Jury discharge

Gibbs J (would allow the appeal)

This is an application for leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales which by a majority dismissed an appeal by the applicant, Angelo Maric, against his conviction on three charges, namely:—

(1) that on 16 September 1972 he did maliciously by the explosion of a substance in premises at 668 George Street, Sydney, cause grievous bodily harm to Josef Martin;

(2) that on 16 September 1972 he did maliciously put at 736 George Street, Sydney, an explosive substance with intent to do grievous bodily harm;

(3) that on 16 September 1972 he did maliciously place in a building at 736 George Street, Sydney, an explosive substance with intent to damage the building.

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The main ground of appeal before the Court of Criminal Appeal, and the basis of the present application, was that inadmissible evidence of a prejudicial kind was placed before the jury. Before turning to discuss the nature of that evidence and the manner of its admission, it is necessary to say something as to the circumstances of the case.

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All this evidence did no more than create a suspicion that the applicant may have committed the offences charged. However, evidence that connected him with those offences was given by police officers who said that in March 1974 he made a number of oral admissions which, if believed, clearly showed his complicity in the offences and according to the submission of the Crown showed that he had not merely made the bombs but had placed them in the premises at Sydney. It was alleged that he had said that he had done this for Croatia. The applicant, who gave evidence, denied that he had made these admissions.

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Pratt was then cross-examined and said in response to questioning by counsel for the accused that when he gave evidence at the committal proceedings of the conversation at the North Perth hotel he had not said anything about the job being in George Street. The learned trial judge, who had the depositions before him, appeared to think that the questions being put by counsel were contrary to what had in fact occurred at the committal proceedings. In fact the witness was right and the judge was wrong for it appears that Pratt in his evidence before the magistrate had said that George Street was mentioned in the conversation at Mount Hawthorne, but had not said that it was mentioned at the North Perth hotel. Counsel for the applicant tried to explain that the witness's reference to George Street had been in relation to a different occasion, but the learned trial judge again took over the questioning as follows…

Counsel for the applicant then applied for the discharge of the jury but his application was refused…

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The evidence brought out by the questions put by the learned trial judge was of the most damaging character. The statement by Brbic that the applicant had done a good job in Sydney was insignificant in itself. It had a number of possible meanings consistent with the innocence of the applicant. Even if it were understood to mean that the applicant had done a good job for the Croatian National Resistance in Australia it would not have been enough to incriminate the applicant. The further circumstance, that Brbic had said that the job was done in George Street, made the statement much more harmful, although the jury might still have regarded it as equivocal, because there was no evidence to connect Brbic with the offences. However, to add further that Brbic had said that the applicant was good at making bombs was calculated to suggest strongly to the jury that the job which the applicant had done for Brbic was in some way connected with the bombing in George Street. It is hardly possible to conceive of evidence more likely to prejudice the jury against the applicant to his detriment.

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This decision was followed in R v Palin [1969] 1 WLR 1544 ; [1969] 3 All ER 689, and R v Waring (No 2) [1972] Qd R 263 and somewhat similar views had earlier been expressed in R v Ball (1960) 77 WN (NSW) 605. It may now be accepted that the rule stated in the English authorities cited in R v Weaver, supra, which were followed in R v Hally [1962] Qd R 214  at 221, was too absolute: it is not an invariable rule that the jury must be discharged in such cases. However, in my opinion, it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction. In those circumstances, I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally, although of course one question will arise which will not arise in other cases, that is, whether the giving of the evidence was really the result of inadvertence, or whether it was given deliberately in an attempt to assist the accused. In practice the application of the principles stated by Sachs LJ in R v Weaver is not likely to lead to any different result from that which would arise if the appellate court, having decided that inadmissible and prejudicial evidence had been given, went on to consider whether a substantial miscarriage of justice had occurred. In any case, the evidence complained of on this appeal was not given inadvertently; the most prejudicial piece of evidence was given in response to a leading question asked by the judge.

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In the present case the admissible evidence was sufficient to ground a conviction, but it was by no means overwhelming. In the end the crucial question was one of credibility — that is whether the jury believed that the applicant had made the oral confessions of guilt to which the police witnesses deposed. The case was one which needed to be approached with particular care. The jury had to guard against the danger that they might convict the applicant on mere suspicion engendered by his association with a body of Croats who were said to be bitterly hostile to other Yugoslavs such as Martin and Jadrovski, and by his possession of inflammatory literature. It is in just such a case that inadmissible evidence of a prejudicial kind is likely to affect the verdict. I have already pointed out that the evidence wrongly admitted was highly prejudicial. It was central to the issues to be determined at the trial. The fact that the judge himself had elicited it may have given it added weight in the minds of the jury. I have, of course, not overlooked that the evidence was given on the sixth and seventh days of a trial that lasted for 19 days, but I cannot accept that it must be concluded that the jury had for that reason forgotten it. The case was a difficult one for any jury to consider, and they had spent many days listening to evidence much of which was quite inconclusive; it may be that the clear pungent statement attributed to Brbic that the applicant had done a good job for him in George Street, Sydney, and was good at making bombs may have seemed to the jurors a damning piece of independent evidence, and because of its importance and its nature it may have remained uppermost in their minds. In all the circumstances I find it quite impossible to be sure that the scales were not tipped against the accused by the wrongful admission of this evidence.

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I would grant special leave to appeal and would allow the appeal and order that the conviction be set aside and that there be a new trial.

Mason J (would allow the appeal)

For the reasons given by Gibbs J I would grant special leave to appeal, allow the appeal and order that the conviction be set aside and that there be a new trial.

Jacobs J (would allow the appeal)

I agree with the orders proposed by Gibbs J and with his reasons.

Murphy J (would allow the appeal)        

He claims that inadmissible and prejudicial evidence was admitted on the seventh day of his trial (this was conceded by the Crown); the evidence, which was hearsay and did not come within any exception to warrant its admission, suggested that the applicant was a bomb maker who had done a good job which had “come off” in Sydney. The applicant's counsel applied for discharge of the jury. The trial judge refused. The trial continued for another 12 days but this reference to Mr Maric as a bomb maker was not mentioned again to the jury.

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The appeal

An appeal to this court whether civil or criminal, is a true appeal and this court should do what the court below should have done. In my opinion, there was a miscarriage of justice and I am not satisfied that no substantial miscarriage of justice has actually occurred. However strong the case against him, Mr Maric was entitled to a fair trial and this means that inadmissible, highly prejudicial evidence should not be put before the jury. As there was no direction to ignore the evidence, the jury were entitled to take it into account in arriving at their verdict. The conviction should not be allowed to stand.

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Once the trial judge introduced (although inadvertently) the prejudicial material, there was no chance of a fair trial for Mr Maric. No direction would have cured the error. The only proper course was to discharge the jury. The trial record reveals that the prosecution was placed in a very difficult position. Despite this, the prosecution should have supported the application for discharge. From then on, Mr Maric was subjected to a trial which must be regarded as unfair and to a verdict of guilt which, although it cannot be allowed to stand, is undoubtedly prejudicial in the event of any retrial.

Aickin J (would allow the appeal)

I have had the advantage of reading the reasons for judgment of my brother Gibbs. I agree with his account of the circumstances and do not repeat it here. I also agree that the evidence in question was plainly inadmissible, and indeed it was not contended before us that it was admissible. The trial judge made a serious error and one likely to be prejudicial to the applicant.

Dawson J (would not allow the appeal on the refusal to discharge ground, but would allow on another basis)

1. The appellant was convicted on 3 February 1995 upon one count of committing an indecent act with a child under the age of 16 years and four counts of sexual penetration of a child between the ages of 10 and 16 years. He was acquitted upon eight counts of a similar nature. Each count involved the same complainant. The five offences of which the appellant was convicted were alleged to have been committed between 12 September 1991 and 16 May 1992, the latter being the complainant's sixteenth birthday.

2. Two grounds of appeal were argued by the appellant. The first was that the trial judge erred in failing to discharge the jury after inadmissible evidence was elicited by the prosecutor in re-examination of the complainant. The second was that the trial judge failed to direct the jury that the absence of recent complaint might be considered by them in assessing the credibility of the complainant.

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5. Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that "a high degree of need for such discharge" must appear before a discharge will be ordered. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.

6. In this case it was open to the trial judge to reach the conclusion that an appropriate warning to the jury was sufficient to overcome any prejudice which the admission of the evidence in question caused to the appellant and that any such direction would not draw the jury's attention to the evidence in a manner prejudicial to the appellant. In reaching that conclusion the trial judge did not take into account anything which he ought not to have taken into account nor did he fail to consider any matter which he ought to have considered. The warning which he gave was adequate and there is no reason to suppose that the jury did not follow the direction which they were given so that any prejudice which might otherwise have been occasioned to the appellant was thereby avoided. The refusal to order a discharge of the jury lay within the discretion of the trial judge and there is no basis upon which it can be said that the discretion miscarried. It is not open to this Court simply to substitute its view of the manner in which the discretion ought to have been exercised for that of the trial judge, even if it were minded to do so. The first ground of appeal must fail.

