R v Millar (No 2)[2013] QCA 29

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with the order proposed by His Honour, and with his reasons.

[2] WHITE JA: I have read the reasons for judgment of Gotterson JA and agree with those reasons and the order his Honour proposes to dismiss the appeal.

[3] GOTTERSON JA:  On 14 September 2012 the appellant, Andrew John Millar, was found guilty of a number of property and dishonesty offences after a trial before a judge and jury.  The indictment against the appellant contained the following counts:

Counts 1 and 4 – Breaking and entering premises and stealing (Criminal Code (Qld) ss 421(2) and (3));

Counts 2 and 5 – Receiving tainted property with a circumstance of aggravation (Criminal Code (s 433(1));

Counts 3, 6 and 7 – Fraud (Criminal Code s 408C(1)(b)).

[4] Counts 2 and 5 were alternative charges to counts 1 and 4.  As s 568(9) of the Criminal Code permitted it to do, the jury returned special verdicts on these counts, finding that the appellant had committed one or the other, but unable to say which one.  Verdicts of guilty were also delivered on the three counts of fraud.  At a subsequent hearing on 16 October 2012, the trial judge entered convictions on the receiving charges (Counts 2 and 5) in accordance with s 568(10).  The appellant has yet to be sentenced for the offences of which he was convicted. 

[5] On 2 October 2012 the appellant filed a Notice of Appeal to this Court against his convictions.  Although he was legally represented at the trial, the appellant represented himself in the appeal.  His grounds of appeal may be summarised as follows:

•       that a miscarriage of justice occurred as a result of:

1. the trial judge’s failure to discharge the jury after the possibility was raised that some of their number might have had reason to believe that the appellant was in custody during the trial (ground 1);

2. the cross-examination of the appellant during the trial as to his gambling habits (ground 2); and

3. the trial judge’s failure to discharge the jury after they indicated that they could not reach a unanimous verdict and directions subsequently given by her with respect to majority verdicts (ground 3); and

• that the verdicts were unreasonable or could not be supported by the evidence (ground 4).

Circumstances of the charged offences

[6] There were two complainants who testified at the trial, Benjamin Abraham and Linda Lant.  Upon his return from an overnight trip to Adelaide on 15 October 2008, Mr Abraham found that the garage of his St Lucia home had been opened and a set of MacGregor golf clubs was missing, along with a cordless drill.  On 28 October 2008 Ms Lant returned to her home at Broadbeach after an absence of several days to find that someone had entered her garage and stolen a set of Ping golf clubs, some golf shoes and an epi-pen.

[7] The appellant also testified.  In his evidence-in-chief he said that he had pledged the MacGregor clubs at Logan City Cash Cow, a pawnbroker in Woodridge, on 18 October 2008.  He had then redeemed them on 30 October 2008, but returned two days later, on 1 November, to re-pledge them as well as the Ping clubs.  The appellant denied that he had stolen the clubs or had any knowledge that they were stolen.  He claimed to have purchased each set of clubs from a stall at the Carrara markets on the day that he pledged it at the pawnbroker.

[8] The Crown case was that the appellant must have either stolen or received the items which he pledged, and that the pledges therefore constituted fraud as he represented the items as being his own property in order to receive payment for them.

Ground 1 – The appellant in custody

[9] At the time of this trial, the appellant was serving a custodial sentence for other offences of which he had been convicted.  On the afternoon of the first day of the trial, and in absence of the jury, the appellant brought an application for the discharge of the jury.[1]  The basis of this application was that some members of the jury had seen the appellant’s solicitor and counsel walking away from the courthouse without the appellant during the lunchtime adjournment, and that when the jury was brought back into the courtroom after lunch, the appellant was alone in the dock, his legal representatives having not yet arrived.  Further, the appellant claimed that at the moment the jury entered the room one of the corrective services officers was in the process of putting away her handcuffs and her keys.

[10] It was argued that the jury would have realised from this that the appellant was in custody.  It was further argued that some jurors at least might have inferred (correctly) from that and the relatively mild nature of the charges against him, that the appellant was being held in custody in relation to other convictions.  It was submitted that such an inference would be prejudicial to him. 

