Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Villis v R [2014] NSWCCA 74 Hearing dates: 15 April 2014 Decision date: 13 May 2014 Before: Bathurst CJ at [1] Fullerton J at [2] Bellew J at [40] Decision: 1. Appeal against conviction upheld. 2. Conviction quashed. 3. Retrial ordered. Catchwords: CRIMINAL LAW - conviction appeal - supply not less than a commercial quantity of methylamphetamine - whether trial judge erred in not discharging jury following an application for discharge on the basis that a prosecution witness had given evidence amounting to the bad character of the appellant - whether verdict of the jury was reached through pressure of time restraints rather than proper deliberation Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Jury Act 1977 (NSW) Cases Cited: Black v R [1993] HCA 71; 179 CLR 44 Burrell v R [2007] NSWCCA 65 Hunt v R [2011] NSWCCA 152 Nagti v R [2008] NSWCCA 3 Nudd v R [2006] HCA 9; (2006) 162 A Crim R 301 Category: Principal judgment Parties: Andrew Villis (Appellant) The Crown (Respondent) Representation: Counsel: S Kluss (Appellant) S Herbert (Crown) Solicitors: LD Lock (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/230879 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-11-16 00:00:00 Before: Coorey DCJ File Number(s): 2011/230879 Judgment 1BATHURST CJ: I agree with Fullerton J. 2FULLERTON J: By Notice of Appeal dated 18 October 2013 the appellant appealed his conviction following a jury trial in the District Court on one count of supply of not less than a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). On 22 February 2013 he was sentenced to imprisonment for 4 years with a non-parole period of 2 years and 3 months. There was no application for leave to appeal the sentence. 3On 15 April 2014 the appeal against conviction was upheld and the conviction quashed. An order was made for a retrial. What follows are my reasons for joining in the making of those orders. 4There were three filed grounds of appeal although only grounds 2 and 3 were ultimately pressed on the hearing of the appeal as follows: Ground 2: The trial judge erred in not discharging the jury following an application for discharge on the basis that a prosecution witness had given evidence amounting to the bad character of the appellant. Ground 3: The verdict of the jury should be set aside because it appears that a unanimous verdict was reached through pressure of time restraints rather than proper deliberation. 5I propose to deal with the grounds in reverse order since it was his Honour's directions delivered in the course of the jury's deliberations that, in my view, undermined the integrity of the verdict such that the conviction could not be allowed to stand. I would dismiss the second ground of appeal. 6It is not necessary to detail the evidence led at trial at any length. In short, the Crown alleged that the methylamphetamine, located by police in a shopping bag on the front passenger seat of the appellant's car during the course of a roadside search at Wentworthville, was in his possession for supply. During the search police also located a range of other drugs and drug paraphernalia in a backpack in the rear of the car. In a recorded interview with police the appellant admitted possession of the drugs and other items in the backpack but denied any knowledge of the methylamphetamine in the shopping bag. He suggested it must have been placed there by Louise Wiseman, a woman he was to pick up and drive to the Central Coast and who was in the vicinity of the car when it was searched. The appellant gave evidence at the trial to the same effect. 7The attention of police was initially drawn to the appellant's vehicle following his interaction with Ms Wiseman as she walked past the open passenger door of the appellant's parked car, hesitating momentarily as she passed. She was spoken to by police, searched and permitted to leave. She was one of the six witnesses called by the Crown at trial. She denied any knowledge of the methylamphetamine. It was her evidence in cross-examination that was said by the appellant to have raised his bad character prompting the application to discharge the jury, the subject of the second ground of appeal. 8Ms Wiseman gave evidence that on the late afternoon or early evening of 17 July 2011 she contacted a woman from Morisset named Chris, with a view to obtaining a lift from Sydney to Newcastle. Ms Wiseman was given the appellant's telephone number and arrangements were made for the appellant to collect Ms Wiseman and drive her to Morisset. 9Ms Wiseman gave evidence that as she was walking up Station Street Wentworthville to meet the appellant, she heard someone call her name. She turned around and saw the appellant speaking with police officers. She did not recognise the appellant at first. At that time Ms Wiseman was carrying a green bag with clothes and shoes in it. Ms Wiseman gave evidence that she believed the appellant was "off his head", and that he was throwing bottles out of his car. Ms Wiseman called Chris who confirmed that the appellant was the person she had organised to pick her up. 10Ms Wiseman gave evidence that while she was in the vicinity of the appellant his car was in full sight of the police and the appellant. One of the police officers searched her and she was allowed to leave. Ms Wiseman gave evidence that she was present when one of the police officers searched a backpack that was in the appellant's car in which they found drugs and scales. Ms Wiseman said she did not put the drugs in the shopping bag in the car. 11Although only six witnesses were called, the trial extended over eight days before the jury retired to consider their verdict at about 2.30pm on Thursday 15 November 2012. In his summing up, the trial judge directed the jury that their verdict should be unanimous subject only to directing them that "things can change later and I would have to talk to you about that then". 