Toohey, Gaudron, Gummow and Kirby J (would allow the appeal on either ground)

1. At the conclusion of the hearing of this appeal, the Court ordered that the appeal be upheld, the order of the Supreme Court of Victoria set aside, the convictions of the appellant be quashed and that there be a retrial. It indicated that its reasons for those orders would be published at a later date. We now state our reasons.

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11. Several grounds of appeal were agitated in the Court of Criminal Appeal but only two were pressed in this Court. The two points which were argued, to sustain the attack on the convictions, were:

1. That the trial judge had erred in declining to discharge the jury after inadmissible evidence was given as to alleged sexual misconduct on the part of the appellant, not charged in the presentment and excluded by the ruling of the trial judge; and

2. That the trial judge had misapplied s 61(1)(b) of the Crimes Act 1958 (Vic) ("the Act"), and for that reason had misdirected the jury. He had also failed to give the jury directions as to the significance which they might attach to the complainant's delay in making a complaint about the appellant's alleged sexual misconduct.

12. The appellant has made good both of his complaints about the conduct of the trial. Each of them resulted in a miscarriage of justice and required that the convictions be quashed.

Inadmissible evidence of other sexual acts

13. When the trial of the appellant began, his counsel submitted that evidence of intermittent acts of sexual misconduct on the part of the appellant, foreshadowed in the complainant's statement to police, and similar to those charged in the counts of the presentment, would inevitably result in "overwhelming prejudice" to the appellant. It was put that the appellant would not be able effectively to answer the allegations, save by a general denial. The trial judge, after reference to the relevant authorities, reached the view that "on balance ... the degree of prejudice to the accused outweigh[ed] the probative value of [any such] evidence". He therefore ruled that evidence of other similar events should not be admitted. He said:

"Obviously that will require the Crown to firmly instruct the prosecutrix to that effect.

Neither party should form any view as to what my reaction or ruling might be, if it becomes necessary to make such a ruling, about a discharge of a jury. I will treat any situation that inadvertently arises on the merits."

14. The trial proceeded on this footing. The examination and cross-examination of the complainant proceeded with only one hint of a departure from the judge's ruling. This occurred during cross-examination of the complainant about the sexual misconduct of which the appellant was later convicted. The complainant answered the question as to what the appellant had done:

"The first time he was half sort of leaning, half kneeling on the bed and he started playing around with me as usual." (emphasis added)

15. Sensibly, this slip was allowed to pass. Obviously, any exploration of it would have breached the judge's ruling and would have been perilous to the appellant whose case was one of complete denial of the alleged events and a suggestion that the complainant was "disturbed" and lying.

16. But then, in re-examination, the prosecutor led the complainant to a much more serious departure from the judge's ruling:

"Over the years that he was doing these sexual things to you, did you see any way open to you to get him to stop him doing these things to you? --- Yes, I did.

What was that? --- Are you meaning something I could've done to stop him?

Yes? --- What I was going to do is the next time that he ejaculated in my mouth, I was going to keep it, put it in a jar and take it with me and that was my proof that he definitely did it because I knew he'd be able to lie through his teeth. I knew that he'd make it look as if it was all bullshit. That was the only thing I thought that I could do to have definite proof against him.

Did that happen again? --- It happened many times but I never had the opportunity to do anything about it."

It was with these questions that the evidence of the complainant was concluded. The judge adjourned the trial for the weekend and until the following Monday afternoon. After the jury had departed, counsel for the appellant immediately applied for a discharge of the jury. He submitted that the questions eliciting the references to the prior sexual misconduct, involving penetration and ejaculation, had been deliberate and was "a stunning way to end the Crown case". Even if the questions had begun inadvertently, they had been pursued "amazingly" and were bound to elicit the prejudicial answers that were given. They were contrary to the judge's ruling forbidding the admission of such evidence.

17. Judge Williams refused the application. He indicated that the "correct course" was for him to give the jury a warning, before the trial proceeded, that:

"Insofar as the complainant has at any time during her evidence gone outside the ambit of the specific complaints against the accused, such references are irrelevant and should be totally excluded from your consideration."

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20. It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

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22. The peculiar importance of the reference to other events of the kind described by the complainant will be appreciated when it is realised that four of the five counts upon which the appellant was convicted by the jury (counts 4 to 7 inclusive) were the only ones in the presentment, with the exception of count 9, which alleged sexual penetration. There was therefore a clear reference by the complainant, in the presence of the jury, to the "usualness" of the appellant's conduct, including penetration, which went beyond the matters upon which the prosecution had elected to charge him. This was contrary to the judge's ruling at the outset of the trial. It might be inferred that appropriate instructions would have been given by the prosecutor to the complainant to conform to that ruling. The statements were also highly prejudicial and inflammatory, especially as they came at the end of the complainant's testimony. They would have been left vividly etched on the mind of the jury over the long weekend adjournment which immediately followed.

23. There are two other considerations which do not appear to have been taken into account, or adequately taken into account, in the Court of Criminal Appeal's decision on this point. The first is that it was specially difficult in this case for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statement of the complainant. It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice. In some cases it is possible for the judge to refer to the inadmissible evidence and to explain why it must be excluded. That course was not open in this case and for that reason was not followed.

24. Furthermore, there is no indication that proper weight was given to the fact that the objectionable evidence followed an apparently deliberate course of questioning by the prosecutor when it was plain that he was on most perilous ground. In the lead-up to the offending evidence, counsel for the appellant repeatedly objected to the prosecutor's questioning of the complainant on general sexual matters. Repeatedly, he stated that the questions did not arise out of his cross-examination. Clearly, he was alert to the danger of opening up the very evidence of similar facts which had led to the preliminary ruling at the commencement of the trial. His objections would have alerted the prosecutor. Yet the latter pressed on and ultimately came to a question of such generality ("Over the years that he was doing these sexual things to you ...") that it was bound to lead an inexperienced lay witness into answers of generality. The very last question ("Did that happen again?") was as deliberate a question as could be imagined to open up the answer that, inevitably, followed. The application for discharge was immediately made. The trial was then in its second day.

25. With all respect to the trial judge and the Court of Criminal Appeal, a proper consideration of the factors relevant to weighing the prejudice to the accused, the danger to the fairness of the trial and the risk that such danger could not be eradicated by instruction to the jury necessitated, in this case, an order of discharge. Otherwise, the Court would sanction a real risk that the appellant might have been convicted on the basis of the prejudicial evidence about sexual misconduct "many times". This was not charged in the counts of the presentment. It was of a different character to the counts on which the appellant was acquitted. And it was produced by questioning which appears to have been deliberate and fraught with the danger of producing the result that predicably ensued.

Beazley JA (would dismiss the appeal)

1. On 25 October 2004, Qing An (the appellant) was found guilty by a jury of eight counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW) (the Crimes Act). An offence under s 97(1) carries a maximum penalty of imprisonment for 20 years.

2. The offences occurred between 16 August 2002 and 1 September 2002. Each involved the robbery of cash and personal effects, such as watches, mobile phones and jewellery from massage parlours in various locations in Sydney. The offensive weapon used in three of the offences (being Counts 1, 2 and 5) was a knife. The offensive weapon in the remaining five offences (being Counts 6-10) was an imitation pistol.

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4. The appellant appeals against his conviction on the basis that an irregularity occurred during the course of the jury's deliberation and that the trial judge erred in failing to discharge the jury.

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Appeal against conviction

13. The trial commenced on 5 October 2004. The jury commenced deliberating on Friday 22 October 2004, and returned the following Monday, 25 October 2004, to continue their deliberations.

14. The jury had with it in the jury room a grey-coloured suit jacket (Exh U), which was identified by witnesses at the trial as being like the jacket worn by the appellant during some of the robberies. The jacket had been seized from the appellant's home when it was searched at the time of the appellant's arrest on 25 October 2002.

15. The appellant had given evidence in his defence. During the course of his evidence he was asked about the jacket. He said that he and his brother had purchased the jacket from a store called, as he could remember it, "Boys to Men" at Fairfield, "seven, eight months or one year before I was arrested". He said that both he and his brother wore the jacket because they were both the same height. In his cross-examination, the appellant agreed that in August 2002, when the offences were being committed, his brother was in Melbourne.

16. Prior to 11am on the morning of 25 October 2004, the trial judge informed the Crown Prosecutor and the solicitor for the accused that he had been advised by the Court Officer that the jury had informed him that "when they'd upended the jacket ... a syringe fell out".

17 The appellant's solicitor thereupon made an application for the discharge of the jury. He said that it was “highly prejudicial” to have such an item before the jury; that there was no evidence of anything relating to a syringe, nor was there any evidence of an illness that related to the use of a syringe that might have explained its presence. He submitted that it would have become embedded in the mind of the jury that the appellant may be involved in drugs and that the jury might then deduce that the appellant had a motive for the robbery.