[11] The trial judge reserved her ruling on the application[2] until CCTV footage of the incidents could be retrieved and viewed, and the trial continued that afternoon.  The following morning it became apparent that, for whatever reason, there was no CCTV recording of the incident available for her Honour’s perusal.[3]  This fact was disclosed in open court by her Honour in absence of the jury.  By that time the appellant had already given instructions to his counsel to withdraw the application.  It is clear from the transcript that counsel withdrew from the application on the appellant’s instructions.[4]

[12] The appellant now submits[5] that, notwithstanding the withdrawal of the application, a miscarriage of justice occurred, presumably because the trial judge did not discharge the jury.  To have given directions on the matter would have brought the appellant’s custody to the jury’s knowledge.  The respondent contends that by withdrawing the application prior to the trial judge’s having ruled upon it, the appellant “effectively waived” his right to raise it on appeal, and that even if the application had been maintained, it would have been refused by the trial judge.

[13] In R v McCosker[6] neither the appellant nor his counsel made any objection to the empanelment of a juror, a close friend of his wife over many years with whom the appellant was acquainted by reason of the friendship, despite recognising her at the time of empanelment.  Concurring with Chesterman JA in dismissing the appeal against conviction, Keane JA cautioned that the terminology of waiver could tend “to blur the focus” on the “principle in issue”, the fairness of the trial.  At [5], his Honour then observed:

“Where a party knows of a procedural irregularity, but knowingly stands by and takes his or her chances with the verdict, rather than calling a halt to the proceeding, there is nothing unfair in holding that party to his conduct.”

[14] In his written submissions[7] the appellant states that it was only after he had given the instructions that he learnt that the public entrance to the courtroom was locked and a swipe card was required to enter.  He argues this would have “had the effect of making it obvious the defendant was in prison during trial” since the bailiff brought the jury in through that door rather than the special jury entrance.

[15] This submission invites this Court to infer, in absence of any sworn evidence on his part, that had the appellant known of the factual matter referred to in the written submission when he gave the instructions, he would not have given them.  I am not prepared to make that inference.

[16] In my view, the appellant should be held to his conduct in withdrawing the application.  For that reason, this ground ought fail.

[17] I would add that it is quite unlikely that the application before the learned judge would have succeeded.  It requires somewhat a strained chain of reasoning to assert, as the appellant does, that the jury, or any of its members, would have concluded from what they saw that the appellant was in custody.  There could have been many explanations for how he came to be in the courtroom.  Indeed, given that the charges against him were not particularly serious ones, quite probably an innocent explanation would have sprung to mind had any of the jurors adverted to it.  There was no risk on this account of prejudice to the appellant in his trial before that jury such as would have required the learned judge to discharge it.

Ground 2 – The cross-examination with respect to gambling

[18] In the course of cross-examination, the Crown prosecutor put to the appellant that he was a “large gambler”.  Objection was taken to the question.  Having heard argument in the absence of the jury, the learned judge allowed the question.  In the presence of the jury, the appellant was asked whether he was a “heavy gambler”.  The appellant speculated as to what heavy gambling might entail.  He was then asked more specifically whether during 2008 he would gamble “up to thousands of dollars a day” on certain days.  He said by way of answer that he could not recall.  At that point, the prosecutor showed him a document.  He was asked to read it.  The document was a printout of a TAB account from February to July 2008; however, its nature and contents were never disclosed to the jury.  Over the ensuing several minutes, the prosecutor repeated the question and, on each occasion, the answer given by the appellant was that he could not recall.[8]  The prosecutor then asked for the return of the document and the cross-examination moved to another topic. 

[19] The appellant submits that the questioning with respect to gambling including the handing of the document to him was “highly prejudicial”.  He was particularly concerned that the jury might have thought that there was “something in the document”. 

[20] There is scope for debate as to whether this cross-examination ought to have been allowed.  Evidence as to the appellant’s gambling habits was not led in the Crown case as evidence of motive.  In argument before the learned judge, it was sought to justify the cross-examination as relevant to motive and then as going to credit.  However, at that point, so far as credit is concerned, the appellant’s gambling propensities would seem to have been collateral.

