appeal No 3654 of 2020

DC No 3 of 2019

DC No 365 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 October 2019 (Barlow QC DCJ); Unreported, 17 March 2020 (Farr SC DCJ)

DELIVERED ON:

13 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2020

JUDGES:

Morrison and McMurdo JJA and Jackson J

ORDERS:

In CA No 297 of 2019:

Appeal dismissed.

In Appeal No 3654 of 2020:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE – OTHER MATTERS – where the appellant was convicted after a trial of several offences committed in respect of his ex-wife – where the appellant challenges his convictions on the basis that the verdict of the jury was unreasonable or could not be supported having regard to the evidence – where an application was also filed seeking leave to appeal against the sentences that were imposed – where there is no present requirement to review the evidence concerning the original ground of unreasonable verdict – where counsel for the appellant candidly accepted that unless orders were made to investigate the suspected bias of the jury, there was little point in advancing the existing ground

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant proposed to add a new ground of appeal: that there was a miscarriage of justice in that a member or members of the jury were guilty of bias, either actual or apprehended – where in order to advance that ground of appeal, an application had been made to the District Court for an order authorising an investigation into the suspected bias of certain jurors pursuant to s 70(7) of the Jury Act 1995 (Qld) – where that application was refused, and as a consequence the current appeal has been brought seeking orders to permit the investigation of the suspected bias of the jury – where leave was granted to amend the notice of appeal to add the new ground at the hearing before this Court

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant testified that during the jury selection he recognised a number of persons who were selected for service – where the appellant’s evidence was that he did not raise any matters concerning them with his legal representatives until the end of day one of the trial – where the appellant’s evidence was that his solicitor advised that “we had already used up our eight (8) challenges during the jury selection” – where the solicitor testified that the desirability of having a favourable jury was something discussed with the appellant – where the solicitor could not recall any meeting with the appellant at the end of the first day of trial – where the appellant’s ex-wife deposed that she was not acquainted with any of the jury members in the sense that she knew anyone by name – whether there is any evidentiary basis to conclude that, for the purposes of s 70(7), there are grounds to suspect that any of the jurors might have been guilty of bias

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant seeks an order pursuant to s 70(7) of the Jury Act – where the submissions for the appellant approached s 70(7) on the basis that the phrase “grounds to suspect that a person may have been guilty of bias” referred to apprehended bias – whether the proper construction of s 70(7) is that where it refers to a juror being “guilty of bias” it is referring to actual bias or apprehended bias

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where during the course of the hearing before this Court a question arose as to whether the primary judge had failed to consider the proper context of the identified jurors and their potential relationship to the complainant – where this Court is being asked to exercise its discretion on a different evidentiary basis – whether his Honour can be said to have failed to analyse the evidence in the correct context

Jury Act 1995 (Qld), s 6, s 43, s 46, s 47, s 56, s 70

George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited

Knight v The Queen [2014] 1 Qd R 329; [2013] QCA 144, cited

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

COUNSEL:

C F C Wilson for the appellant

D Balic for the respondent

SOLICITORS:

Rostron Carlyle Rojas Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  The appellant was convicted after a trial of several offences committed in respect of his ex-wife.  They were: (i) entering and dwelling with intent and using actual violence while armed; (ii) causing grievous bodily harm; and (iii) armed robbery.  All of the offences were domestic violence offences.
  2. [2]
    A notice of appeal was filed on 8 November 2019, challenging his convictions on the basis that the verdict of the jury was unreasonable or could not be supported having regard to the evidence.  In addition, an application was filed seeking leave to appeal against the sentences that were imposed.
  3. [3]
    The appellant proposed to add a new ground of appeal: that there was a miscarriage of justice in that a member or members of the jury were guilty of bias, either actual or apprehended.
  4. [4]
    The substantive contention on the proposed new ground was that the appellant was deprived of a fair trial because his jury was tainted by at least apprehended bias.  In order to advance that ground of appeal, an application had been made to the District Court for an order authorising an investigation into the suspected bias of certain jurors pursuant to s 70(7) of the Jury Act 1995 (Qld).  That application was refused, and as a consequence the current appeal has been brought seeking orders to permit the investigation of the suspected bias of the jury.
  5. [5]
    At the hearing before this Court leave was granted to amend the notice of appeal to add the new ground.