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20. The trial judge decided that the prejudice that was potentially caused by the finding of the syringe in the jacket could be cured by an appropriate direction to the jury and thus gave the following direction…

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25 As I have indicated, there was no dispute as to the correct principles to be applied. The Crown submitted that the application of the principles gave rise to a number of considerations, namely: the nature of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material was prejudicial; and the extent of the prejudice. Given those considerations, the question was what was called for in the proper exercise of the discretion; namely, a discharge of the jury, or appropriate directions to the jury. That last matter in turn raised the question whether the directions given were adequate.

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50. In my opinion, the direction given by his Honour was appropriate and sufficient. His Honour, in clear language, directed the jury that the syringe was not evidence in the case and its presence was to be ignored. He cautioned them that it had never been part of the Crown case that the appellant was in any way connected with drugs and that any such thought must be put out of their minds. They were directed not to speculate as to how the syringe came to be in the jacket. His Honour indicated that there were other possible explanations for the use of a syringe, including legitimate self-medication, but that there was no evidence that it had been used by the appellant for that reason, or that he even knew that the syringe was in his jacket. His Honour indicated that there could have been a variety of reasons why the syringe came to be in the jacket, including having been placed there by mistake after it was seized by the police. His Honour reiterated the importance of not speculating and that this syringe had nothing to do with the case.

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Hulme J (would dismiss the appeal but only on application of the proviso)

122. I have had the advantage of perusing the judgment of Beazley JA which contains a summary of much of the evidence given during the course of the Appellant’s trial. So far as possible I shall avoid repetition.

123. Like her Honour, I would extend the time for appeal but dismiss the Appellant’s appeal against his conviction. However, I am unable to agree that the syringe found by the jury in the Appellant’s coat would not have had much prejudicial value. In my view that prejudicial value was likely to be very high.

124. Furthermore, although when the existence of the syringe was bought to the trial Judge’s attention, His Honour directed the jury in terms about which no legitimate complaint can be made and I am a firm believer in the proposition that juries can and do decide cases upon the basis of instructions given to them, it has been recognised that there are exceptions to that general situation. As Simpson J said in R v Lansdell (Unreported, CCA 22 May 1995)…

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125 Gleeson CJ, in whose judgment Finlay J concurred, made observations to like effect. See also R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 at [78].

126 The circumstances here fell within that exceptional category. In my view, no directions were capable of overcoming the prejudice which arose from the presence of the syringe in this case.

127 I acknowledge that it was physically possible for the offender John Yin (sometimes referred to as “John Ying”), about whom there was evidence that he was or may have been a drug addict and with whom the evidence showed the Appellant had some significant connection, to have placed the syringe in the Appellant’s coat either at a time the coat was borrowed or otherwise. I acknowledge also that there were other possible explanations for the presence of the syringe. However, so strongly does the presence of a syringe in a coat pocket indicate the likelihood that the owner of the coat is a drug addict that I do not believe that the jury could have put the topic out of their mind. Particularly is this so given the evidence as to John Yin’s addiction, that John Yin was a friend or associate of the Appellant and that the Appellant had limited employment and had been sufficiently short of money at one stage to be pawning a watch.

128 In my view once the syringe was found by the jury, the only proper course for Judge Dodd to take was to acquiesce in the application that the jury be discharged without verdict.

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159 Considered in isolation some parts of this evidence clearly have their weakness. However when regard is had to the totality and to the other aspects of the evidence to which reference has been made, the case against the Appellant in respect of each of the charges was compelling. In these circumstances, it is appropriate to apply the proviso to s6 of the Criminal Appeal Act – see Wilde v R [1988] HCA 6; [1987-1988] 164 CLR 365 at 372; Festa v R [2001] HCA 72; [2001] 208 CLR 593.

Hislop J

201. I agree with the orders proposed by Beazley JA and generally with her Honour's reasons.

McClennan CJ at CL (would dismiss the appeal)

1. The appellant pleaded not guilty to one count of making a document connected with preparation for, the engagement of a person in, or assistance in a terrorist act, knowing of that connection contrary to s 101.5(1) Criminal Code Act 1995 (Cth) ("the Code") and to one count of attempting to urge another to engage in a terrorist act contrary to ss 11.1(1), 11.4(1) and 101.1(1) of the Code. Following a trial in the Supreme Court, the appellant was convicted in relation to count 1. The jury was unable to reach a verdict in relation to count 2. The offence of which the appellant was convicted attracts a maximum penalty of 15 years. The appellant was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years (R v Khazaal [2009] NSWSC 1015). He appeals against his conviction and seeks leave to appeal against his sentence.

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GROUNDS OF APPEAL

18. The grounds of appeal were expressed as follows:

CONVICTION

Ground 1 A miscarriage of justice occurred as a result of her Honour failing to discharge the jury in circumstances in which counsel for the appellant had inadvertently tendered magazines, which made clear reference to material suggesting there was a link between al-Qaeda and the appellant;

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19. During the trial, the Crown called Dr Evan Kohlmann, who was accepted as an expert on international terrorism and terrorist organisations including al-Qaeda. His evidence was extensive, and included explanations of the operation and practices of al-Qaeda, concepts of jihad and martyrdom, the Almaqdese website, and the contents of the e-book. He was cross-examined by the appellant's counsel and asked about the appellant's prior journalistic publications, which included his work on the Nida ul-Islam magazine. The apparent purpose of the cross-examination was to establish that the e-book was, like the magazine, a journalistic work compiled for literary purposes.

20. During the cross-examination, Issue 9(1) of the magazine (Feb - Mar 2002) was tendered without objection. It became Exhibit 2. A bundle containing four other issues of the magazine was marked MFI 14. The prosecutor later called for the tender of MFI 14 which became Exhibit 4. A bundle containing 32 other issues of the magazine became Exhibit 5. The Crown had an opportunity to peruse Exhibit 5 overnight, apparently for the first time, those issues of the magazine having previously been with the jury.

21. Exhibit 5 included Issues 10(2) and 10(3) of the magazine. Within those issues were two articles written by the appellant which referred to allegations that the appellant had links to al-Qaeda and had assisted in the financing of overseas terrorist acts ("the allegations"). I will refer to the articles contained in issues 10(2) and 10(3) as "the disputed articles".

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26. In the course of the Crown address, counsel for the appellant, apparently for the first time, learnt of the content of the disputed articles. Concerned that a mistake had occurred and troubled by its impact on the jury, he made an application to have the jury discharged on the basis that the relevant articles were so devastating to the appellant that he was denied any possibility of a fair trial. Exhibit 5 had been in the jury's possession for seven hearing days by the time the application for discharge was made. When making the application, defence counsel said…

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27. The trial judge refused the application, concluding that the disputed articles categorically denied the allegations and accordingly, the potential for prejudice was minimised. Her Honour's judgment reads as follows…

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48. In my judgment the directions given by the trial judge were adequate to deal with the issues which had arisen. I am satisfied that the jury was made aware of the limited purpose for which the Crown relied on that evidence. The prosecutor and the trial judge took various opportunities to caution the jury against improper use of the disputed articles. The trial judge was alive to the atmosphere of the trial and to the disposition of the jury and was in the best position to assess whether the circumstances demanded the jury's discharge (El Hassan v R [2007] NSWCCA 148 per Hunt AJA at [15], citing House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505; Kanaan & Ors v R [2006] NSWCCA 109 at [50]; R v Ngo [2003] NSWCCA 82 at [49]; R v Ball (1960) 61 SR 37 at 41-42; see also GAR v R (No 2) [2010] NSWCCA 164). I am not satisfied that the trial judge's refusal to discharge of the jury occasioned a risk of a substantial miscarriage of justice (Crofts at 441).

49. The arguments ventilated in relation to this issue are illustrative of the tensions which have increasingly emerged between the unfair prejudice which may be occasioned to an accused when the jury receives information which it should not have had (whether in evidence or otherwise) and the jury's capacity to act on instruction given to it by the trial judge. If the assumption of the common law that jurors understand and follow the judge's instruction is to be more than hollow rhetoric it is important that appellate courts pay appropriate respect to the discretion of the trial judge who is in a far superior position to the appellate court to appreciate the atmosphere of the trial and determine whether appropriate instruction will ensure that the trial is fair.

Hall J (would allow the appeal)

Ground 1: Whether there was a miscarriage of justice by reason of the trial judge's refusal to discharge the jury

(1) The facts

237. There were two articles that had been published in the periodical magazine "The Call of Islam" (at trial referred to as the "Al-Nida ul Islam" magazine). Both formed part of defence Exhibit 5. The first is styled as a "Media Release" and formed part of Issue 2, Volume 10, July/September 2003 (p.5). The article was entitled "Four Corners Missed the Target". It was a publication in response to material, including allegations, that had been made on the programme entitled "The Australian Connections" on the ABC's Four Corners programme presented on 10 June 2003. The article was in the nature of a rebuttal, expressed in fairly strong terms, of the allegations that had been made against the appellant.

