SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  I have had the advantage of reading the joint reasons for judgment of McMurdo P and Jones J.  I agree that the appeal should be dismissed.

2. I wish to add briefly to their Honours' observations upon the first of the grounds pursued - that the verdicts are unsafe and unsatisfactory because of statements made out of court by a member of the jury. Their Honours set out the relevant facts.

3. The test under Webb v R (1994) 181 CLR 41, 53 is whether, notwithstanding the trial judge’s warnings, the particular circumstance “would give 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 had not discharged or will not discharge its task impartially”.  The word “impartially” is used there in its usual sense: free of prejudice or bias, and therefore fairly; and it embraces the avoiding of pre-judgment (Webb p 47), arguably relevant here because the juror’s statement, although made after the conclusion of the evidence, preceded the trial judge’s summing up.

4. This was a case where, as put in the submissions for the Crown, the juror volunteered a view to persons not on the jury, during a break in the trial. That was highly undesirable, and ran contrary to the spirit, if not the precise terms – for the reasons explained by McMurdo P and Jones J, of the warnings frequently given to the jury by the trial judge.

5. But taking the relevant test at its most favourable for the defence, I am not satisfied that a fair minded and informed member of the public would thereby even suspect that the juror had not discharged his duty impartially – as relevant here, that he had intractably prejudged the issue. There is no suggestion that the juror’s assessment was in any way contaminated by extraneous information or views expressed by persons not on the jury. What the juror said should be regarded as no more than his preliminary impression based on the evidence and it was not surprising that by the close of the evidence, he had formed such a view, especially where the major question was the credibility of the witnesses.

6. It is also significant that having heard the addresses and summing up, the jury deliberated for more than six hours before returning verdicts. This suggests substantial deliberation. If strong views were suggested at the outset, the likelihood is that they were subjected to considerable further discussion and reconsideration.

7. The following analysis in the judgment of the Victorian Full Court in re Matthews and Ford [1972] VR 199, 206 is helpful:

“It is one thing to show that before or during a trial a juror has expressed a view that, whatever the evidence might prove to be, he has determined what verdict he will give – as in Dent v Hertford Hundred (1669) 2 Salk. 645; 91 ER 546 – or as was suggested in the materials on which the court granted the rule nisi  in Ramadge v. Ryan (1832) 9 Bing. 333; 131 E.R. 640.

On the other hand, it has been held that the mere expression by the jury during or at the close of the plaintiff’s case and before the defendant’s evidence is heard of an opinion in favour  of the plaintiff is not necessarily such misconduct on the part of the jury as would entitle the defendant to a new trial: see Campbell v. Hackney Furnishing Co. (1906) 22 T.L.R. 318.

The principle involved is an aspect of that of judicial fairness – one of the requirements of natural justice: cf. F v. Brewer & Ors.; Ex parte Renzella, Adam J., 29 June 1972, as yet unreported.  As the Full High Court said in Ex parte: the Angliss Group (1969) 43 A.L.J.R.150, at p.152; [1969] A.L.R. 504; “Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds.  Such a mind is not necessarily a mind which has not given thought to the subject or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”  The Court made it plain that the expression of opinion may be quite consistent with the maintenance of a fair and unprejudiced mind to decide the question before the tribunal.”

8. As to the other live ground, relating to the suggested fresh evidence, I agree it should fail for the reasons expressed by McMurdo P and Jones J.

9. McMURDO P and JONES J:  This is an appeal against conviction by James Frederick Brennan (“the appellant”). The appellant was convicted in the District Court of Charleville of four counts of stealing with circumstances of aggravation, three counts of stealing simpliciter, and one count of misappropriation.

10. A number of grounds are set out in the Notice of Appeal but in final argument only one – that the conviction was unsafe and unsatisfactory – was pursued. The basis of this ground was that a juror had spoken to a member of the public prior to verdict, indicating a likelihood that the appellant would be convicted.

11. Leave was sought also to add a further ground namely, that the discovery of fresh evidence raised a significant possibility that the jury would have acquitted the accused if the evidence had been before it. No objection was taken by the respondent to the granting of such leave.

Juror’s ex curial comment

12. This ground is particularised as follows:

“That disclosure by a juror to a third party, at a late stage of the trial, of the likely outcome of the trial, was calculated to interfere with the proper administration of justice, with the result that the trial miscarried and the verdicts should not be allowed to stand.”