General circumstances at the trial

  1. [6]
    What follows is a synopsis of the circumstances surrounding the trial insofar as the current issue is concerned.  There is no present requirement to review the evidence concerning the original ground of unreasonable verdict.  Counsel for the appellant candidly accepted that unless orders were made to investigate the suspected bias of the jury, there was little point in advancing the existing ground.
  2. [7]
    The complainant in the trial was the appellant’s ex-wife, CM.  They were married in February 2012.
  3. [8]
    The appellant’s family is well known in the area of Goondiwindi and Chinchilla.  The family business has operated for many years and the appellant’s father and the appellant have been directors of the relevant companies conducting those businesses.  The business employs about 36 employees.
  4. [9]
    The appellant and Ms CM held a large engagement party at a property in Goondiwindi owned by Ms CM’s family.  Many people attended the engagement party, and many of them knew both the appellant and Ms CM.  The appellant estimated that there were about 270 people in attendance.
  5. [10]
    Their wedding was held in Victoria, at Port Phillip Estate on the Mornington Peninsula.  The appellant estimated that approximately 400 people attended the wedding, and the bulk of them were Ms CM’s family and friends from the Goondiwindi community.
  6. [11]
    Evidence was led from Ms CM as to the circumstances surrounding the engagement party and wedding.  She was able to exhibit documentary records of the wedding which put the circumstances of that event in a different light from that portrayed by the appellant.
  7. [12]
    As to the engagement, Ms CM said: it was celebrated on about 31 December 2011 at the residence of her parents, in Goondiwindi; approximately 200 people attended the engagement party; and there was no one at the engagement party with whom she was not familiar.
  8. [13]
    As to the wedding: the ceremony took place at Port Phillip Estate on the Mornington Peninsula in Victoria; the reception was at the same venue; 100 guests were invited to the wedding and reception, that being the maximum capacity of the venue; 91 guests ultimately attended, including the appellant and Ms CM.  Contemporaneous documents from the venue revealed that the wedding had only 91 attendees.

Circumstances of the empanelment

  1. [14]
    The trial commenced on 14 October 2019.  On the morning of the trial, and prior to it commencing, the appellant was given a copy of the jury list and asked to review it.  He was asked to mark all the people he knew.[1]  He recognised some names and advised his legal representatives, marking the names on the list.  He instructed his legal representatives to conduct challenges on his behalf, and as they saw fit.  Only two persons whose names he had marked came forward during the jury selection process.[2]
  2. [15]
    During the jury selection the appellant testified that he recognised a number of persons who were selected for service.  They were identified by the appellant in this way:
    1. (a)
      GR; he “knows the complainant’s family and was also present at our engagement party”; Mr GR was a geological technician; the appellant believed he was jury member No. 12;
    2. (b)
      Ms MR: the appellant was unsure of her first name but said “she has been a friend of the complainant’s family for many years” and “attended our engagement party and possibly the wedding”; the appellant believed that she was jury member No. 4 or 5; the appellant also testified that Ms MR’s son, MC, “is also a good friend of the complainant”;
    3. (c)
      Juror No. 6: he believed “that she was the complainant’s school teacher”;
    4. (d)
      Juror No. 7: he or she “was both mine and the complainant’s arts teacher”; and
    5. (e)
      Juror No. 8: the appellant said “this jury member knew both myself and the complainant and … we had met on multiple occasions in relation to business related functions such as Christmas parties”.
  3. [16]
    The appellant’s evidence was that those jurors were recognised by him during the jury selection process, but that he did not raise any matters concerning them with his legal representatives until the end of day 1 of the trial.  At that point he told his solicitor about those jurors.  His evidence was that the response he received was that the solicitor would discuss those matters with the counsel, but the solicitor advised that “we had already used up our eight (8) challenges during the jury selection”.  The appellant said he did not receive a subsequent response from the solicitor.
  4. [17]
    Evidence was given by the appellant’s current partner, Ms BD.  She said that at the end of day 1 of the trial she and the appellant met the solicitor outside the court building and walked to where their respective vehicles were parked.  She recalled the appellant mentioning the jury members to the solicitor.  According to her account the appellant said he recognised some of the jury members and that they were friends of Ms CM and her family.  She also recalled the solicitor advising that the eight challenges had been used up, and that they were limited to only eight objections.
  5. [18]
    The appellant’s then solicitor, Mr McDowell, deposed that prior to the trial the appellant was confident that a Goondiwindi jury would not convict him, specifically because the complainant’s standing in Goondiwindi was such that a jury would not believe her.  He also told the solicitor that the BDL family was well known and as a consequence he (the appellant) would be viewed in a very positive light by a jury.  As a result the desirability of having friends of the appellant as un-disqualified jurors was a topic discussed with counsel.
  6. [19]
    The solicitor testified that the desirability of having a favourable jury was something discussed with the appellant, and that counsel made a comment along the lines that such hopes depended upon jurors being selected and then not recusing themselves.
  7. [20]
    The solicitor asked the appellant to mark the names of any persons he recognised or thought he may know on the jury list, and he did so.  His recollection was that the appellant marked the names of some persons who he knew and wished to stay on the jury if they were selected.
  8. [21]
    The solicitor confirmed the instructions of the appellant that counsel was to use his judgment, relying on the jury list as marked by the appellant, in order to select the jury.  The solicitor’s evidence was that at no stage thereafter did the appellant indicate that he needed further time to consider the jury list or that he had any further questions.  The solicitor took file notes of the pre-trial conference and jury empanelment.  Seven challenges were made, three standbys, and two jurors recused themselves.  His evidence was that at no stage after the jury was empanelled did the appellant approach him in relation to any concerns he had with the jury members.
  9. [22]
    Specifically, the solicitor could not recall any meeting with the appellant or Ms BD at the end of the first day of trial.  He denied that he had a conversation of the kind alleged by them.
  10. [23]
    Ms CM gave evidence that she was asked to review the jury list by the prosecutor and identified any known associations on that list.  She deposed that there was no one identified on the jury list who had attended either the engagement party or the wedding.  She further said that she personally observed those who were ultimately placed on the jury and was not acquainted with any of them in the sense that she knew anyone by name.  She did recognise two jury members as people who worked locally but was not acquainted with either.
  11. [24]
    In her oral evidence Ms CM said: (i) she did not know Mr GR, and she was not aware whether Mr GR knew the CM family or was a friend of the CM family;[3] (ii) she did not know Ms MR even by appearance, and Ms MR had only a distant connection with the CM family, and her only contact with her was when they both attended pony club when Ms CM was a child;[4] (iii) Ms MR did not have a son called MC; that person was the son of a different Ms MR; Ms CM had not spoken to MA for about 10 years.[5]

