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In this case there was an unauthorised communication between the bailiff and the jury. Justice Bond (with whom McMurdo JA and Flanagan J agreed) held that the combined effect of two “significant irregularities” that arose from the unauthorised communication caused a miscarriage of justice. It was also held that the learned trial judge fell into error in discharging a juror under s 56 Jury Act 1995, which “added to the weight” to the conclusion that a miscarriage of justice had occurred. The appeal was allowed, the convictions were set aside, and a retrial was ordered.
McMurdo and Bond JJA and Flanagan J
1 April 2022
The appellant was convicted after trial of two counts of rape. –. They appealed against conviction. –. After hearing argument, the Court allowed the appeal, set aside the convictions, and ordered a retrial. . Justice Bond (with whom McMurdo JA and Flanagan J agreed) published his Honour’s reasons for joining with the Court in making those orders. .
The learned trial judge had received a “report” that a juror had allegedly recorded a note, which had been concealed in their phone case (the “note”). .
The note recorded a communication between the bailiff and the relevant juror. . The effect of the communication recorded in the note, on the unsworn account of the relevant juror, was that the bailiff had told them to listen to the views of the other jurors. . The relevant juror returned to the jury room. . The bailiff then gave an unsworn account giving “context” to the communication:
“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 [sic] 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 [sic] 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.
The relevant juror, in the absence of the other jurors, was questioned again. . The relevant juror was asked about whether they could remain impartial, to which the relevant juror responded, “Yes. Definitely.” . The relevant juror was then asked whether there had been any discussion about the case to which the relevant juror appeared to respond in the negative. –. The learned trial judge then placed on the record that the bailiff had advised his Honour that there was “most certainly no discussion of the case” and that “of course” his Honour accepted this to be true. .
None of the other jurors were questioned about the communication or whether they had discussed the case with the bailiff. –. Counsel for the appellant, having taken instructions, submitted that the relevant juror should be discharged. . The Crown offered no submissions to the contrary. . The learned trial judge discharged the juror under s 56 Jury Act 1995. .
The unauthorised communication was not made in the presence of the accused
Justice Bond found that there was a departure from a “fundamental tenet” of the system of criminal justice in that: the trial must take place in the presence of the accused; the jury must perform their task only on the basis of the evidence presented in court; and so far as is possible the jury must be “insulated … from extraneous information and outside influences …” –.
The prohibition on unauthorised communication between a bailiff and the jury is an “essential safeguard for the integrity of the trial process …” and is an “incident” of the “fundamental principle” that, subject to the defined exceptions contained in s 617 Criminal Code 1899, the trial must take place in the presence of the accused: R v Jackson and Le Gros  1 Qd R 547;  QCA 46. .
The prohibition on unauthorised communication is reinforced by s 31 Oaths Act 1867 which prescribes the oath to be administered by the judge’s associate when the bailiff is placed in charge of a jury; and s 54 Jury Act 1995 which restricts communication between the bailiff and the jury only to circumstances where the bailiff has the trial judge’s leave. .
On the bailiff’s own account, the communication was made in the presence of the other jurors, the “operative assumption” being that the whole jury was exposed to the content of the unauthorised communication. . The bailiff had violated the oath they had given at the start of the trial, and exposed themselves to punishment for contempt. . There was a “real uncertainty” that there was no other discussion between the bailiff and the jury. .
The unauthorised communication may have given rise to improper pressure
His Honour explained that it is a “fundamental” rule that the jury must be free to deliberate without any form of pressure being imposed on them: Black v The Queen (1993) 179 CLR 44;  HCA 71. . Jury deadlock is not uncommon, and as such the Black direction, which is given by the trial judge, can assist in giving guidance to a deadlocked jury without “bringing improper pressure to bear …” .
The unauthorised communication touched on matters contemplated by the Black direction in circumstances where: the jury had not yet retired to consider their verdicts; and “well before the time that a trial judge would give any consideration to making such a direction”. . The unauthorised communication also omitted important parts of the usual form of Black direction, which are designed to guard against jurors feeling any improper pressure. –.
The unauthorised communication “may well have resulted in members of the jury feeling under pressure” and as a consequence it may have impaired “free deliberation” of the issues, which is an entitlement owed to both the Crown and the accused in a fair trial. .
The discretion under s 56 Jury Act 1995 to discharge the relevant juror miscarried
The discretion to discharge a juror under s 56 Jury Act 1995 can only be exercised where the circumstances “clearly call for its exercise”. . The perceptions of the accused, the jury, and the community are of “particular importance” when a trial judge considers exercising the discretion. .
There was a risk that the discharge of the relevant juror, at the time which they were discharged, might have been perceived by the other jurors as removing a “dissenting view” before the relevant juror was given an opportunity to either: change their view; or persuade others to their point of view. .
His Honour held that the discharge of the relevant juror by the learned trial judge was therefore inconsistent with maintaining the “perceptions necessary” to maintain public confidence in the administration of justice. . For this reason, the discretion miscarried. .
The “proper course” that should have been taken in the circumstances
Justice Bond (with whom McMurdo JA and Flanagan J agreed) then considered what the learned judge ought to have done in the circumstances. .
The “proper course” that should have been taken once it had become apparent that there was an issue “internal” to the jury was to question the jury as a whole: R v Orgles & Orgles (1994) 98 Cr App R 185;  1 WLR 108. –. If the learned trial judge was satisfied that the jury as a whole could continue to fulfil their duty, then the unauthorised communication could have been remedied by a direction, however, if the learned trial judge was not so satisfied, the “only proper course” would have been to discharge the whole jury. .