12The jury had originally been advised by the trial judge that the trial was estimated to extend over five, possibly six days and that any application to be excused from jury duty would be considered on that basis. It seems that estimate was revised from time to time after day six on account of juror illness and some difficulties with Ms Wiseman's availability. A juror was excused from further participation due to illness on Thursday 15 November 2012, the eight day of the trial. 13It also appears that his Honour had informed the jury before they commenced their deliberations on Thursday afternoon that they would not be required to sit after 1pm the following day, it being a Friday, as three jurors had made arrangements to attend to their personal affairs that afternoon. It also appears that other jurors informed the trial judge they would not be available on the following Monday. 14The jury sent a note on Friday at about 12.30pm advising that they were unable to reach a unanimous verdict. The transcript records that counsel and his Honour agreed that the jury had, by that time, been deliberating for approximately 4 hours and 40 minutes. The note advised his Honour that the division was "nine versus two". Contrary to what this Court has held in Nagti v R [2008] NSWCCA 3 at [33] and Burrell v R [2007] NSWCCA 65 at [253]-[266] to be the proper approach where a trial judge is informed by a jury of the extent of disagreement in a jury note, his Honour advised the appellant's counsel and the trial advocate appearing for the Crown of the jury's note. Nothing turns on this in so far as this appeal is concerned although it seems to have informed the exchanges with counsel that followed. 15The application of s 55F of the Jury Act 1977 (NSW), which provides for majority verdicts in criminal proceedings and the procedures that must be followed before a jury is invited to consider returning a verdict by majority, was not raised at the time of receipt of the jury note by either the trial advocate or trial counsel or the presiding judge. However the consensus that 4 hours and 40 minutes had elapsed when the jury advised that they could not agree upon a verdict would suggest that both the trial judge and counsel were at least conscious that the eight hours specified in s 55F(2)(a) had not elapsed and that therefore it was not open to his Honour to direct the jury that they might consider returning a majority verdict at that time. It is, however, by no means clear that his Honour appreciated that he had no discretion to discharge the jury from returning a verdict until they had been deliberating for eight hours and were unable to reach a unanimous verdict or by majority as expressly provided by s 56(1) of the Jury Act. 16Section 56 of the Jury Act provides: "56 Discharge of jury that disagree in criminal proceedings (1) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict or a majority verdict under section 55F. (2) Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may not discharge the jury under this section if it finds, after examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict under section 55F. (3) Where a jury in criminal proceedings has retired, and the jury consists of 10 persons or less, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict." 17In order to deal with the jury announcement of their disagreement his Honour directed the jury in accordance with Black v R [1993] HCA 71; 179 CLR 44, commonly referred to as a "Black direction" at 12.42pm. 18It is necessary, however, to set out the direction in full: "Ladies and gentlemen thank you, I think as you heard the Crown and Mr Marr and myself say your verdict must be unanimous, it must be a unanimous verdict and the law and the courts appreciate that you have to be honest to your own belief and affirmation, that is your own affirmation, your own oath but experience has shown that sometimes if juries are given a bit more time you can agree upon a verdict and I understand that at this stage you cannot agree upon a verdict but if you have a bit more time I understand some of you have got real problems this afternoon is that right some of you have got problems this afternoon, I can see heads nodding but if I ask you to go back into the jury room now and if you listen to each other's views, experience has shown that sometimes you can agree. You don't have to come to a verdict by the same path, that is you can come to the same verdict from this path or that path, you don't have to come from the same path to reach a verdict but it must be unanimous, has to be unanimous. So what I can say is this, that if you listen and I'll just take the wording from the text in front of me, you should calmly weigh up one another's opinions about the evidence and test them by discussion, calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. Now we will see what happens and I will get you to come back at 5 past 1 and I will see how you are going." 