[21] In the circumstances, the matter is best approached on the footing that the cross-examination ought not have proceeded and by enquiry into whether directions given to the jury were sufficient to address any prejudice that might have arisen from the cross-examination.  At the suggestion of the appellant’s counsel,[9]  the learned judge directed that the propositions put by the prosecutor were not evidence.  She illustrated the point as follows:

“I want to give you an example of this that arises directly in this case, and that is the exchange between the prosecutor and Mr Millar during cross-examination.  You will recall that the prosecutor put to Mr Millar the proposition that he was a heavy gambler and Mr Millar did not agree with that.  He rejected that proposition.  The prosecutor also asked Mr Millar whether during 2008 on certain days he had gambled up to thousands of dollars in a day.  Mr Millar said he could not recall.  Now the prosecutor’s proposition and question are not evidence because Mr Millar did not agree with them.  He said, and this comes for the record at transcript 2-30 at about line 28, “Well, I like gambling.”  So that is the only evidence that you have before you about gambling.”[10]

[22] With respect to the document put to the appellant, the learned judge added:

“You’ll also recall that Mr Bain put a document to Mr Millar during that exchange, but it was not received in evidence and you have no evidence about its contents.  You must not speculate about what the document might have contained.  It’s not part of the evidence in this case at all.

I remind you that Mr Millar specifically denied needing money for gambling when he pledged the two sets of clubs and in his address you might have noticed that Mr Bain did not argue that the fact that Mr Millar said he liked to gamble was a circumstance the Crown relied upon in its case.  So he did not make that argument to you.”[11]

[23] These clear and specific directions adequately address the risk that, to the appellant’s prejudice, the jury might inappropriately have drawn some adverse inference against the appellant from the questions asked, the answers he gave or the showing of the document to him.  It remains to note that there was no impropriety in the prosecutor’s conduct in showing the document to the appellant in front of the jury without identifying its contents.

[24] This ground of appeal ought fail also.

Ground 3 – The majority verdict

[25] On 13 September 2012, the third day of the trial, the jury retired to consider their verdicts at 1.23 pm.[12]  They were recalled briefly later that afternoon to be read some extracts from the transcript in response to questions tendered by their speaker, and were sent home at 5.30 pm.  The following day, at 1.17 pm[13]  a note was received from the jury asking, inter alia, “Does it have to be agreed to by all 12”.  At this stage the jury had been deliberating for seven and a half hours.  The appellant’s counsel submitted that a simple “yes” was all that should be given in response.  The trial judge, however, answered in the following terms when the jury returned at 1.24 pm:

“At this stage of the trial the answer to that question is, “Yes.” If the circumstances change, then you can be sure that I will be in contact with you.”[14]

[26] At 3.20 that afternoon, another note was received from the jury.[15]  It read as follows:

“We have reached an impasse. We are at 10/2 verdict. Could you please advise our next step.”

[27] It is a well established exception to the general rule that communications from the jury should be disclosed in open court that trial judges ought to keep jury voting figures to themselves in the unfortunate circumstance that they are made aware of them.[16]  On this occasion, however, the learned judge did pass these details on to counsel, and invited their submissions on how to proceed.[17]  By this time deliberations had been on foot for nine hours, and thus the prospect that she might ask for a majority verdict had arisen.[18]  Over the objection of the appellant’s counsel, who submitted the jury should be discharged, her Honour gave a direction[19] in accordance with Black v The Queen[20] which urged the jurors to continue deliberating with a view to reaching a unanimous verdict if they could do so in accordance with their oaths.  She then went on to inform the jury that the circumstances had arisen in which a majority verdict in which 11 of them agreed could be taken.[21] 

[28] An hour and a half later, at 5.00 pm, the trial judge reconvened the court with a view to enquiring of the jury as to their progress.  In absence of the jury, she indicated that if she received an answer in the negative she would discharge them.[22]  The bailiff, who had been sent to make the relevant enquiry, informed the court that the jurors had told him that they were very close to a verdict and required “five minutes”.[23]  At 5.07 pm the jury unanimously found the appellant not guilty in respect of counts 1, 2, 4 and 5.  Majority verdicts of guilty on the three counts of fraud and on the special verdicts were returned.

