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R v Pearce[2022] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pearce [2022] QCA 43

PARTIES:

R

v

PEARCE, Benjamin Graeme

(appellant)

FILE NO/S:

CA No 226 of 2021

DC No 65 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 20 August 2021 (Jackson QC DCJ)

DELIVERED ON:

Date of Orders: 18 March 2022

Date of Publication of Reasons: 1 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2022

JUDGES:

McMurdo and Bond JJA and Flanagan J

ORDERS:

Orders delivered: 18 March 2022

  1. Appeal allowed.
  2. Convictions set aside.
  3. Retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – where the appellant was convicted of two counts of rape – where in the course of the trial a juror secreted a note into their phone case – where the note recorded a communication with the bailiff – where the trial judge questioned the juror and bailiff about the note – where the juror was discharged and the trial continued with 11 jurors – where there was an unauthorised communication between the bailiff and the jury – whether the trial judge failed to discharge the jury – whether a miscarriage of justice occurred – whether the appellant was bound by decision not to apply for the discharge of the jury – whether the proviso could be applied

Criminal Code (Qld), s 617, s 668E(1A)

Jury Act 1995 (Qld), s 54, s 56(1)

Oaths Act 1867 (Qld), s 31

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, considered

Crosdale v R [1995] 2 All ER 500; [1995] UKPC 14, cited

Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited

R v Birks (1990) 19 NSWLR 677, cited

R v Crowe [1985] 2 Qd R 389; [1985] QSCCCA 50, considered

R v DBB [2013] 1 Qd R 188; [2012] QCA 96, cited

R v Jackson and Le Gros [1995] 1 Qd R 547; [1994] QCA 46 considered

R v Kashani-Malaki [2010] QCA 222, cited

R v Orgles & Orgles (1994) 98 Cr App R 185, considered

R v Roberts [2005] 1 Qd R 408; [2004] QCA 366, considered

R v Watson [1988] QB 690, cited

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

A J Kimmins and E J Engwirda for the appellant

S Cupina for the respondent

SOLICITORS:

Potts Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    McMURDO JA:  For the reasons given by Bond JA, I joined in the making of the Court’s orders on 18 March 2022.
  2. [2]
    BOND JA:

Introduction

  1. [3]
    The appellant was a 25-year old male accused of two counts of raping an 18-year-old female complainant on Saturday, 17 August 2019 at Burleigh Heads in Queensland.
  2. [4]
    The first count alleged that the appellant had committed an act of penile penetration of the complainant’s mouth.  The second count alleged that the appellant had committed an act of penile penetration of the complainant’s vagina.
  3. [5]
    There was no dispute at trial that two acts of penetration had occurred.  However, the appellant’s case was that the penetration of the complainant’s vagina had been digital not penile, and that the appellant had consented to both acts.
  4. [6]
    The prosecution case consisted of:
    1. (a)
      evidence from the complainant of the rapes;
    2. (b)
      preliminary complaint evidence;
    3. (c)
      evidence of distressed condition;
    4. (d)
      CCTV footage from the Burleigh Hotel;
    5. (e)
      diagrams of relevant locations and relevant photographs; and
    6. (f)
      a formal admission that DNA profiles found on tape lifts taken from the complainant’s underwear was greater than 100 billion times more likely to have occurred if the appellant had contributed DNA, rather than if he had not.
  5. [7]
    The appellant gave evidence denying the rapes and asserting that the appellant had consented to the sexual activity between them.  He maintained that the penetration of the appellant’s vagina had been digital.  He did not call evidence.
  6. [8]
    The trial commenced on Tuesday, 17 August 2021.  The evidence concluded before the luncheon adjournment on Wednesday, 18 August 2021.  Later that afternoon events occurred which led to the trial judge discharging one member of the jury and permitting the trial to continue with a jury of 11.  Closing addresses and the trial judge’s summing took place on the morning of Thursday, 19 August 2021, and the jury retired to consider their verdict at 1.03 pm on that day.  Jury deliberations continued on Friday, 20 August 2021.  The jury returned verdicts of guilty on both counts at just after 4.00 pm on that day.
  7. [9]
    The appellant appealed his conviction on both counts, contending there was a “miscarriage of justice in that the verdict of the jury [was] against the weight of the evidence”.  His written submissions abandoned that ground of appeal and sought leave to substitute the following grounds of appeal: 
    1. (a)
      there had been a miscarriage of justice because the trial judge had failed to discharge the jury; and
    2. (b)
      there had been a miscarriage of justice because of the conduct of the appellant’s legal representatives at trial.
  8. [10]
    At the commencement of oral argument before this Court, the Court granted the appellant leave to amend his notice of appeal to raise those two grounds.  It also granted the appellant leave to rely on a number of affidavits, principally aimed at supporting the second ground of appeal.
  9. [11]
    The Court intimated that it would hear argument addressed to the first ground of appeal before it heard any argument addressed to the second ground of appeal.  At the conclusion of argument concerning the first ground of appeal, the Court adjourned briefly to consider the matter.  Upon reconvening, the Court ordered that the appeal be allowed, the convictions be set aside and that there be a new trial.
  10. [12]
    These are my reasons for concurring in those orders.