19The jury retired to continue their deliberations at 12.45pm. 20In the exchange with counsel that then ensued, trial counsel suggested that rather than the jury being brought back just after 1pm (as his Honour had informed them he would) they ought to be encouraged to stay until 2pm to allow appropriate consideration to be given by them to the Black direction before discharging them for the day. In that discussion, his Honour was reminded by the trial advocate for the Crown that despite the issues in the trial being of relatively narrow compass, the two stage process provided for in s 55F(2) of the Jury Act did not allow his Honour to direct the jury that their verdict could be other than unanimous until eight hours had elapsed and he was satisfied that further time would be unlikely to achieve unanimity. It was agreed that the eight hour time limit did not expire until 3.50pm. 21At counsel's invitation, his Honour asked the Sheriff's officer to enquire whether the jury were prepared to stay until 2pm and continue their deliberations (and that lunch would be provided if that were the case). He was advised that the jury would stay until 2pm if they were permitted to make phone calls. His Honour allowed for that to occur. 22In the discussion that then ensued with counsel whilst the jury continued their deliberations, consideration was given to what his Honour ought do at 2pm, or shortly before that time, in the event that a verdict was not returned in the interim. The trial advocate for the Crown reminded his Honour that while it was appropriate that he enquire of the foreperson as to their progress in agreeing upon a verdict he should not refer to the possibility of a non-unanimous verdict nor advise the jury of the necessity that there be eight hours of deliberation before that option was available. This was in accordance with Hunt v R [2011] NSWCCA 152. She also submitted that it was appropriate for his Honour to enquire of the foreperson whether any member of the jury needed further assistance which might be productive of agreement, and that if after further consultation and at the effluxion of eight hours such as to invoke the operation of s 55F, his Honour was then advised there was no prospect of the jury reaching agreement unanimously or by majority then his Honour could discharge the jury from returning a verdict. 23The trial advocate then volunteered the tentative view that it would be unfortunate to discharge the jury at 2pm when, after what had proved a lengthy trial on what was ultimately a narrow issue, it was a matter of less than two hours before a majority verdict direction could be given. She then submitted that it may be of some utility to inquire of the foreman whether the jury wished instead to return the following Tuesday to continue their deliberations. The appellant's counsel agreed that course should be adopted. That option had a logical and practical appeal in the open dialogue with the presiding judge, and was an approach entirely commensurate with the trial advocate's duties and obligations as the Crown to secure a verdict were that possible in the interests of justice and defence counsel's obligations to his client. That said, in circumstances where the jury had signalled they were "deadlocked" after almost five hours deliberation in a trial that had far exceeded the trial time estimate, the prospect of the jury electing to return the following week to deliberate further was slim. Moreover, without deft handing by the presiding judge to inform the foreman that the jury might have to return the following week if they did not sit on that afternoon, and for the foreman to have communicated that to the jury, carried a risk that passive pressure would be applied to the jury to compromise their verdict (and for those in the minority to fold to the views of the majority, contrary to their sworn oaths or affirmations) in particular when it was left to the foreman to be the conduit of his Honour's further suggestions and directions. 24On approach to 2pm and without any communication from the jury the transcript records the trial advocate handing to the trial judge a series of questions she submitted should be given to the jury for their consideration after his Honour had made his enquiries of the foreperson and, in the event that he was advised that the jury remained unable to agree, the jury required further instruction or assistance. Although the transcript records that the document was given to the Sheriff's officer to give to the jury at his Honour's direction after the foreman returned to the jury room after being examined in the terms set out in [27] following, because the document was not in the appeal book and was not otherwise available for tender, the extent to which it explained or clarified how the jury might approach their continuing deliberations is unknown. What is clear is that within what appears to be minutes of the document being sent into the jury room, and only minutes after the foreman left the witness box to consult with his fellow jurors, a verdict of guilty was announced. 