[29] There are three separate submissions which the appellant advances in support of this ground.  First, he submits that the learned judge should have immediately discharged the jury upon being informed by them of the so-called impasse.[24]  Secondly, he submits that it was inappropriate for the trial judge to give a Black direction simultaneously with a direction as to majority verdicts.[25]  Thirdly, he submits that undue pressure was placed on members of the jury, it being late in the afternoon on a Friday when the bailiff was sent in to inquire about their progress.[26]  In his submission, the two dissenting jurors would have felt compelled to change their stance in order that a “weary” jury might put the matter to rest before the weekend.

[30] As to the first submission, a trial judge is empowered by s 60 of the Jury Act 1995 (Qld) (“Jury Act”) to discharge a jury which cannot agree on a verdict.  The decision to exercise this power is a discretionary one made by a trial judge who is satisfied that further deliberation is unlikely to result in a unanimous verdict or, under the provisions of s 59A, a verdict on which eleven members are agreed.  There is no support for the proposition that a trial judge is bound to discharge a jury immediately upon receiving information that they are at an impasse.

[31] In all likelihood, there are many cases in which, unbeknownst to the judge, the jurors are divided ten-to-two, nine-to-three or so on at the point when they are directed as to majority verdicts.  It was envisaged by the High Court in Black that deadlocked jurors might, through “calm and objective discussion of the evidence”, change their original opinions and reach agreement.  That they might do so and thereby arrive at a majority verdict is unexceptional.

[32] The fact that a jury may describe their stalemate as a “verdict” does not make it one.  It is for the trial judge to decide whether to discharge the jury or give them more time to deliberate.  Indeed, exceptional circumstances would be necessary for this Court to disparage a decision of a trial judge first to invite the jury to consider a majority verdict (where one is available) before discharging them.  The circumstance of this case that the jury had expressly indicated a ten-to-two split did not preclude or impugn the trial judge’s decision to invite consideration of a majority verdict.

[33] The appellant’s first submission is therefore without merit.  I now turn to the second submission which requires more extensive analysis.

[34] To this point there has been limited judicial consideration only of the interaction between a trial judge’s discretion to direct the jury in accordance with Black and the power to take a majority verdict recently conferred by s 59A and its counterparts in comparable state and territory legislation.  For the most part, the consideration has been by the Court of Criminal Appeal of New South Wales.  Section 55F of the Jury Act 1977 (NSW) is similar to s 59A.  However, it differs in that it requires a judge to examine at least one juror on oath before being satisfied that the jury is unable to reach a unanimous verdict.  The appellant’s submissions are ill-founded in that they assume an analogous requirement in the Queensland legislation.  The learned judge was entitled to satisfy herself of the jury’s inability to reach a unanimous verdict on the basis of the written communication which took place.

[35] In RJS v The Queen[27] the jury had been deliberating for fifteen minutes short of eight hours when, in response to a note indicating they could not reach a unanimous verdict, they were given a Black direction and also advised of a specific time after which they would be entitled to return a majority verdict.  Half an hour after being sent back to the jury room, and fifteen minutes after the time at which they were told a majority verdict was available, they returned with a verdict of guilty in which eleven of their number agreed.  The Court of Criminal Appeal quashed the conviction on the basis that the trial judge had neither considered whether a reasonable period had elapsed in all the circumstances of the trial, nor examined any of the jurors on oath to satisfy himself that further time to deliberate would not result in a unanimous verdict.  The contemporaneity of the directions was also advanced as a ground of appeal, although no final determination of it was necessary.  Spigelman CJ, with whom Simpson and Harrison JJ agreed, was of the opinion,[28] that the effectiveness of the Black direction was undermined by the direction to the jury that a majority verdict would be open to them in fifteen minutes.