The relevant course of events

  1. [13]
    As has been mentioned, the evidence had concluded shortly before lunch on the second day of trial.  The trial judge then permitted the jury to retire, having indicated to them that he proposed to have some discussions with counsel and then have them return to court at 2.15 pm.  After brief discussion with counsel concerning matters which should be dealt with in his summing up, the trial judge indicated to counsel that he proposed to have the jury return at 2.15 pm to tell them they could separate with a view to returning the next morning for closing addresses and summing up.
  2. [14]
    The trial resumed in the absence of the jury at 2.16 pm.  The trial judge explained to counsel that he had received a report that a juror had written a note and secreted it in her phone case.  The report concerned the trial judge because, if true, it revealed conduct by the juror contrary to instructions which the trial judge had given to the jury at the commencement of the trial that any notes should be left in the court precincts.  He proposed that the juror be brought into court and that he would ask her about whether the report was true and, if so, what the note said.
  3. [15]
    Juror no. 9 was brought into court in the absence of the other jurors and questioned by the trial judge in the presence of counsel.  The juror was not sworn.  The juror told the trial judge that the note recorded something which the bailiff said to her “in there”, meaning in the jury room.  The juror produced the note.  It had been torn off from other notes she had made.  The relevant parts are reproduced below:

R v Pearce [2022] QCA 43

  1. [16]
    The transcript recorded the juror’s attempts to convey the gist of the note to the trial judge in these terms:

“JUROR NO 9: In the room. And I asked her – I wrote down – I said:

I believe each juror has the right to make their own decision.

She said:

No. You have to listen to the rights of everyone’s decision. I said:

Not happy with that. That is not how a jury works.

Answer:

Well, I have been doing – she said she’d been doing this for 10 years.

Was decision case with – ask the bailiff.

That was it. That was just – I wrote that.”

  1. [17]
    The trial judge asked her why she had torn the note off and she responded that she did so “[b]ecause it was in the rest of my notes, and this was concerning me, so that’s why I took it off.”  It will be observed that the juror’s statement was in some respects inconsistent with what was actually written on the note.  The juror was not questioned about the inconsistencies.  The juror was not asked either then or subsequently when the bailiff’s communication had occurred.
  2. [18]
    The trial judge asked the juror to leave the note with him and then permitted her to return to the jury room with the other jurors.  The trial judge then invited submissions from counsel and some desultory discussion ensued.
  3. [19]
    The transcript then records the trial judge saying that the bailiff could give context to what the discussion was.  The bailiff was not sworn.  The bailiff then stated:

“BAILIFF: I was in there taking their phones off them. And she asked me a question while they’re all sitting around the table. She just said, “What happens if we can’t all agree?” I said, “Well, that’s why 12 of you are here, so that youse can all come together, everyone speak, and your – your opinion could be swayed by another juror,” and that was the – the context of the conversation.

BAILIFF: I said I’ve worked here – I’ve been a bailiff for 10 years, that’s with the [indistinct] is and to say that that’s usually how it works, and if youse can’t all agree, it can be a hung jury and we start again with a new jury. She’s, “Well, but what if I can’t agree?” And that’s basically the context of the conversation. And then I left the room.”