238. In the formulation of the rebuttal, explicit references were made to the content of "the Australian Connections" programme which was broadcast on national television. Accordingly, a reader of the article would become aware of the material said to have been relied upon by the ABC journalist and, in particular, and the source of the material identified in the Four Corners programme.

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Applications for discharge of jury - relevant principles

265. There is no rigid rule to be applied in deciding an application to discharge a jury when an inadvertent and potentially prejudicial event occurs during a trial: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 440. In the present case, the tender of Exhibit 5 involved the inadvertent tender in the defence case of potentially very prejudicial material which occurred by reason of an oversight by counsel then appearing for the appellant.

266. In a determination of the application, important considerations include the seriousness of the material tendered in the context of the contested issues, the stage at which the inadvertent tender occurred, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended impact: Crofts (supra) at 440.

267. In the evaluation of these and other considerations, much leeway must be allowed to the trial judge: Crofts (supra) at 440. The expression "other considerations" include, in particular, the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading the transcript: Crofts (supra) at 440 to 441.

…

270. One issue is whether the statements may be of a character that can be fairly classed as "highly prejudicial" or even "inflammatory": Crofts (supra) at 441. In that respect, it is necessary to consider whether there was special difficulty in the trial judge fashioning a direction to the jury which would help them to eradicate from their minds any highly prejudicial statements contained in the articles, noting that "... it is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts": Crofts (supra) at 441.

271. Where highly prejudicial evidence is wrongly admitted and that evidence is central to the issues to be determined at the trial, a real question arises in this case as to whether the jury should have been discharged: see generally Maric v The Queen (1978) 52 ALJR 631 at 635.

272.Wrongly admitted evidence which can be said to be damning evidence may not be capable of remedy by trial directions. In other words, such damage as was caused by the admission of the evidence may not be capable of being undone: Maric (supra) at 635.

273. In the present case, the direction given to the jury did, of course, refer expressly to the evidence that had been wrongly admitted. This was necessary, given the nature of the evidence, so as to ensure the jury had their minds properly focused on the point of the directions. A dilemma, however, arises in that respect. A direction which refers to the objectionable evidence thereby may have the effect of impressing the evidence on the minds of the jurors: Maric (supra) at 635.

274. In evaluating the trial judge's decision to refuse the application for a discharge, as earlier indicated, evidence may be so damaging that no directions may be capable of removing its detrimental effect. In such cases, the only course open to a trial judge in those circumstances is to discharge the jury: Maric (supra) at 635.

275. The discretion in a trial judge to determine whether or not the jury should be discharged is then one to be exercised according to the circumstances of the particular case. In cases where there has been an irregular disclosure, unless it can be said that such disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, it has been observed that the trial judge should exercise his discretion in favour of the accused: R v Knape [1965] VicRp 63; [1965] VR 469 at 472-474 (Winneke CJ, Pape and Stark JJ).

276. Accordingly, whilst the authorities have established principles for the exercise of the discretion by a trial judge to discharge a jury, they do not purport to prescribe or lay down principles as to how the discretion ought be exercised.

…

Conclusion

287. The allegations made in the material published in the Four Corners programme can, in my opinion, only be characterised as "highly prejudicial". In particular, they were directly relevant to issues in the trial. These included, firstly, the issue as to whether the book possessed the character of a document that could assist in a terrorist act, secondly, whether the appellant knew of the connection in that respect and, thirdly, their impact upon any possible defence that may have become available in accordance with the provisions of s.101.5(5) which would involve the appellant's state of mind.

288. The Crown acknowledged that there was no evidence of any direct link or association between the appellant and al-Qaeda. It contended any association he had was an indirect one by reason of his membership of the Islamic Youth Movement (the publisher of the Call of Islam magazine and being a contributor to it). The Crown made it clear that it did not contend that the appellant was directly linked to the al-Qaeda organisation. The particular vice in the material published by the Four Corners programme and republished in the articles was not merely that it contained allegations by an ABC journalist that was adverse to the appellant, but that the Four Corners programme was said to have had as its source an alleged report made by the CIA. In other words, the allegations were expressly presented as made on the basis of material of a well-known intelligence agency.

289. The material broadcast on the Four Corners programme constituted allegations, repeated in the articles, to the effect, that the appellant had been involved in past criminal activities. In particular, the allegations were to the effect that he had participated in terrorist activities involving extremely serious criminality. Such material could, in my opinion, only properly be classified as "highly prejudicial". The fact that the appellant rebutted or denied the allegations could not, in my opinion, be said to have neutralised the alarming nature of the allegations said to have been sourced to a CIA report.

290. Taken in conjunction with the allegation concerning the allegation of a direct association with al-Qaeda, the material in the articles, in my assessment, was such as to destroy any prospect of a fair trial.

…

292. I have concluded that the trial judge's decision to refuse the application for a discharge of the jury was, with respect, an erroneous exercise of the discretion. Although the material was tendered in the defence case, it was done by the inadvertence of the appellant's counsel. The material in the prejudicial articles expressly having identified the appellant as the subject of allegations said to have been based upon a CIA report, was, in my opinion, so damaging that no directions from the trial judge were capable of removing its detrimental effect. Accordingly, in my opinion, the only course open to the trial judge in those circumstances was to discharge the jury.

293. I, accordingly, would uphold Ground 1 of the appeal.

McCallum J (would allow the appeal, but not on the jury discharge ground)

451. I have had the benefit of reading in draft the judgments of both the Chief Judge at Common Law and Hall J. As to grounds 1 and 2, I respectfully agree with the Chief Judge, for the reasons given by his Honour. I also agree with the Chief Judge that the third ground of appeal should be dismissed. In the case of that ground, however, my reasons differ slightly from those given by his Honour. My reasons are stated below.

452. As to ground 4, I respectfully agree with Hall J that the learned trial judge erred in concluding that the appellant had failed to satisfy the evidential burden borne by him in relation to section 101.5(5) of the Code. In my view, the question whether the appellant's conduct fell within the exception under 101.5(5) of the Code should have been left to the jury. In respect of that ground, I am of the same view as Hall J as to the application of the proviso to s 6(1) of the Criminal Appeal Act. I am not able to conclude that no substantial miscarriage of justice has actually occurred. Accordingly, the proviso does not apply.

McClellan CJ at CL

1. I agree with Adamson J.

McDougall J

2. I agree with Adamson J.

Adamson J

3. The applicant (BG) was convicted of three counts of sexual offences against his daughter (K), contrary to the Crimes Act 1900: two counts of aggravated indecent assault against a child under the age of 10 years, (s 61M(2)) and one count of sexual intercourse with a child under the age of 10 years (s 66A) following a trial before the District Court (Payne DCJ and a jury of 11). BG was sentenced to an aggregate non-parole period of six years, with an additional term of three years.

4. BG seeks leave to appeal against his conviction on two grounds: first, that the verdicts should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence; and secondly, that there was a miscarriage of justice because the trial judge erroneously discharged a juror and allowed the trial to continue with 11 jurors.

...

Ground 2: the discharge of the juror and the refusal to discharge the jury

62There are two aspects to this ground: first, whether the trial judge's discretion to discharge a juror miscarried and secondly, whether the discretion to continue the trial with the balance of the jurors miscarried.

...

77. At about 5.45 pm, the trial judge foreshadowed her intention to discharge the juror with business concerns. BG's counsel reiterated his opposition to that course.

78. At 5.48 pm, the jury returned to Court to be told that the trial judge ordered the discharge of the juror with business commitments. Her Honour then said:

"The jury will therefore continue as a jury of 11."

79. In the absence of the jury, the judge said:

"I want to note for the transcript that it was not only the unavailability of the juror in terms of work commitments, but the stress also and inability of that juror to be able to concentrate on the issue if indeed required to attend."

80. The jury resumed its deliberations at 9.00 am on Tuesday. At 11.30 am the jury sent a further note which said:

"Following further deliberations, the Jury is unable to come to a unanimous verdict on any of the three counts of the indictment."

81. The jury returned to the Court at 12.17 pm at which time the trial judge encouraged the jury to reach unanimous verdicts.

82. Shortly after 3 pm, when the jury had been deliberating for a total of eight hours, the jury was returned to the Court. The foreperson gave sworn evidence that all jurors agreed that a unanimous verdict could not be reached. The trial judge then informed the jury that circumstances had arisen in which a majority verdict may be returned. Her Honour urged the jury to continue its deliberations with a view to returning a unanimous verdict but that if it became "plainly impossible", a verdict of ten out of eleven could be returned.

83. The jury retired. It then sent a note which said:

"The jury has reached a majority verdict of ten (10) jurors on each of the counts in the indictment."

