Jury questions

Wood CJ at CL

1. I have had the advantage of reading in draft the reasons for judgment of David Kirby J. I agree with his reasons and the orders he proposes.

Ireland J

2. I agree with the reasons for judgment of Kirby J.

Kirby J

3. On 19 September 1996, Mrs Alice Salama received a bullet wound to the head. The appellant, Dr Salama, was thereafter charged with two offences:

• First, that he had maliciously discharged a firearm with intent to do grievous bodily harm (contrary to s 33A Crimes Act 1900).
• Secondly, and in the alternative, that he had fired a firearm with disregard for the safety of Alice Salama (contrary to s 93G(1)(c) Crimes Act 1900).

4. After a trial before his Honour Judge Shillington QC and a jury, a verdict of not guilty was returned on the first count. The appellant was found guilty on the alternative count. He was sentenced to two years imprisonment to be served by way of periodic detention. Dr Salama appeals against that conviction. He also seeks leave to appeal against the sentence imposed.

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The Notice of Appeal

45. There were a number of grounds of appeal. Three matters appear to me to have substance. They are:

• First, the verdicts were said to be inconsistent (Ground 1).
• Second, it was asserted that "his Honour had misdirected the jury by suggesting that evidence given by the accused may be unreliable" (Ground 2).
• Third, it was also asserted that "his Honour erred in failing to put a question raised by the jury to the jury prior to them reaching their verdict" (Ground 8).

46. It is convenient to deal with the first and third issues together.

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67. Before dealing with that argument, it is convenient to move to the matter which I have identified as the third issue in this appeal. The appellant complains that his Honour failed to answer a question which the jury had posed before it delivered its verdict. Simpson J in Crisologo referred to the insight that might be provided by "external indicators of compromise" (at 7). There may also be external indicators of confusion. Here, there was an episode which, arguably, suggested confusion, at least on the part of some members of the jury. The jury, having retired, later sent a note which posed a question in these terms:

"In regard to the second or alternative charge your instruction to us was to have pulled the trigger deliberately with disregard for Alice Salama. The charge on the indictment states `Did fire a firearm with disregard for safety of Alice Salama'. Does this include accidentally?"

68. Whilst the question was being debated with counsel, a second note was sent by the jury a short time later. The jury returned to the courtroom. The transcript recorded what then occurred:

"HIS HONOUR: Thank you members of the Jury. Members of the Jury I have your note which I have in fact read to counsel, and I now have a later note which indicates `Your Honour, we have reached a verdict. Please disregard the question previously sent in.'

I think in the circumstances I will ask my associate to take that verdict from you before proceeding.

NICHOLSON: I would ask the question be first answered.

HIS HONOUR: No, I am going to deal with it this way, Mr Nicholson.

JURY RETURNED WITH A VERDICT OF NOT GUILTY TO THE FIRST CHARGE AT 3.34 PM.

JURY RETURNED WITH A VERDICT OF GUILTY TO ALTERNATIVE CHARGE AT 3.34 PM.

HIS HONOUR: I think in the circumstances members of the Jury, before accept(ing) this verdict from you I should deal with the questions which you have put to me, and I will read those two questions."

69. His Honour then read the questions. He repeated the instructions he had given as to the elements of the second count, including that the firing must be deliberate. He did not answer the question as such. There was no reference to "accident".

70. The jury was sent out again at 3.36 pm. It returned at 3.42 pm with the same verdict, namely, guilty on the alternative charge.

71. The first note, on its face, betrayed confusion. The confusion went to the heart of the charge. Notwithstanding the jury's apparent resolution of the issue to their own satisfaction, it was important that the question be answered. It was also important that they should then deliberate further in the light of that answer. Once the verdict was delivered, the opportunity to answer the question, and instruct the jury, was lost. After verdict, the obligation was to immediately discharge the jury (s 55E Jury Act 1977). It was not open to the judge to interrogate the jury as to the grounds for its decision (Mourani v Jeldi Manufacturing Pty Ltd (1983) 53 ALJR 825: Mackenzie v R supra, at 100).