13. The subject disclosure is deposed to in the Affidavit of Mr Edward John Bruton.^[1]  Mr Bruton states that while he was at the residence of G, a juror during the appellant’s trial, a conversation concerning the likely outcome of the proceedings occurred in the presence of himself and three other people.  The Affidavit materially contains the following:

“7.  At that time I was aware that there was a Court case involving Mr Brennan and I was also aware that G was one of the jurors.

8.  Shortly after arriving at G’s stables I asked him how things were going...

…

11.  G stated during that conversation that it was not looking good for Mr Brennan.

12.  He also stated that he will do time.

13.  He also stated that he had been selling sheep and instead of banking the money into his and his partner’s account he was banking it into his wife’s personal account.

…

15.  When the conversation commenced I did not know whether the Court case had finished or what stage it was at…  I did not start or invite the conversation.  It was G who was volunteering the information.”^[2]

14. The appellant became aware of this exchange sometime over the final weekend of the trial, at a time when the learned Trial Judge had already commenced his summing up to the jury. It appears, however, that the appellant initially thought the conversation between Mr Bruton and G had occurred prior to the appellant giving evidence in his trial. Regardless, the appellant was still confident of being acquitted of the charges made against him and did not act.^[3]  In fact, the appellant did not even convey his knowledge of this information to his solicitor or counsel^[4] until more than three weeks after the verdict was reached,^[5] as he asserts that he was not aware that he could or should do anything about the conversation in question.

15. The issue for determination here, simply put, is whether this conduct of the juror renders the verdict of the jury unsafe and unsatisfactory.

16. Counsel for the appellant has referred to the learned Trial Judge’s instructions to the jury on the importance of being impartial, particularly in a small city such as Charleville, the importance of not discussing the case with other persons and the importance of determining the trial only on the evidence presented in the courtroom.^[6]  The learned Trial Judge repeated the instruction, that members of the jury should not discuss the trial with anyone other than their fellow jurors, at the end of seven of the first eight days of the hearing.^[7]

17. The appellant submits that the conduct of the juror thus amounts to a breach of an express and repeated instruction by the learned Trial Judge. The juror’s conduct is most irregular and deserves censure in that the juror disregarded the spirit of the judge’s directions, but strictly speaking it cannot be said that the statements alleged constitute a discussion as such.  What occurred did not amount to an exchange of opinions or ideas, did not amount to a debate and did not involve the consideration of another person’s point of view.  No advice was sought by the juror, nor indeed was any offered.

18. Counsel for the appellant concedes that the juror did not receive any information regarding the trial from Mr Bruton or anyone else and details of the jury’s deliberations were not in any way disclosed. All that happened was that the juror, at a time when he had heard the evidence but not the summing up, volunteered his view of what the outcome of the trial was likely to be. Such comments should be distinguished from the converse situation, that is, where a member of the public ventures an opinion to a juror on what the likely outcome of a trial should be. In fact, any discussion between jurors and non-jurors concerning a trial should be strongly discouraged and routinely is by the Trial Judge.

19. This Court has said in the past that:

“The satisfactory functioning of the criminal justice system has as one of its essential requisites the need to ensure that juries determine guilt on the basis only of the evidence presented in court at the trial, and that in doing so they are, as far as possible, insulated from extraneous information and outside influences.  Justice, as is often said in this context, must not only be done, but manifestly and undoubtedly seen to be done.”^[8]

20. The relevant test to be applied, in determining whether justice is both done and seen to be done, is found in the joint judgment of Mason CJ and McHugh J in the current authority on point, Webb v The Queen.  In that case, their Honours stated:

“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, 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.”^[9]

21. The test then relates solely to the question of impartiality. Do the statements of G - ‘It is not looking good for Mr Brennan’, ‘He will do time’, ‘He has been selling sheep and instead of banking the money into his and his partner’s account he was banking it into his wife’s personal account’ - give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that he has not discharged his task impartially? In the circumstances, I think that there can be little doubt that such a member of the public would not be so apprehensive. The juror was doing no more than expressing his view of the evidence in the trial at that time and, as counsel for the respondent submits, there is little surprise that a view one way or the other would have been formed at such a late stage of the proceedings. The Full Court of the Supreme Court of Victoria has said that the expression of such a view is not inconsistent with an impartial mind.^[10]  Indeed, the appellant failed to see the significance of the conversation, though, in fairness, there may have been some confusion in his mind as to when the conversation took place.

