Regina v M A BRIGHT [2000] NSWCCA 258

Reported Decision : [2000] 114 A Crim R 466

New South Wales Court of Criminal Appeal

CITATION : Regina v M A BRIGHT [2000] NSWCCA 258 FILE NUMBER(S) : CCA 60207/98 HEARING DATE(S) : 10 July 2000 JUDGMENT DATE : 25 July 2000

PARTIES : Regina Marion Ann Bright JUDGMENT OF : Meagher JA at 1; Grove J at 2; Kirby J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/41/0210 LOWER COURT JUDICIAL Knight DCJ OFFICER :

COUNSEL : P Hock (Crown) G C Corr/C Everson (App) SOLICITORS : S E O'Connor (Crown) South Eastern Aboriginal Legal Service (Appl) CATCHWORDS : CRIMINAL LAW - Practice and Procedure - Appeal - Contamination of Jury - Reasonable apprehension jury might not have brought an impartial and unprejudiced mind to resolution of issues LEGISLATION CITED : Crimes Act 1900 - s112(2); s114(1)(a) Jury Act 1977 - s38(7) Liversey v NSW Bar Association (1983) 151 CLR 288 CASES CITED: Webb & Hay v The Queen (1994) 181 CLR 41 R v Gibson [1999] NSWCCA 370 DECISION : Appeal allowed; Convictions quashed; New trial ordered