25Before setting out the foreman's evidence under questioning by the trial judge, I note that the trial advocate asked on two occasions that the foreman be sworn in the presence of the jury which his Honour declined to do. 26Although s 56 of the Jury Act requires that one or more of the jurors actually be sworn in order for the trial judge to enquire into and to be satisfied of the matters of fact grounding the exercise of the discretion to discharge a jury under s 56, the section is silent as to whether that enquiry should be in the presence of the jury. This case exemplifies the inherent danger in a trial judge examining the foreperson in the absence of the jury for that purpose. On any view, in this case there was the pressure of time with the jury in deliberation on a Friday afternoon on the ninth day of the trial when at least some of the jurors had competing commitments that afternoon. This was in addition to what might be safely assumed to be an understandable reluctance on the part of the jury to embrace the prospect of returning the following Tuesday as the next full sitting day. These matters alone had the potential to deflect each juror from the task of considering whether the Crown had proved guilt beyond reasonable doubt and to bring about a compromise of the doubt at least some of them had as to the appellant's guilt in order to return a unanimous verdict. While the trial judge had the impression, as he expressed it, that the foreperson seemed to be "on the ball", that rather assumed that the foreman both understood the role he was being asked to perform as a conduit for his Honour's further directions and that he was an able and reliable communicator of them. 27After the foreman was sworn there was the following exchange between his Honour and the foreman: "Q. I'll lead the first part from you. You are the foreperson on this jury? A. Yes. Q. You have been deliberating now for one and a half plus - you've been deliberating now for six and a half hours, you went out - yes that's right? A. Yes. Q. So one and a half - just give me - I'm just counting on my fingers sorry, yes, you've been deliberating for over six hours and I know that there are problems, I've been told that there are problems with three of the jurors for this afternoon, is that right? A. Yes. Q. There's also problems I think with more of the jurors on Monday? A. Correct. Q. And what I was going to ask you was do you think there would be any purpose - or do you think the jury would like to return on Tuesday of next week or not or do you think they would prefer not to return? A. From what I can tell the jurors that aren't agreeing on the verdicts are quite certain in their decision and I don't believe that any amount of deliberation will change their mind. Q. No deliberation would change their mind? A. In my opinion, no. Q. No I accept what you tell me because as I say you've been there for more than six hours all right. Do you think there's any assistance we can give you, any legal questions or factual questions you want to ask us or not or do you think you've considered it all and that's where you come to is that what you feel? A. Not from me I'm - I could go and ask if you like. Q. Whether anybody would like further assistance? A. Yes. Q. To have something explained, all right, well what I might do is - you see what I'm getting at is this, sometimes a juror says well if we had some assistance or something we might come to a verdict, see what I mean? A. Yes. Q. But if the jurors say no we don't need any more assistance we've made up our mind and we're quite certain, that's the issue. A. Yes. Q. Would you like to find out, see if they say we'd like more assistance then you'd have to work out when they want to come back? A. Correct. Q. If they say we'd like more assistance then you've got to agree upon - A. A time. Q. And I gather jurors have got problems Monday so - and if they say, if they say no further assistance will achieve nothing then I will discharge you, I'll release you? A. Excellent, I will find out." 28Although the trial judge identified for the foreman the options as he saw them at that time including, on one view, that the jury would be discharged from returning a verdict at all, which was, as I have emphasised, simply not available at that time under s 56 of the Jury Act because the jury had not been in deliberations for eight hours as provided for in s 55F, his Honour seems to have assumed that the foreman knew what was meant when, at the very end of the exchange, he said that if no further assistance was sought "I will discharge you, I'll release you", which he must be taken to have meant was for that afternoon. In circumstances where the option of continuing to deliberate, perhaps with some jurors taking up the offer of further assistance, had to be clearly communicated by the foreman and a poll taken and a time frame agreed upon for that to occur were some jurors in need of assistance, the foreperson also needed to be told, and for him to clearly understand that his Honour proposed only to "discharge" the jury for that purpose and to "release" them that afternoon but that they should not allow that to influence their verdict or invite any juror to compromise their consideration of whether the Crown had proved the guilt of the appellant beyond reasonable doubt. What is also troubling is that despite the trial judge asking the foreman to advise him of the jury's response to the matters he asked be communicated, the foreman did not do so before the announcement of the jury's verdict at 2.20pm. 29Were his Honour to have sworn the foreman and examined him in the presence of the jury, the risk of what I am satisfied was likely to be a miscommunication of what the law required of them as a jury at that point in their deliberations would have been averted. As I have noted, the document that was sent into the jury room might well have resolved any risk of a miscommunication of that kind but without knowing what it contained that cannot be gainsaid. For my part the document should not, in any event, have been sent into the jury room without the trial judge discussing its contents with the jury as a whole. 30I would uphold the third ground of appeal. 31I now turn to consider the second ground of appeal. 32I have referred to Ms Wiseman's evidence above at [8]-[10]. During examination in chief Ms Wiseman referred to the appellant as "a driver for this Chris lady". The trial advocate asked Ms Wiseman, "Who is this Chris lady?". The witness did not answer the question. There was a short discussion in the absence of the jury in which his Honour queried the relevance of who Chris was to the issues in the trial, and the question was subsequently withdrawn. During that discussion the witness told his Honour that she did not want to answer the question because she did not want people to "come after her". Later, in the presence of the jury, Ms Wiseman gave the following answer in response to a question regarding where the appellant was living: "Well as far as Julie tells me, he lives around the corner from Chris' house, he's always there, he's Chris' right hand man, he's always there with Chris you know. Like the occasions I've been there he's been around, like - like I said at the front gate he's been in the bedroom sitting there. Wherever Chris is, he's there, he drives Chris, he's got Chris' possessions, he's doing whatever for Chris you know." 33A short way into cross-examination the following exchange took place: "Q. So the statement can be returned your Honour, that was untrue what was in that statement? A. Well at the time in my eyes no that was Chris related, drug related, Chris related, whatever you want to call it... ... Q. When you say Chris related? A. Chris is a drug dealer. He was driving around for her. That's Chris's right hand man. He keeps everything with him at his house, you know what I'm saying." Shortly after that, Ms Wiseman said, not in response to any question: "Why'd you come and see me with all the drugs on you for then Andy? With scales, and satchels and drugs on you, what for? I didn't have any money on me." 34The appellant, through his counsel, then applied for the jury to be discharged on the basis that Ms Wiseman's answer raised the appellant's bad character by asserting that he was a drug dealer/courier for Chris. Counsel argued that the answer was not responsive to any question asked by him, and that the evidence was inadmissible and prejudicial. His Honour rejected the application but did not provide formal reasons for doing so. It is clear from the transcript, however, that his Honour was of the view that any risk that Ms Wiseman's evidence extracted above might unfairly prejudice the appellant could be cured by a direction that the jury should disregard Ms Wiseman's evidence in so far as it attributed to the appellant a criminal association with Chris. Counsel did not ask his Honour to direct the jury to disregard Ms Wiseman's answer at that time, doubtless to avoid highlighting that aspect of her evidence. 35In summing up his Honour directed the jury to put out of their minds any possible prejudice to the appellant from his involvement, or Ms Wiseman's involvement, in what his Honour described as "the drug scene" or "the drug culture" and to focus on the events of 17 July 2011. As his Honour reminded the jury, the appellant had in any event given evidence that he was a drug user and that he owned a set of scales. 36His Honour directed the jury, in accordance with s 165(1)(d) of the Evidence Act 1995 (NSW), that Ms Wiseman's evidence generally may be unreliable, since she might reasonably have been supposed to be criminally concerned in the events of 17 July, and may have given evidence to shift the blame from herself and to the appellant. Counsel did not seek any further direction or redirection at the conclusion of his Honour's summing up. 37In my view, the question asked by the appellant's counsel in cross-examination was brave, if not foolhardy, especially considering Ms Wiseman's previous answer which intimated that "Chris related" was synonymous with "drug related", and where counsel was on notice of that fact from Ms Wiseman's previous answer. It is well settled that, subject to some exceptions, parties are bound by the conduct of their counsel at trial (see Nudd v R [2006] HCA 9; (2006) 162 A Crim R 301 at [9]). 38With regards to Ms Wiseman's further answer, also said to be "unresponsive", which referred to the appellant being in possession of "scales, and satchels [sic] and drugs", as I have noted, that was a matter already before the jury as part of the appellant's case. 39I am not satisfied that his Honour's refusal to discharge the jury resulted in a miscarriage of justice and I dismiss the second ground of appeal. 40BELLEW J: I agree with Fullerton J. ********** 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. Decision last updated: 31 May 2016