R v Way[2014] QCA 167

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I have had the advantage of reading the reasons for judgment of Morrison JA.  I agree with those reasons and with the order proposed by his Honour.

[2] GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

[3] MORRISON JA: The appellant was convicted on 22 November 2013, after a trial, on six counts consisting of:

(a) Count 1 – maintaining an unlawful sexual relationship with a child under 16; and

(b) Counts 2 – 6 – indecent treatment of a child under 16 (being under 12).

[4] The appellant is yet to be sentenced, and has been remanded in custody.  The appeal is against his conviction and raises two discreet grounds.  The first is:

“That the trial judge’s dismissal of an application by the appellant’s defence counsel to discharge the jury following notification that the jury had felt intimidated by the behaviour of someone related to the appellant who was sitting in the back of the court, led to a miscarriage of justice in that the appellant was denied a fair 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.”

[5] At the hearing of the appeal leave was granted to add an additional ground, namely:

“The learned trial judge erred in directing the jury, in answer to a question from a juror as to whether the defendant could appeal, “of course … he has a right of appeal to the Court of Appeal”, without further explanation.”

Some essential background

[6] At the time of the offences the complainant was a boy between the ages of five and nine years old; his grandmother was the de facto partner of the appellant and the offences were alleged to have been committed on occasions when the boy visited their house at Slacks Creek.

[7] The learned primary judge correctly directed the jury that there was no DNA evidence, nor CCTV footage, nor any witnesses who saw something to support the complainant’s evidence.[1]  His Honour went on:

“… the whole case turns on the boy’s evidence.  For you to find [the appellant] guilty of any or all of these charges, you must accept [the complainant’s] evidence beyond reasonable doubt.”[2]

[8] There had been lengthy delays in bringing the matter to trial, and these were the subject of directions in appropriate form.  The jury were directed that they would need to scrutinise the complainant’s evidence with great care before they could conclude that the appellant was guilty of any of the charges, and could only act on his evidence if, after considering it with that warning in mind, they were convinced beyond reasonable doubt of its truth and accuracy.[3]

[9] The complainant gave evidence in a pre-recorded interview which was admitted into evidence under s 93A of the Evidence Act 1977.  His evidence detailed the various occasions when sexual contact was made, and the particulars of that conduct.  Given the restricted nature of the appeal it is unnecessary to go into the detail of that conduct.  One aspect of the complainant’s evidence, however, was that he was able to identify a particular feature of the appellant’s penis, namely that there were some warts that were “crusty and … a dark colour of some sort”.[4]  Photographic evidence demonstrated that the appellant did, in fact, have warts on his penis.

[10] The appellant’s former de facto was also called in the Crown case.  She also described the appellant as having a large raised up mole on his penis, and otherwise detailed the history of her co-habitation with the appellant and the occasions on which the complainant and his brother would come and visit.  In summary that evidence included:

(a) that the complainant and his brother would come and visit pretty much every Saturday afternoon;

(b) sometimes the appellant would be in the house with them, but he liked to sit in the backyard by himself;

(c) he did not like to wear any underwear in summer, and she could see his testicles;

(d) she could recall an occasion when the complainant was six or seven, and she found the appellant sitting on a futon in the double carport, with the complainant standing in front of him; she could recall seeing the appellant’s testicles on that occasion;[5] and

(e) on that occasion the appellant “was passed out because he’d been drinking that afternoon”, but stirred when she spoke to him.[6]

[11] Evidence was also given by the complainant’s parents, both of a general nature as to the occasions when they would visit the appellant’s home, and in the mother’s case, of some preliminary complaint.  The complainant’s aunt also gave evidence, again of a general nature concerning the appellant’s habit of not wearing underwear, and having seen his testicles on occasions when he fell asleep.

[12] The appellant himself did not give evidence, or call witnesses.

