The Queen v Martin & King[1999] QCA 366

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 165 of 1998

CA No 186 of 1998

Brisbane

THE QUEEN

v

PETER GEORGE MARTIN and

ADAM GRAHAM KING

Appellant

McPherson JA

Moynihan J

Atkinson J

Judgment delivered 10 September 1999

Judgment of the Court

APPEALS AGAINST CONVICTION DISMISSED

1. THE COURT:  At about 10 am on Tuesday 2 September 1997, a middle aged man entered the post office at Tugun. He was wearing blue overalls and a beanie pulled well down over his head, and was carrying a bag and a sawn-off shotgun. He demanded and was given money, after which he escaped from the post office. He was seen being driven off in a red Ford vehicle, which after travelling down a one-way street in the wrong direction, went through a drive-in bottle shop on Gold Four Drive, and drove along Tooloona Street towards Coolangatta. A nearby shopkeeper, who saw the man arrive and sit in the front passenger seat of the car before it was driven away, noticed the make of the car and recorded the registration number, which was 261-AMF.

2. At Tugun, Golden Four Drive runs parallel to the beach and to the Gold Coast Highway (ex 10). A series of short streets run off it towards the beach. One of them is Shell Street, which is about 500 or 600m south of the Tugun Post Office. At about 10.10 am on 2 September 1997 a resident of a house in Shell Street looked out of his window and saw the red Ford vehicle pull up in the street outside. When he looked again, he saw two men standing and talking together beside the driver's side of the car. One was carrying a bag. After conversing briefly they parted, with one of them going towards the Highway heading south, while the other with the bag walked off in the direction of the beach.

3. Half an hour or so later, police driving north on Gold Four Drive noticed a purple Ford Falcon parked facing east in Surf Street, which is another street running off the Drive in the direction of the beach (ex 10). Surf Street is about a kilometre south of Shell Street and therefore further away from the post office at Tugun. The driver of the purple Falcon appeared to be looking round as if expecting someone. A check on the registration plates showed that they did not belong to that vehicle. The police kept watch on it, and eventually the appellant Martin was seen jogging towards it along Golden Four Drive. Shortly afterwards, the purple Falcon drove off, turned around and headed north along Golden Four Drive, with the police following at a distance. The purple Falcon was seen to pull over and make a u-turn, after which it was intercepted by the police. When stopped, the vehicle was found to be being driven by the appellant King, with the appellant Martin as his passenger. The appellants were arrested at gunpoint and told to lie on the ground.

4. It was not the Crown case at trial that either of the appellants Martin or King had been the man who had entered and carried out the robbery at the Tugun post office that morning. The prosecution case was that the robber was another person named Foster (who is the uncle of the appellant Martin), whose fingerprints were found on the red Ford car 261‑AMF. It had been stolen from the Pacific Fair parking area near the Myer store, where the owner had left it at about 8 am on that day. It was next seen being driven off, allegedly by Martin, with the robber in the front passenger seat after he had left the post office. There was a strong inference that it had been taken for use as the "getaway" vehicle for carrying out the robbery, before being abandoned in Shell Street where, as has been described, the occupants had left it and gone off in different directions, one to the beach and the other towards the Gold Coast Highway.

5. That the red Ford was the vehicle used for transport to and from the Tugun post office was clearly established by the registration number, which the alert shopkeeper at Tugun had recorded. That the robber was the person who had alighted from it at Tugun and then walked off in the direction of the beach was strongly, if not conclusively, suggested by the discovery after the police arrived of a pair of blue overalls, a balaclava, a sawn-off shotgun and money (which was only a little less in amount than that stolen) in a wheelie bin about 80m south of the place where the red Ford had been abandoned (ex 10). It was much more difficult to identify the appellant as the driver of the red Ford who walked off in the direction of the Gold Coast Highway; but the appellant Martin was seen some 30 or 40 minutes later jogging south along Golden Four Drive into Surf Street in the direction of the purple Falcon in which he was later found to be a passenger. That did not directly connect him with the red Ford car; but, in addition, three fragments of cloth were found. They were of the same texture and floral pattern and, when placed together, could be seen to have been one piece of cloth which had been torn, or possibly roughly cut, apart into three or four pieces. One piece of it was found on the floor under the front passenger seat of the red Ford car; another was found on the footpath of Golden Four Drive some 50 m south of Shell Street; and the third was discovered wrapped in a pair of track suit pants in the boot of the purple Falcon.