22. There are, of course, many circumstances where a trial must be stopped or a verdict overturned because of irregular behaviour involving a juror or jurors. Some which have been the subject of review include:

1. Where a juror was in the habit of discussing the case with three other members of the jury while giving them a lift to and from the court in his car and continued to discuss the case with three of the remaining jurors after he had been discharged from the jury by the learned Trial Judge:  see Regina v Spencer and Others [1987] 1 AC 128.

2. Where, two or three days after the jury retired to consider their verdicts, communications passed between the bailiff in charge of the jury and the jury spokesperson on sentencing principles and the acceptability of a deadlocked jury:  see R v Jackson and Le Gros [1995] 1 Qd R 547.

3. Where Crown witnesses (the complainant and her daughter in a rape case) were well known to a juror, even though he had not spoken of them to the other jurors:  see R v Hilker [1969] QWN 33.

4. Where a juror was insulted by the prisoner in the course of cross-examination and was considered therefore to be incapable of being indifferent as between the Crown and the accused person:  see R v Russell [1945] QWN 18.

23. The situation of a juror disclosing to a member of the public his private view of the outcome of a trial is far from desirable. But that is not a circumstance which impacts on the juror’s capacity to be impartial. For that reason the argument that, because of the conduct of the juror, the convictions should be set aside and a new trial ordered, fails.

24. Counsel for the appellant also submits that it is a fundamental principle that the trial of an accused should take place in his or her presence,^[11] but there is no breach of this principle here.  Quite simply, that conversation in no way formed part of the trial. G’s statement, made during an informal conversation with three members of the public and outside of both the court and the jury room, in no way constitutes a trial taking place behind the appellant’s back, as was submitted by counsel for the appellant.

25. This ground of appeal fails.

Fresh evidence

26. The fresh evidence was revealed in a secretly recorded telephone conversation, which a Mr Ross Coveney initiated with an investigating police officer Detective Sergeant Hanley on 2 June 1999, after the appellant’s conviction. Mr Coveney is the brother-in-law of the appellant.

27. The transcript of that telephone conversation refers to an incident where a young bull bearing the brand BR7 was impounded by the police. After making unsuccessful inquiries to establish the ownership of the bull, Det Hanley was finally contacted by the complainant, Mr Clive McCabe, who identified the bull as the progeny of a cow which he owned in partnership with the appellant. The partnership brand was horizontal H1C and was the marking which the bull should have borne.

28. The BR7 brand on the bull was irregular. The branding irons had been made by a Mr Robert Young at the request of the appellant. It closely resembled a registered brand belonging to Mrs and Mr Sheehan, the mother and stepfather of the appellant. The Sheehans owned a property known as “Cairns” in the Charleville/Adavale district. The letters of their registered brand were in script form. The brand made by Mr Young was different to the extent that the letters were in block form.

29. The partnership between the appellant and Mr McCabe existed from 1988 until 1995. In that time the partners were the owners of a property known as “Bronte” situated 140 km west of Charleville and an adjoining property to the south, “Ambraville”.

30. At the time of its commencement, the partnership purchased cattle from Mr and Mrs Sheehan marked with their registered brand. These cattle were to be cross-branded with the partnership brand and the progeny from them branded only with the partnership brand.

31. The property Bronte was sold in July, 1995 at the insistence of the financiers who held mortgages over the real property as well as the stock.

32. It was after the sale of Bronte that Mr McCabe was aware that the appellant had brought the partnership cow and the young bull to a paddock on the outskirts of Charleville belonging to Mr and Mrs Sheehan. He noticed the bull was branded with the BR7 brand which he understood to be owned by the Sheehans. He did not know at that time of any use of the irregular brand. However Mr McCabe was then suspicious that the appellant had been branding partnership cattle illegally.

33. Later when he heard of the police inquiries concerning the young bull, he identified the animal in the presence of Det Hanley.

34. Det Hanley mentioned this fact in the recorded telephone conversation and also that his further inquiries revealed the irregularity in the brand.

35. The point the appellants make about this fresh evidence is that this incident was not referred to at the trial. Had the defence been aware of it at trial, it would have used the lack of complaint to the police to attack the credibility of Mr McCabe who was a key Crown witness. It was argued that this would have been particularly relevant to Counts 1, 3 and 10.

