R v Burgess[2014] QCA 290

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted by a jury of one count of maintaining an unlawful relationship with a child under 16 years; one count of indecent treatment of a child under 16 years, with the further aggravating circumstances that she was under 12 years and was in his care; four counts of indecent treatment of a child under 16 with the aggravating circumstance that she was in his care; one count of attempted rape; and one count of rape.  He appeals against those convictions on the grounds that the trial judge erred, firstly, in not discharging a particular juror and, secondly, having discharged a different juror, in continuing the trial with 11, rather than 12, jurors.

Background

[2] The complainant was the appellant’s step-daughter.  He had married her mother, with whom he had three more children before they separated in 2010.  He had maintained contact with all the children after the separation.  In 2012, the complainant made a formal complaint that the appellant had sexually abused her, both before and after the separation.

The raising of the juror issue

[3] Over the first three days of the trial, the complainant’s s 93A statement and pre-recorded evidence and the pre-recorded evidence of a number of other children as to preliminary complaint were played.  On the morning of the trial’s fourth day, the bailiff informed the judge of a juror’s concern about an encounter with the appellant.  That juror was referred to as juror no. 4, and another juror to whom she spoke immediately after the incident as juror no. 7.  For simplicity’s sake I will maintain that nomenclature.

[4] Juror no. 4 was brought into court and explained that the previous afternoon she had caught a train home and realized that the appellant was sitting opposite her, with a female companion.  She overheard him tell his companion that she was one of the jurors.  When they reached their destination, the appellant and his friend stood up to leave the train just ahead of juror no. 4.  She described what occurred as they did so:

“… obviously directly in front of me, in raised voices, they were discussing the case. [The appellant] only made one very quick comment about “the jury will know who’s lying”, along those lines, but the female companion stood directly in front of me saying, “Well, we’ve presented the photos. The jury should know now who’s lying. Just wait until I get up in court on Friday and tell them exactly when those photos were taken.”

Juror no 4 said that she was “very shaken” by the experience.  Shortly after, she saw juror no. 7, took her by the arm and said, “I feel terrible. I’m so shaken”.  She explained to juror no. 7 what had just occurred.

[5] Juror no. 7 was asked for her account of events.  She described her encounter with juror no. 4, who, she said, was shaking:

“I was just walking along and she touched out to me, hello, and all that, and she said she just had a bad experience. I said, oh, what happened? And she said she was on the train and that [the appellant] and somebody with him sat near her, or opposite her - I can’t quite remember exact - and they were talking about the case. And she said they were saying - talking loud. And I said, obviously, so you could hear. And then she just told me that when they were getting off they were saying things like, oh, the truth will come out Friday when I have my chance to tell them. That little bitch will get what’s coming to her and - and like that. And then they got off the train, same train station as her, as well.”

[6] Juror no. 4 said that she would have difficulty keeping an open mind after her experience.  Juror no. 7 said that what she had been told would not affect her ability to be impartial.

[7] Counsel for the appellant said that his instructions were that his client and his partner had been on the train and left it at the station which juror no. 4 identified.  He and she had spoken about the case, not realising that juror no. 4 was present.  Counsel submitted that both jurors should be excluded from the jury and, that being the case, the jury should be discharged.  Counsel for the respondent accepted that juror no. 4 should be discharged but expressed some concern as to whether a conviction reached by the 11 remaining jurors would be upheld.  Rather unhelpfully, he said that he would “leave it to the court to decide” whether juror no. 7 should be discharged or the trial proceed with the remaining 11 jurors.

[8] The trial judge expressed the view that juror no. 7 ought to be treated as speaking honestly when she said that she could remain impartial.  His Honour questioned counsel for the appellant as to why there would be any perception of bias; it was not, he said, as if the two jurors had overheard words to the effect that the accused was actually guilty.  Counsel for the appellant responded by saying that the question was not whether juror no. 7 honestly believed she could be impartial but whether there was a risk that she would be affected.  That risk was particularly acute because the appellant’s partner had taken certain photographs, and the Crown intended to call evidence to show they had been doctored.  The juror would perceive the appellant’s partner as having attempted to intimidate a juror.

The trial judge’s reasons

[9] The trial judge reached the view that juror no. 4 should be discharged, but not juror no. 7, and that the trial should continue with 11 jurors.  He gave these reasons:

“Well, given the statement that was made by juror number 4, I am of the view, notwithstanding her assertion that she would do her best to remain impartial, whilst noting, at the time of saying that, that she perceives that she might struggle in that regard, it appears to me that, in the circumstances, there is little doubt that it would be inappropriate for the trial to continue with that juror remaining on the trial.  Whether or not she was able to remain impartial is one issue; there is also the perception of whether she is able to remain impartial as another issue, and it seems to me that that perception would very well be that there is the very real chance that she could not do so and not be impartial.

Defence counsel has submitted that, in the circumstances, both juror number 4 and juror number 7 should be discharged and that, in that circumstance, given that the trial so far has been nothing more than the playing of tape recordings, the prudent option would be to abort the trial and to commence it again.  I note that juror number 7, who was provided with some information by juror number 4 shortly after the incident, categorically and unambiguously stated that her impartiality would not in any way be affected by that which she had been told.  In the circumstances, I have no reason to question or doubt the honesty of Juror No 7’s assertion in that regard, and I can see no reason as to why she should be excluded from this trial.

In my view, it is a matter which is appropriate to proceed with 11 jurors, and I intend to discharge Juror No 4 from any further involvement in the matter.”

[10] The trial judge duly discharged juror no. 4.  When the rest of the jury returned, he advised them that he had done so and cautioned them against speculation, reminding them that they should consider only the evidence presented in the courtroom, maintaining an impartial mind towards the issues in the case.  In his summing up, his Honour gave the conventional direction about disregarding any information obtained outside the courtroom.

The progress of the trial thereafter

[11] The balance of the Crown case consisted of adult witnesses – the complainant’s mother, two relatives with whom the family had stayed, a paediatrician who had examined the complainant and the investigating police officer – who gave evidence in person.  The appellant also gave evidence in which he detailed his various living arrangements with his former wife and her family, including the complainant, and described various occasions when the complainant and his daughters (the complainant’s three half-sisters), had stayed the night with him.  He denied ever having touched the complainant in a sexual manner.  The appellant’s parents, grandmother and a friend gave evidence of what they had observed of the family’s sleeping arrangements, before and after the appellant’s separation from the complainant’s mother.  The woman who had been with him on the train did not give evidence.

The Jury Act provisions

[12] Section 33 of the Jury Act 1995 provides that the jury for a criminal trial is to consist of twelve jurors.  Section 56 permits a trial judge to discharge a juror if it appears that the juror “is not impartial or ought not, for other reasons, be ...required to act as a juror.”  Section 57 allows a trial judge, if a juror is discharged after a trial begins and there is no reserve juror, to direct that the trial continue with the remaining jurors, with the qualification that a criminal trial cannot continue with fewer than ten jurors.

The appellant’s submissions on appeal

[13] The appellant submitted that the trial judge should have considered, not merely the honesty of juror no. 7, but whether, looking at the matter from the perspective of a fair-minded and informed member of the public, there would be any reasonable apprehension that she might not be able to remain impartial; the test in Webb v The Queen[1] was applicable.  Juror no. 7 had seen juror no. 4 in a distressed state, having been told the appellant was party to a conversation that sought retribution to the complainant; against this background she had then to assess the credit of the appellant.  She was also aware that juror no. 4, who had been subjected to the alleged conduct, had been discharged.  The trial judge had considered the question of juror no. 7’s impartiality against the wrong test.  Where there was a reasonable apprehension of bias, no discretion arose: the trial judge was bound to discharge any jury member of whom such an apprehension arose: Wu v The Queen.[2]

[14] The trial judge had failed to take into account relevant considerations in deciding to proceed with 11 jurors.  Those considerations were the desirability of having a panel of 12 jurors; the fact that when the issue arose, only pre-recorded evidence had been given; defence counsel’s submission that it would be convenient to re-start the trial the next day; the need for the jury to assess the credibility of the witnesses, including the appellant; and the risk of prejudice in a sexual abuse case.  The trial judge should have given reasons disclosing what he took into account and how, but he had not done so.  His reasoning could not readily be inferred.