Legislative provisions

  1. [25]
    The appellant seeks an order pursuant to s 70(7) of the Jury Act, which relevantly provides:

“(7) If there are grounds to suspect that a person may have been guilty of bias, fraud or an offence related to the person’s membership of a jury or the performance of functions as a member of a jury, the court before which the trial was conducted may authorise—

  1. (a)
    an investigation of the suspected bias, fraud, or offence; and
  1. (b)
    the seeking and disclosure of jury information for the purposes of the investigation.”

Legal principles

  1. [26]
    The test to be applied where the conduct of a juror raises a question about whether they are prejudiced was laid down by the High Court in Webb v The Queen.[6]  That was not a case involving the application of statutory powers such as s 70(7) of the Jury Act, but rather arose from the conduct of a particular juror who, in the course of a murder trial, arranged for flowers to be given to the deceased’s mother.  The trial judge held that he had a discretion to discharge the jury if he believed that there was a “real danger that the position of the accused had been or might have been prejudiced” by the conduct of that juror.  The High Court rejected that as the proper test, reviewing the different lines of authority in Australia and England, and holding that:[7]

“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. [27]
    In George v Rockett[8] the High Court considered the meaning of the phrase “if it appears … that there are reasonable grounds for suspecting”, that being the state of satisfaction necessary on a precondition for the issue of a search warrant under s 679(b) of the Criminal Code.  The court referred to the judgment of the Judicial Committee of the Privy Council in Hussien v Chong Fook Kam[9] and said:[10]

“Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’”  The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.  In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth).  Kitto J. said:

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it.  Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.  The notion which ‘reason to suspect’ expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes – a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.””

  1. [28]
    In Knight v The Queen[11] this Court considered an appeal against an order dismissing an application under s 70(7) of the Jury Act.  The case concerned comments made by a juror after the trial which indicated that the juror might have made some sort of investigation leading to that juror’s knowledge that the accused were already serving prison sentences.  The central issue was the question of what was necessary to ground a suspicion that a juror might have been guilty of bias for the purposes of s 70(7).  Muir JA[12] acknowledged that the language of s 70(7) could not be divorced from its context and that had an impact upon the level of suspicion necessary for there to be “grounds to suspect”.  As to that Muir JA said:[13]

“Having regard to the constitutional role of juries of the triers of fact in criminal trials, the respect with which the law has traditionally treated jury verdicts and the ability of juries to reach their verdicts faithfully following the trial judge’s directions, it cannot be supposed that s 70(7) contemplated the launching of an investigation without good cause.  Nor could the legislature have regarded the authorising of such an investigation as anything other than a serious step.  Those circumstances support the construction, which to my mind is borne out by the normal everyday meaning of the words used, that for there to be “grounds to suspect” for the purposes of s 70(7) there needs to be more than the existence of a mere possibility that a juror obtained knowledge of prior convictions before a verdict was returned.  Such a possibility may exist in respect of every jury trial in which the accused has prior convictions.”