84. The jury returned to the Court at 3.43 pm and returned a majority verdict of 10:1 on all three counts. The jury was discharged at 3.48 pm.

...

Analysis of relevant principles

102. The precise point that arises in this case does not appear to have arisen before either in Australia, the UK, Canada or the US. Nonetheless a review of the authorities which counsel have brought to the attention of the Court enable certain principles to be distilled.

103. On my analysis of the cases, there are three categories of case in which the question arises whether the trial should continue with the remaining jurors when one juror has been discharged. These are:

(1)Where there is no indication how the discharged juror would have voted;

(2)Where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and

(3)Where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal.

104. By and large, the effect of the authorities is that is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors if the case falls into either the second or the third categories. In such cases, there is a risk of a substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.

105. What occurs in a jury room is beyond the province of the Court. Such an inquiry has long been held to be impermissible: AK v Western Australia [2008] HCA 8; 232 CLR 438 at [99], per Heydon J. What distinguishes categories 2 and 3 from category 1 is that in those categories, something is known or can be inferred about what has transpired in the jury room such as to give rise to a substantial miscarriage of justice if the trial continues with the remaining jurors.\

...

135. The proposition that it could reasonably be inferred that the discharged juror was a dissentient is the only matter that has been advanced as giving rise to the risk referred to in s 53C. In those circumstances, I am not of the opinion that to continue the trial with the remaining jurors gave rise to a risk of a substantial miscarriage of justice.

136. Accordingly I consider that the trial judge's decision to continue the trial with a jury of eleven was within a proper exercise of discretion. Evidence, addresses and the summing up had all concluded. The cost, in financial and personal terms of ordering a retrial was a relevant factor in the decision to continue the trial with fewer than twelve jurors: R v Metius [2009] QCA 3; (2009) 2 Qd R 442. There was no basis for considering that the discharge of one juror compromised the ability of the remaining jurors to carry out their function.

McClennan CJ at CL

1. I agree with Rothman J.

Johnson J

2. I agree with Rothman J.

Rothman J

3. The appellant, Hy Trieu, appeals his conviction on one count of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900. Mr Trieu was convicted by a jury after a trial that lasted 7 days.

4. The appellant raises only one ground of appeal, being,

"That the trial judge erred in the exercise of his discretion in not discharging the jury".

…

17. After a while, his Honour reconvened the court, in the absence of the jury, and the following exchange occurred:

"HIS HONOUR: I brought you back because the court officer... (recording equipment not switched on)... witness box and I won't swear her but she can tell you herself what the jury have reported to her. Thank you officer, away you go.

COURT OFFICER: The jury members have told me that the last three afternoons as they have left the jury entrance or exit where they come and go all from a member who is here in the courtroom --

HIS HONOUR: A member of the public?

COURT OFFICER: A member of the public has been outside and kind of taking it slow to walk past and staring at them and a couple of them seem a little worried.

HIS HONOUR: Thank you officer. That was what they expressed to you?

COURT OFFICER: Yes well they did actually say what would happen after the verdict when they left, does somebody go with them?

HIS HONOUR: Right, okay, thank you. They were asked if they wanted to put anything down in writing and I have received nothing in writing. It is the gentleman I understand whose mobile phone went off yesterday afternoon. So who is he with, Mr Steel, Mr Pontello? Not with you?

              …

18. When the matter resumed, counsel for each accused applied for his Honour to discharge the jury, because the jury may have impermissibly believed that one or both accused were associated with the person mentioned and that the conduct of that person disclosed a consciousness of guilt on the part of the accused. The Crown opposed the discharge of the jury.

19. His Honour refused the application to discharge and directed the jury in the following terms…

…

30. The trial judge was correct to invite the members of the jury to express their concern in writing, if they considered the conduct an issue. Notwithstanding that request by the trial judge, the jurors did not express their concerns in writing and, in the view of the trial judge, with which view I agree, this indicated that the jurors were not overly concerned about the conduct. Further, the refusal to raise the matter formally indicates that the concerns raised with the sheriff's officer were in the nature of an alert to a possibility, rather than the expression of a view, that they were being intimidated.

…

36. In those circumstances, the actions of the trial judge were appropriate and dealt with all of the issues of which there was concern. The trial judge's directions made clear to the members of the jury that the person they had noticed was not connected with any of the co-offenders, but, given the importance of their anonymity, they would be provided transport that would allay any issue in that regard.

In my view, the jury have dealt with the matter most appropriately and the trial judge has, in turn, preserved the integrity of the trial and the verdict arising therefrom.

Button J

1. Application has been made by defence counsel for the discharge of the jury. It is founded on the fact that the fingerprint expert, Detective Leading Senior Constable Buffett, said something inappropriate in his evidence-in-chief. The transcript of an extract of his evidence was tendered by defence counsel in support of the application, and became defence exhibit D on the voir dire. The salient portions of that transcript are as follows. At page 7 line 4 the following appears:

"Q. All right now, what did you have to compare those fingerprints that were developed with? [I interpolate to say that the learned Crown Prosecutor at that stage was referring to the crime scene fingerprints.]

"A. At which particular time?

Q. From whom they were placed on those items?

A. The comparison that I made for the purposes of, according to this certificate, I've always done where possible off ones taken at the time of arrest.

Q. Right?

A. But other comparisons are performed but it might be prejudicial if I go into that.

Q. No, no, no, just ones that were taken from the time of arrest of Mr Ahola we're talking about?

A. Yes."

3. The submission is that the jury would inevitably infer from the first extract that the accused is a person with a criminal record whose fingerprints were held by the New South Wales Police, prior to them being taken from him with regard to this matter. It is that inference that forms the foundation for the application of the discharge of the whole jury.

…

17. My review of some of the leading authorities shows that the High Court of Australia and the Court of Criminal Appeal of New South Wales do not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material. That review also shows that in many circumstances a direction is an appropriate remedy, not the discharge of the whole jury, although of course every case will turn upon its own facts.

18. In short the authorities demonstrate that it is well established that the decision to discharge a jury is a discretionary one. A trial judge should take into account a number of factors including but not limited to the extent of the prejudice to the accused; the ability to ameliorate that prejudice to any degree by direction, comment or other step; and the stage that the proceedings have reached. As I have said, the ultimate question is whether a high degree of necessity for the discharge of the jury has been established in all of the circumstances.

Determination

19. As for the last factor to which I referred, namely the stage that the proceedings have reached, that militates, in my opinion, rather strongly against discharge. The trial has proceeded now for over two weeks. It has involved evidence from very many civilians, police, and a number of experts, including more than one witness who has travelled from interstate. The trial included a view of the scene that took a whole day. Of course questions of convenience are not determinative, and obviously no matter what the time, trouble or expense involved, a trial that had been prejudiced to the point of becoming unfair could not continue, whatever the inconvenience.

20. However, I do not consider that the test of a high degree of necessity has been made out in this case. That opinion is founded upon a number of factors.

…

29. In short, I am not satisfied, in all of the circumstances of this particular case, that there is a high degree of necessity for the jury to be discharged, and the application for that to occur is respectfully rejected.

The Court (Beazley P, Fullerton and Hamill JJ)

 1. The appellant, Damon Charles Miller, pleaded not guilty to one count of dishonestly obtaining a financial advantage by deception: the Crimes Act 1900 (NSW), s 178BA(1), and twenty counts of using a false instrument: the Crimes Act, s 300(2). The former offence is now repealed. However, at the relevant time it carried a maximum penalty of five years imprisonment. The offence of using a false instrument carries a maximum penalty of 10 years.

2. Each count on the indictment related to a scheme whereby the appellant defrauded the Uniting Church (NSW) Trust Association and attempted to obtain a financial advantage to himself of $14,380,770 by pretending to be a solicitor and using false instruments to raise a mortgage upon an office block that he did not own and had no authority to deal with. The appellant’s defence at trial was that the Crown had not proved beyond reasonable doubt that the appellant was the person who had committed the offences.

…

5. By an amended notice of appeal, the appellant contended, in relation to the appeal against conviction, that:

(5) A miscarriage of justice occurred as a result of her Honour’s failure to discharge the jury in circumstances where a document, Exh BA, which contained prejudicial material, was placed before the jury for the purposes of the handwriting identification evidence.

Ground 5 was a new ground of appeal, added by leave of the Court in the amended notice of appeal.

…

Ground 5: failure to discharge the jury

115. Ground 5 of the appeal was in the following terms:

“A miscarriage of justice occurred as a result of her Honour failing to discharge the jury in circumstances in which [the] Crown tendered a document, Exhibit BA and the appellant had inadvertently failed to object to, that made clear reference to material suggesting there was a link between prior convictions of fraud and the appellant.”

