Prothonotary v Hirata [2000] NSWSC 106

New South Wales Supreme Court

CITATION : Prothonotary v Hirata [2000] NSWSC 106 FILE NUMBER(S) : SC 12414/99 HEARING DATE(S) : 23/02/00, 24/02/00 JUDGMENT DATE : 10 March 2000

PARTIES : Prothonotary v Kay Keiko Hirata JUDGMENT OF : James J

COUNSEL : M Sexton SC/K Nomchong - Plaintiff RF Greenwood QC - Defendant SOLICITORS : IV Knight - Plaintiff Jenny Bull & Company - Defendnt CATCHWORDS : Contempt of Court - jurors - interference with juror by solicitor for the accused - approaching juror and handing document to juror DECISION : Contempt of Court Established

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Friday 10 March 2000

12414/99 - Prothonotary v Kay Keiko HIRATA

JUDGMENT 1 HIS HONOUR: These are proceedings for contempt of court brought by the Prothonotary of the Court against the defendant Kay Keiko Hirata ("the defendant"), who is a solicitor. It is alleged that the defendant committed a contempt of court in an encounter she had on 28 May 1999 with a juror who was serving on a jury in a criminal trial at which the defendant was acting as the solicitor instructing counsel for the accused. Although the parties are described in the proceedings as "the plaintiff" and "the defendant", the proceedings are criminal in nature (Witham v Holloway (1995) 183 CLR 525). 2 The evidence in the plaintiff's case consisted of an affidavit by a solicitor employed in the Office of the Director of Public Prosecutions, who was the instructing solicitor for the Crown at the criminal trial, and affidavits by each of three members of the jury at the criminal trial. Two of these jurors were cross-examined by counsel for the defendant. 3 It was agreed at the hearing of the proceedings before me that, whether or not it was strictly required by the Jury Act, the jurors who had made affidavits should not be referred to by their names but by a description or pseudonym. The foreman of the jury was referred to as "the foreman", a juror whose identification number in the criminal trial was 1.1J was referred to as "Mr S" and another juror was referred to as "Mr L". 4 The defendant's evidence included an affidavit by the defendant and affidavits by a number of other deponents, some of whose evidence I will refer to in more detail later in this judgment. The defendant's evidence also included a report by Professor G.A. Starmer, an expert pharmacologist, and a report by an optometrist who had examined the defendant's eyesight. The defendant herself, Professor Starmer and Ms Naomi Hamilton, who had made an affidavit which was read in the defendant' case, were cross-examined by counsel for the plaintiff. 5 At the hearing there was no dispute about any of the following matters. 6 The defendant was born in Japan in 1959. She first came to Australia in 1983. She now speaks English fluently, but not perfectly and with a pronounced Japanese accent. 7 For a few months in 1984 the defendant worked as a sales assistant at a duty free shop in Sydney. Another employee at the shop was a woman named Monika Ortner. The chief sales manager at the shop was a man named Carl Gibson. 8 Between 1992 and 1995 the defendant did a law course at Sydney University, completing her degree in 1995. In 1997 the defendant completed a legal practice course at the Australian National University. Between about July 1998 and May 1999 the defendant worked on a casual basis as an employed solicitor instructing barristers at criminal trials. 9 The trial of William Edward Pearson on a charge of dishonestly destroying property by fire commenced before her Honour Judge Latham and a jury in the District Court on 22 April 1999, in court room 1.1 at the Downing Centre in Liverpool Street, Sydney. Mr John Bettens, solicitor, acted for the accused and Mr Gregory Scragg of counsel appeared for the accused. The defendant as an employee of Mr Bettens first attended the trial on 27 April 1999. From 3 May onwards she attended the trial regularly, instructing Mr Scragg. 10 It seemed to the defendant that one of the jurors at the trial might be Carl Gibson, whom she had known many years before at the duty free shop, and on 4 May she said to Mr Scragg that she thought she knew one of the jurors. She mentioned the matter to Mr Scragg, because she appreciated that any previous association between her and one of the jurors might create a problem for the trial. 11 Mr Scragg told the Crown Prosecutor at the trial what he had been told by the defendant. The Crown Prosecutor and Mr Scragg decided that it was not necessary to mention the matter to Judge Latham, for reasons including that the defendant was not sure that the juror was Carl Gibson, if the juror was Carl Gibson the contact between the defendant and the juror had occurred many years before, Carl Gibson and the defendant had worked together only for a few months, the trial had already run for a number of days and there had been no indication from the juror that he knew the defendant. 12 In November 1998 the defendant had met by chance Monika Ortner, her former fellow employee at the duty free shop, and they had subsequently remained in contact with each other. 13 In May 1999 there were a number of telephone conversations and a meeting between the defendant and Monika Ortner, in which the subject of the member of the jury who the defendant thought might be Carl Gibson arose. There are a number of differences between the defendant's evidence, in her affidavit and orally, and Monika Ortner's evidence in her affidavit, which was filed and read in the defendant's case and on which she was not cross-examined. However, the following outline of events (which omits a number of controversial details) would appear to be common ground. 14 Some time in May, around 20 May, the defendant telephoned Monika Ortner and told her that she was instructing in a jury trial and that she thought one of the jurors might be Carl Gibson. A meeting between the defendant and Monika Ortner at the Downing Centre was arranged for 25 May. 15 On the morning of the day appointed for the meeting there were two telephone conversations between the defendant and Monika Ortner. The upshot of the second conversation was that the proposed meeting at the Downing Centre should take place. 