[36] R v Hanna[29] concerned an appeal on the basis of a trial judge’s directions to a jury in relation to majority verdicts.  In that case, after eight hours of deliberations the jury advised the court, by means of a note, that they had reached a stalemate on two of the eight counts.  Making note of the fact that eight hours had elapsed, but without explicitly considering whether this was a reasonable period of time “having regard to the nature and complexity of the criminal proceeding” as required by s 55F, the trial judge gave the jury a Black direction in combination with a majority verdict direction.  The jury returned shortly afterwards with a majority verdict of guilty on the first count for both defendants, and unanimous verdicts of not guilty on all the other counts.  The appeal was allowed on the basis of the trial judge’s failure to make a determination in respect of the precondition that a reasonable period of time had elapsed.  It was therefore unnecessary for the Court of Criminal Appeal to determine whether the trial judge’s directions to the jury amounted to an error of law, although each of the three judges agreed that it would have been preferable for the Black direction to be given without a concurrent direction as to majority verdicts lest the effectiveness of the Black direction be diminished.[30]

[37] Later in Doklu v The Queen[31] the New South Wales Court of Criminal Appeal again dealt with the issue of directions to the jury regarding majority verdicts.  The trial judge had informed the jury of the possibility of accepting a non-unanimous verdict in her summing-up, without specifying the circumstances in which she would do so.  After six hours of deliberations, the jury returned with a note to the effect that they were of the belief they could not reach a unanimous verdict regardless of further discussions.  They were told that the circumstances in which a majority verdict could be taken had not yet arisen, and given a direction to persevere in their deliberations in accordance with Black.  A further seven hours of deliberation resulted in another note to the court advising of the jury’s inability to achieve unanimity.  The trial judge examined the foreperson and then gave further directions to the jury, including a direction that she would now accept a verdict of eleven jurors as the verdict of the jury.  Majority verdicts of guilty on both counts were returned shortly thereafter. 

[38] Macfarlan JA[32] distinguished the case from RJS.  In his Honour’s view,[33] the fact that the trial judge did not indicate to the jury a specific time at which they would be permitted to return a majority verdict meant that the Black direction was not undermined as the members of the jury “could not reasonably have thought that they need no longer try with the utmost effort to reach a unanimous verdict because they would soon be able to return a majority verdict”.  His Honour said that he did not take the view that, in context, any of the trial judge’s references to the possibility of a majority verdict was impermissible.  However, he did remark that he considered it better that a trial judge not mention the possibility of majority verdicts to a jury unless there is a reason to do so.

[39] Before considering the learned judge’s directions to the jury in the present matter, it is opportune to mention two aspects of majority verdicts referred to in these New South Wales cases.  Firstly, it is apparent from the transcript[34] of the trial proceedings that the learned  judge made no explicit finding as to whether any further period of deliberation, in addition to the eight-hour minimum, was warranted due to the complexity of the trial before allowing the jury to return a majority verdict.[35]  In this respect, a clear distinction can be drawn with Hanna.  It was a five week extortion and abduction trial involving two defendants and eight charges.  By contrast, in the appellant’s trial the jury retired after two and a half days and, while the availability of special verdicts under s 568(9) of the Code no doubt added some degree of complexity, the evidence as a whole was not at all difficult to comprehend.  It can readily be inferred that the learned judge had formed the view that nine hours was a sufficient period for deliberation for the purposes of s 59A, even if this view was not specifically expressed.  There was no reason for her Honour to have concluded otherwise, and neither counsel submitted at the time that a longer period was required.[36] 

[40] The second aspect relates to the learned judge’s direction in response to the jury’s query as to whether their verdict had to be agreed by all twelve of their number.  There are suggestions in the New South Wales authorities to which I have referred that it is at the least preferable for the trial judge not to alert the jury to the possibility of returning a majority verdict before their attempts to reach a unanimous verdict have been thoroughly exhausted.  To the extent that that precept is founded upon jury ignorance of majority verdicts, its foundation is likely to be diminished as their availability becomes public knowledge.  If not quite now, then in the future, it may be that jurors will begin their deliberation with knowledge of what a majority verdict is.  However that may be, to give a direction informing a jury of the availability of a majority verdict after the commencement of the time at which such a direction may be given to them, as occurred both in Doklu and at the appellant’s trial, cannot, in my view, be said to amount to a miscarriage of justice.

[41] It is now convenient to return to the appellant’s second submission, namely, that the learned judge erred in combining a Black direction with her direction as to majority verdicts.  In oral argument, the appellant contended that the learned judge should have proceeded as follows:

“… [I]t should have been the case that they were told about a majority verdict and then if they’d come back and said, “We’re still at ten-two,” or whatever then they could have been told about a Black direction, but her Honour actually put it the other way round.”[37]

[42] That contention is without merit.  It implies that a Black direction may only be given when the jury, having first been directed with respect to a majority verdict, has failed to reach one.  The submission quite overlooks that a Black direction is intended to address an impasse in reaching any verdict, not only a majority verdict.

[43] Not unexpectedly, the appellant’s contention finds no support in the authorities.  The New South Wales case of RJS and Hanna, in which the jury was made aware of the prospect of a majority verdict before such a verdict was available to it, tend to the view that a Black direction can be undermined when accompanied by an invitation to return a majority verdict.  The obiter dictum in Hanna is to the effect that, in the event of a deadlock, a Black direction should be given first, with the jury being allowed further time to deliberate before being directed as to a majority verdict.  None of the authorities suggest that the reverse should occur, that is, that a Black direction should only be given at some point after the jury has been invited to return a majority verdict.

[44] Looking beyond the appellant’s contention and to whether the Black direction was undermined by the learned judge’s contemporaneous majority verdict direction, the respondent argues that two features of the present case indicate that the Black direction was not undermined.  The first is that the jury deliberated for a further one and a half hours before returning a majority verdict.  The second is that it appears that one juror at least reconsidered their verdict.  In my view, the passage of that length of time indicates both that the jury, as a whole, heeded the Black direction and, significantly, that the juror or jurors concerned did not change their minds peremptorily or for the sheer expedience of accommodating a majority verdict.  The Black direction was not undermined in a way that resulted in any injustice to the appellant.

[45] There remains the appellant’s third submission in respect of this ground.  The contention that the learned judge placed undue pressure on the jury merely by sending the bailiff to inquire as to whether they were making any progress, on what happened to be a Friday afternoon, must be rejected.  The request was a simple one.  It was not embellished with any demand that deliberations be brought to a close promptly or any indication to the jurors of what course might be taken if they were not.  No pressure, let alone undue pressure, was placed on the jury. 

[46] None of the appellant’s submissions on this ground are accepted.  Accordingly, this ground also must fail.

Ground 4 – Unreasonable verdicts

[47] Immediately after abandoning his application to discharge the jury, the appellant brought another application, this time that there was no case for him to answer[38]  This application was made after the close of the Crown case, but before the appellant had been called upon to adduce evidence.  The appellant submitted that the Crown case was based entirely upon the appellant’s possession of the stolen goods, rather than any direct evidence of his having stolen them or of his being aware that they were stolen.  The appellant argued that given the inherent portability of golf clubs, the amount of time which, on the Crown’s evidence, had elapsed between the goods being stolen and being pledged by the appellant was too long to support an inference of guilt by the jury.

[48] The learned judge dismissed this application,[39] finding that the timeframes involved, being no longer than four days in the case of the MacGregor clubs and no longer than nine days in the case of the Ping clubs, were not lengthy, especially in light of the evidence of the manager of Logan City Cash Cow  that second-hand golf clubs were “a very hard product for [her business] to sell”.[40]

[49] Griffith CJ explained the doctrine of recent possession in Trainer v The King[41] in the following terms:

“It is a well-known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen, according to the circumstances of the case.”[42]

[50] In the course of disposing of a special leave application in Bruce v The Queen,[43] the High Court[44] unanimously observed that:

“[w]here an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused.”[45]

[51] In the present case, possession of the stolen property was admitted by the appellant at trial and the acts of stealing, which occurred at most nine days before the goods were pledged at the Woodridge pawnbroker, could not be accurately described as “so remote in point of time as not to be capable of being regarded as recent”, to adopt the phraseology of Chief Justice Street in R v Bellamy.[46]  The learned judge was therefore fully justified in leaving the matter to the jury’s consideration.  Likewise it was clearly open to the jury to reject as untruthful the appellant’s explanation for his possession of the stolen goods and to find him guilty.

[52] This ground of appeal cannot succeed.

Administrative matter

[53] In reasons delivered in R v Millar [2013] QCA 28, this Court noted that the verdict and judgment record there required correction to show the appellant’s conviction pursuant to s 568(9).  A similar issue arises with respect to the verdict and judgment record here.  Amendment is required to record the two special verdicts.

Order

[54] As all grounds of appeal fail, this appeal must be dismissed.  I would propose the following order:

1.Appeal dismissed.