116. An application was made to discharge the jury on the fourteenth day of the trial in circumstances where the Crown had tendered a five page document, marked as Exh BA. That document, which had been prepared by Mr Westwood for use by the jury, comprised a schedule of sample material, that is, various words and phrases taken from the specimen documents. It was prepared for the purposes of comparison with both the specimen documents and those documents alleged to have been prepared by the appellant as part of the fraudulent activity subject of the charges and an explanation of any variations in letter format between those documents.

117. No objection was taken to the admissibility of the document when it was placed before the jury. Mr Westwood then commenced his evidence, which he gave by reference to Exh BA. Mr Westwood referred to the letter “s” in the word “sheriff” and to the “s” in the words “my counsel, solicitor and myself”, as compared to the “s” as written in the word “Australia”, which the witness observed varied from one another. Reference was then made to other words. Insofar as any contained a legal reference, Mr Westwood referred to a number of words which were alleged to relate to legal proceedings or fraud, including, “witnesses”; “Dasios”; “sheriff’s”, “my counsel, solicitor and myself”, “Michael Carol” (the appellant’s solicitor); “passport”; “property”; and “police station”.

118. During the course of Mr Westwood’s evidence, the appellant’s counsel signalled there was an urgent problem and the jury was asked to leave the court and to leave their documents in the courtroom. The Crown withdrew the tender of Exh BA, at which time the appellant made an application for the discharge of the jury.

119. The trial judge refused the application. In her judgment published on 4 September 2012, her Honour considered each of the words said to be prejudicial and explained why, either in isolation or in combination with other words there was no prejudice to the appellant. The judgment speaks for itself and it is not necessary to re-iterate here her Honour’s consideration of each word or phrase about which complaint was made. It is appropriate, however, and sufficient, to refer to her consideration of those words or phrases, such as “fraud related charges” which appeared on Exh BA said to be particularly prejudicial.

120. The appellant submitted that the phrase “fraud related charges” would suggest to the jury that the appellant had convictions for fraud or had other fraud related charges pending. The same submission had been made before the trial judge. The trial judge, at 9 of her judgment, observed that there was no reason why the jury would reach such a conclusion in circumstances where the reference was to the very charge the subject of the proceedings. Her Honour considered that there was no reason for it to have even occurred to the jury that the accused might have faced or be facing other fraud related charges. Her Honour noted that this submission would have had more weight if there had been a reference to another charge such as the charge of murder.

121. Exh BA contained a reference to the names “Angelo Bilias” and “Gregory J Goold”. These are names of solicitors. Her Honour doubted that the jury would recognise the names at all or that they would know they were the names of persons well known in the criminal law. Her Honour stated that she, herself, had never heard of the former. Her Honour continued:

“... the very fact that [the appellant] has been charged with such fraud is a matter that a jury might reasonably expect to cause him to thereafter address correspondence to solicitors specialised in criminal law, or that he might refer to matters such as ‘affidavit’ and ‘conviction’ and ‘witnesses’ and ‘police’, ‘superintendent’ and ‘police station’ without any implication that he had been convicted of an offence.”

122. There was also a reference to a person by the name of “Mr Dasios” in a phrase in the document, “Mr Dasios and other Crown witnesses to be contrived”. Mr Dasios was not, and was not intended to be, a witness at the trial. Her Honour dealt with this reference at 10 of her judgment, as follows:

“... it is highly unlikely that any jury in the time they had the document before them would have cross referenced such mention to the list of witnesses before them, or that they would otherwise remember the name, or if they noticed he wasn’t called by the end of the trial, that they would conclude that he must have been a witness in some other proceedings.”

123. Her Honour, at 10, was also of the opinion that the phrases “litigation”, “Crown witnesses”, “court”, “cross-examination”, “David McGovern QC”, “counsel” and “solicitor”, whilst suggestive of court proceedings, did not thereby suggest that the accused had been convicted of a criminal offence.

124, Two words which were also the subject of debate were the abbreviations or acronyms “MIN” and “VIN”. These were not the subject of evidence by Mr Westwood before Exh BA was removed from the jury’s possession. Her Honour’s ruling was made against the possibility that the jury had observed or taken note of the words. Her Honour, at 9 of her judgment, considered that it was unlikely the jury would know what the abbreviation MIN was a reference to. We agree. Her Honour also considered that if the jury attached any meaning to VIN, had they taken notice of it, they would have believed it meant “vehicle identification number”. However, her Honour observed that even if a jury member recognised it as meaning “visitor identity number”, such as to conclude that the appellant was being held in gaol, bail refused, that would have been a reasonable expectation in the case where the accused was charged with a $15 million fraud.

125. When the jury returned, the trial judge told the jury that that Exh BA had been withdrawn so that it could be “put in a more convenient form”.

Principles relating to the discharge of the jury

126. The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v R [2010] NSWCC 129 per Hall J at [265] ff. The following principles emerge from his Honour’s review and from the two leading cases he cites Crofts v R [1996] HCA 22; 186 CLR 427 and Maric v R (1978) 52 ALJR 631:

(1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440.

(2) In deciding an application to discharge the jury, key considerations include:

(a) the fairness of the trial: Crofts at 440;

(b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to “have been left vividly etched on the mind of the jury”: Crofts at 441;

(c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440;

(d) the stage at which the mishap occurs: Crofts at 440; Maric at 635;

(e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;

(f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635.

(3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635.

(4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that “[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict”, and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can “say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable”.

(5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind:

“... that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript”: Crofts at 440-441.

(6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge “is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind”: Crofts at 441, but rather must apply the broader test stated at (4) above.

Consideration

127. There was no error in her Honour’s observations or in her approach to this matter. As her Honour correctly pointed out, the appellant’s trial was in respect of fraud related matters and there was nothing to suggest that the jury would have thought that these words were a reference to some other matter. The other references said to be prejudicial, as her Honour pointed out, would have been readily understood by the jury, if they gave any thought to them other than as words on a page, as a reference to the various charges before the court.

128. Further, as is apparent from the number of pages over which Mr Westwood gave evidence by reference to Exh BA, the document was before the jury for a number of minutes only. The problem arose on 9 August 2012, the fourteenth day of the trial. In addition, the trial continued until 14 January 2013 when the jury retired to consider its verdict. The jury returned its verdicts on 17 January 2013.

129. This is a case where the appellate court can be confident that the irregularity in Exh BA being before the jury, in the circumstances to which we have referred, did not affect the verdict. Accordingly, we dismiss ground 5 of the amended notice of appeal.

The Court (Beazley P, R A Hulme and Fagan JJ)

1. On 29 May 2017, Mr Joseph Curran was arraigned in the District Court upon an indictment and pleaded not guilty to one count of indecent assault and three counts of sexual intercourse without consent. A jury was empanelled and the trial proceeded for three days. On the fourth day, 1 June 2017, the learned trial judge decided to discharge the jury. The accused has applied to this Court under s 5G of the Criminal Appeal Act 1912 (NSW) for leave to appeal that decision.

…

Nando’s conversation

6. Towards the end of the complainant’s evidence in chief the Crown tendered a recording of a conversation that took place between her and the accused that was covertly recorded by police. The conversation took place at a Nando’s Restaurant about a month after the incident giving rise to the charges (“the Nando’s conversation”). On one view of it, and although the trial judge expressed misgivings about this, statements made by the accused during the course of this conversation could be taken to amount to an admission that he continued to engage in intercourse with the complainant after she had communicated a withdrawal of consent. He agreed that after she had said “No” while penile/vaginal intercourse was occurring with her on top of him that his penis remained in her vagina for “two fucking to ten seconds”; “no longer than 30 seconds”; “it wouldn't even be 30 seconds, maybe a fact of 10 seconds or 15 seconds”. A little later in the conversation he described it as “about 5 or 10 seconds”. The trial judge observed that the accused's account was to the effect that there was “little that he could do to withdraw [his penis], given the position in which the two people were having sexual intercourse”.

…

Draft elements

8. The trial judge had prepared in draft a written statement of the essential elements of the offences that he proposed to provide to the jury. After having heard the covertly recorded conversation he amended the document to include that the “sexual intercourse” element of Counts 2, 3 and 4 included “the continuation of that penetration” (Counts 2 and 3) or “the continuation of an act of cunnilingus” (Count 4). He provided that draft document to counsel on Tuesday 30 May.

9. At the morning adjournment on Wednesday 31 May, senior counsel for the accused raised a concern with the trial judge about the inclusion of the words concerning the continuation of intercourse. He submitted that “that’s not the way the Crown case has been run, that’s not the way the complainant’s explained it, that's not the way the Crown opened it”. The trial judge indicated that there would need to be some discussion about this later, when convenient.

Discharge foreshadowed

10. Following the luncheon adjournment the judge indicated that, on further reflection, the issue appeared to be of more substance that he had first appreciated. He foreshadowed that there were “probably three outcomes: (1) I tell the jury that continuation of sexual intercourse is sexual intercourse; (2) I don’t tell them; (3) I might discharge the jury”. He indicated that he would like the matter resolved the following morning.

