R v Kraaz[2006] QCA 299

COURT OF APPEAL

McPHERSON JA

DUTNEY J

MULLINS J

CA No 72 of 2006

DC No 5 of 2006

THE QUEEN

v

KRAAZ, Kayleen MareeAppellant

BRISBANE 

DATE 15/08/2006

JUDGMENT

McPHERSON JA:  I will ask Dutney J to give his reasons in this matter.

DUTNEY J:  The appellant was convicted following a trial of one count of entering a dwelling with intent to commit an indictable offence in the dwelling in company with another person.  She was sentenced to four years' imprisonment with a recommendation for post-prison community-based release after 18 months.  She wishes to appeal against her conviction.

A number of grounds for the appeal against conviction were attached to the notice of appeal; all of these have now been abandoned and the only ground of appeal on which the appellant now wishes to rely is that a miscarriage of justice resulted from the learned trial Judge's failure to discharge the jury under s 54(4) of the Jury Act 1995 upon a contravention of s 54(1) of that Act.  Section 54 of the Jury Act provides:

1. "While a jury is kept together, a person (other than a member of the jury or a reserve juror) must not communicate with any of the jurors without the Judge's leave.

2.Despite subsection 1:

(a)the officer of the Court who has charge of the jury may communicate with jurors with the Judge's leave;  and

(b)if a juror is ill, communication with the juror for arranging or administering medical treatment does not require the Judge's leave.

3.A person who contravenes subsection 1 may be punished summarily for a contempt of the Court.

4.The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the Judge may discharge the jury if the Judge considers that the contravention appears likely to prejudice a fair trial."

After the jury had retired, a discussion occurred between the Bailiff and members of the jury concerning the possibility of them being sequestered for the night.  As it appears in the transcript at page 312, this is part of what occurred.

"HIS HONOUR:  Well, Mr Bailiff, did you understand the inquiry was what would happen if they had not reached a verdict by this evening or something like that?

BAILIFF:  I actually told them, your Honour, that there is no timeframe.  I said:  'I tell all my juries that there's no timeframe whatsoever; I'm not pushing anybody'.

HIS HONOUR:  Well, you shouldn't have even had those conversations.

BAILIFF:  Well, they asked me, your Honour."

The jury had retired at 11.10 that morning.  At 2.02 in the afternoon, the jury was brought back into Court to listen to a portion of the record of interview between a co-offender of the appellant who had pleaded guilty and been sentenced before the appellant's trial and who had given evidence against her.  That was completed and the jury retired to the jury room at 2.35.  The conversation apparently took place some time later.

At 3.52 the Bailiff reported that the jury had reached a verdict.

After the discussion set out in the transcript at page 312, which I have recounted, the trial Judge invited submissions from defence counsel who had first raised the issue in these terms:

"HIS HONOUR:  So is it all in order to take a verdict?

DEFENCE COUNSEL:  Yes; I think there is no reason not to take a verdict.

HIS HONOUR:  Yes, all right.  Thank you.  Can we have the jury back?

DEFENCE COUNSEL:  I probably should have added, I think, in the circumstances, your Honour would have been obliged to take a verdict now that they've indicated that they've reached a verdict.

HIS HONOUR:  Right.  Anyway, you are happy to take a verdict?

DEFENCE COUNSEL:  Yes."

It is not clear from the record whether defence counsel was informed of the conversation before or after the jury informed the Bailiff that they had reached a verdict.  Either way, it is clear to me that s 54(4) authorises the trial Judge to discharge the jury, if appropriate, at any time prior to the verdict actually being pronounced in open Court.

In this case, whether or not defence counsel was unsure of whether it was still open to the trial Judge to discharge the jury he was given two opportunities to make any submissions he wished to on whether or not the verdict should have been received.  When an experienced defence barrister, given an opportunity to make submissions on a specific matter in these circumstances, declines to do so there is no reason not to assume in an adversarial context that it is a deliberate decision measuring the strength of the argument against the prospect of a favourable verdict.

It should be noted that the appellant was acquitted of the more serious charges of armed robbery in company, robbery in company, and entering with intent in company and damaging property.  In my opinion, the conversation the Bailiff had with the jury was in breach of the provisions of s 54 of the Jury Act and hence was improper.  On the other hand, the information conveyed was information which members of jury panels are given as part of the orientation process.  It is contained in a pamphlet usually provided to potential jurors and is freely available on the Court's web page.

The following appears on the Court's web page under the heading "Will I be able to go home each night?":

"Normally you would go home each night during the trial.  However, if you and the other jurors have retired to consider your verdict and you have not reached a verdict by the end of the day, the Judge may order that you remain together and stay the night at a hotel.  For your comfort, the Deputy Sheriff will arrange to have your personal effects collected and delivered to the hotel.  You may want to organise a bag and leave it with someone from whom it may be collected just in case you are required to stay overnight.  You should remember to include such things as medication and any personal effects you will need.  The Court will pay for your accommodation and meals."

The conversation with the Bailiff took place relatively early in the afternoon.  It would have been a long time before the question of locking the jury up for the night would have been considered.  The conversation was with the Bailiff who indicated that it was a matter solely under the control of the Judge.  The Bailiff indicated that the jury was under no time pressure.  When told by the Bailiff that it was a matter for the Judge, the jury did not pursue the subject further.

Counsel, after properly raising the matter as a matter of concern, made no submission concerning unfairness.  In any event, the information conveyed was information routinely supplied by the Court to potential jurors as part of the orientation process.

In R v Edwards, Heferen and Georgiou [2002] 1 Qd R 203 at 205, de Jersey CJ, referring to sections 53 and 54 of the Jury Act said:

"In determining under sections 53 and 54 whether to the trial Judge a particular contravention 'appears likely to prejudice a fair trial', the Judge having ascertained the circumstances as best he or she may should consider not only the question of any established actual jeopardy to the justice of the proceeding but also the question of how a reasonable and informed members of the public would see the matter.  In the latter regard, likelihood of a 'reasonable suspicion' that the proceeding could not justly be carried through would ordinarily warrant aborting the trial.

I stress, however, that the suspicion must be reasonable and its existence established as a matter of probability not mere possibility."

In my opinion, the communication by the Bailiff to the jury is not such as would lead to any reasonable suspicion of unfairness in the trial.  In my view, the appeal against conviction should be dismissed.

McPHERSON JA:  I agree with what Dutney J has said.  In my view, there is no possibility of any perception of unfairness in what happened at the appellant's trial.  I would therefore dismiss the appeal against conviction.

MULLINS J:  I also agree with Dutney J.

McPHERSON JA:  The appeal against conviction is dismissed.  We have already given our direction on the manner in which the application for leave to appeal against sentence must be disposed of.

If it is necessary to say so again, I will say that the application for leave to appeal against sentence will be determined or otherwise disposed of on a date to be fixed.