6. The appellant King later testified at the trial that the track suit pants were his; and that the purple Falcon car belonged to his girlfriend. He also said that the registration plates had been taken off another vehicle of that make which she owned, but which had broken down and been sold. He testified that he had picked up the appellant Martin at about 9 am that day and had driven down to Tweed Heads; then they had come back through Coolangatta, where they stopped and went down to the beach to test the temperature of the water, before driving on to Surf Street. There the appellant Martin had got out of the car and gone away for about eight minutes before returning and getting back into the car. Martin had then asked that they go to the Tugun pub, and King had just completed a u-turn to go back in that direction when the police stopped them. He was frightened when arrested at gunpoint and reduced to a "nervous wreck". He said he had nothing to do with the robbery at the Tugun post office, and had never before seen the fragment of cloth which was found wrapped in his track pants in the boot of the purple Falcon.

7. The appellant Martin did not give evidence at the trial. However, after being intercepted he was interviewed by the police at the police station in the presence of a solicitor. His statement tallied with that of the appellant King in saying that he had been picked up by King and they had driven around for a couple of hours. He had asked King to take him to a friend's place in the vicinity of Golden Four Drive. There he left the car with a view to buying marijuana from his friend; but the friend was out when he called. He identified a block of units where the friend lived, but declined to give the number of the unit. The police were unable to locate the building from the description he gave of it, and when intercepted, Martin was found not to have any money on him with which to buy drugs. In consequence, the prosecution suggested at the trial that the account he had given of his movements was false. He, too, denied any involvement in the robbery, and said he had no idea where his uncle was at the time in question.

8. In summary, the prosecution may be taken to have established beyond doubt that the person who committed the robbery at the Tugun post office had escaped as a passenger in the stolen red Ford car registration no 261-AMF, which was abandoned shortly afterwards in Shell Street. The finger prints of Martin's uncle were found on it, and the clothing, bag and gun, with most of the stolen money, were found close by in the wheelie bin. The principal issues for the jury were therefore whether the appellant Martin was the driver of the "getaway" red Ford, and whether the appellant King, in arranging to pick up Martin after the stolen red car was abandoned, was a party to the robbery. In that event, each of them was criminally responsible under s 7(b) or s 7(c) of the Criminal Code.

9. The jury found both of them guilty of the robbery. They also found the appellant Martin, but not the appellant King, guilty of unlawfully using the red Ford car. It follows that they can only have concluded that Martin was the driver of it to and from the Tugun post office when the robbery was committed.

10. In arriving at those verdicts, the jury must have placed considerable reliance on the presence of fragments of the same cloth in both the red car and the purple car shortly after the crime was committed. Without that evidence, there was nothing directly linking either Martin or King to the getaway vehicle. The evidence that those cloth fragments were found in the two vehicles was not challenged at the trial, nor does it seem to have been seriously disputed that all three of the fragments discovered had at one time formed a single piece of cloth which had been torn or cut apart. The hypothesis advanced by the Crown was that the cloth, or part of it, might have been used to conceal the shotgun; but it remained a hypothesis and there was no forensic or other evidence to support this theory. Neither to the police, nor at the trial, did either of the appellants suggest how or why fragments of the same cloth came to be in both vehicles. They simply denied all knowledge of the cloth fragments or of its presence in either vehicle. The owner of the stolen red Ford car testified at the trial that there was no cloth of that or any kind in her car when she parked it at Pacific Fair at 8 am on 2 September 1997. In these circumstances, it was, in our opinion, open to the jury to infer a direct connection between the use and the users of the two vehicles, of which one had been employed for the purpose of the robbery. In the absence of some reasonable alternative hypothesis (and there was none) consistent with innocence, the only rational explanation was that the appellants Martin and King were both participants in a plan to carry out the robbery at the Tugun post office on the morning of 2 September 1997. To our mind, there is on the evidence at the trial no significant possibility that an innocent person has been convicted : cf. M v The Queen (1994) 181 CLR 487, 494.