Deliberations by the jury

[13] The jury retired at 4.28 pm on 20 November 2013.  Following some redirections, the court adjourned at 4.38 pm that day.  The court reconvened at 10.28 am on 21 November 2013.  After some brief redirections, the jury retired at 10.30 am.  The court reconvened for further redirections sought by the jury at 11.19 am, and again at 4.17 pm, after which they were allowed to go home until the following morning.  Verdicts were delivered at 10.55 am on Friday 22 November 2013.

Ground (a) – failure to discharge the jury

[14] On the second day of the trial counsel for the appellant raised the fact that an incident had occurred in court the previous day, and had been reported to the bailiff that morning by one of the jurors.  The learned primary judge described the incident in this way:

“HIS HONOUR:  My associate has informed me that the – okay.  Well, it seems that the defendant’s children or someone related to the defendant was sitting at the back of the court yesterday, shaking their head when some of the evidence was being given and indicating that they were not in complete agreement with the evidence that the witness was giving and the jury felt a little bit intimidated by that apparently.

MR KERSHAW:  Yes, your Honour.  The reason for raising is really I’d like to take – I’ve only recently been told about this.  I need to take some instructions from my client.  It may be that I’m seeking discharge of the jury.

HIS HONOUR:  Well, how would the jury know who those people were?

MR KERSHAW:  Well, they appear to have worked it out, your Honour.  My understand is that they’ve given an opinion to - - -

HIS HONOUR:  Well, you can make application for the discharge of the jury if you like, but you’d have to work very hard to convince me.

MR KERSHAW:  Well, I’d need to take some instructions on it first.”[7]

[15] The prosecutor then raised the fact that the record should properly reflect just what the jury represented to the bailiff.  The bailiff then explained the matter further, following which the prosecutor also added some detail:

“BAILIFF:  Yes, the jury – one of the jury members came to see me outside the jury room and said that she wished to speak to me and that there was a lady in the back of the courtroom who, while the grandmother was giving evidence, was shaking her head and mouthing the words, “That’s bullshit.  That’s bullshit.  That’s bullshit.” and the jury felt uncomfortable with it while it was happening.  They didn’t know whether or not the grandmother actually saw her doing it.

HIS HONOUR:  Well, I didn’t notice it.

BAILIFF:  But certainly members of the jury did and Sean did tell me this morning when I came in, your honour, that he had noticed it and he asked me to just keep an eye on it.

HIS HONOUR:  All right.

BAILIFF:  But then once the jury approached, I saw it necessary for me to advise the associate.

HIS HONOUR:  Okay.  Thank you very much.  Thank you, Madam Bailiff.  Well - - -

MS WOOLDRIDGE:  Your Honour, I should place on the record, which wasn’t relevant previously but in terms of it having been raised now, that the witness herself mentioned it upon leaving the courtroom and that gave rise to other witnesses who have to now give evidence having raised that concern with me.  I, myself, as with your Honour, was unaware of it because of the direction I was facing.  But given that it has been raised, I should place that on the record.”[8]

[16] Counsel for the appellant then made an application to discharge the jury on the basis that:

“… the jury was sufficiently intimidated that they might not bear with disregard this behaviour in their consideration in the case against my client when it comes to their deliberations …”.

The submission included that the jury had clearly worked out that the woman in the court was related to the appellant, and she was staring at the jury while she was mouthing the words in response to the evidence.

[17] The application to discharge was refused, the learned primary judge being of the view that if he gave the jury “robust instructions”, they would be perfectly entitled to proceed.[9]  He then proceeded to address the jury in this way:

“The second thing is I understand that yesterday, someone was – a female was in the back of the court shaking her head when some of the evidence of the grandmother was given and mouthing the word bullshit, and that you may have noticed that.  I didn’t notice it, I must say.  Now, when it comes to that, you just ignore that.  Disregard what that person may have thought about any of the evidence that the grandmother was giving.  Don’t feel in the slightest bit intimidated.  That person may have thought it was bullshit, but that person’s opinion is about as irrelevant as my opinion is.

You’re the ones.  You’re the – the 12 of you decide this case, not someone who is sitting in the public gallery, and if I’d noticed it at the time, I would have had the person removed.  So I hope that won’t influence your decision at all.  I strongly urge you to just ignore that.  It would be – it is as irrelevant as if there might be some – might have been something in one of the local newspapers about this case.  You ignore that and you may reach your decisions, your verdicts, on the basis of the evidence you hear in the courtroom and the submissions and my summing up, and not on what someone else might appear to think, because their opinion is completely irrelevant, and as I said, don’t in the slightest degree feel intimidated by that person.  If I see that person again, well, I won’t – madam bailiff, that person can’t come back into the courtroom.  Okay.  If you see that person, a woman wanting to come back in, she’s excluded.  Okay.  Good.  Right.  Let’s move on.  Thanks.”[10]

The appellant’s submissions

[18] The appellant contended that the test to apply was that appearing in Webb v The Queen,[11] namely whether despite the warning that was given to the jury, the circumstances of the incident would still give a fair minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the jury.[12]  The contention was that, based on the exchanges set out above, a fair minded and informed member of the public would have reasonably apprehended that one or more of the jurors would not discharge their task impartially.

Respondent’s submissions

[19] The respondent adopted the same test from Webb v The Queen, but contended that the question on appeal was not whether the jury should have been discharged, but rather whether, the jury not having been discharged, a miscarriage of justice had resulted.[13]  The information placed before the trial judge went no further than to suggest that a juror or some jurors were “uncomfortable” with the person’s behaviour while it was happening.  However, there was nothing to suggest an inability of the jury to properly and impartially perform their duty.  Finally, the directions of the trial judge were sufficient to address any perceived risk.

Discussion of ground (a)

[20] The nature of the incident has a considerable bearing on whether a fair minded and informed observer would form a reasonable apprehension that the jury would not perform their duty.  During the evidence given by the complainant’s grandmother, who was also the appellant’s ex de facto, the appellant’s daughter sat in the back of court, shaking her head and mouthing the words “that’s bullshit” a number of times.  That witness’ evidence occupied just under an hour, thirty-four minutes of which was examination-in-chief, 20 minutes cross-examination, and two minutes re‑examination.  Topics covered were:  the distinguishing marks on the appellant’s penis; when she and the appellant had moved to their house, and its layout; the futon in the shed and photographs of the shed; how often the complainant and his brother would come over; the appellant’s habit of not wearing underwear and the occasional visibility of his testicles; and the occasion when she found the appellant sitting on a futon in the double carport, with the complainant standing in front of him.

[21] In cross-examination she was asked about:  whether there were times during the week where the complainant and his brother stayed; the description of an average Saturday at their house; the time when the appellant’s daughter and her boyfriend lived with them; the habit of the children to play into the evening; the fact that a neighbouring house looked into the yard; the fact that the appellant did not like her family coming over on Saturdays, and removed himself from their company from time to time; that the appellant had told her that he did not like her family coming around all the time; the fact that the occasion when she saw the appellant on the futon and the complainant standing before him was the only time in four years that she had witnessed such a thing; the timing of her giving a police statement; the appellant’s habit of not wearing underwear; and whether the male children generally played together.

[22] No aspect of that witnesses evidence contained anything by way of direct evidence of sexual impropriety on the part of the appellant.

[23] What the jury told the bailiff was that when the conduct occurred, “the jury felt uncomfortable with it while it was happening”.  Further, “They didn’t know whether or not the grandmother actually saw her doing it”.[14]  As to the latter point, the prosecutor confirmed that the relevant witness had mentioned it to her.[15]

[24] In my opinion the fact that the jury might have felt uncomfortable with the conduct of the person in the court, while it was happening, does not, of itself, raise any legitimate concern that the jury might thereafter have abandoned their oath and proceeded with some form of bias or lack of impartiality.  Indeed, in the way in which the bailiff related what the jury’s concern was, it was equally likely that the jury were concerned for the witness, rather than their own position.  Either way there is no reason to think that any expression of concern by the jury was at a level where the principle in Webb v The Queen might become applicable.

[25] That conclusion is reinforced when one considers the terms in which the learned primary judge redirected the jury on this issue.  They were expressly told to ignore the person’s behaviour and to disregard what that person may have thought about the evidence that was being given at the time:  they were urged not to feel “the slightest bit intimidated”, and told to regard that person’s opinion as irrelevant.  Having done that his Honour said:

“You ignore that and you may reach your decisions, your verdicts, on the basis of the evidence that you hear in the courtroom and the submissions and my summing up, and not on what someone else might appear to think, because their opinion is completely irrelevant and as I said, don’t in the slightest degree feel intimidated by that person.”[16]

[26] In light of the matters referred to above, and particularly that the witness was not giving evidence that directly implicated the appellant in any offending conduct, and her evidence was very short, I do not consider that any fair minded and informed observer would have a reasonable apprehension about a lack of impartiality on the part of the jury.  This ground of appeal does not succeed.

Ground (b) – jurors’ question about the right of appeal

[27] This ground of appeal concerns a short exchange between the jury and the learned primary judge during summing up.  At the end of his address to the jury his Honour asked whether any of the jurors had questions, and one responded.  The question was in relation to a particular aspect of evidence which his Honour then dealt with.[17]  Following that another juror made a comment which the transcript does not record.  Then followed this exchange:

“HIS HONOUR:  Does he have a right of appeal?

JUROR:  Yeah.  If he was found - - -

HIS HONOUR:  Of course.

JUROR:  [indistinct]

HIS HONOUR:  He has a right of appeal to the Court of Appeal.  Do you both agree with that clause?”[18]

[28] The jury retired immediately following that exchange.  The prosecutor then addressed various matters in terms of directions or redirections.  The two questions raised by the jurors were addressed, and as to the second the prosecutor said, in answer to a question from the learned primary judge as to whether she had any other points:

“… that if you were going to redirect the jury on that, then it’s prudent, in my submission, to direct them that they shouldn’t turn their minds to what appeal process or other matters there might be in the consideration of the evidence in this case.”[19]

The reference to “that” in the first line was to a redirection in respect of the subject matter of the first question by the juror.

[29] Counsel for the appellant told the learned primary judge that he only wished to address in relation to one of those matters, namely the first matter raised, not the second.[20]

The appellant’s contentions

[30] The appellant contended that whilst the learned primary judge’s response was literally correct, it was misleading

“… because it is likely to have wrongly conveyed to the jury that it would not matter if they mistakenly convicted [the appellant], because their decision could simply be reconsidered by the Court of Appeal.”[21]

[31] The contention advanced was that the jury may have, as a result, applied an incorrect standard, not that of satisfaction beyond reasonable doubt.

The respondent’s contention

[32] The respondent also adopted the principle in Lucas, namely that it was ordinarily inappropriate to tell a jury of the possible consequences of a verdict they may render.  However, it was said that Lucas was distinguishable and in the present case there was no complaint about the balance of the trial judge’s directions, which included that they needed to be satisfied beyond reasonable doubt of the elements of each offence before they could return guilty verdicts.  Further, they were warned specifically of the delay between the offences and first complaint, and the need to scrutinise the complainant’s evidence with great care.  It was pointed out that shortly after the juror asked about the right of appeal, the jury were reminded by the trial judge that:

“Your verdicts have to be consistent with the evidence and your conscience and the oath or affirmation which you took.  It is a very important responsibility that you have.”[22]

[33] The respondent also contended that the trial judge’s comment was strictly correct, and it would be very surprising if the majority of jurors did not already know that there was a right to appeal.  There was, therefore, no reason to conclude that the jury applied some standard less than the standard of “beyond reasonable doubt”.

Discussion – ground (b)

[34] In my view there is no reason whatever to conclude that the question asked by the particular juror, and the answer given by the trial judge, meant that the jury were adopting an inappropriate standard in terms of the evidence, when they began their deliberations.  Further, there is no reason to think that the question asked was one reflective of any general view of the jury as a whole.  The learned primary judge had asked whether any of the jury had any questions[23] and the transcript suggests that this was one juror’s question.

[35] Further, the learned trial judge asked whether the prosecutor and counsel for the defence agreed with what he had said.  That led to the prosecutor suggesting that as a matter of prudence they should be directed that “they shouldn’t turn their minds to what appeal process or other matters there might be in the consideration of the evidence in this case”.[24]  That was not adopted by counsel for the defence who did not feel the need to ask for any further redirection on the topic.

[36] In the situation where no complaint is made as to the trial judge’s directions as to the need to be satisfied beyond reasonable doubt of all elements of each offence, and the need to scrutinise the complainant’s evidence with care, and not convict unless they reached the requisite degree of confidence based on the complainant’s evidence, it is difficult to conclude that the single question asked about the right of appeal, and the short answer that there was a right of appeal, could have misled the jury into applying an incorrect standard.  This is particularly so when they were immediately reminded that their verdicts had to be consistent with the evidence, and with their conscience, and with the oath or affirmation which they had taken.

[37] Whilst no authority could be found directly on point, the appellant relied upon R v Pearse[25] and Lucas v The Queen.[26]  In Pearse a trial judge had given directions about a defendant’s right of appeal in order to correct a misleading statement made by defence counsel in his address to the jury.  In that case the comment by counsel had been that if the jury “get it wrong, it can’t be fixed and the whole thing has just been a complete waste of time and there has not been a fair trial”.  The redirection in that case was not only to tell the jury that counsel’s statement was incorrect, but that it should be disregarded so that the jury could focus on evaluating the evidence and determining the outcome without regard to the consequences of the verdict.

[38] In Lucas the High Court considered whether a jury should be informed of the consequences of a verdict of not guilty on the grounds of insanity.  It concluded that no such direction was required because a jury was not concerned with the consequences which may follow upon their verdict, whether it be guilty or not guilty.[27]

[39] In my opinion neither Pearse nor Lucas provide assistance.  Each involved distinct situations well removed from the current case.

[40] The respondent’s submissions included that the right of a convicted person to appeal has been part of Queensland law since 1913, and it is part of the model Bench Book directions for trial judges, to tell juries that the Court of Appeal can correct errors of law.  That is no doubt true, but one can see some limitations in the bald way in which the learned trial judge answered the question.  To say there is a right of appeal says nothing about its nature or the need to ignore it.  I do not consider that the jury was misled or that it was likely to have abandoned its correct task, but it might have been preferable, given that the question was asked and the trial judge said something about it, had the learned trial judge gone a little further and said something of this nature:

“A defendant convicted by a jury of a criminal offence can appeal to the Court of Appeal, but the Court of Appeal can only set aside the verdict of a jury in certain specified circumstances.  However, the fact that the defendant can appeal is irrelevant to your considerations, and you should disregard it.  You are reminded that you may convict the defendant only if you are satisfied of his guilt beyond reasonable doubt.”

[41] These comments should not be taken to indicate that such a direction is required in every case where a question such as arose in this case is asked.  Depending on the circumstances it may be sufficient to answer such a request by conveying the substance of what is in the last two sentences above. However, if the need arises, something to the effect of the above should suffice to convey the four relevant points, namely that there is a right of appeal, the confined nature of the right of appeal, its irrelevance and the standard to be applied in addressing the evidence.

[42] For the reasons above I do not consider that this ground of appeal has been made out.

Conclusion

[43] The appeal should be dismissed.