16 Before the meeting the defendant typed out a note for the juror who she thought might be Carl Gibson. As I will later recount, the defendant subsequently destroyed the note and there was no primary evidence of its contents. However, the defendant, Monika Ortner and a barrister Justin O'Loughlin, who read the note on 26 May 1999, gave fairly similar evidence of its contents and I accept their evidence. Mr O'Loughlin's evidence was that, to the best of his recollection, the note said:- "Hi! How are you? I haven't seen you in a long time. Give me a call on this number… so we can discuss things". 17 The defendant took the note to the meeting with Monika Ortner, which took place at the Downing Centre at about half past one on 25 May. At the meeting Monika Ortner signed the note "Monika". She also wrote on the envelope which the defendant had brought to the meeting. 18 An envelope which, according to the defendant's case, was the envelope in question was produced at the hearing of the proceedings before me. Counsel for the plaintiff was disposed to query that the envelope produced at the hearing was the envelope in question. However, Monika Ortner swore in her affidavit that the envelope shown to her at the time of swearing her affidavit, which was the envelope produced at the hearing, was the envelope in question. She was not required to attend for cross-examination on her affidavit and I consider that I should accept her evidence. 19 On the 25 May Monika Ortner wrote on the front of the envelope:- "For Carl Gibson (Juror) Courtroom 1.1" 20 On the back flap of the envelope Monika Ortner wrote "From Monika Ortner". 21 Monika Ortner made two fruitless attempts to deliver the note and the envelope to the juror. On the first occasion she went to courtroom 1.1 but it was closed. On the second occasion she asked a sheriff's officer if he could help her deliver a message to a juror in courtroom 1.1 but she was rebuffed by the sheriff's officer, who told her "we don't pass on messages to anyone on the jury". Monika Ortner returned to where the defendant was and told the defendant what the sheriff's officer had said. Monika Ortner then left the defendant to return to her place of work, leaving the envelope and the note with the defendant. 22 On the following day 26 May the defendant had a chance meeting at the Downing Centre with Mr O'Loughlin of counsel, who she knew. She asked Mr O'Loughlin for some advice. According to Mr O'Loughlin's evidence in his affidavit, which I accept, the defendant said to him:- "Can you give me some advice. I think I know someone on the jury in the trial I am instructing. I have known him for a long time. I want to contact him so I can see him after the trial. One of my friends knows him as well. I have a note that she has given me". 23 The defendant showed Mr O'Loughlin the note and he read it. The defendant asked "what do you think?". Mr O'Loughlin said, "I suggest you burn that letter. If you make any attempt to contact the juror whilst the trial is running you will go to gaol". Mr O'Loughlin asked the defendant whether she had spoken to her barrister in the trial and suggested that she speak to Mr Scragg again. Mr O'Loughlin said in his affidavit that he had a distinct recollection of the note but he did not have much of a recollection of the envelope, which he had not looked at in any detail. 24 After this conversation with Mr L'Loughlin the defendant tore up the note but she kept the envelope. 25 At about 11.15 on the morning of Friday 28 May Judge Latham completed her summing-up in the Pearson trial and sent the jury out to consider its verdict. 26 At about 4.15 in the afternoon the jury sent Judge Latham a note to the effect that it had been unable to reach a verdict and would like to resume its deliberations on Monday 31 May. After receiving the note, Judge Latham permitted the jury to separate for the week-end. 27 After the jury were permitted to separate, eight or nine of the jurors, including the foreman, Mr S and Mr L, walked to the Crown Hotel, which is a short distance from the Downing Centre. At the Crown Hotel the jurors sat together at tables in a bar on the ground floor. An open doorway led from the bar in which the jurors were to a small area, where there were a number of poker machines and a snack vending machine. 28 The defendant spent most of the time between 11.15 am, when the jury was sent out to consider its verdict, and 4.15 pm, when the members of the jury were permitted to separate, in the coffee shop at the Downing Centre. She drank about eight cups of coffee. She had had no breakfast that morning and had had only half a sandwich for lunch. At about 9.30 that morning she had taken two 25milligram tablets of a therapeutic drug Tryptanol, which she took as an anti-depressant. 29 The defendant herself went to the Crown Hotel shortly after 5 o'clock in the afternoon. She went to an upstairs bar, where she had a chance meeting with Mr David Pullinger, a barrister she was acquainted with, who was having drinks with another barrister. While she was with Mr Pullinger between shortly after 5 o'clock and about 6 o'clock, the defendant drank four glasses of full strength beer. At about 6 o'clock Mr Pullinger and his companion left the bar to go home. 30 After Mr Pullinger left, the defendant had a chance meeting with two solicitors she knew, Naomi Hamilton and Philippa Winston. While she was with them, she drank another glass of beer. 31 The defendant and Ms Hamilton went downstairs in the hotel, with a view to obtaining some snack food. They went into the area where the poker machines and the snack vending machine were, which was close to the bar where the jurors were. The defendant operated the snack vending machine and obtained some snack food.