11. If this were the only question raised in this Court, both appeals would be dismissed. There is, however, another and more serious matter to be considered. The trial began on 5 May 1998 and finished five sittings days later on 12 May 1998, when the jury returned their verdicts at 5.03 pm after deliberating for some six hours. The court resumed at 2.30 pm on 13 May 1998 for the sentence hearing. At the hearing that afternoon Mr Eastwood of counsel, who had appeared for Martin at this trial in the District Court at Southport, produced a diary note (ex 60) of a conversation in which he had taken part at 9.26 am on that day, which was the morning after the day on which the verdicts had been returned. He had received a telephone call from a woman who said a friend of hers had been one of the jurors at the trial of the two appellants. She said that her juror friend had heard that, when the appellant Martin was arraigned, one of the male jurors was aware that Martin had been refused bail because he was a danger to the community. The information about refusal of bail had, it was said either then or later, been obtained by reading an issue of a newspaper, which was by then presumably some months old. Mr Eastwood spoke briefly to the person claiming to the juror himself and, with complete propriety, quickly terminated the conversation, prepared ex 60, and reported the matter to the judge who had presided at the trial and was about to sentence the two appellants.

12. When the court resumed in the afternoon of 13 May 1998, the learned judge, on the application of Mr Eastwood and of Mr Rosser, who was counsel for the appellant King, directed that an investigation be carried out pursuant to s 70(7) of the Jury Act 1995. Section 70, which is a novel section in Queensland, begins with a series of provisions which are designed to protect the confidentiality of jury deliberations. It then proceeds in s 70(6) to qualify them by providing for disclosure by and to the court of information "to the extent necessary for the proper performance of the jury's functions". Section 70(7) 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. an investigation of the suspected bias, fraud, or offence; and
2. the seeking and disclosure of confidential information about jury deliberations for the purposes of the investigation."

It was under this provision that his Honour acted in directing the investigation that followed.

13. There was and is no question of fraud, nor of any offence having been committed. The suggestion arising from what appears in ex 60 is confined to bias within the meaning of s 70(7). The investigation that was directed took the form of a questionnaire to each juror, which was forwarded by the Deputy Sheriff first on 20 August 1998, and then,  in a slightly amended form, again on 19 November 1998. The results are somewhat confused; but, putting together all the responses received, the effect of the report made by the Deputy Sheriff came down to this. Eight of the 12 jurors were not aware at any time, whether before or after being empanelled and sworn as jurors, that either of the accused Martin and King had been refused bail. Of the remaining four jurors, all said that they had been aware, after being sworn as such, that one of the accused (who was the appellant Martin) had been refused bail. Of these four jurors, two said they had become aware of it from another member of the jury; a third said that, from the first day, it had become evident from the fact that King was allowed out of the court room, whereas Martin was held in custody. The fourth sent a statement dated 18 August 1998 to the Deputy Sheriff, which was in the following form:

"I, [name given] would like this opportunity to explain the reason I may have made other jurors on the panel believe that the defendant Peter George Martin wasn't granted bail. This statement was made after the jurors verdict was final but prior to actually handing our judgment to the Judge.

After all jurors agreed upon the verdict, the bailiff was called and during this interim, while awaiting for the court to be recalled, I made a statement to the other jurors about Peter George Martin not being granted bail. I based this statement upon observations which are listed below:

-early in the trial there was a delay one morning for a couple of hours, and the reason for this delay was because a paddy wagon had broken down. (This information was overheard from an accompanying officer talking to the bailiff at lunch time).