72. Although what occurred was irregular, it is apparent that an issue arose in his Honour's mind as to whether the jury had understood the directions which had been given. Hence, the directions were given for a second time. Failure to answer the question before the verdict was, in my view, an error justifying a new trial.

Mason P

1. I agree with Levine J

Sully J

2. I agree with Levine J.

Levine J

3. The appellant (born 29 January 1935) stood for trial in the District Court at Parramatta before his Honour Judge Bellear and a jury having pleaded not guilty to an indictment containing six counts. The counts were: counts 1,2 and 5, indecently assault female under the age of 16 years (s76 Crimes Act 1900, maximum penalty imprisonment for 6 years); count 3, carnal knowledge by father of female under the age of 17 years (s73, maximum penalty 14 years); count 4, buggery (s79, maximum penalty 14 years); and count 6, commit act of indecency on female under the age of 16 years (s61E (2), maximum penalty imprisonment for 2 years).

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Grounds of appeal

8 The first ground of appeal is in general terms to the effect that the trial miscarried. The fourteenth ground of appeal is the notification of leave to appeal against sentence. The following are the substantive grounds of appeal:

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(13) The trial judge erred in taking a verdict while a jury question remained unanswered.

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Ground 13

67. It is contended that the trial judge erred in taking a verdict while a jury question remained unanswered.

68. The transcript indicates that the jury retired to consider its verdict at 2.41pm on Thursday 10 August 2001. On Friday 11 August at 9.30am it returned to hear his Honour's negative response to the not uncommon request from a jury in cases such as this for a copy of the police statements made by the complainant. The jury retired to further consider its verdict at 9.50am. At an unspecified time a note was apparently received from the jury and marked MFI 9, which read: "Transcript of [complainant's] evidence where buggery was alleged to have happened”. At 3.10pm the jury was brought back into court and the following exchange with the foreperson took place:

"HIS HONOUR: Good afternoon ladies and gentleman. I will have your request which I will have marked MFI 9. It reads: "Transcript of [the complainant's] evidence where buggery was alleged to have happened".

Before I come to a decision on that what I need to know is do you want all the evidence relating to buggery from the evidence-in-chief, that is, where Mr Crown asks the questions or do you want also with that the cross-examination, the questions asked by counsel for the accused. Maybe you Mr Foreperson could answer that on behalf of the jurors?

FOREPERSON: The evidence they are asking for your Honour is the transcript from the Crown on that alleged act. It was not discussed whether they want it from the defence, but I would imagine that it would be fair to hear that.

HIS HONOUR: Sorry?

FOREPERSON: It would be fair to hear that from the defence as well.

HIS HONOUR: All right, so you want the evidence from the Crown in evidence-in-chief of where the buggery is referred to and the cross-examination, that is from the defence Mr Watson where he asked questions.

FOREPERSON: Yes.

HIS HONOUR: Thank you. Having said that what I will do is I will ask you to go back now with the sheriff's officer to the jury room and then I will have the transcript sent around to you and that should not be too long."

The jury then retired further to consider its verdict at 3.12pm. There was further discussion, as far I can understand it from the transcript, as to what would constitute the material to be provided in answer to the jury's enquiry. Arrangements were made for the preparation of that material and a short adjournment was taken. After that his Honour indicated that he had received another note from the jury that it had reached a verdict. That verdict was delivered at 4.02pm and the jury was discharged at 4.05pm.

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72. In these cases it can be seen that within the framework of the matter of principle referred to by Mahoney P in McCormack: (a) a jury should not formally be asked to retire to consider its verdict until all applications for further directions have been dealt with conclusively; (b) in circumstances where the jury asks a question that indicates that further directions as to law are required and which indicates some uncertainty in the corporate state of mind of that tribunal, the trial judge should ensure that no verdict is taken before that question is answered; (c) where the jury, as in this case, merely asks to be reminded of evidence (and assuming that the reminder was not in practical terms given to it) the verdict of the jury given in the absence of that reminder should be respected.