The respondent’s submissions

[15] The respondent submitted that it was evident from the trial judge’s discussion with defence counsel that he was aware of the appropriate test.  His Honour had asked defence counsel to explain why there would be any perception of bias, and in discharging juror no. 4 he had said that the concern was of a perception that she might not be impartial, rather than any reality.  The only comment which juror no. 4 attributed to the appellant reinforced his innocence.  There was no reason to suppose that the appellant, rather than his female companion, made the threatening comment which juror no. 7 recounted, and the companion was not a witness in the case.  In his directions, the trial judge had reminded the jury of the importance of maintaining an impartial mind.

[16] Given that juror no. 7 had said she could be impartial, had not seen the events for herself and had only limited information which tended to reinforce the appellant’s innocence, and given the trial judge’s directions emphasising the importance of impartiality, a fair-minded member of the public would have no apprehension of bias on the juror’s part.  There was no error in the trial judge’s decision not to discharge her.

[17] The trial judge’s failure to give reasons for ordering that the trial proceed with 11 jurors did not, of itself, amount to an error or law requiring the success of the appeal: Evans v The Queen.[3]  The House[4] criteria for setting aside an exercise of discretion were not met.  The trial judge’s reasons for continuing with 11 jurors could be inferred:  the pre-recorded evidence had taken up three days of the court’s time; this was the fourth time the matter had gone to trial; and to delay it further would have caused more expense and burden to the appellant and delayed other matters awaiting trial.

Discussion

[18] There is no dispute as to the correct approach in dealing with an incident involving jurors such as occurred here:

“…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 judge, 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.”[5]

[19] It is evident from the trial judge’s comments in discharging juror no. 4 that he was aware that the test was one of perception.  However, in assessing juror no. 7’s position, he seems to have confined his considerations to her assertion that she would remain impartial, with an assumption that she was honest in making that assertion.  But that was not the only issue; the juror’s expressed intent could not be conclusive.  His Honour, in making the decision as to how to proceed without the benefit of a transcript, may not have appreciated the significance of some aspects of what juror no. 7 said in recounting her impression of juror no. 4’s experience.  There are features of her account which give rise to concern about whether she could be regarded as capable of acting impartially when it came to assessing the appellant’s credit.

[20] Juror no. 7 had remarked to juror no. 4 that the appellant and his friend were “obviously” talking loudly so that she could hear them.  That was, at the least, the expression of a view that the pair were seeking to influence juror no. 4.  She noted, too, that they had left the train at the “same train station as her, as well”, which also suggests a view that the way the encounter occurred was not fortuitous.  Those observations were made in a context in which juror no. 4 had described the encounter to juror no. 7 as a “bad experience”.  The latter had observed its effect on the other woman; it had left her shaking.  Her impression of its significance was likely to have been reinforced by the fact that the judge regarded it as necessary to discharge juror no 4.

[21] Juror no. 7 did not distinguish between the appellant and his companion when she spoke of their conversation:

“They were saying things like…the truth will come out Friday when I have my chance to tell them.  That little bitch will get what’s coming to her...”  (Italics added.)

Given that of the two, it was only the appellant who did give evidence, it was all the more likely that juror no. 7 regarded him as the participant in the conversation who expected to “tell them”.  What followed, whichever of the speakers was responsible, was not merely an articulation of the appellant’s innocence but a pejorative reference to the complainant and an expectation that she would be dealt with in some way.  The impact on juror no. 7 of hearing of those aggressive assertions would not have been alleviated by the fact that when the appellant came to give evidence, they were belied: there was no dramatic rebuttal of the complainant’s account.

Conclusion

[22] Notwithstanding juror no. 7’s statement that her ability to be impartial was unaffected, it is difficult to see how, despite her best intentions and the judge’s directions, what she believed  to have occurred could do other than adversely affect her view of the appellant.  A “fair-minded and informed member of the public” would inevitably suspect that her understanding, that the appellant had attempted to influence another juror, causing her some distress, and that he was party to a threatening and abusive statement about the complainant, would bear on her assessment of the appellant when he came to give evidence.  Given the risk that juror no. 7 would be affected in that way, the only proper course was to discharge her from further service on the jury.

Orders

[23] Having reached that conclusion, it is unnecessary for me to consider the remaining ground of appeal as to the order that the trial proceed with 11 jurors.  The appeal must be allowed on the first ground, the convictions set aside and a re-trial ordered.

[24] FRASER JA:  I agree with the reasons for judgment of Holmes JA and the orders proposed by her Honour.

[25] McMEEKIN J:  I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.