-Peter George Martin was accompanied by 2 police officers at all times.

-Peter George Martin was never seen anywhere except for inside the courtroom. Whereas the other defendant was seen, with his family, outside the courtroom and outside the courthouse on many occasions.

-The dress of each of the defendants.

Upon these observations I concluded that the defendant Peter George Martin had not been granted bail. As stated above, I made a statement to the other jurors during the time the court was being recalled about Peter George Martin not being granted bail.

I said this at a time, which in my opinion, was not influencing any juror in any way because our decision had already been finalised."

14. The result, as we see it, is as follows. In the first place, there is no reliable information that any of the jurors consulted any newspaper to ascertain if the appellant Martin had been refused bail. Secondly, there is good reason for concluding, from what jurors observed at the trial, that four of them were, before beginning their deliberations, aware that Martin had been refused bail. Thirdly, that it is possible that one or more of those four remarked to one or more of those others that the reason for that refusal was that Martin was "a danger to the community". On the appeal, Mr Devereaux, who appeared for the appellant Martin, was careful to confine his submissions to the conclusion that at least one juror believed: (a) that Martin had been refused bail, because (b) he was a danger to the community, adding however that it was nevertheless (c) a "matter for concern" that some of the other jurors may also have believed that to be so. On this basis, Mr Devereaux submitted that the verdict and conviction of his client should be set aside. Mr Darveniza, who appeared for the appellant King, adopted those submissions and argued that the case and the verdict against his client were so intertwined with and dependent on the guilty verdict against Martin that the appeal by his client should also be allowed.

15. All counsel, including Mr Meredith for the Crown, on the appeal concurred in submitting that the appropriate test to be applied in deciding whether the verdict should be set aside for bias on the part of a juror was that laid down in Webb v The Queen (1994) 181 CLR 41, 47. As stated by Mason CJ and McHugh J in that case, it is whether a fair-minded person might reasonably apprehend or suspect that the juror has prejudged or might prejudge the case; or, as Brennan J expressed (181 CLR 41, 57), whether a fair-minded and informed member of the public would entertain an apprehension that the juror would not discharge his or her duty impartially. In Webb v The Queen, the incident (which involved a juror presenting a bunch of flowers as a gift for the mother of the murder victim) apparently took place in circumstances in which the gift may have been, or may have become, known to all 12 of the jurors at the trial. In the appeal now before us, it was assumed that, because unanimity of verdict is required in Queensland, a reasonable apprehension of bias on the part of only one juror is sufficient to invalidate the verdict. It is perhaps not completely clear that that is a necessary consequence of the judgment in Webb, but we are prepared for present purposes to proceed on that assumption, even though the verdict in the present case was in fact unanimous.

16. It is with the application to the facts of  the principle in Webb v The Queen that the principal difficulty arises here. The circumstance that it is known to a jury, or one of more of them, that an accused person at his trial, or that one of several accused persons at a trial, has not been granted bail is, in our respectful opinion, not by itself ordinarily sufficient to justify a reasonable apprehension of bias, prejudice or want of impartiality on the part of that or those jurors. Statistically, something of the order of 10% or more of those brought to trial in Queensland have not been granted bail, and in many cases the fact that bail has been refused is not only self-evident but, practically speaking, is often not capable of being concealed from the trial jury. The complaint here is, however, not simply that the jury, or a member of it, became aware that Martin had been refused bail, but that the juror in question inferred that the reason for that refusal was that Martin was "a danger to the community". Even that state of affairs is by no means uncommon or unknown to jurors in trials in this and, it may be assumed, other jurisdictions. Trials on indictment for offences, whether violent or not, ordinarily take place only after the evidence at committal has established a case against them. They are quite often people who for one reason or another can be expected to be a danger to the community. More specifically, in the case of some accused persons, it is not unknown for them to be manacled throughout the trial, particularly when, as sometimes happens, they have a predilection for violence or for escaping, or perhaps are being charged with an offence like participating in a prison riot.

17. Instances of this and similar kinds abound. For example, in R v Stuart & Finch [1974] Qd R 297, 321, the appellants were at their trial found guilty of murder in the course of an extortion attempt resulting in a number of people being burned to death in a crowded nightclub.  One of the grounds of appeal relied on by one of the appellants was that, during the empanelling of jury, he had been shackled to a wide canvas belt with double padlocks; that during the trial he was handcuffed to a rail under his seat in the dock; and that, when giving evidence, he was chained by the leg to a post and by the wrist to another post, which was visible to the jury. See [1974] Qd R 297, 321. It was submitted on the present appeal that, in that case, the learned trial judge had specifically directed the jury that "some restraint" was being applied to the accused persons in the dock, which, his Honour explained, was being done on his responsibility because of advice he had received; but that the jury were "not to take that into account in any way at all" in considering the evidence, and that the accused were entitled to be protected by the presumption of innocence until it was displaced by evidence establishing guilt beyond reasonable doubt.

18. It is, of course, true that no such special direction was given by the learned trial judge in the present case. That is scarcely surprising having regard to the fact that no one outside the jury was aware until after the verdict had been returned that some members of the jury had noticed that the appellant Martin had evidently been refused bail. His Honour's summing up did, however, include the conventional direction to the effect that the verdicts of the jury were to be arrived on the evidence before the court and were to be based solely on that evidence. Evidence, his Honour went on to say:

"... does not include anything you may have heard about the case outside the court or read about it in the newspapers ... Remember your decision is to be based on the evidence and on the evidence alone."

It must be open to doubt whether, even if it had been known that some members of the jury were aware of the fact that Martin had not been granted bail, any more specific direction on the subject would have served the interests of the appellants at trial. To have given such a direction would certainly have alerted the other eight jurors to the refusal of bail without, as we see it, any corresponding advantage to the accused or to Martin in particular. It is for this reason that, even when judges become aware of some potentially prejudicial event or evidence at trial, it is often considered preferable to make only muted reference to it, for fear that giving it undue emphasis will focus too much attention on it. It may very well explain why no direction was given or sought at the trial about the manner of the appellants' arrest at gunpoint in this instance. As was said by Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592, 603:

"The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence."

Or, as was said by Brennan J in the same case (173) CLR 592, 615):

"Our system of protecting jurors from external influence may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial."

See also the discussion of Pincus JA of the cognate problem of adverse pre-trial publicity in R v Lewis [1994] 1 Qd R 613, 630-640.

19. In our respectful opinion, there was no valid reason here for suspecting or apprehending bias on the part of that or those members of the jury who became aware that the appellant Martin had been refused bail, whether the reason for that refusal was that he represented "a danger to the community" or otherwise. The jury were no doubt faced with a difficult task in deciding whether the presence of the cloth fragments in the two cars enabled a connection to be inferred beyond reasonable doubt between the persons who were using those vehicles. In the absence, however, of any other rational explanation of that fact, the inference that the relevant incriminating connection existed was a compelling one.

20. His Honour's summing up of the evidence was careful and thorough, and there is no reason to suppose that the verdicts were materially influenced by the fact, deduced by one or more members of the jury, that the appellant Martin was not on bail. The jury did not hasten recklessly to their conclusion, and, indeed, after some three or four hours of deliberation, they returned with an inquiry about evidence of DNA testing of the cloth fragments. In the end, they acquitted the appellant King of unlawfully using the red Ford vehicle. No doubt they did so because they were not satisfied beyond reasonable doubt that he was a party to the taking or using of it. The fact that after their deliberations were concluded, but before their verdict was delivered, one of the jurors may have remarked that these were "bad, bad boys" they were "putting away" seems to me to be of no relevance or significance. If the appellants were guilty of robbing the post office, as the jury had found them to be, the observation was correct. It is very far from justifying an impression by any fair-minded person that the jury had begun their deliberations with the conclusion that the appellants were bad, and should therefore be convicted of the robbery.

21. We would dismiss the appeals against conviction.