73. As the authorities indicate, each case will depend on its own circumstances. It might be appropriate for a trial judge to give consideration, in his opening remarks to the jury when in the normal course the jury's right to ask questions is referred to, indicating that if the jury changes its mind it should inform the court. It might well be that in situation (c) an available course would be, before accepting the verdict, for the judge to send in a note to the effect that it is assumed that the jury no longer requires to be reminded of the evidence, a step which will, no doubt, generate a response. Great care must be taken, as the authorities indicate, not to seize upon any question asked by a jury as a justification for taking steps that will in fact amount to, or could be perceived to be, an intrusion into the deliberative process of that body.

74. In the circumstances of this appeal I am not persuaded by any argument raised for the appellant that the question and its not being answered (if that be the case) points to any irregularity that could constitute a miscarriage of justice. The submissions' reference to meteorological and calendar considerations warrants no comment. Ground 13 fails.

James J

2. William George Hickey has appealed against his conviction, after a trial conducted in March 2000 in the District Court before Ainsley-Wallace DCJ and a jury, on two charges of robbery whilst armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act. The jury returned their verdicts of guilty on 20 March 2000. Earlier that day, while the jury were deliberating, the appellant, who was on bail, had absented himself from the trial.

3. The appellant was at large until he was recaptured in May 2001. In August 2001 Ainsley-Wallace DCJ sentenced the appellant on both of the charges to concurrent terms of imprisonment of five and a half years, with a non-parole period of three and a half years, the sentences to commence from 3 August 2001.

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18. There are two grounds of appeal against conviction which are:

"(i) The delay in responding to the jury's question and the failure to answer it caused a miscarriage of justice,

(ii) As the evidence was insufficient to distinguish between the driver and the shorter robber (said by the Crown to be the appellant) the trial miscarried because the judge failed to direct the jury about common purpose and failed to deal with the evidence on the issue".

19. I will deal with these two grounds of appeal in turn.

20. As to the first ground of appeal, it is necessary to set out in some detail some events which happened during the jury's retirement. The jury commenced deliberating soon after ten o'clock on Friday 17 March 2000. Some time on 17 March the jury requested that they be provided with copies of the transcripts of the evidence of a number of the Crown witnesses and I would infer the jury were supplied with the transcripts requested.

21. On the afternoon of Friday 17 March the jury sent a note to the trial judge to the effect that they had not yet reached verdicts and one juror needed to leave at four o'clock and requesting to be permitted to resume deliberating on Monday 20 March. Her Honour permitted the jury to separate.

22. The jury recommenced deliberating on the morning of Monday 20 March. At a time on 20 March which is not recorded in the transcript, the trial judge informed the legal representatives of the parties, in the absence of the jury, that she had received two questions from the jury. These questions were:

"Can we have a copy of the judge's directions given on Thursday 16 March 2000.

If the facts presented do not support the proposed scenario but we find that the facts support a variation of the scenario is there any point of law preventing a conviction, if the end result of both scenarios is the same?"

23. At the time when the trial judge read these questions in court, the appellant, who was still on bail, was not present. Counsel who had appeared for the appellant at the trial was also not present, the appellant being represented by a solicitor. The trial judge said that she would defer dealing with the questions until the appellant was present.

24. After a short adjournment the Court reconvened, in the absence of the jury. The appellant was now present. The appellant's solicitor informed the Court that the appellant had been late in arriving at court, because he had taken his wife to the Aboriginal Medical Service in Redfern because of complications with her pregnancy. The solicitor also informed the Court that the appellant's counsel would not be arriving at the Court until two o'clock that afternoon.