Construction of the Jury Act

  1. [29]
    The submissions for the appellant approached s 70(7) on the basis that the phrase “grounds to suspect that a person may have been guilty of bias” referred to apprehended bias.
  2. [30]
    Section 70(7) enables the court to authorise an investigation if “there are grounds to suspect that a person may have been guilty of bias …”.  In my view the proper construction of s 70(7) is that where it refers to a juror being “guilty of bias” it is referring to actual bias rather than apprehended bias.  There are a number of reasons for that conclusion.
  3. [31]
    Firstly, the text of s 70(7) does not readily comprehend a test of apprehended bias.  Section 70(7) applies only after the trial has concluded and only where there are grounds to suspect that the juror “may have been guilty of bias, fraud or an offence” related to the person’s membership of the jury or the performance of functions as a member of the jury.  The use of the phrase “guilty of bias” is not, on its face, one which readily comprehends apprehended bias.  A person is not “guilty” of apprehended bias, but rather apprehended bias exists because of the view that a fair minded but knowledgeable observer might take.  Similarly, the provision enabling an investigation where the juror may have been “guilty of … fraud” does not readily admit of the concept of “suspected fraud”, but rather actual fraud.  A test less than actual bias would become unwieldy given that the section would apply if there were “grounds to suspect that a person may have been guilty of suspected bias” or “grounds to suspect that a person may have been guilty of apprehended bias”.
  4. [32]
    Further support for that conclusion is derived from the terms of s 70(8) which enables a juror to act if the juror “suspects another member … of bias, fraud or an offence …”.  If the bias in that case was other than actual bias, the wording of the section becomes problematic.  It would be that the juror could act if the juror “suspects another member … of apprehended bias”.
  5. [33]
    Secondly, the Jury Act contains provisions dealing with the position of jurors prior to the trial commencing, and specifies grounds upon which their participation might be challenged on the basis that they are not impartial.  Thus, s 43(2) permits a challenge for cause at the point of selection of the jury on two grounds, the first being that the person is not qualified for jury service, and the second being that “the person is not impartial”.  The challenge under s 43(2)(b) is based on the ground that a juror “is not” impartial, not that there is an appearance or suspicion of a lack of impartiality.  In other words, the challenge for cause is on the basis that the juror is not, in fact, impartial.  If the judge is satisfied that there are proper grounds to inquire into the impartiality of the potential juror, questions can be asked and the potential juror can be cross-examined: s 43(4).  Neither of those avenues is necessary for a challenge based on apprehended bias.  Further, after considering the challenge the judge must “uphold or dismiss the challenge”: s 43(6).  If it is upheld that plainly amounts to a finding that the potential juror “is not impartial”, rather than that there is an appearance or suspicion of a lack of impartiality.
  6. [34]
    The approach in s 43(2)(b) is reflected in the provisions of s 47(5), which provides that prior to the commencement of the trial an application may be made for an inquiry “to find out whether the person is impartial”.  That process enables examination and cross-examination, which then enables the judge to uphold a challenge on the ground “that the person is not impartial”: s 47(6) and (8)(a).
  7. [35]
    Further, the same approach is taken in relation to the position of a juror after that juror has been sworn, if “it appears to the judge … that the juror is not impartial”: s 56(1)(a).
  8. [36]
    That may be contrasted with the position under s 46(1), which provides a judicial discretion to discharge a juror at the final stage of jury selection if “there is reason to doubt the impartiality of the person”.
  9. [37]
    Thirdly, authority is replete with acknowledgements that it is a serious thing to pry into the affairs of a jury and its deliberations.  The Jury Act itself provides that a verdict cannot be challenged because a juror is not qualified for jury service (s 6) and makes it an offence to seek the disclosure of jury information, publish it or otherwise disclose it: s 70(2)-(4).
  10. [38]
    Fourthly, s 70(7) operates in circumstances where the trial has been concluded.  Thus, the trigger for the grounds to suspect may well be events which have occurred after the trial, as was the case in Knight.  The section therefore contemplates a situation where no outward act on the part of the juror, or other circumstance, during the trial gave rise to a question of apprehended bias.  The situation contemplated by s 70(7) is thus removed from the sort of conduct that was dealt with in Webb v The Queen, where it occurred during the course of the trial, and was outwardly apparent.
  11. [39]
    Finally, the jealous protection of the jury’s performance of its duties suggests that if there is to be an ex post facto investigation of a juror’s performance, where there were no grounds apparent during the trial, that should be in limited circumstances which warrant prying open the door to the jury room, which is normally firmly shut.  The likely proliferation of attacks based on suspicion of something less than actual bias or actual fraud suggests that the legislature had a confined scope for the challenge.
  12. [40]
    Ultimately it is not necessary to express a final conclusion on this matter as, for reasons which follow, I have come to the conclusion that the evidence does not disclose anything beyond mere idle wondering rather than an actual apprehension or mistrust as to the jurors identified by the appellant.

