New South Wales Supreme Court CITATION : Regina v MTN; Regina v CVH [2002] NSWSC 92 revised - 29/10/2009 FILE NUMBER(S) : SC 70034/00;70012/01 HEARING DATE(S) : 22 February 2002 JUDGMENT DATE : 22 February 2002 Regina (Crown) PARTIES : MTN (Accused) CVH (Accused) JUDGMENT OF : O'Keefe J Mr G J Tabuteau - Crown COUNSEL : Mr P Bodor QC - Accused (MTN) Mr F Santisi - Accused (CVH) DPP (NSW) SOLICITORS : Michael Croke & Co, Kings Cross - Accused (MTN) Nicopoulos & Assoc, Burwood - Accused (CVH) CATCHWORDS : Practice and procedure - Jury - Report by jurors of events - Irregularity - Discharge of jury or juror - Test to be applied - Procedure to determine facts - Voir Dire examination of jurors by court Rex v Green (1950) 1 All ER 38 Rex v Furlong (1950) 1 All ER 636 CASES CITED : Regina v Chaouk (1986) VR 707 Regina v Emmett (1988) NSWLR 327 Webb v Regina; Hay v Regina (1994) 181 CLR 41 Regina v Elfar; Regina v Tier (NSW CCA 9 October 1995, unrepoted) DECISION : Jury not discharged and neither juror discharged. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION O'Keefe J Friday, 22 February 2002 70034/00 -REGINA v MTN 70012/01 - REGINA v CVH JUDGMENT 1 HIS HONOUR: The accused, MTN and CVH, each stand charged with having murdered Tremaine Watene at Campsie on 10 November 1997. It is alleged that MTN stabbed the deceased and that CVH was present and participated in a joint criminal enterprise or extended joint criminal enterprise that led to the death in question. 2 The trial began on 29 January 2002. In the course of the Crown case, a large number of witnesses was called. Neither accused gave evidence. Including addresses and summing up the trial has taken 19 days to date. The jury retired at 11.10am on 21 February 2002. 3 During the afternoon of 21 February 2002 one of the sheriff's officers, to whose care the jury had been committed, reported that he had received separate reports from two members of the jury concerning events which they thought appropriate to report to him. Instructions were given to ensure that following the conclusion of proceedings for the day, all members of the jury were to be permitted to leave the precincts of the court by an exit which did not involve them traversing the public passages outside the court in which the trial was proceeding and to offer transport by means other than public transport should any members of the jury wish to avail themselves of the offer. 4 Before there was an opportunity to advise counsel of what had occurred, the jury sent a message that they wished to have certain portions of the transcript read. This was done, but did not conclude until approximately 4.27pm on 21 February 2002. 5 When the transcript references had concluded, I asked members of the public to leave the court so as to enable the jury to retire after they had left. The jury then left the court by an exit which did not involve them traversing the corridors outside the court. 6 At my request counsel attended in Chambers and were informed of my knowledge of the events and advised that further enquiries would be made. This was done in accordance with the openness and transparency that should characterise the conduct of criminal trials. Such openness and transparency are not only in accordance with principle but mandated by authority. 7 In Rex v Green (1950) 1 All ER 38, Lord Goddard CJ, when considering a claim that there had been an irregularity in the conduct of the trial because the Recorder, having received a note from the jury in which a question was asked concerning the case, responded without returning to court and without the communication being made known to the parties, said: "This court and the Divisional Court have said on more than one occasion that any communication between a jury and the presiding judge must be read in court, so that both parties, the prosecution and the defence, may know what the jury are asking and what is the judge's answer." (supra at 38) Cassels and Pritchard JJ concurred. 8 A like principle was stated by Lord Goddard CJ in Rex v Furlong (1950) 1 All ER 636, in which a note written by the jury to the judge was answered by the judge without reference to counsel and without being read in open court until after the jury had delivered its verdict and been discharged. Lord Goddard CJ said: "A jury may put their request into writing or be asked by the judge so to do, but in such a case the communication should always be read and answered in court." (supra at 637) and in view of the fact that the communication had been revealed to the parties, albeit after the jury had returned the verdict, he continued: "There was, therefore, no secrecy. The sort of question that has arisen in this case has to be considered in relation to the rule which has always been laid down in criminal law...that all proceedings in court must be open and in public." (id) Sellers and Devlin JJ concurred. 9 A like principle was applied in Victoria in Regina v Chaouk (1986) VR 707, a decision which was applied in Regina v Emmett (1988) 14 NSWLR 327. 10 Although the English cases to which I have referred related to questions by the jury concerning a matter of law which touched upon the charges under consideration and although the Victorian and New South Wales case to which I have referred dealt with somewhat different subject matters to those under consideration in the present case, I am of opinion that the principle underlying those cases should be extended to communications by a jury concerning a matter which, on its face and in the absence of more detailed knowledge of the matter, may possibly be thought to give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the matter may have a significance in relation to the trial or the proper and impartial performance of their duty by the members of the jury. In applying such principle, I am of opinion that, since the liberty of the subject is involved, the court should lean in favour of openness and revelation even in a marginal case. 11 On the afternoon of 21 February, 2002 counsel for both accused indicated that they proposed to seek a discharge of the jury the following morning. However, in the light of the evidence that has now been given by both jurors neither has formally made or persisted in such an application. Indeed both have indicted to the contrary. 12 It is nonetheless necessary for the court to consider the appropriateness of taking such a course or of taking some intermediate course. 13 A memorandum was prepared and transmitted to the relevant sheriff's officer, as a result of which the two jury members in question were sequestered on their arrival at court today. Each was asked to write down the precise nature of any event which was the subject of report and to advise, inter alia, if the matter had been discussed with other members of the jury. In one case the matter had been discussed; in the other it had not. 14 The test to be applied to the determination as to whether or not the jury as a whole or either or both of the jurors in question should be discharged, is not in doubt. It is objective and does not depend on the actual effect that the incident might have on the jury or juror or on jurors in question (R v Pearson [2000] NSWCCA 149 at para 32 per Foster AJA with whom Dunford J and Smart AJ agreed). 15 In Webb v Regina; Hay v Regina (1994) 181 CLR 41 the High Court considered a case in which, during the course of the trial, one of the jurors gave a bunch of flowers to a person at the courthouse with a request that it be given to the mother of the victim of the murder the subject of the trial. The High Court determined that the trial judge was correct in not discharging the jury and directing that the trial should proceed. Mason CJ, with whom McHugh J agreed, propounded the following test: "...the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror, or in some cases, the jury, is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially." (supra at 53) 16 Toohey J applied a like test (supra at 87, 88) and arrived at the same conclusion as Mason CJ and McHugh J. 17 I duly received the written material from the jurors in question, made the same available to counsel, together with a copy of the memorandum to which I have already referred. Then, in a closed court, questions were directed to the two members of the jury and an opportunity was given to all counsel to suggest to the court any subject matter on which they wished questions to be asked of the jurors by the court. This was done and such questions were asked. 18 The facts that emerged from the written material supplied by the jurors were as follows: the first juror (juror 008) explained the situation in which he had been involved as follows: "On two occasions the accused's friends or relatives have travelled on the train with me, no conversation took place, however they alighted at the same stop (stop named). It is obvious that they live in the same suburb. Although nothing has occurred I felt I should report it." 19 When this juror was questioned he said that he did not believe that the events which he had reported did not interfere with his ability to render an impartial verdict. 20 The second juror, namely juror 018, gave a written explanation in the following terms: "Walking out of court at the end of a day it would be nice if the members of the gallery are kept behind for a couple of minutes to give the jury enough time to cross the road. Having them stand outside the court on our way out creates a very uncomfortable feeling." 21 When this juror was questioned she indicated that the events to which her explanation referred had occurred on approximately every second day and that she felt no such uncomfortable feeling when the altered arrangements that were applied yesterday, that is 21 February 2002, were resorted to. She too did not believe that her ability to reach an impartial verdict had been compromised. 22 What emerges clearly from the explanations and the evidence is that: (1) There was no contact by any person with any member of jury. (2) Nothing was said by any person to either member of the jury who made a report. (3) There was no threat or other intervention directed to either member of the jury whether actual or implied, whether by words, writing or actions. (4) No question of intimidation arises. (5) There is no suggestion of any deliberate act on the part of any person in relation to either of the members of the jury. (6) There is no indication or suggestion that either accused had anything to do with the circumstances revealed by the explanations of both jurors. 23 The incident involving juror 018 was a consequence of the jury arrangements provided by the court and arose out of the physical arrangement of the court, the jury room and the main exit from the court. Those arrangements can be improved, notwithstanding the extensive conservation work which is presently proceeding in the courthouse. It is undesirable that members of the jury should have to pass through any congregation of people outside the court which may, depending on the stage at which the trial has proceeded, include witnesses who have given evidence, witnesses in waiting, relatives and friends of the accused or of a victim or may even include the victim himself or herself, in cases other than murder cases. 24 However, there are steps that the officers in charge of the jury may adopt to avoid this. Those adopted yesterday are of such a kind. I would strongly recommend that such steps be taken hereafter as a matter of course. However, the circumstances revealed in relation to this juror by the evidence, when viewed against the legal test that is to be applied, warrant neither the discharge of the jury as a whole nor of the particular juror, who properly brought the matter to attention. 25 The events reported by juror 008 are in a cognate category. There is no suggestion that the alighting by the persons referred to was other than in the ordinary course of their travel. There is nothing to suggest that the juror in question was followed. Indeed to the contrary. Members of the public and others involved in or observing the case, as well as the jurors, leave the court at much the same time. That has the consequence that there is a chance, for example, that a person who is, or is to be a witness, or is a relative or friend of the accused or victim, et cetera, who has been in court and who lives in the same suburb or area as a juror, or whose mode of travel involves such person in travelling on the same public conveyance as a juror, may see or be seen by a particular juror. 26 Such a circumstance does not, in my opinion, fall foul of the test propounded by the High Court in Webb (supra). It is no different in character from what is a commonplace in trials in country areas, namely that a juror and a person in one of the categories to which I have referred may come face to face in a supermarket which may be the sole supermarket in the local area. 27 Such an event may cause embarrassment or other emotional response on the part of a juror, but is not such as to give rise to a reasonable apprehension on the part of a fair-minded and informed member of the public that the juror or jury will not discharge its task impartially. 28 I am satisfied that the events which were reported to the Sheriff's officer and which were properly the subject of report by him to the court and the subject of later detailed investigation, are not such as to give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that either of the jurors or the jury as a whole will not discharge its task impartially. 29 In the circumstances it is inappropriate in my opinion to discharge the jury or the jurors in question. I propose, however, to give to the jury a direction of the kind referred to in Regina v Elfar; Regina v Tier (NSWCCA, 9 October 1995, unreported). ********** Last Modified: 10/30/2009 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.