  1. [20]
    Further discussion between the trial judge and counsel in the absence of the jury followed.  The trial judge observed that the note might suggest that the juror was not to be swayed; that she was reluctant to listen to other people’s views; or that she had made her mind up.  Defence counsel observed that it could equally be read as consistent with her performing her duty.  The trial judge raised with counsel for submissions the possibility that he could give her a direction reminding her of her duty; the possibility that he could discharge her from the jury; and the question whether the trial should continue with 11 jurors.  He asked whether counsel suggested any further questions should be asked of the juror.  Counsel agreed with the trial judge that the juror should be asked whether she felt she could be impartial.  Counsel also submitted that she could be asked further questions about the context in which the note was made.
  2. [21]
    The juror was brought back in and this exchange followed:

“HIS HONOUR: All right. Just wanted to ask you a couple more questions. The first was why did you make the note? Why did you make a note of that conversation? And you’ll remember, obviously, at the beginning of the trial, I gave directions about the need to be impartial and to be seen to be impartial and so on. Do you feel you can be?

JUROR NO 9: Yes. Definitely.”

  1. [22]
    Perhaps unsurprisingly, the juror had answered first the last question which was asked of her.  But having done so, she was not asked to answer the first question.
  2. [23]
    The trial judge then asked the juror to step outside and discussed with counsel whether there was anything else they wanted to ask.  Counsel for the Crown indicated concern with the last line of the note and the possibility that it indicated there may have been discussion of the case with the bailiff.  The trial judge brought the juror back in and this exchange followed:

“HIS HONOUR: There was just one other matter I wanted to ask you about, and it’s really because I don’t think I understand your note. Do you – is there a copy of it nearby? Or the original would be better. That last line down the bottom, does that say, “was discussion the case with us”? What does it actually say?

JUROR NO 9: I have been - - -

HIS HONOUR: Doing this for 10 years. The line under, “was discussion case with us”, is that what that says? But it’s your writing.

JUROR NO 9: Yes, it was – yes. It was scribbled down. I just wrote it as I was remembering it.

HIS HONOUR: Saying that

NO 9: No, I’m not [indistinct] - - - JUROR

HIS HONOUR: So you’re not saying that there was discussion of the case with the bailiff or anybody else. All right. All right. Do either of you have anything further?

MR CHURCHILL: No, thank you, your Honour.

MR POLLEY: No, thank you, your Honour.

HIS HONOUR: All right. We won’t be a moment. I’ll just let you go with the bailiff again.” 

  1. [24]
    Both the trial judge and counsel had misread the note.  In the last line it does not say “was discussion the case with us”.  It says “was decision case with us. Bailiff”.  It will also be noted that the transcript does not record the juror saying that there was no discussion of the case with the bailiff or anybody else.  Rather, that was the trial judge’s response to whatever it was that the juror said to him.
  2. [25]
    The trial judge let the juror go with the bailiff, presumably back to the jury room with the other jurors.  The trial judge then proceeded to have a further discussion with counsel.  The trial judge placed on the record that the bailiff had just told him and that there was “most certainly no discussion of the case”.  The trial judge commented that “of course” he accepted the bailiff’s statement.
  3. [26]
    None of the other jurors were questioned as to the communication which the bailiff had made.
  4. [27]
    At 2.41 pm the trial judge adjourned the court to permit counsel to consider the position.  Court resumed for further submissions some 50 minutes later.  The trial judge mentioned two possibilities before inviting submissions.  First, he said that on one view all the juror had done was suggest that she was not particularly open to being persuaded by any conversation with the other jurors, but that might not matter because she might be open to being so persuaded later.  Second – and he intimated that he was leaning towards that conclusion – the nature of her answers to the questions asked of her raised concerns that might be sufficient to justify her discharge.  Counsel for the defendant submitted that he had concerns about the juror’s ability to perform her duty as a juror appropriately and he agreed that the juror should be discharged.  He said that he had explained the situation to his client, taken instructions, and that his client agreed with discharging the juror and proceeding to the conclusion of the trial with 11 jurors.  Counsel for the Crown indicated he had no submissions to make contrary to that position.
  5. [28]
    The trial judge then discussed with counsel whether it would be appropriate to enquire of the other jury members whether there had been any discussion of the case with the bailiff.  Neither counsel submitted that he should.  The trial judge concluded that it would not be appropriate.  The trial judge also then discussed with counsel whether it would be appropriate to explain anything to the remaining jurors as to the reasons for discharging one of their number.  Both counsel took the position that nothing should be said and that the question of the need for impartiality could be dealt with naturally in the trial judge’s summing up.
  6. [29]
    Juror no. 9 was then brought back into court.  The trial judge’s ruling was expressed in this exchange:

“HIS HONOUR: And, secondly, having heard submissions from counsel and having considered matters under the Jury Act, it appears to me that you ought not be allowed to continue as a juror at the trial and I am discharging you.

JUROR NO 9: Why is that?

HIS HONOUR: Sorry?

JUROR NO 9: Why is that?

HIS HONOUR: It’s what arises out of that note.

JUROR NO 9: And do I have any say about that?

HIS HONOUR: No, you don’t.

JUROR NO 9: Not at all?

HIS HONOUR: No, you don’t. That’s my decision, having reached that satisfaction under section 56(1)(a) of the Jury Act.

JUROR NO 9: Okay. So what – what’s next?

HIS HONOUR: Well, you’re discharged from the jury. And if you provide that note back to us, you’re free to go.”

  1. [30]
    The trial then resumed in front of the remaining 11 members of the jury at 3.46 pm.  The trial judge informed the jury that:

“Sometimes things happen in criminal trials that lead a trial judge to discharge a juror prior to the whole jury retiring to consider their verdict. It doesn’t matter why, but such a matter has arisen and I’ve made a direction that the trial continue with the remaining 11 of you. Now, I’m about to let you go after keeping you waiting all that time. Can I simply remind you before you go home not to discuss the case with anybody or make any independent investigations of it.”

  1. [31]
    The matter was not otherwise raised with the jury during the trial judge’s summing up.  The subject matter on which the bailiff had communicated to the jury was not raised.  The trial judge did direct the jury in a manner consistently with the Benchbook that they must try to reach a unanimous verdict, that is a verdict on which they all agreed, whether guilty or not guilty and that they must ensure that no external influence played a part in their deliberations.  He also stated that once they had retired to consider their verdict, the Court ran on their time rather than the Court’s time.

Consideration

  1. [32]
    The circumstances just recorded reveal three significant irregularities in the conduct of this trial.
  2. [33]
    First, there was a departure from the fundamental tenet of our criminal justice system that, ordinarily, a criminal trial must take place in the presence of the accused person, and jurors are required to perform their task based only on the evidence presented in court and are to be insulated so far as is possible from extraneous information and outside influences: see s 617 of the Criminal Code; R v Jackson and Le Gros [1995] 1 Qd R 547 per Macrossan CJ, McPherson JA and White J at 549; and R v KashaniMalaki [2010] QCA 222 per McMurdo P (with whom Fraser JA and Fryberg J agreed).
  3. [34]
    In R v Jackson at 550-551, the Court observed:

“The rule prohibiting unauthorised communications between bailiff and jurors is considered an essential safeguard for the integrity of the trial process. … It may be compared with the similar embargo on communications between judge and jury otherwise than in open court: R. v. Crowe [1985] 2 Qd.R. 389, … Both are really incidents of the fundamental principle in s. 617 of the Criminal Code that, subject to defined exceptions, the trial must take place in the presence of the accused person in open court, and not, as it were, behind his back.”

  1. [35]
    That fundamental principle also finds reflection: 
    1. (a)
      In s 31 of the Oaths Act 1867 (Qld), which provides for the following oath to be taken when a bailiff is sworn in to take charge of juries:

“You swear that you will not communicate with the jury nor allow anyone else to communicate with the jury unless the communication is authorised by the court, or is otherwise authorised by law.”

  1. (b)
    In s 54 of the Jury Act 1995 (Qld), which provides:

54 Restriction on communication

  1. (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 trial judge’s leave.
  2. (2)
    Despite subsection (1)—
    1. the officer of the court who has charge of the jury may communicate with jurors with the trial judge’s leave; and
    2. if a juror is ill—communication with the juror for arranging or administering medical treatment does not require the trial judge’s leave.
  3. (3)
    A person who contravenes subsection (1) may be punished summarily for a contempt of the court.
  4. (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 trial judge may discharge the jury if the judge considers that the contravention appears likely to prejudice a fair trial.”[1]
  1. [36]
    In this case, it was evident that there had been an unauthorised communication between bailiff and jury which constituted a clear departure from this fundamental tenet.  On the bailiff’s version of events this conduct occurred when she was asked a question by juror no. 9 while the jury was all sitting around the table in the jury room.  The operative assumption must be that the entire jury was exposed to the content of the juror’s question and the bailiff’s answer.  On both versions of events, the bailiff acted contrary to her oath, and also exposed herself to punishment for contempt.  Further, there was to my mind real uncertainty on the question whether there was any other discussion concerning the case between the bailiff and the jury.  The transcript did not record the juror’s response to that question.  And I would not share the trial judge’s readiness to accept the bailiff’s unsworn statement to the effect that there was no other communication, when the bailiff had already admitted to a communication with the jury which was contrary to the oath she had taken on just the previous day.
  2. [37]
    Second, it is fundamental that the members of the jury must be free to deliberate without any pressure being brought to bear on them: see Black v The Queen (1993) 179 CLR 44 per Mason CJ, Brennan, Dawson and McHugh JJ at 50.  Indeed, it has been said that it is a cardinal rule of criminal procedure that a trial judge must avoid any hint of pressure on a jury to reach a verdict: see R v Watson [1988] QB 690 at 700, applied by Lord Steyn on behalf of the Privy Council in Crosdale v R [1995] 2 All ER 500 at 510.
  3. [38]
    Circumstances which reveal that one or more of the jury finds that they cannot agree with the other members of the jury are not uncommon.  Informed by the principles just articulated, the High Court in Black formulated a form of direction to assist trial judges to respond to circumstances of jury deadlock without bringing improper pressure to bear on the jury.  The standard Benchbook direction is in these terms: 

"I have been told that you have not been able to reach a verdict so far.  You are entitled to take as long as you wish to reach your verdict, but because of the time you have already devoted to your deliberations, I wish to say this.  I have the power to discharge you from giving a verdict, but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation.  Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given enough time to consider and discuss the issues.  But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has sworn or affirmed that you will conscientiously try the charges and decide them according to the evidence.  That is an important responsibility.  You must fulfil it to the best of your ability.  Each of you takes into the jury room your individual experience and wisdom, and you are expected to judge the evidence fairly and impartially in that light.  You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors.  The process of considering your verdict should involve weighing up one another's opinions about the evidence and testing them by discussion.  This often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong.  That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree in the end.  For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged.  So, to allow you to give consideration to what I have said, I ask you to retire again and see whether you can reach a verdict.  If you need any further assistance let me know.  But I remind you not to reveal your voting figures in favour of conviction or acquittal in any communication to me."

  1. [39]
    In this case, if the bailiff’s admission of her unauthorised communication is accepted, the bailiff touched on the circumstances dealt with by a Black direction at a time when the jurors had not yet retired to consider their verdict and well before the time that a trial judge would give any consideration to making such a direction.  Moreover, the statement made by the bailiff omitted an important part of the Black direction, namely the statements in the last sentences of the first and second paragraphs of the standard direction.  A trial judge responding to a question by a juror as to what the juror should do if he or she could not agree with the other jurors would certainly ensure that the juror was directed to be open to discussion and to the possibility of being persuaded by other jurors in the manner articulated in the standard direction.  But a trial judge would also ensure that the juror was directed as to the ultimate necessity that the juror adhere to the juror’s own oath or affirmation as also articulated in the standard direction.  The bailiff’s unauthorised communication may well have resulted in members of the jury feeling under pressure and, as the plurality observed in Black, “… in the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled”.[2]  Indeed, the observations made by Deane J in Black are applicable to the remarks made by the bailiff in this case:

“There is, however, a real danger that they might have been misunderstood by a minority juror, particularly one who had been under pressure in the jury room from a majority, as inviting a democratic submission to the views of the majority in order "to return a collective verdict".”[3]

  1. [40]
    Third, the power to discharge an individual juror pursuant to s 56(1) of the Jury Act should only be exercised where the circumstances clearly call for its exercise: R v Roberts [2005] 1 Qd R 408 per Cullinane J (with whom McPherson JA and White J agreed) at [31].
  2. [41]
    Section 56(1) is in these terms:

56 Discharge or death of individual juror

  1. (1)
    If, after a juror has been sworn—
  1. (a)
    it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial; or
  2. (b)
    the juror becomes incapable, in the judge’s opinion, of continuing to act as a juror; or
  3. (c)
    the juror becomes unavailable, for reasons the judge considers adequate, to continue as a juror;

the judge may, without discharging the whole jury, discharge the juror.”

  1. [42]
    The trial judge gave no reasons for his conclusion that juror no. 9 should be discharged beyond the bare indication that he had formed the state of satisfaction referred to in s 56(1)(a).  But the material before the trial judge did not justify the conclusion that the juror was not impartial.  At worst for the juror, it justified the conclusion that the juror was concerned as to what she had been told by the bailiff.  She was right to be concerned.  What the bailiff had told her was inadequate.  There was no indication in what she wrote in the note, or told the judge, that she would not have complied with the substance of the Black direction, if it had ever been conveyed to her.  And, if there were other reasons justifying the conclusion she should be discharged, they were not identified.
  2. [43]
    Moreover, as Cullinane J explained in Roberts, this is an area in which public perceptions are of particular importance, and public perception includes the perceptions of the accused and the jurors concerned as well as the general perception of the public.[4] Given that (1) one must assume that the bailiff’s communication had been made in the presence of the other jurors, (2) the juror had returned to the other jurors after the issue had first been raised with her by the trial judge, and (3) the possibility that the juror would then have discussed with the other jurors what had been discussed with the judge, the trial judge should have been particularly concerned with the perceptions of any exercise of power pursuant to s 56(1) of the Jury Act.  In this case the discharge of this particular juror might have been perceived as an exercise of power to remove a potentially dissenting view before the dissentient had a chance to consider whether her view could be changed, or before she had a chance to change the view of others.[5] In my view the removal of this particular juror at the time she was removed was not consistent with the need to maintain the perceptions necessary to retain confidence in the administration of justice in this trial.
  3. [44]
    In my view the trial judge’s exercise of discretion pursuant to s 56(1) miscarried.
  4. [45]
    The question arises as to what course the trial judge should have taken.  In this regard, some guidance is to be found in a lengthy passage from R v Orgles & Orgles (1994) 98 Cr App R 185 at 189-190, which was cited with approval by both White J at [5] and Cullinane J at [33] in Roberts:

"(a)Each member of a properly constituted jury has taken an individual oath to reach a true verdict according to the evidence; or have made an affirmation to the like effect.