IN THE COURT OF

CRIMINAL APPEAL 60207/98 MEAGHER JA GROVE J KIRBY J Tuesday 25 July 2000

REGINA v MARION ANN BRIGHT JUDGMENT

1 MEAGHER JA: I agree with Kirby J.

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2 GROVE: I agree with Kirby J. ***** 3 KIRBY J: In February 1998 the appellant, Mrs Marion Bright, stood trial in Goulburn before his Honour Judge Knight, and a Jury. 4 The appellant faced two charges. They arose out of an incident on 20 July 1996. It was alleged that she was one of a number of individuals who had encircled a house in Goulburn, yelling abuse and making threats against its occupants. Objects, including pot plants, were thrown through the windows. Ultimately, the front door was broken down, and the house invaded. Those in the house included a woman, Mrs Mallott, and her small children. They fled in terror, and hid in the rear of the house. A tomahawk was used to chop through a bedroom door, before the group retreated. 5 The charges against the appellant were, first, that she had broken into a dwelling house, and had committed a felony therein, namely, malicious damage to the house (s112(2) Crimes Act, 1900), and, further, that she was armed with a weapon, namely a tomahawk, with intent to commit an assault (s114(1)(a) Crimes Act, 1900). Mrs Bright pleaded not guilty to both charges. Her defence was essentially an alibi. 6 The trial began on 9 February 1998. In accordance with the requirements of s38(7) of the Jury Act, 1977, his Honour invited the Crown to identify witnesses who would be called during the trial. Upon the basis of that information, a number of jurors sought to be excused. In a country town, even a large centre such as Goulburn, that is not surprising. A jury was then empanelled, and the trial commenced. 7 On Wednesday 18 February 1998, the jury retired to consider its verdict at 12.21 pm. It returned at 2.35 pm. The appellant was found guilty on both counts. 8 The next day a matter was drawn to the attention of the trial Judge. His Honour thereafter, in open court, placed on record the information he had received. He said this: "… at morning tea today, 19 February 1998, I was informed by the court attendant who had been attending to the jury during the trial that on Tuesday of this week, that is on 17 February 1998, one of the jurors had said to her words to the effect that that juror had some knowledge of the matter. The court attendant went on to say that she had brought the matter to the attention of the instructing officer of the Crown I understood after the trial had finished and it was now brought to my attention. Having received that information I have spoken to Mr Fernandez, the instructing officer to the Crown, who confirmed that he had also been told that and that a statement was being prepared, that statement to be sent to the Director of Public Prosecutions and also to be sent to the legal representatives of Marion Ann Bright. It seems to me that that is the appropriate course in the matter, I regard my - although I still have to sentence Marion Ann Bright other than that I would regard myself as functus officio in relation to doing anything about the trial itself, the jury has been discharged following their verdicts and there is no step that I can take, and in my view that I should take, and it is now a matter for parties to consider their positions in relation to the matter and whether they wish to raise it before the Court of Criminal Appeal." 9 The court attendant was Mrs Rae Martin. Mrs Martin worked as a part time Sheriff's Officer. She was interviewed by the police after the incident. She made a statement dated 19 February 1998. She later acknowledged her statement was incomplete. She had attempted to shield a police officer, who had provided certain information, and her superior at the Sheriff's Office. She was interviewed for a second time, this time by Mr Hamilton, attached to the Wollongong Sheriff's Office. A further statement (dated 24 February 1998) was prepared. Mrs Martin, on this occasion, was rather more frank. She was later reinterviewed by the police. She made yet another statement (17 March 1998). In addition, the appellant was given leave to rely upon an affidavit sworn by Mrs Martin, dated 30 June 2000. 10 The Crown also sought, and was given leave, to rely upon a number of affidavits. A police officer, Snr Const John Schultz, swore an affidavit of 4 July 2000 and, Mr Fernandez, solicitor, an affidavit of 7 July 2000. 11 Because the matter came to the notice of the trial Judge after the jury had been discharged, the issue was never investigated by him. Determining what took place, upon the basis of the material placed before this Court, is not entirely satisfactory. However, the broad picture does emerge. 12 Snr Const Schultz was a witness. He was attached to the Goulburn Police Station. On Friday 13 February 1998, he was approached by another prosecution witness, Mr Clint Mallott. He was told that a person named "Jay" had been seen speaking to a female member of the jury. Mr Mallott recognised "Jay" as being someone linked to the family of the accused. 13 Snr Const Schultz drew the matter to the attention of the solicitor for the Director of Public Prosecutions, and the Crown Prosecutor. One gathers, however, that nothing was done. Specifically, it was neither drawn to the attention of the trial Judge, nor counsel for the accused. 14 On the following Monday, 16 February 1998, Snr Const Schultz made further enquiries. He determined that the person "Jay" was Mr Jay Butler. Mr Butler was, through marriage or through children, closely associated with the family of the accused. Again, Snr Const Schultz drew these matters to the attention of the solicitor for the Director of Public Prosecutions, and the Crown Prosecutor. 15 Snr Const Schultz spoke to Mrs Rae Florence Martin, and a court monitor (Val). He related his knowledge of the Friday incident. His account suggested that the son of the juror played football with the son of one of the families. 16 Mrs Martin was disturbed by this information. She, and the person Val, believed that the matter should be drawn to the attention of the Crown Prosecutor. The Crown Prosecutor said, however, that the information was "only hearsay". He declined to take it further. 17 That response did not satisfy Mrs Martin. She clearly remained concerned. She spoke to her immediate superior, Mr Wassall Bilokin. He, however, immediately silenced her. He said, "Shut your mouth, you know nothing, and I know nothing." 18 Such an attitude was unfortunate. Had the matter been drawn to the attention of the trial Judge, it could have been investigated. The juror could have been discharged, if that were appropriate, and the remaining members of the jury (if they were not discharged), given an appropriate warning. 19 Mrs Martin remained concerned that the accused would not receive a fair trial. She therefore resolved to speak to the jury herself. She now recognises that this was inappropriate. 20 On Tuesday 17 February 1998, shortly before the evidence concluded, she called the female members of the jury panel to one side. Addressing them as a group, she said this (according to her original statement): "Somebody said that on Friday afternoon one of the jurors was spoken to by a young person who said, 'See you later Mum' and this person was to do with the Littles or the Mallots (sic), is that right? Do any of you or your child have anything to do with the Littles or the Mallots?" 