White & Davies v Office of the Director of Public Prosecutions
[2021] QDC 121
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- White & Davies v Office of the Director of Public Prosecutions[2021] QDC 121
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White & Davies v Office of the Director of Public Prosecutions[2021] QDC 121
White & Davies v Office of the Director of Public Prosecutions[2021] QDC 121
DISTRICT COURT OF QUEENSLAND
CITATION: | White & Davies v Office of the Director of Public Prosecutions [2021] QDC 121 |
PARTIES: | ADAM CHRISTOPHER WHITE JONATHON PATRICK DAVIES (Applicants) v OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) |
FILE NO: | 2380/16 |
DIVISION: | Criminal |
PROCEEDING: | Application pursuant to s 70(7) of the Jury Act |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 5 July 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 March 2021 |
JUDGE: | Richards DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPLICATION – PROCEDURE – JURIES – JURY ACT – BIAS IN JUDICIAL PROCEEDINGS – where the applicants were convicted of three counts of extortion and one count of wilful damage – where an order was made by the District Court authorising an investigation into the suspected bias of jurors pursuant to s 70(7) of the Jury Act – where the Sheriff provided a written report indicating contact had been made with all the jurors via email and only one juror replied – where the applicants apply to the District Court for a further investigation to be made – where the applicants submit the jurors may not have received the Sheriff’s email – whether a further investigation ought to be ordered |
LEGISLATION: | Jury Act 1995 (Qld) s 70(7) |
CASES: | George v Rocket (1991) 70 CLR 104 Hussien v Chong Fook Kam (1970) A.C. 942 Knight v The Queen [2013] QCA 144 R v BDL; BDL v Director of Public Prosecutions (Qld) [2020] QCA 249 Webb v The Queen (1994) 181 CLR 41 |
COUNSEL: | Ms L Reece for the applicant Davies Mr A T Dwyer for the applicant White Mr G Cummings for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant Davies Guest Lawyers for the applicant White Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]Adam Christopher White and Jonathon Patrick Davies were convicted by a jury of three counts of extortion and one count of wilful damage. The jury returned a verdict at 4.48pm on 4 March 2020. After conviction, several of the jurors were in the Registry of the District Court.
- [2]On the morning of 5 March 2020 a juror contacted the jury team to express some concern regarding an incident that occurred after the jury had finished deliberating and had been discharged. After leaving one of the jurors, a female, apparently stated “You do know who one of the defendant’s is?”. The jurors present with this particular juror stated they did not. The female juror then proceeded to advise that one of the defendants was involved in the Gold Coast Bandidos bikie gang. The juror who called was concerned that this may have impacted her decision-making. That information was conveyed to myself and the court was convened so that this could be raised with counsel.
- [3]On 6 March 2020 an investigation was ordered and the Sheriff provided a written report on 12 March indicating that contact had been made with all the jurors via email and only one had replied. The reply was to the effect that at no point did that juror consider that there was any bias, fraud or an offence related to the person’s membership of the jury or the performance or functions as a member of a jury. That was the only reply received. After this, both of the applicants were sentenced.
- [4]It is accepted that the court has an inherent supervisory jurisdiction to regulate the proceedings. Further, s 70(7) of the Jury Act 1995 (Qld) relevantly provides:
“(7) If there are grounds to suspect that a person may have been guilty of bias, fraud or an offence relating to the person’s membership of the jury or the performance of functions as a member of a jury, the court before which the trial was conducted may authorise—
- (a)an investigation of the suspected bias, fraud, or offence; and
- (b)the seeking and disclosure of jury information for the purposes of the investigation.”
- [5]The test to be applied in relation to the conduct of a juror and a question of prejudice is laid down by the High Court in Webb v The Queen (1994) 181 CLR 41 at 53:
“It follows that 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.”
- [6]The concept of suspicion has been discussed in a number of different cases such as George v Rocket (1991) 70 CLR 104 following the judgment of the Privy Council in Hussien v Chong Fook Kam (1970) A.C. 942 at 948 where the court discussed a suspicion being something that is more than a mere idle wondering but a positive feeling of apprehension or mistrust that is insufficient to ground a belief.
- [7]In Knight v The Queen [2013] QCA 144 the court considered what was necessary to ground a suspicion that a juror might have been guilty of bias for the purposes of the Jury Act. In that case, knowledge of the defendant’s prior criminal history was expressed by a juror some 19 days after the verdict. In relation whether this amounted to “grounds to suspect” Muir JA said:[1]
“Having regard to constitutional role of juries as the triers of facts in criminal trials, the respect with which the law has traditionally treated jury verdicts and the abilities of juries to reach their verdicts faithfully following the trial judge’s directions, it cannot be supposed that s 70(7) contemplated the launching of an investigation without good cause. Nor could the legislature have regarded the authorising of such an investigation as anything other than a serious step. Those circumstances support the construction, which to my mind is borne out by the normal every day meaning of the words used, that for there to be ‘grounds to suspect’ for the purposes of s 70(7) there needs to be more than the existence of a mere possibility that a juror obtained knowledge of prior convictions before a verdict was returned. Such a possibility may exist in respect of every jury trial in which the accused has prior convictions.”
- [8]The delay between the conversation regarding the prior convictions and the verdict in that case was no doubt a significant factor in the court’s decision.
- [9]In R v BDL; BDL v Director of Public Prosecutions (Qld) [2020] QCA 249 the court again considered the scope of s 70(7) of the Jury Act and it was noted by Morrison JA:[2]
“… the jealous protection of the jury’s performance of its duties suggests that if there is to be an ex post facto investigation of a juror’s performance, where there were no grounds apparent during the trial, that should be in limited circumstances which warrant prying open the door to the jury room, which is normally firmly shut. The likely proliferation of attacks based on suspicion of something less than actual bias or actual fraud suggests that the legislator had a confined scope for the challenge.”
- [10]In this case there is no real suspicion that the jury, during discussion of the verdict, was infected with the knowledge that the female juror may or may not have had. So much is evident from the surprise expressed by the other jurors that one of the accused was a member of the Bandidos bikie gang and the reply by one of the jurors that there was no evidence of any bias during discussions of the verdict. There does however remain a question as to whether the female juror obtained the knowledge of the association after verdict or before verdict. I hasten to add that from hearing the facts of the case and the way in which the complainants were threatened in this case, it would have been unusual for the jury not to have deducted that the defendants were members of some sort of gang without knowing any more than the facts of the case.
- [11]The applicant says that there are a number of features of the jury investigation that cause concern, namely the mode of communication, the communication itself and the lack of follow-up with the individual juror who had raised the issue of their own volition and indicated a willingness to co-operate with any investigation.
- [12]It was submitted that the use of email to communicate with the jurors raises questions as to whether the court, it is said, could be confident that they received the emails. It was submitted that sending the letter to the jurors’ registered address would be more appropriate. I do not accept this submission. The normal mode of communication with jurors during the jury service is by text or email and the emails were sent out within days of the verdict being delivered. None of the emails bounced back as undelivered. In my view there is no reason to assume that the emails were not received by the jurors.
- [13]I do however accept the submission that the communication to the jurors should have been more direct in its inquiry. The Crown accepts that it is within the discretion of the court to make a further order and accordingly I will authorise the Sheriff to contact the juror to make further enquiry.
ORDER
- [14]Pursuant to s 70(7) of the Jury Act the Sheriff of the District Court is authorised to contact the jury that was empanelled in the trial of R v White and Davies to investigate suspected bias.
- [15]The Sheriff of the District Court is authorised to communicate with the jury via email and text message. The email inquiry should ask the jury members: (1) whether, before arriving at a verdict on the trial, they gained any knowledge outside the evidence led in the courtroom about either or both of the defendants either personally or through others. (2) If the answer to (1) is yes what was the information and did they share that information with any other juror. If the answer to (1) is yes did it influence their verdict.
- [16]The Sheriff of the District Court is authorised to communicate with the jury via text message to advise each juror to check their email for a communication from the District Court in relation to the trial of R v White and Davies.
- [17]The Sheriff of the District Court is further ordered to prepare a report for the court in relation to this investigation within 14 days of this order.