  1. (b)
    Circumstances may subsequently arise that raise an inference that one or more members of a jury may not be able to fulfil that oath or affirmation.
  2. (c)
    Normally such circumstances are external to the jury as a body. A juror becomes ill; a juror recognises a key witness as an acquaintance; a juror’s domestic circumstances alter so as to make continued membership of the jury difficult or impossible – so far, we give familiar, inevitably recurring circumstances. Less frequent, but regrettably not unfamiliar, is the improper approach to a juror, alternatively a discussion between a juror and a stranger to the case about the merits of the case – in short, that which every jury is routinely warned about.
  3. (d)
    Occasionally, as in the instant case, the circumstances giving rise to the jury problem are internal to such as a body. Whereas the duty common to all its members normally binds the 12 strangers to act as a body, such cannot always occur. From time to time there may be one or more jury members who cannot fulfil the duty, whether through individual characteristics or through interaction with fellow jury members.
  4. (e)
    However the circumstances arise, it is the duty of the trial judge to inquire into and deal with the situation so as to ensure that there is a fair trial, to that end exercising at his discretion his common law power to discharge individual jurors … or a whole jury … .
  5. (f)
    The question arises as to whether and in what circumstances that duty should be exercised by the trial judge in the absence of the jury as a body. As to this, first, there is no doubt but that the judge’s discretion enables him to take the course best suited to the circumstances (see Richardson (1979) 69 Cr. App. R. 235, [1979] 1 W.L.R. 1316 for an extreme course) and frequently it is appropriate to commence and continue the inquiry with the juror concerned separated from the body of the jury. Such a course cannot readily be faulted if the circumstance giving rise to the inquiry is external to the jury as a body; indeed if the problem is an approach to a juror, alternatively some external influencing of a juror, only such a course is feasible. The “infection”, actual or potential, of one juror must be prevented if possible from spreading to the rest of the jury, and it is common form to have the individual juror brought into open court with the rest of the jury absent so that the trial judge may make an inquiry in the presence of the accused and counsel without jeopardising the continued participation of the rest of the jury.
  6. (g)
    However, in our judgment, such separation of a juror for the purposes of an inquiry cannot be justified if the circumstances are internal to the jury. It may be that just one member of the jury is complaining about all or some of the rest – or, as here, two members – but the problem is not the capacity of one or more individuals to fulfil the oath or affirmation, but the capacity of the jury as a whole. When this type of problem arises, then the whole jury should be questioned in open court through their foreman to ascertain whether, as a body, it anticipates bringing in a true verdict according to the evidence. It will be a matter for the judge’s exercise of discretion as to how he reacts to the response, that is whether he makes no order, whether he discharges the whole jury, or whether he discharges individual jurors up to three in number.
  7. (h)
    That which the recorder eventually did, we cannot fault; what we regard as irregular was the initial separation and questioning of the individual members which, given the nature of their respective complaints, should not have happened. The point can be tested. Let it be supposed that one or both had individually intimated an inability to return a verdict, having regard to friction within the jury – what should follow?  It could not be right to discharge one or both and leave the rest of the jury to continue – arguably the wrong person or persons would then be discharged, namely those who did heed the nature of the duty. In our view the inquiry could only be with the jury as a whole.”
  1. [46]
    The trial judge’s initial decision to question juror no. 9 in the absence of the other jury members cannot be faulted.  The information he had indicated a potential problem external to the jury as a whole, and which seemed to involve only that juror.  But almost immediately upon questioning juror no. 9, it became clear that there was a problem which was internal to the jury as a whole, and apparently affected them all, namely that the bailiff had made a communication in the presence of all of them as to how they should behave inter se, in the event that one or more of their number could not agree with the others.  Thereafter, the course which should have been followed was that identified in the above passages in Orgles, particularly (g).  If, by that means, the judge had then been satisfied as to the full extent of the communication, and that the jury as a whole could still fulfill its duty, the issue could have been remedied by a direction which corrected the errors in the bailiff’s communication, and the trial might have proceeded.  But if there had remained any uncertainty on either question, the only proper course would have been to discharge the entire jury.
  2. [47]
    Two issues remain for consideration, namely whether the conclusion that there was a miscarriage of justice can be avoided by concluding that the appellant should be bound by his counsel’s conduct of failing to seek the discharge of the whole jury and whether, as the respondent contended, this was an occasion for the application of the proviso stated in s 668E(1A) of the Criminal Code.
  3. [48]
    As to the former issue, it is true that the appellant’s counsel was apprised of the circumstances of the unauthorised communication and, after taking instructions, made the forensic judgment not to bring an application for the discharge of the jury, but sought the discharge of juror no. 9 and to permit the trial to continue with eleven jurors.  I do not see this as an occasion in which the conclusion that there was a miscarriage of justice can be avoided by application of the general rule that the appellant should be bound by that choice.  The irregularities I have identified justify the conclusion that there was a miscarriage of justice, notwithstanding that general rule: cf R v Birks (1990) 19 NSWLR 677 at 685 per Gleeson CJ (with whom McInerney J and Lusher AJ agreed); TKWJ v The Queen (2002) 212 CLR 124 at [16] per Gleeson CJ; and R v DBB [2013] 1 Qd R 188 at [31] per Muir JA (with whom White JA and Mullins J agreed).
  1. [49]
    As to the latter issue, the proviso cannot be invoked in a case like this.  An appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred.[6] The credibility of the complainant and of the appellant were vital considerations for the jury in this case.  But this Court has the disadvantage of not having heard their evidence.  This Court could not be sure that the irregularities which I have identified did not affect the jury’s decision, and, accordingly, could not accord the weight to the jury verdict that which it otherwise might.  Thus the Court would be unable to assess whether guilt had been proved to the requisite standard.

Conclusion

  1. [50]
    The following observations made by Thomas J in R v Crowe [1985] 2 Qd R 389 at 397 are applicable to an assessment of the significance of the first two irregularities:

“In my opinion the conviction must be set aside. Although the prospect of a retrial may seem unfortunate, it is a small price to pay for maintaining procedures fundamental to criminal justice. From the point of view of the appellant, something happened between [the bailiff][7] and the jury in his absence, and it is impossible to demonstrate with sufficient certainty that that happening was immaterial, or might not have altered the course of the trial if the proper procedure had been followed.”

  1. [51]
    The irregularity concerning the removal of juror no. 9 added to the weight of the case to set aside the conviction and order a retrial.
  2. [52]
    FLANAGAN J:  For the reasons given by Bond JA, I joined in the making of the Court’s orders on 18 March 2022.

Footnotes

[1]  Giving literal effect to the opening clause of s 54(4) would suggest that criminal proceedings would always be immune to challenge even if the trial had been prejudiced by a contravention of s 54 that was discovered only after verdict or discharge of the jury. It is not to be so interpreted. Rather, the purpose of the proviso in the final paragraph is to ensure only that a contravention discovered before verdict does not make the proceedings a nullity from the beginning: see R v Jackson and Le Gros [1995] 1 Qd R 547 per Macrossan CJ, McPherson JA and White J at 550, where the Court expressed that view of s 621 of the Criminal Code (which was the statutory predecessor of s 54). 

[2]Black v The Queen (1993) 179 CLR 44 per Mason CJ, Brennan, Dawson and McHugh JJ at 51. 

[3] Black v The Queen (1993) 179 CLR 44 per Deane J at 56. 

[4] R v Roberts [2005] 1 Qd R 408 per Cullinane J (with whom McPherson JA and White J agreed) at [45] and [47]. 

[5]  Notably, an 11:1 majority verdict would only have been permissible if the prescribed period of 8 hours after the jury had retired to consider its verdict had elapsed: see ss 59 and 59A of the Jury Act. That period had not yet commenced. 

[6]Orreal v The Queen [2021] HCA 44 per Kiefel CJ and Keane J at [20] and per Gordon, Steward and Gleeson JJ at [41]. 

[7]  Thomas J referred to “the judge”, as the case before the Court concerned a communication between a trial judge and jury in the absence of the accused. I have inserted “the bailiff” because the remarks are equally applicable to this case, as so modified. 

Close

Editorial Notes

  • Published Case Name:

    R v Pearce

  • Shortened Case Name:

    R v Pearce

  • MNC:

    [2022] QCA 43

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Bond JA, Flanagan J

  • Date:

    01 Apr 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC65/21 (No citation)20 Aug 2021Date of conviction after trial (Jackson QC DCJ and jury) of two counts of rape; credibility of complainant and accused in issue; juror attempted to secrete note revealing bailiff had communicated with jury in jury room, leading to juror’s discharge and continuation of trial with 11 jurors; defence counsel agreed with course taken; jury directed to try to reach unanimous verdict, disregard external influences and that there was no time pressure to reach verdict.
Appeal Determined (QCA)[2022] QCA 4301 Apr 2022Appeal against convictions allowed, convictions quashed, retrial ordered; miscarriage of justice arising out of significant irregularities at trial; bailiff impermissibly communicated with jury, referring to some matters dealt with in Black direction, in accused’s absence and before deliberations commenced; discretion to discharge juror miscarried; conclusion unaffected by defence counsel’s conduct; proviso could not apply: Bond JA (with whom McMurdo JA and Flanagan J agreed).

Appeal Status

Appeal Determined (QCA)

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