21 One juror, a young woman responded. The accounts given by Mrs Martin differ, to some extent, as to that response. Her original statement (19 February 1998) was in these terms: "The youngest girl out of the jury said, 'I've got a son, he plays football.' I can't remember what she was saying but she said something about Carney Charles, I don't know if he was a coach or whether he just had kids playing football with her young son. She said something about knowing about the case and that Carney Charles had told her, I don't remember the exact conversation. She said this in front of all the other ladies and I said to her, 'You shouldn't be on the jury.' That was it." 22 The accused was a member of the Little family. Her defacto husband was Mr Carney Charles. Her alibi defence involved the suggestion she was with Mr Charles, and others, on the evening of these events. 23 Mrs Martin made a further statement several days later to the Sheriff's Officer. According to that statement, her conversation with the jury was as follows: "'I do have a son who plays football, and has something to do with football, with Carney Charles and they told me what happened the night of the incident.' I did not know what she meant by 'they'. I said to her 'you should not be on the jury, you should have stood up and told them you know people on the case.' She said 'but I was scared to say anything.'" 24 This conversation took place in the presence of other women on the jury. 25 Mrs Martin's third statement, made to the police on 17 March 1998, included the following: "'I have a son he plays football.' She also mentioned the name Carney Charles, but I don't know what she meant. I didn't hear what she actually said, I don't know whether it was to do with taking his kids or he knew her or something, I didn't hear, so I didn't know. She said, 'They told me about the night of the incident.' I said, 'You had no rights to be on the jury.' She said, 'I was scared'." 26 Mrs Martin again spoke to her superior at the Sheriff's Office. Again, she was told to remain silent. She should act "like the three monkeys". Shortly thereafter a verdict of guilty was returned by the jury. 27 Mrs Martin remained disturbed about the information which had come to her notice. She again spoke to the solicitor for the Director of Public Prosecutions. She told him what had occurred with the jury. The solicitor immediately recognised the need to bring the matter to the notice of the Judge, the Crown Prosecutor, and Counsel for the accused. At last this was done. His Honour Judge Knight was approached in chambers, and thereafter made the statement set out above. 28 The jury, of course, are the judges of fact. A person should not sit as a juror if, in all the circumstances, the parties, or a fair minded and informed member of the public, might entertain a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to the resolution of questions involved in the trial (Liversey v NSW Bar Association (1983) 151 CLR 288 at 293). 29 That test was applied by the High Court in Webb & Hay v The Queen (1994) 181 CLR 41. In a lengthy murder trial, a juror spontaneously presented a bunch of flowers to the mother of the deceased. The mother was not a witness. Mason CJ and McHugh J said this: (at 46/47) "In our opinion, the test that his Honour [the trial judge] should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror." 30 The trial Judge had determined the matter by enquiring whether there was a real danger that the position of the accused might have been prejudiced. Their Honours rejected that test. They said this: (at 52) "… where the conduct of a juror is in issue, it will often be difficult to determine objectively whether the incident has affected or might affect the impartiality of the juror and whether directions to the jury were or will be adequate to protect the parties from the effect of the irregular incident. To place confidence in a test based on the assumption that an investigation will reveal all the facts of the incident may lead to a miscarriage of justice. In our experience the investigation of such incidents during the course of a trial is not exhaustive. Ordinarily, the judge simply asks the juror for an explanation. However, a juror involved in an irregular incident may feel defensive about his or her role. Understandably, the juror may seek to put the best light on the matter. Seldom, if ever, is there a detailed cross-examination of the juror by counsel or by the judge in such a case … One can never be certain, therefore, whether all the circumstances have been elicited by the trial judge. If real danger or bias was the governing criterion, the judge might reach a conclusion opposite to that which he or she might have reached if all the facts were known. The reasonable apprehension test, on the other hand, allows a margin for error in evaluating the facts as elicited. It concentrates not on whether there is a danger of bias as an objective fact, but whether a fair-minded and informed person might apprehend or suspect that bias existed." 31 Here, because the issue was never brought out into the open, there are many unanswered questions. Three matters, all important, remain unclear. First, when did the juror receive information concerning the incident? Was it at the time of the incident itself, or was it after the trial began? Secondly, what was said? What was the information about the incident provided to her? Thirdly, did that juror say anything to anyone else on the panel? 32 The answer to each of these questions was capable of affecting the suitability of that juror, or the panel. Given that the Sheriff's Officer had made enquiries in front of a number of jurors, it would not be surprising had such jurors then discussed the matter (which would have been disturbing) with that juror. Contamination of the entire panel, therefore, was a significant possibility. 33 The Judge, in the course of his summing up, gave a number of directions, reminding the jury of the need to determine the issues on the evidence, and do so in an unprejudiced way. However, because his Honour was never apprised of what had taken place until after the verdict, nothing was said by way of warning in respect of the specific conversation. In this respect, the facts are quite different from R v Gibson ([1999] NSWCCA 370). 34 It may be said that the information imparted to the juror was likely to be favourable to the accused. It came from a source said to be associated with the accused's defacto husband. However, that does not diminish, in my view, the nature of the irregularity that had occurred. Indeed, it is not fanciful to imagine that other jurors, having witnessed the exchange between the Sheriff's Officer and the juror concerned, may have believed that an attempt had been made to influence them. Had that been their perception, they may well have resented such interference, and reacted adversely to the accused. 35 I believe that there must be a new trial. The parties, or the public, on these facts, would, I believe, have a reasonable apprehension that the juror concerned, if not the entire panel, might not have brought an impartial and unprejudiced mind to bear upon the resolution of the issues. 36 Mrs Martin, incidentally, should be commended for resolutely pursuing what she believed was unfair, even though the method she ultimately chose (speaking directly to the jury) was inappropriate. 37 The orders I propose are as follows: