New South Wales Court of Criminal Appeal CITATION: Gordon v R [2009] NSWCCA 60 HEARING DATE(S): 9 March 2009 JUDGMENT OF: Grove J at 1; Blanch J at 8; Price J at 9 EX TEMPORE JUDGMENT DATE: 9 March 2009 DECISION: Leave to amend ground refused CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Application to add ground of appeal - Assertions incapable of demonstrating miscarriage - Application refused CATEGORY: Procedural and other rulings PARTIES: Daniel Tasman GORDON - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2005/11776 COUNSEL: N Carroll - Applicant V Lydiard - Respondent/Crown SOLICITORS: George Sten & Co - Applicant Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/3277 LOWER COURT JUDICIAL OFFICER: Armitage A/DCJ LOWER COURT DATE OF DECISION: 15 February 2008 IN THE COURT OF CRIMINAL APPEAL 2005/11776 GROVE J BLANCH J PRICE J Monday 9 March 2009 Daniel Tasman GORDON v REGINA JUDGMENT 1 GROVE J: When this appeal was called on for hearing counsel for the appellant sought to amend the grounds of appeal to add an additional ground which has been articulated as follows: "The verdict was unsafe and/or dangerous in all the circumstances of the proceedings". 2 In response to enquiry from the Bench counsel has elaborated that ground by particularizing the focus of complaint upon two matters. First, it is contended that there was some undue time pressure upon the jury, and second, that, if permitted, evidence could be given of an observation of one of the jurors appearing to be distressed at the time of returning of the verdict. 3 The issue in the trial was narrow, and the totality of the evidence was relatively brief. The record shows that the jury retired at 12.58 on a Friday. The record also shows that from time to time during the afternoon the jury returned to Court in order to obtain further direction and to be reminded of some of the evidence that they had heard or, in the case of a CCTV product, that they had seen. 4 The jury returned its verdict of guilty at 6.35 p.m. that night. It is significant to note that during the afternoon the jury had been told by his Honour in relation to the time of the afternoon that if they wished to go home at something of the order of half past five there was no problem, and they could come back on Monday. He also told them that they could stay on if they wanted to. There is no indication at all of any undue pressure being placed upon the jury. 5 It is true, as I have observed, that the jury were embarked upon deliberations on a Friday afternoon, but that of itself is not a reason which would give rise to a reasonable complaint. The observation of the juror, assuming for present purposes that evidence to that effect could be given, is something which is commonly experienced by presiding Judges. That is to say, observation is made that jurors returning a verdict have been distressed by the enormity of the serious task upon which they have been engaged. 6 Although the ground as formulated does not articulate it in these terms, it must be that what is complained of is that, for one or other or both of the reasons particularised, miscarriage can be observed. 7 In my view that observation or conclusion would not be available from the material which is before the Court. The Crown opposes the amendment. I consider the Crown opposition is well founded, and I would refuse leave to amend the ground. 8 BLANCH J: I agree. 9 PRICE J: I agree. 10 GROVE J: Leave is refused. ********** 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.