25. The trial judge proposed, and the legal representatives of the parties agreed, that the jury should be asked to clarify each of the questions they had asked. The jury were brought into the courtroom. As to the request to have a copy of the directions the judge had given on the previous Thursday, her Honour said:

"There was a lot that I said to you in the directions, and what I think I will ask you to do is retire to the jury room and just focus on what in particular you want to be redirected about, what area or areas that you particularly want me to direct you again on."

26. As to the other question, the trial judge asked the jury to clarify the question, because, her Honour said, she was not entirely sure what the jury were seeking clarification on. The jury then returned to the jury room.

27. After a short adjournment the Court reconvened again, in the absence of the jury. The appellant was not present. The trial judge wondered whether the appellant might have gone again to the Aboriginal Medical Service. The appellant's solicitor requested that he be given until two o'clock to make inquiries as to the appellant's whereabouts. The solicitor said:

"I am not sure if he has done a runner or whether he has gone with his wife again to the Aboriginal Medical Service."

28. The trial judge read aloud a further question she had received from the jury which was: "Can the judge please explain joint criminal enterprise?" Her Honour added, "that's all they want"; and she replied, "yes", when asked by the appellant's solicitor, "that's the question in relation to both initial questions?" Her Honour proposed that she answer the question by giving "the joint criminal enterprise direction" and a direction about the necessity of determining the case on the evidence and adding: "they can only convict the accused if they are satisfied beyond reasonable doubt that the accused were two of the men who robbed the Sorbellos."

29 Neither counsel for Tuncbilek nor counsel for the appellant asked that any further direction be given to the jury. The trial judge decided to defer answering the jury's question and had a message sent to the jury that she had been detained unexpectedly and it would be a while before she could get back to them.

30. After a further short adjournment, the appellant's solicitor reported to the Court that he had been unable to ascertain the whereabouts of the appellant and he asked that the matter stand over to two o'clock that afternoon. The trial judge granted the application and had the sheriff's officer inform the jury that she was dealing with another matter.

31. The Court reconvened at two o'clock. The appellant's counsel was now present but the appellant himself was not present. The trial judge said: "I cannot be satisfied at this moment that he has deliberately absented himself." Her Honour proposed standing over the trial to ten o'clock the following morning and said: "What I do not want to do is bring the jury in (that is, into the courtroom) because Mr Hickey's absence will be obvious."

32. The expedient of answering the jury's question in writing, without the jury being brought into the courtroom, was raised but discarded. Her Honour then said that she would stand over the trial to ten o'clock the following morning. She further said…

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34. The trial judge then received a further note from the jury which she summarised by saying to the legal representatives of the parties: "three of the jurors do not want to come back tomorrow." The trial judge added that a sheriff's officer had asked the jurors to put in writing why they did not want to come back the following day. Her Honour added that, as a matter of courtesy, the lawyers should remain at the Court to await the statements from the jurors.

35. The trial judge then received a further note from the jury: "After further discussion we have now reached a verdict."

36. The trial judge, with concurrence of all counsel, held that she was obliged to take the verdicts the jury had reached and the jury returned their verdicts of guilty.

37. On this appeal counsel for the appellant submitted that the delay in answering the jury's revised question and the failure to answer it and the circumstances in which the jury had returned their verdicts had caused a miscarriage of justice.

38. As counsel stated, the verdicts of guilty had been returned when the question, "Can the judge please explain joint criminal enterprise" which had been asked by the jury, remained unanswered by the trial judge. This question asked the trial judge to explain the principles of law which formed the basis of the Crown case against the appellant that he was criminally liable for the offence of robbery whilst armed with a dangerous weapon, as having been a party to a joint criminal enterprise to commit such an aggravated robbery.

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46. The question which had been asked by the jury should have been answered by the trial judge, before the jury returned any verdict. In the present case the trial judge was confronted with a difficult situation, brought about by the appellant's own fault in absconding from the trial while on bail. The trial judge delayed answering the question out of a desire, in the interests of the appellant, not to bring to the jury's notice that the appellant had absented himself from the trial.