Approach of the primary judge

  1. [41]
    The learned primary judge dealt with the application on the basis of the affidavit of the appellant only.  At the commencement of his Honour’s reasons it was noted that the trial was conducted before the Goondiwindi District Court and the issue was that the appellant had identified five jurors who “knew the complainant and/or knew the defendant”.  His Honour recited the essence of paragraphs 6 and 7 of the appellant’s affidavit, which identified: receiving the jury list and noting various names which were then given to the legal representatives; recognition of five persons during the jury selection; and the identification of the five persons in paragraph [15] above, two by name and three more generally.
  2. [42]
    The learned primary judge recited s 70(7) of the Jury Act and referred to the decision in Knight.[14]  His Honour then referred to the essence of the submission made on behalf of the appellant, namely that at least some of those jurors attended either the engagement party or the wedding, “as one infers guests of the bride”.  His Honour then continued:

“The applicant has attested that the engagement party was attended by 270 people and the wedding attended by approximately 400 people.  He says that … the bulk of the people who attended both events were the complainant’s family and friends from within the Goondiwindi community. … I should indicate as well that … applicant has appealed his convictions.  The matter is currently before the Court of Appeal.  Currently the ground of appeal is one of the verdicts being unsafe and unsatisfactory.  That is, not supported by the evidence, although, as Mr Wilson has indicated, there may be an application to add a ground of appeal in relation to potential bias of jurors.

In my view, there are no grounds identified in the material to suspect that a juror or jurors have been guilty of bias. The simple fact that a juror knows a person associated with a trial whether it be defendant, complainant or witness cannot possibly constitute such a ground.  There is no evidence before the court that any of these people were particularly close to the complainant.  The attendance at an engagement party and a wedding involving so many people is – an indication … from which no inference to the effect that is suggested by the applicant can be drawn.

It is not uncommon, in fact, it is a rare event indeed for a criminal trial in a country centre that involves a jury to involve jurors none of whom know of any of the participants or know something about any of the participants.”

  1. [43]
    During the course of the hearing before this Court a question arose as to whether the primary judge had failed to consider the proper context of the identified jurors and their potential relationship to the complainant (Ms CM).  That general context was the nature of the case, the small community and the jurors being friends of the complainant’s family.
  2. [44]
    Whilst not identifying that context in a separate or distinct manner, in my view his Honour cannot be said to have failed to analyse the evidence in the correct context.  His Honour’s reason’s disclose that:
    1. (a)
      the trial was before the Goondiwindi District Court;
    2. (b)
      the issue was that the identified jurors knew the complainant’s family and were present at the engagement party or wedding;
    3. (c)
      the nature of offences, all domestic violence offences, and that the complainant was married to the appellant;
    4. (d)
      that the appellant’s evidence was as to the large number of people who attended the engagement party and wedding, the bulk of whom were friends of the complainant’s family and from within the Goondiwindi community; and
    5. (e)
      the trial was a criminal trial in a country centre where it was not uncommon to find that jurors might know one of the participants in the trial.
  3. [45]
    In any event, the case is now different before this Court.  Leave was granted to both sides to adduce further evidence: the appellant, from himself and his partner (Ms BD); and the respondent, from the appellant’s solicitor and Ms CM.  Thus, this Court is being asked to exercise its discretion on a different evidentiary basis.
  4. [46]
    Therefore the contention, even if correct, has no material impact upon the conclusion to be reached in this Court.

State of evidence concerning the nominated jurors

  1. [47]
    Of the five persons identified by the appellant in paragraph [15] above, three may be disposed of in short order.  The last three jurors, No. 6, 7 and 8, are all persons in respect of whom the evidence does not rise above mere idle speculation as to whether they might have been impartial or not.  According to the appellant juror No. 6 was the complainant’s school teacher, juror No. 7 was a teacher of both the appellant and complainant, and juror No. 8 knew each of them and had met them on multiple business related occasions.  In none of those cases is there any basis for concluding that there is a reasonable apprehension or suspicion that those jurors could not or did not discharge their task impartially.  So much was conceded by counsel for the appellant in the course of the hearing before this Court.[15]
  2. [48]
    Counsel for the appellant submitted that the sort of jurors’ knowledge that would be sufficient to justify an inquiry would be knowledge of the acrimonious separation between the appellant and Ms CM as related by a family member who had taken sides.[16]  He also submitted that mere friendship with the family was enough.  I do not accept that submission, particularly as it applies to this case.  The trial was in a small country town where it might be expected that potential jurors knew one or other of the families of the protagonists.  The trial judge asked the jurors if they knew anything that meant they could not be impartial and fair.  Two jurors raised matters that affected them and were excused.  The remaining jurors witnessed that process which could only have reinforced in their minds the need for impartiality.
  3. [49]
    As for the first person identified, Mr GR, the appellant’s evidence at its highest is that Mr GR knew the CM family, did some work for CM Farms,[17] and was present at the engagement party.[18]  Counsel for the appellant conceded that the evidence did not go so far as to establish that Mr GR knew Ms CM, and did establish that Ms CM did not know him.[19]  In my view, that state of evidence does not establish anything more than idle speculation about the ability of Mr GR to discharge his duty as a juror impartially.  It is to be expected that a jury selected in a country area, from the residents of that general area, are likely to have some knowledge of the parties in the proceeding.  That does not mean that such person will not obey the directions of the trial judge or embark upon the juror’s duties other than impartially.  And it must be recalled that the trial commenced nearly eight years after the engagement party and more than seven and a half years after the wedding.
  4. [50]
    Any concerns about Mr GR are lessened by the unchallenged evidence of Ms CM which was to the effect that she personally observed those ultimately placed on the jury and was not acquainted with any of them in the sense that she knew them by name.  In the case of Mr GR that suggests a lack of the sort of familiarity that might give rise to a reasonable apprehension as to the performance of his duties.
  5. [51]
    As for Ms MA, the appellant’s evidence was that she had been a friend of the CM family for many years, had attended the engagement party and possibly the wedding, and her son was a good friend of the complainant.  The difficulty with part of that evidence is that the guest list for the wedding shows that Ms MA was not an attendee.  And counsel for the appellant conceded that the evidence did not go so far as to establish that the MA juror was a friend of Ms CM.[20]
  6. [52]
    A second difficulty is that the evidence of Ms CM was that she had no relationship at all with the MA juror, and while she had once known an MA, that MA was not the son of the MR juror.
  7. [53]
    Taken at its highest, that evidence merely establishes that Ms MR was a friend of the CM family and attended the engagement party.  That does not, in my view, go beyond idle speculation about the ability of Ms MR to act impartially and under the directions of the trial judge.
  8. [54]
    There is some doubt as to the appellant’s evidence concerning Ms MR, in any event.  Ms CM gave unchallenged evidence that there was no one identified on the jury list who had attended the engagement party.  Self-evidently Ms MR was on the jury list.  Further, Ms CM gave unchallenged evidence that she personally observed those on the jury and was not acquainted with any of them in the sense of knowing them by name.  When that is put together with Ms CM’s other evidence that there was no one who attended the engagement party with whom she was not familiar, a question naturally arises about the soundness of any conclusion that Ms MR might reasonably be apprehended to be other than impartial.
  9. [55]
    In my view, the evidence concerning Ms MR goes no further than idle wondering as to whether she might have performed her duties impartially.
  10. [56]
    In my view, therefore, there is no evidentiary basis to conclude that, for the purposes of s 70(7), there are grounds to suspect that any of the jurors might have been guilty of bias.