36. In the additional material tendered on the fresh evidence application are two statements of Mr McCabe tendered at the committal proceedings and an addendum statement made available just before the trial. Also tendered was the transcript of his cross-examination at the committal proceedings.

37. What emerges relevantly from these documents is the fact that in October 1995 there were significant discussions between the appellant and Mr McCabe which also involved a Ms Theresa Mendez who was retained as a financial adviser to the partnership.

38. During these discussions both Mr McCabe and Ms Mendez made frank accusations to the appellant that he had stolen cattle belonging to the partnership as well as cattle which had been placed on agistment on partnership property which belonged to Mr Gleeson. The discussions included other allegations of misappropriation of partnership funds. Both Mr McCabe and Ms Mendez claim that the appellant admitted during these conversations that he had stolen the cattle.

39. In the statements that he initially made to the police and in his evidence on committal, Mr McCabe stated that as a result of the revelation in the discussions of October, 1995 Mr McCabe and Ms Mendez took the decision to report matters to the police. It should be noted also that at the time of the discussions, Mendez and McCabe were aware of unauthorised payments of partnership monies into the account of the appellant’s wife.

40. It is not known on what date the identification of the bull, which is the subject of the fresh evidence, occurred. All that has been defined is that sometime after the sale of Bronte, the young bull was moved to the paddocks outside Charleville; some unknown time after that it escaped; and some time later it was identified by Mr McCabe.

41. If the incident occurred at the same time or soon after the discussions in October, 1995, it would not have taken on much significance either for Mr McCabe or the police. Even if the incident occurred prior to those discussions, the use to which Mr McCabe’s failure to mention the incident could be put to on an issue of credibility seems limited. The prosecution at the trial led a considerable body of evidence supporting the charges on which the appellant was found guilty. I do not propose to refer to all of the evidence, but from what follows it is sufficient to say that the evidence of Mr McCabe and his credibility was well supported, particularly by the evidence of Ms Mendez, Mr Young and Mr Kirby and by reference to the documentary exhibits. I shall deal particularly with the 3 counts referred to above.

As to count 1 – stealing 156 head of cattle (95 branded H1C; 45 branded BR7 and 16 unbranded) –

42. In addition to the evidence of Mr McCabe the prosecution on this count led evidence from Mr Young to the effect –

1. In December 1993 he made up the irregular brand BR7;

2. The brand was intended for use that weekend;

3. He delivered 12 cattle to Ambraville and there saw approximately 100 head of yarded cattle;

4. On 6 December he transported 156 head of cattle to the open  saleyards;

5. The weigh bill showed the owner of the cattle as Mr and Mrs Sheehan.

43. About this transaction Ms Mendez said –

"(i)The appellant admitted that his mother received $36,000 for their sale but some 8 months later paid $20,000 to Elders account to pay for a bulldozer on behalf of the appellant.

2. At the time of the discussion in October, 1995 the appellant admitted that he had taken partnership cattle in 1993.

3. At the same discussions Mr. McCabe was confused and alleged that 3,000 sheep had been stolen.”

Mr McCabe’s contribution to this issue arises from his evidence that cattle belonging to Mr and Mrs Sheehan never ran on either property or Ambraville.

44. Mr Sheehan claimed the movement of cattle to the Oakey saleyards occurred after there had been a sale of the partnership cattle to his mother and that that was the reason they were sold in her name. There was no documentary evidence to support this “sale” in the partnership books and it was established in other evidence that the Sheehans had left their property “Cairns” in 1993 prior to this transaction.

45. It is difficult to see how any cross-examination about the incident referred to as fresh evidence in the context of that conflict between the prosecution and defence case would be anything more than a talking point. In our view it was most unlikely that cross-examination on such a minor issue would alter the credibility balance between the prosecution and the defence witnesses.

As to Count 3 –Stealing of 71 head of partnership cattle December 1994

46. The evidence relevant to this issue comes particularly from Mr Gleeson (who had died before the trial but whose statements were tendered), Mr Kirby, Mr Young and Ms Mendez.

47. The effect of Mr Gleeson’s evidence was –

1. That he had moved 509 head of cattle onto Bronte for the purposes of agistment.
2. That when he was unable to pay agistment fees he transferred 29 head to the partnership in lieu of these.
3. He sought to retain his interest in the cattle, on the basis that he would pay off what was owed for agistment fees.