47. Although any question asked by a jury should be answered before the jury returns a verdict, it does not necessarily follow that a verdict given by a jury while a question asked by it remains unanswered, involves a miscarriage of justice (R v TAB (2002) NSWCCA 274).

48. However, in the present case I consider that the combination of events relied on by counsel for the appellant, that is, the delay in answering the questions, the failure to answer the question asked by way of clarification of the earlier questions and the return of a verdict only minutes after members of the jury had been asked to state in writing why they did not want to come back the following day and resume their deliberations then, produces the consequence that the verdicts of guilty involve a miscarriage of justice.

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52. On the afternoon of 20 March, the two initial questions asked by the jury not having been answered and the question by way of clarification having remained unanswered for a period which cannot be determined but which could well have been a couple of hours, the jury were then informed that the trial would be stood over to the following day. Three members of the jury indicated that they did not want to come back the following day and the jurors were asked to state in writing why they did not want to come back the following day. Within what must have been only a few minutes the jury returned their verdicts of guilty.

53. In my opinion the first ground of appeal should be allowed. I would also allow the second ground of appeal on the basis that, even if the directions originally given by the trial judge in her summing up were sufficient, they were no longer sufficient in the light of the questions asked by the jury.

Spigleman CJ

64. I agree with his Honour's reasons and the orders proposed. I will pronounce the orders of the Court in a moment.

Sully J

65. I too agree.

Hodgson JA

1. On 12 July 2005, the appellant was indicted before Murrell DCJ in the District Court of New South Wales on the following counts:

(1)         That he on 8 April 2003 at Nowra in the Sate of New South Wales did wound [the complainant] with intent to murder [the complainant].

(2)         In the alternative, that he on 8 April 2003 at Nowra in the State of New South Wales maliciously wounded [the complainant] with intent to do grievous bodily harm.

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Verdict Before Directions Complete

54. Towards the end of the trial judge’s summing up, the trial judge told the jury she would send to the jury room a document “so that you know how the verdicts go”. The jury retired to consider their verdict at 2.17 pm on 28 July. Due to disagreements about the form of the document, it was not given to the jury that afternoon. Next morning, before the document was finally formulated, the judge received a message that there was a jury verdict. The judge said she would print out the document “and then have it given to the jury and then I will just wait a minute or so before bringing the jury in”. It was not disclosed in the transcript that the jury were in fact provided with the document. A matter was interposed, and the jury gave its verdict at 11 am.

55. Mr Ramage submitted that the judge should ensure that all directions are complete before the jury commences to consider its verdict (and a fortiori) before it reaches a verdict): McCormack (1996) 85 A Crim R 445, Lean (1993) 66 A Crim R 296, R v Sanford (1994) 33 NSWLR 172.

56. In my opinion, the document in question was not part of the directions to the jury. At paragraph [320] of the Summing Up, the trial judge explained what would happen when the jury’s verdict was taken. At paragraph [321], she said “I think what I might do is actually prepare a document and what I will do is I will show it to the barristers and when they are happy with it I will send that into the jury room so that you know how the verdicts go.” She went on “I am sorry that, at the end of a lengthy summing up I have rather muddled that up but when you get this document, you will understand clearly what the options are and, if not, you should certainly inquire.”

57. There was in fact no error in the explanation given in paragraph [320]. In my opinion, it was not an error by the trial judge to send the jury out before she provided this document, and no error in taking the verdict shortly after the document was provided. I would infer that the document was provided; but I would add that even if it was not, the circumstances would not suggest any miscarriage of justice.

McClellan CJ at CL

1. I agree with Grove AJ.

Johnson J

2. I agree with Grove AJ.

Grove J

3. The appellant was convicted on two counts of aggravated armed robbery after a trial at Parramatta District Court before Colefax DCJ and a jury. He was sentenced to imprisonment for a term of 10 years with a non-parole period of seven years. These were directed to commence on 29 September 2013 which date was 12 months prior to the expiry of a non-parole period for other offences dealt with at Sydney District Court on 11 June 2010.

4. The central issue at trial was the identity of the appellant as one of the offenders who robbed two Armaguard security officers at about 12:50 pm on 8 September 2008 as they were leaving a Coles supermarket at Guildford. Over $140,000 in cash was taken as well as, from each officer, a loaded .38 calibre firearm. Count one of the indictment charged robbery of one officer (Morris) of cash and a firearm whilst count two charged robbery of the firearm from the other officer (Czlazko).

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36. Ground 3 proposes that the trial miscarried by virtue of the trial judge failing to answer a question from the jury prior to taking majority verdicts from the jury in circumstances where the unanswered question asked by the jury related to the material issues in the trial, namely: "How much weight can be given in reference to joint criminal enterprise in regard to using the DNA evidence from the interior door handle of the car to implicate the accused for robbery?".

37.It is accepted that his Honour did not answer this inquiry but it provides an understanding of how this did not occur to chronicle some events during the jury deliberations.

38. The jury retired to consider its verdict at 3:22 pm on Thursday 21 October 2010. They ceased at about 4 pm and resumed at 9:40 am on 22 October. Some time before 11 am the jury sent a note indicating their difficulty in reaching agreement. After discussion with counsel, his Honour gave the jury a brief exhortation broadly adopting some of the suggestions in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44. At 1 pm the jury sent a further note repeating that they were having difficulty in obtaining agreement and suggesting that they would be unable so to do.

39. Discussion then ensued between his Honour and counsel concerning the taking of a majority verdict. Whilst this was taking place, the note which is set out in the ground of appeal was received.

40. Discussion then turned as to what the jury was seeking by this note. As the Crown case was that the appellant was offender A whose DNA was on the door handle, the reference to joint criminal enterprise does suggest that they were concerned about the second count charging the robbery of Mr Czlazko but it was wise to seek clarification which his Honour did when he had the jury brought back at about 2:10 pm. Thereafter the jury retired with a request to try and redraft the question.

41. No redrafted note was received but another note was sent stating that the jury "had finished deliberating". At 3:13 pm his Honour brought the jury back and pointed to the ambiguity in the message last received and asked them to confirm whether they had reached a unanimous verdict. This received a negative response.

42. Thereafter, evidence was taken from a juror attesting to the unlikelihood of agreement and, after findings in accordance with s 55C of the Jury Act, at 3:21 pm his Honour gave a direction incorporating more fully the suggestions in Black and directing them of their capacity to deliver a verdict by majority of 11 jurors.

43. At 3:39 pm the jury returned majority verdicts of guilty on both counts.

44. As above stated, the jury note described in the ground was not answered nor, however, did the jury return a redraft of this inquiry as requested. That request had emerged upon his Honour's expressed inability to understand what he was being asked. Neither counsel offered any interpretation of the note and they agreed to a proposal that the jury be asked to clarify what it was that they seeking, hence his Honour's request for a redraft.

45. There is ample authority that a verdict should not be taken until a request for direction has been fulfilled: R v McCormack (1986) 85 A Crim R 445. Where a question manifests confusion, it is important that this be removed and the jury be directed along the correct path. Even if, absent direction, a jury has resolved an issue to their own satisfaction, it has been held erroneous to omit so to do: R v Salama [1999] NSWCCA 105.

46. It is perhaps understandable how the obtaining of the requested redraft of the question was overlooked, given the focus of the series of communications from the jury concerning its inability to agree but the omission amounted to error. Even where the directions in the initial charge are adequate, it has been held that they no longer remain so in the light of the existence of an unanswered question: R v Hickey [2002] NSWCCA 474; (2002) 137 A Crim R 62.