11. The evidence proceeded but during a mid-afternoon break the judge asked the Crown Prosecutor whether she was going to submit to the jury that they could convict on the basis of the Nando's conversation; that is, continuation of sexual intercourse after consent was withdrawn. She replied, “No”. The judge asked the prosecutor what she would say to the jury if they asked what they should do with the suggestion that there was a continuation of intercourse after consent had been withdrawn. Senior counsel for the accused responded to the effect that the issue would be clarified after the police officer in charge of the case was called and a recorded interview of the accused was tendered.

…

The Crown position changes

15. On the Wednesday evening, the Crown Prosecutor advised by way of email that the Crown’s primary position was, in accordance with the way the case had been opened: that there was no consent to intercourse from the beginning and that the accused had knowledge that this was the case. However, on the basis of what the accused said during the Nando’s conversation, the Crown would also suggest that it was open to the jury to find that an offence of sexual intercourse without consent had been made out. Accordingly, the Crown supported the inclusion of the words, “and the continuation of that penetration” (etc) in the definition of “sexual intercourse” in the written elements document.

Thursday 1 June

16. Discussion proceeded before the trial judge on the morning of Thursday 1 June. The Crown Prosecutor acknowledged that the Crown had “changed its position”. The judge reminded her of his indication the previous day that a consequence might be the discharge of the jury. He asked if the Crown would persist with this changed position if the judge would only allow it if the jury was discharged and a new trial had to occur. The prosecutor replied in the affirmative.

…

25. The judge concluded:

“But ultimately I have to see a fair trial. The way this trial has been run, the way that the Crown has changed the way it wishes to present its case, has meant that the trial will not be fair. It would not be fair to confine the Crown to the case it initially decided to present. Accordingly I have no option but to discharge the jury.”

…

Determination

32. We have come to the view that his Honour erred in the exercise of his discretion.

33. There were three essential parts to his Honour’s reasoning. First, it would be unfair to the Crown to deny it the opportunity to change its case so as to rely upon something said by the accused as capable of amounting to an admission. Secondly, to allow the Crown to change its case would be unfair to the accused. Accordingly, his Honour would have to discharge the jury.

34. In the Court’s opinion, the first reason was flawed. It was not unfair to the Crown to refuse to allow it the opportunity to change its case. The Crown always had available to it the Nando’s conversation, as it did the police interview. Accordingly, this was not a case where something unexpected or some irregularity had occurred in the trial. The Crown on the urgent hearing of this application conceded that it was unfair for the Crown to change its case in these circumstances. Accordingly, his Honour’s decision to discharge the jury was based on an erroneous reason and should be vacated.

35. The consequence is that the trial should continue in the ordinary course. It is not a matter for this Court on this application to predict what would be appropriate for the judge to say to the jury, if anything, as to what use may be made, or not made, of the Nando’s conversation. That is a matter for his Honour in light of the addresses of the parties to the jury and any submissions the parties may make to his Honour.

Bathurst CJ

1. I have had the advantage of reading the judgment of the President in draft. His Honour has set out the facts and it is unnecessary to repeat them. I agree with the orders proposed by him and subject to what I have written below with his reasons.

…

Bell P

14. After a trial before Berman SC DCJ and a jury in the District Court between 28 November and 7 December 2017, Mr Omar Hamide was convicted on two counts namely that:

(1) on 8 November 2013 at Sefton, he wounded Mark Ayoub (Mr Ayoub) with intent to cause grievous bodily harm; and

(2) that between 1 August 2014 and 26 September 2014 at Guilford, he solicited Ahmed El Zamtar (Mr El Zamtar) to murder Mr Ayoub.

He was sentenced to an aggregate term of imprisonment consisting of a head sentence of 13 years with a non-parole period of 9 years and 6 months: R v Hamide [2018] NSWDC 172. There is no appeal against sentence.

…

16. The single ground of appeal is that “a substantial miscarriage of justice was occasioned as a result of irregularities in the evidence at the appellant’s trial prejudicial to his interests, and the trial judge’s failure to discharge the duty.” It may at once be noted that, whereas the ground of appeal refers to a “substantial miscarriage of justice”, s 6(1) of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act) provides that an appeal shall be allowed if a “miscarriage of justice” occurred, subject to the operation of the proviso. The epithet “substantial” may have been added to anticipate the possible invocation of the proviso to s 6(1) or may simply have been picking up the language used in the plurality judgment in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 441 (Crofts), to which I will return.

17. As will be explained below, there were three applications to discharge the jury in the course of the trial which resulted in formal rulings by the primary judge. Those applications were thrice denied.

…

46. At the conclusion of the evidence in chief, defence counsel applied to discharge the jury by reason of Mr El Zamtar’s reference in his evidence to “runners” in the passage set out above. The brief argument in support of and in opposition to this application was as follows:

“Levet: Your Honour, the other one he referred to runners. Your Honour, he talked about our runners and their runners. Your Honour, the terms runners is a term commonly understood, in my respectful submission, to mean persons who run drugs for drug dealers.

His Honour: Yes, so what’s your application?

Levet: To discharge.

              …

47. The application was refused by the trial judge who stated his reasons as follows…

…

Second discharge application

50. Following this evidence, defence counsel made a second application to the trial judge to discharge the jury, complaining about non-responsive answers to questions:

“Levet: ...We’ve now got runners. We’ve got drug dealers... This jury has to ... be forming the view that they are not being told something about my client’s alleged involvement in drugs.

              …

51. The trial judge again refused the application…

…

Third discharge application

56. On the following morning but after further exchange between bench and bar and the tender of some further evidence, defence counsel made the third application for discharge of the jury. The relevant argument before the trial judge was brief and was as follows:

“His Honour: Did you want to say something, Mr Levet?

Levet: Yes, two things, your Honour. One, your Honour, in reading transcript last night, I note that one of the police officers in chief said something that was unfortunate.

His Honour: The Middle Eastern Organised Crime Squad?

Levet: Yes, your Honour.

His Honour: Yes, okay. We might delete that from the transcript.

Levet: I formally renew the application that I made for discharge.

…

58. The trial judge delivered the following ruling:

“Mr Levet makes a third application that the jury be discharged. I do not mean any criticism of him at all in beginning this judgment that way because each application has been made after developments in the evidence put before the jury. This third application is prompted by some evidence given by the officer-in-charge of this matter. Yesterday afternoon the Crown was asking that officer when it was that Mr Hamide was located. The following question and answers appear:

…

The result is that the application to discharge this jury is again refused.”

…

Was there a substantial miscarriage of justice?

130. The appellant’s submission was that, by the time of the third discharge application, prejudicial descriptions of the appellant such as “little cocksucker”, “a little fucking backstabbing prick”, “a little shit”, “a little backstabber”; “an evil person” (on three different occasions); and “as having no remorse” (on two occasions) and allusions to the appellant’s involvement in drug running and gang membership and being the object of interest of the Middle Eastern Organised Crime Squad precluded a fair trial.

131. As to the various descriptions of the appellant proffered gratuitously by various Crown witnesses, given the nature of the case and the allegations, it would hardly be surprising to the jury that Mr Ayoub would have feelings of considerable hostility to the man he had accused of attempting to murder him and subsequently seeking to procure his murder. That these hostile feelings manifested themselves in the strong and at times crude language used by Mr Ayoub which I have highlighted in [130] above did not in my opinion impact on the fairness of the trial nor do I consider that they would have had a prejudicial impact of any materiality on the jury’s view of the accused or his guilt. Indeed, an agitated, fiery, emotional and argumentative witness will often lose credibility with a tribunal of fact. In that context, it may be noted that in relation to Mr Ayoub’s description of the appellant as “that little backstabbing prick”, the trial judge said, in the jury’s presence, “Mr Ayoub, I can see you’re a bit upset, but it’s best if you just tell us what happened calmly and unemotionally, okay” (see [35] above). The trial judge made a similar intervention at a later point in Mr Ayoub’s evidence, with an implicit reprimand and a direction to Mr Ayoub to answer the question: see [41] above.

132. I am fortified in my view as to the lack of material prejudicial impact of the various terms used by Mr Ayoub to describe the appellant by the fact that no complaint was raised with the trial judge about these terms, one of which (“you little cocksucker”) may have been a term Mr Ayoub attributed to the appellant addressing him, Mr Ayoub, shortly before the stabbing: see [35] above. That evidence could not be described as an “irregularity”.

…

152. In this context, the trial judge’s ruling in relation to the third discharge application is set out at [58] above. The last five paragraphs of his Honour’s ruling reflect his assessment that the trial would still be a fair one notwithstanding the reference to the Middle Eastern Organised Crime Squad. His Honour emphasised, consistent with the authorities, that a jury should only be discharged when there is the necessity for doing so, that the matter arose late in the course of the trial, that there was a need to continue if that could be done fairly, and that directions to the jury may be curative and the criminal law proceeds on the basis that juries follow a judge’s directions. His conclusion was that the appellant’s trial would still be fair. I agree.

Davies J

170. I agree with Bell P.

The Court (Beech-Jones CJ at CL, Adamson and Bellew JJ)

1. Following a trial before His Honour Judge Williams SC and jury in the District Court of NSW, Stephen Addo (the appellant) was found guilty of 14 counts of sexual offending committed upon TH (the complainant). He was sentenced to a total term of imprisonment of 26 years with a non-parole period of 16 years. He now seeks to appeal against his conviction on the grounds of appeal which are more fully discussed below.

...

Ground 3 – A miscarriage of justice occurred by virtue of the discharged [sic] of Juror G and the continuation of the trial with a jury of 11 in the circumstances where:
(a) prior to the discharge of Juror G there was a reasonable basis to concluding [sic] that Juror G was a dissentient to conviction; and/or

(b) it can be concluded from the circumstances in which the verdict was returned that Juror G was a dissentient to conviction

THE JURY’S DELIBERATIONS

103. The jury of twelve retired to commence their deliberations at 12:33pm on 11 October 2017. Following their retirement, the trial judge addressed a number of questions from the jury which are not relevant for present purposes. The deliberations continued for several days without a unanimous verdict being reached.

...

106. Counsel for the appellant agreed that evidence should be taken from the foreperson, and submitted that the trial judge should then give the jury a direction that a majority verdict was available, and should include a so-called perseverance direction. The Crown’s final position was to acquiesce to this course. The foreperson of the jury then gave evidence that she considered that a unanimous verdict was unlikely. When the jury returned to Court, his Honour [gave a majority verdict direction].

107. His Honour then received a note form the jury which read:

We would like to return tomorrow to try to reach a majority verdict on the remaining indictments.

108. It was agreed that this request would be met. However, shortly afterwards his Honour informed the parties that he had received a further communication from an individual juror (Juror G) which was in the following terms:

I doubt I will be able to continue with this as my blood pressure has been continually increasing to dangerous levels. I need to visit a doctor.

109. Following a discussion between his Honour, the Crown and counsel for the appellant, a position was agreed, the terms of which were encapsulated in the following observation by his Honour:

“Well why don't I tell the jury go home, return tomorrow to try and reach a majority verdict and the juror who wishes to seek medical attention should do so as appropriate and communicate. If the juror's not able to attend at any stage tomorrow, to please provide a note or a communication to the court office about the juror's position.”

110. The jury then returned to the courtroom and his Honour said the following:

“Thank you, ladies and gentlemen, I have two notes from you. Firstly, the one that reads: ‘We would like to return tomorrow to try and reach majority verdict on the remaining indictments’. Of course you may do that in light of the directions I have given you, so in a moment I will ask you to retire for the day and then return tomorrow. The second may come from a juror who has not been identified other than by number, but the juror's number has not been disclosed to the Court. I do not know whether the jury is male or female and it is irrelevant, but it reads: ‘I doubt I'll be able to continue with this as my blood pressure has been continually increasing to dangerous levels, I need to visit the doctor’.

That juror should of course seek medical attention at any time whether tonight or tomorrow and if the jury needs to seek medical attention and is unable to attend for some or all of the day tomorrow, please let us know as soon as possible by communication to the court officer, preferably with some indication from the doctor as to what the prognosis is and as to whether you will be able to continue as a juror.”

111. On resumption of the proceedings the following day, his Honour informed the parties of the following:

“I have the Sheriff here who I propose to call to evidence about the fact that one juror has not turned up this morning and has notified the court that he, ‘Doesn't want to do this jury thing any more’, so I propose to extract that evidence from the Sheriff if the parties are content with that?”

...

120. The trial judge then delivered an ex-tempore judgment in which he discharged Juror G and ordered that the trial continue with a jury of 11. In the course of that judgment, having recounted the chronology of events, his Honour said the following...

...

124. Following that judgment, counsel for the appellant made an application to discharge the jury. The basis of that application was articulated in the following terms:

“There is no basis to know the reason why this juror no longer wants to deliberate, and that there is a real possibility that there might be some contamination amongst the jurors, and that anything that has occurred in the jury room that we know nothing about, may have influenced other jurors and that on that basis, the jury should be discharged. This accused is entitled to be tried by jury of 12 people deliberating. The fact that one person now does not give a valid reason for no longer wanting to participate in that process, I would submit is unfair and it is not in the interest of justice.”

125. That application was opposed by the Crown, following which his Honour delivered a further ex-tempore judgment, in which he refused it, saying:

“…… [T]he proposition that this jury should be discharged on the basis of some notion that investigation may unearth some evidence of bullying or improper conduct, a matter about which, as I have said in my earlier reasons, is a matter of complete speculation in the absence of any evidence. For those reasons I reject the application to discharge the jury.”

...

The additional evidence relevant to this ground

129. The appellant read an affidavit of Catherine Butler, solicitor, of 25 October 2021 in support of this ground. Ms Butler was the appellant’s solicitor at his trial. Ms Butler stated the following in relation to the circumstances in which the jury returned to deliver the verdicts:

23. Up until the time the jury were brought into court, the defence was unaware as to which juror had not wished to continue and was absent, apart from the fact that it was not the foreperson.

24. One of the original 12 jurors was a man of black African ancestry. No other juror was black. The [appellant] is a dark-skinned Aboriginal man. The absent juror was the man of black African ancestry.

130. The affidavit of Ms Butler was relied upon to support the proposition that the failure of the trial judge to discharge the jury gave rise to a miscarriage of justice because the appellant, a “dark-skinned Aboriginal man”, had been deprived of the supportive voice of Juror G, a man of “black African ancestry”. In other words, it was submitted that Juror G would have been supportive of the appellant on the grounds of race.

131. That submission should be firmly rejected. The description of Juror G is of no relevance. Quite apart from anything else, the submission advanced completely overlooks the fact that in the course of his directions to the jury, the trial judge said:

“You have, of course, taken a promise to act as judges, impartial and fair judges, and that role brings very important obligations to your task. The matter that you have to decide are very important not only to the accused but also to the community which is represented by the Crown Prosecutor, and you have a very significant privilege sitting in judgment on fellow citizens, and you must exercise that privilege impartially, and dispassionately and fearlessly, and not be guided by sympathy or emotion at any stage.”

132. There is no reason whatsoever to conclude that any member of the jury carried out his or her functions in a manner contrary to that direction.

...

149. The complaint brought by the appellant under this ground centres, not on the determination of the trial judge to discharge Juror G, but on the determination of the trial judge to continue the trial with a jury of eleven. Counsel for the appellant sought to bring the circumstances of this case within the third of the categories identified by Adamson J in BG v R. The appellant’s position is that the continuation of the trial with a jury of eleven, in the absence of Juror G, has given rise to a risk of a substantial miscarriage of justice.

150. There is little doubt that Juror G was, as counsel for the appellant described him, a “dissentient juror”. There are two particular matters which support that conclusion. The first, is that prior to Juror G’s discharge, the foreperson of the jury had indicated that unanimous verdicts were unlikely. The second, is that it was only shortly after that indication was given that the trial judge received MFI 30, in which Juror G explained the stress under which he had been placed. The overwhelming inference is that such stress stemmed from the fact that Juror G was dissenting from the majority.

151. Accepting that to be the case, it is necessary to bear in mind that when Juror G was discharged, the point had been reached where a majority verdict could be taken. Accordingly, if the verdicts which were ultimately returned were the unanimous verdicts of the remaining 11 members of the jury, the fact that Juror G was dissenting would be of no consequence. Given that the jury had already indicated that they had reached 11:1 verdicts on some counts, it can be reasonably inferred that at least some of the verdicts which were returned were the unanimous verdicts of the 11 jurors who remained. However, whether the evidence supports a conclusion that this is the case in respect of all of the counts is another question entirely.

...

153. The note from the jury indicating that verdicts had been reached provides no indication one way or the other whether the verdicts were unanimous. The audio recording is similarly equivocal. In particular, when asked whether the verdicts were, in fact, unanimous the foreperson is not heard to respond. Whilst a voice in the background appears to utter the word “yes”, whether that voice belonged to a member of the jury or someone else is unclear.

154. In those circumstances, it is not possible to reach an affirmative conclusion that all of the verdicts were the unanimous verdicts of the eleven jurors who remained. Whilst it is likely that some were, there is also a possibility that some were not. If some were not unanimous, then the continuation of the trial in the absence of Juror G becomes significant, and brings the circumstances of the case within the third category set out in BG v R. Bearing in mind the terms in which the phrase “miscarriage of justice” was explained in Filippou v The Queen, it is important to emphasise that s 53C of the Jury Act speaks of a risk of a substantial miscarriage of justice.

155. For all of these reasons, this ground is made out.