Conclusion

  1. [57]
    As McMurdo JA points out, the two appeals CA No 297 of 2019 and Appeal No 3654 of 2020 are inextricably linked.  As was conceded by Counsel for the appellant, absent success on the appeal concerning the bias on the part of the jurors (Appeal No 3654 of 2020), the other cannot succeed.  Appeal CA No 297 of 2019 should therefore be dismissed.[21]
  2. [58]
    For the reasons given above I would dismiss the appeals.
  3. [59]
    McMURDO JA:  The appellant in each of these appeals was convicted after a trial by jury, in the District Court at Goondiwindi, on charges involving violence against his former wife.  The offences occurred in the house in Goondiwindi where she lived with their five year old son.
  4. [60]
    At this time, litigation between the couple was about to be resumed in the Family Court.  The appellant had urged the complainant to discontinue the proceeding, when he met her for a school function on a Saturday in Goondiwindi.  She declined to do so, but their meeting was civil.
  5. [61]
    On the following day, the appellant unexpectedly came to her house.  She was watching television and the child was in an adjacent room.  She described the sensation of being grabbed around the chest from behind, and feeling something sharp on her neck.  It was a knife being held by the appellant.  She tried to pull the blade away, unsuccessfully, and cut her hand in the process.  The appellant put his other hand over her mouth, keeping the knife against her throat.  She was screaming; he told her to stop or he would cut her.  At that point the child came into the room.  The appellant told him to go back to the adjacent room, as did the complainant.  The boy did so before the appellant pulled the complainant’s chin up, applying more pressure with the knife, so that she would be looking him in the face.  He told her that she was to abandon the case in the Family Court by 9.30 am on the next morning, or he would return and hurt her and the boy.  Under duress, she agreed.  He demanded her phone, which he took with him as he walked from the house.  She suffered grievous bodily harm, by lacerations to both tendons of a finger, as well as nerve damage.  She also had injuries to her neck and face.
  6. [62]
    He was convicted of one count of burglary with violence and while armed, one count of grievous bodily harm and one count of armed robbery with personal violence.  The jury rejected his version of events, of which he gave evidence at the trial, that he had gone to the house on her invitation, to have sexual intercourse, but that the couple had argued and that he left the house before any sexual interaction had occurred.
  7. [63]
    There are two appeals for determination.  The first (CA No 297 of 2019) is an appeal against those convictions.  The second (Appeal No 3654 of 2020) is an appeal against an order made in the District Court, subsequently to the trial, refusing his application for an investigation of whether certain of the jurors had been, in the terms of s 70(7) of the Jury Act 1995 (Qld), “guilty of bias”.
  8. [64]
    His original ground of appeal, in the first appeal, was that the verdicts of the jury were unreasonable or could not be supported having regard to the evidence.  At the hearing in this Court, that ground was abandoned and a new ground was substituted, namely that there was a miscarriage of justice in that the case would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that certain jurors had not discharged their task impartially: Webb v The Queen.[22]
  9. [65]
    In the second appeal, in substance the question is the same.  Section 70(7) provides as follows:

“(7) If there are grounds to suspect that a person may have been guilty of bias, fraud or an offence related to the person’s membership of a jury or the performance of functions as a member of a jury, the court before which the trial was conducted may authorise—

  1. (a)
    an investigation of the suspected bias, fraud, or offence; and
  1. (b)
    the seeking and disclosure of jury information for the purposes of the investigation.”

The question under the second appeal is whether, in the terms of that provision, “there are grounds to suspect that a person [or persons] may have been guilty of bias … related to the person’s … performance of functions as a member of a jury”.  Where there are such grounds, it does not follow in every case that the court before which the trial was conducted would authorise an investigation of the suspected bias.  However in this case, it was apparently accepted that if the District Court judge, who refused the application under s 70(7), was wrong to hold that there were no such grounds, an investigation would be ordered.

  1. [66]
    I agree with Morrison JA that the “bias” in s 70(7) is an actual bias.  The notion that there might be a suspicion that there exists the appearance of bias is, at the least, a difficult one.  And the bias in s 70(7) must be one of which the juror “may have been guilty”, an expression applying also to a suspected fraud or a suspected offence by a juror.
  2. [67]
    Once it is understood that s 70(7) refers to an actual bias, it can be seen that there is no prospect of different outcomes in these appeals.
  3. [68]
    Counsel for the appellant urged the Court to decide the second appeal first, to the end of there being an investigation of the impartiality of the jurors which might reveal evidence which would strengthen his client’s case on the appeal against conviction.  Like Morrison JA, I am unpersuaded that the second appeal should succeed, so that the suggested course need not be followed.
  4. [69]
    In Queensland Bacon Pty Ltd v Rees,[23] Kitto J considered, in the terms of s 95(4) of the Bankruptcy Act 1924 (Cth), whether a payee had reason to suspect that the payer, a debtor, was unable to pay its debts as they became due.  Kitto J said:[24]

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it.”[25]

  1. [70]
    In R v Lacey; Ex parte Attorney-General (Qld),[26] there was a ground of appeal against conviction that the verdict was tainted with bias.  In the joint judgment of de Jersey CJ, Keane, Muir and Chesterman JJA, it was said:[27]

“On the evidence before this Court it is possible to do no more than speculate as to the possible, but we rather think unlikely, existence of a material irregularity affecting the jury’s deliberations. Those deliberations, for strong reasons of policy, have been regarded traditionally as unexaminable. There is a public interest in finality in litigation, and in the protection of jurors from inducement or pressure. The mere fact that a juror may experience doubts about the jury’s decision or its deliberations should not, of itself, occasion surprise or concern nor would it, in the absence of adequate additional grounds, justify an investigation under s 70(7).”