48. Mr Kirby was the owner of three properties, one of which shared a common boundary with both Bronte and Ambraville. His evidence was to the effect –

1. The appellant asked to move 100 cattle from Bronte onto his property for the purposes of agistment even though feed was available on Bronte.

2. Some of the cattle were branded P6R which was Mr Gleeson’s brand.

3. The appellant admitted to him that he had taken cattle from Gleeson.

4. That after the cattle were mustered to be removed from his property the appellant specifically inquired whether there were missing cattle bearing the P6R brand.

49. The evidence of Mr Young was to the effect that –

1. He organised transport of 120 head of cattle from Mr Kirby’s property to his own property, Honan Downs at Isisford.

2. The appellant had claimed that he was the owner of the cattle branded BR7.

3. The appellant authorised him on two occasions to sell cattle at Longreach to pay for outstanding transport costs and agistment fees.

4. He sold in total 53 head of cattle at Longreach for this purpose.

5. The appellant authorised him to brand between 8 and 10 head of cattle to pay for further outstanding agistment fees.

6. He trucked remaining cattle to Oakey saleyards in January, 1996 on behalf of the appellant.

50. Ms Mendez gave evidence to the effect –

1. The appellant admitted to her that 58 head of cattle formerly owned by Gleeson which had been surrendered to pay for outstanding agistment fees had been sold by him to his own account.

2. That he had branded partnership cattle with the BR7 brand.

51. Mr McCabe’s evidence relevant to this count was quite minor by comparison with the other witnesses. It was to the effect –

1. That he was not aware of partnership or agisted cattle being sent to Honan Downs.

2. That cattle owned by the Sheehans were marked with the BR7 brand.

3. That no cattle with BR7 brand which were not cross branded ought to have been running on Bronte or Ambraville.

52. The appellant in evidence admitted that he had no entitlement to the agistment cattle. He claims his interest in the 29 head transferred by Mr Gleeson in lieu of agistment fees had been assigned to Mr McCabe. He said further that Mr McCabe had asked him to take the cattle to Mr Kirby’s place and thence to Honan Downs. The appellant also denied giving any authority to Mr Young to sell the cattle at Longreach.

53. Although there was a contest between the evidence of the appellant and that of McCabe, the question of credibility on this count was very much one between Messrs Young, Kirby and Ms Mendez on the one hand and the appellant on the other. Any reference to the fresh evidence incident would, to our minds, be quite inconsequential.

As to count 10 – Stealing three bulls, one young oxen, one young cow from the partnership

54. The cattle in question were branded BR7 and B6R. On 4 December, 1995 five head of cattle were transported from Bronte to the saleyards at Roma. The cattle were sold in the name of Leith Brennan, the appellant’s wife. The weigh bill (ex 58) nominated her as the owner. The partnership, by this time, had been dissolved.

55. The appellant in his evidence claimed that there was an agreement between himself and Mr McCabe to the effect that Mr McCabe would receive cars from the partnership property and that the appellant would have the cattle.  Ms Mendez claims that there was no such agreement.

56. The evidentiary conflict was therefore essentially between Ms Mendez on the one hand and the appellant on the other.

Decision

57. It is seen from this overview of the evidence relevant to those particular counts that any credibility issue between Mr McCabe and the appellant did not rest on the evidence of Mr McCabe alone. Rather, in most instances, the factual differences between the prosecution case and the defence case were more sharply defined by the comparison of the evidence of the appellant on one hand and the witnesses Mendez, Young and Kirby on the other.

58. Speaking generally, the prosecution case against the appellant was a strong one. He arranged for the fabrication of an illegal brand, he had sought to conceal the movements of cattle held on agistment, he claimed to have made sales of partnership cattle without recording such sales in partnership records. The question of the appellant’s credibility was tested by reference to conflicts between himself and a number of witnesses and against a background of diverse situations. The credibility issue between the appellant and Mr McCabe and the effect of the fresh evidence, had it been led, has to be assessed in this context.

59. In our view the leading of the evidence of the incident which is described as fresh evidence was not likely to affect the outcome of the case. Applying the test as it was described in Gallagher v The Queen^[12] and confirmed in Mickelberg v The Queen^[13],  we cannot find that there was a significant possibility that the jury, acting reasonably, would have acquitted the plaintiff had the fresh evidence been before it at the time. 

60. In light of the concession made by the respondent, leave to add a further ground of appeal should be given.

61. The appeal should then be dismissed.