R v Murphy[2006] QCA 14

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  The appellant was convicted by a jury in the District Court at Ipswich after a two day trial of the offence of assault occasioning bodily harm committed while in company. 

The Crown case was that the appellant had struck the complainant while the appellant was part of a group who had set upon the complainant police officer.  The jury deliberated for about three hours before returning its verdict in the course of which it sought redirections.

The only ground of appeal which is pursued reads as follows:

"During the trial the jury advised the Court that an Aboriginal male in the rear of the Court was staring at them and causing concerns.  The jury should have been discharged and a re-trial ordered."

The appellant is an Aboriginal man. 

The transcript shows that on 16th November 2005, which was the second day of the trial, the trial Judge, just before commencing her summing-up to the jury, made the following statements in the absence of the jury in the Court room:

"Some ladies on the jury have said that there is a young Aboriginal fellow up the back in the public gallery who keeps looking around and staring at them and it is worrying them.  Glaring at them, they say.  It is an open court, but I think it would be in the best interests of Mr Murphy (who is the appellant) if he leaves."

- meaning obviously the member of the public in the gallery.

"I actually didn't see him doing it but he was looking around to get a better look at Mr Lehane (the Crown Prosecutor) at one stage, but I don't think he was glaring at the jury.  I don't think it's any cause for a mistrial or anything like that.  I just thought we'd better remedy the situation before they started getting really worried about it and shooting it home to Mr Murphy (the appellant) in some way."

Both counsel agreed in that course.  Mr Lehane, as I have said, was the Crown Prosecutor and defence counsel was Mr Kissick, who we are informed is an experienced defence counsel.  The reaction of the experienced Judge and both counsel at that time suggests a perception that the episode lacked any real significance.

When the jury returned to the Court room her Honour made these remarks:

"Ladies and gentlemen, just before I start the bailiff told me that some of you are concerned about a young man who is up the back of the Court.  I have spoken to him.  He did not mean to cause any offence to anyone.  If anyone was worried at all there was nothing in it.  He was actually - he was staring around at Mr Lehane trying to get an idea of what he was saying during his address, but in any event it's an open Court and he's happily agreed to leave the Court so that no-one feels uncomfortable."

In her summing-up in orthodox fashion the Judge reminded the jury that no external influence should play a part in their deliberations and that there was no room for questions of sympathy or prejudice.  As I have said, after retiring the jury sought some redirections which in itself suggests that they were indeed giving conscientious attention to their task.

In her report to this Court for the purposes of the appeal the learned Judge said in a report dated the 1st of December 2005, which was about a fortnight after the trial: 

"I remember that the bailiff told me that one of the jurors was concerned that there was a person in the back of the Court who was staring at her and she was frightened of him.  I raised the matter in Court and asked the person to leave.  He was a person who was obviously associated with the accused.  He was of Aboriginal extraction as was the accused and was seated with the two elderly people who had sat in on all of the trial and appeared to be the parents of the accused.

Although I didn't think it necessary at the time on reflection I think that I should have discharged the jury and declared a mistrial as the jurors' fears may have influenced the verdict."

The submission for the appellant is that notwithstanding the acquiescence of defence counsel and the Crown Prosecutor in the course proposed at the time by her Honour, the Judge should have discharged the jury and ordered a re-trial because a fair-minded and informed member of the public would reasonably have apprehended that one or more jurors would not discharge their task impartially.  See Webb 1993/4 181 Commonwealth Law Reports 41 at 53 such that the appellant was denied a fair trial.  See Fox 1998 Queensland Court of Appeal 121.

While, as noted in Webb at page 52, the view of the trial Judge is significant in such circumstances, ordinarily the Judge's assessment made contemporaneously with the events would weigh more heavily than an assessment recorded an appreciable period, here a fortnight, later on.

Other important aspects are that both counsel agreed in the course suggested at the time by her Honour and that no further concerns were raised by any members of the jury.  That last factor is significant when one acknowledges that the jurors had earlier been sufficiently confident to raise their concerns with the Judge through the bailiff.  Furthermore the nature of the conduct alleged against the member of the public, glaring at some jurors, if it occurred, would not ordinarily be considered especially alarming, but would be considered the sort of thing which might often be expected where, say, members of the family of an accused hear evidence or submissions adverse to his interests.

The observations made by the Judge to the jury and the absence thereafter of the person who had been in the gallery dealt sufficiently with the concern.  There is no sufficient reason to consider that the jury may not, in all of these circumstances, have been conscientious in the discharge of their sworn duty. 

Mr Devereaux, senior counsel, for the appellant, referred us to The Queen v. Waring 1972 Queensland Weekly Note 20.  In that case on the resumption after adjournment of a criminal trial three of the jurors reported that telephone calls had been made to their homes by some person or persons unknown to them threatening that some injury would be done to the juror or to a member of the juror's family or his property if a verdict adverse to the appellant were reached.

The trial Judge read to the jury the oath and those sections of the Criminal Code dealing with threats to jurors and so on.  He told the jury that it was not the appellant who had made any of the telephone calls and then invited any juror who felt unable to continue to perform his duty with a fair and open mind to tell him so. 

No juror informed the trial Judge of that and he thereupon continued with the trial.  Upon appeal it was held that the action taken by the trial Judge was appropriate and sufficient.  That, of course, was a stronger case for any contention that the jury should have been discharged and a mistrial declared.

It may be said that Courts expect a certain robustness of jurors in the Criminal Court.  Courts reasonably expect a properly instructed jury not to be distracted in the long term performance of their duty by circumstances like this one, notwithstanding that it may cause some momentary distraction from the proceeding.

Mr Devereaux also submitted that the risk of a miscarriage of justice was enhanced by the feature that, as he put it:

"The case against the accused was made out but was not overwhelming given the significant differences in the evidence of the complainant and Constable Clist."

The complainant gave evidence identifying the appellant as the person who delivered the relevant blow to the complainant's forehead and the jury was sufficiently directed on the issue of identification.

The Judge also directed the jury on the question of discrepancies between the evidence of the complainant and the evidence of Senior Constable Clist.  The appellant did not give or call evidence.

It was up to this properly instructed jury to determine whether, notwithstanding any discrepancies between the complainant's evidence and that of Senior Constable Clist, they accepted the complainant's evidence identifying the appellant as the person who delivered the relevant blow, Clist not having been present at that time.

I do not consider that this aspect warrants this Court's taking an even more cautious approach to the assessment of any significance in what occurred just prior to the commencement of the summing-up.

Before leaving the case I mention the circumstance that the Judge referred in Court when speaking to the jury to having spoken to the young man who had been in the back of the Court.  There is no suggestion in the record that the Judge revealed in open Court to counsel in the presence of the appellant but in the absence of the jury what that person had actually said to her or what that person had actually said to the bailiff if the communication with him was made by the bailiff on the Judge's behalf.  

That should have been done but the fact that it was not done does not, in this case, imperil the verdict.  The content of communications of that character should, as a matter of course, be disclosed by a trial Judge in open Court in the absence of the jury.  I would dismiss the appeal.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

THE CHIEF JUSTICE:  The appeal is dismissed.