  1. [71]
    The evidence which this Court was asked to assess was not limited to that which was before the judge who refused to make the order under s 70(7).  The parties appeared to accept that this Court could and should receive further evidence, including evidence by cross-examination.  In some respects, there is a conflict in the evidence, although in only one respect need that be resolved.
  2. [72]
    In his affidavit affirmed on 15 January 2020, the appellant said that during the empanelment of the jury, he recognised five persons who were impanelled.  Three of them need not be discussed here, because the appellant’s counsel properly conceded that there are no grounds for suspicion that any of them may have been guilty of bias.  That left two jurors, Mr GR and Ms MR.
  3. [73]
    The appellant said that Mr GR knew the complainant’s family and had been their guest at the couple’s engagement party seven years earlier.  He said that Ms MR had been a friend of the complainant’s family for many years, and that she also had attended the engagement party and possibly the wedding.  In the same affidavit, he recalled that the engagement party, held at the complainant’s family’s property in Goondiwindi, was celebrated with about 270 people in attendance.  He said that the wedding, at a place near Melbourne, was celebrated with about 400 guests.
  4. [74]
    In her affidavit evidence in this Court, the complainant said that there were about 200 people at the engagement party, and there was no one there with whom she was not familiar.  With the benefit of independent documentary evidence, she was able to say that the number of guests who attended the wedding was 91.  The effect of her evidence was that there was no one on the list of potential jurors, including Mr GR and Ms MR, who was either at the engagement party or at the wedding.  She testified that shortly before the trial, she was asked by the prosecutor to review the list of potential jurors, and to identify any person with whom she was associated.  She said that she did identify some people on the list, but there was no one on the list who had attended the party or the wedding.  She added that she personally observed those who became part of the jury and that she had not been acquainted with any of them.  She knew none of them by name and recognised only two of them as people who worked in the area.
  5. [75]
    Her evidence is to be preferred.  The appellant was clearly wrong in saying that there were 400 people at his wedding.  The basis for his recollection that these two jurors had been present at an engagement party, held many years earlier and involving more than 200 guests, most of whom were not friends or acquaintances of his own or of his family, is not apparent.  There is no reason not to accept the complainant’s evidence that she discussed with the prosecutor any names on the jury list with whom she had an association.
  6. [76]
    A further difficulty for the appellant’s case is that, in the usual way, the jurors were told by the trial judge that they should not serve in this case if there might be some reason why they could not do so impartially.  The jurors now challenged by the appellant would have seen another person, who was selected for this jury, come forward and explain to the judge why they could not be impartial.  The importance of impartiality could not have been misunderstood by them.  There is no basis to suggest that either of these individuals recklessly or deliberately ignored the judge’s instruction and unconscientiously participated in the case.
  7. [77]
    For these reasons, each of the appeals should now be dismissed.
  8. [78]
    JACKSON J:  Like Morrison JA and McMurdo JA, I would dismiss the appeals.
  9. [79]
    I also agree with the conclusion, for the reasons each of them gives, that the evidence in this case does not prove that there are grounds to suspect that a person may have been guilty of bias related to the person’s membership of the jury or the performance of functions as a member of the jury whether the bias to be considered is actual bias or apprehended bias.
  10. [80]
    In those circumstances, in my view, it is not necessary to decide whether the “bias” that is referred to in s 70(7) of the Jury Act 1995 (Qld) is limited to actual bias, and I do not express any view on that question.

Footnotes

[1]Transcript T1-6 line 21.

[2]T1-6 line 34.

[3]T1-27 lines 18-22.

[4]T1-27 lines 24-28.

[5]T1-27 lines 30-40.

[6](1994) 181 CLR 41.

[7]Webb at 53, per Mason CJ and McHugh J; see also Brennan J at 57 and Deane J at 68-69.

[8](1990) 170 CLR 104.

[9][1970] AC 942 at 948.

[10]George v Rockett at 115-116; internal citations omitted.

[11][2013] QCA 144.

[12]With whom Boddice and Jackson JJ concurred.

[13]Knight at [33].

[14]Knight at [33].

[15]T1-30 line 33 to T1-31 line 2.

[16]T1-31 lines 23-25.

[17]T1-12 line 30.

[18]It was not said he attended the wedding, and the guest list shows he did not.

[19]T1-29 line 35 to 1-30 line 3.

[20]T1-30 lines 5-8.

[21]Even though the original Notice of Appeal stated it was intended also to appeal against the sentences imposed, no ground was articulated or submission advanced to that effect.

[22][1994] HCA 30; (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).

[23](1966) 115 CLR 266; [1966] HCA 21.

[24](1966) 115 CLR 266 at 303.

[25]See also George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 115-116.

[26](2009) 197 A Crim R 399; [2009] QCA 274.

[27][2009] QCA 274 at [109].

Close

Editorial Notes

  • Published Case Name:

    R v BDL; BDL v Director of Public Prosecutions (Qld)

  • Shortened Case Name:

    R v BDL

  • MNC:

    [2020] QCA 249

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Jackson J

  • Date:

    13 Nov 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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