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Court of Criminal Appeal 26 November 1999

REGINA v GIBSON

[1999] NSWCCA 370

Also reported as 110 A Crim R 180
Assault & violenceTheft & property
BIAS OF JUROR KNOWLEDGE OF WITNESS QUESTIONED BY JUDGE WHETHER APPROPRIATE WITNESS WHETHER DOUBTFUL

Citation: [1999] NSWCCA 370
Court: New South Wales Court of Criminal Appeal
Date: 26 November 1999
Judge(s): Spigelman CJ, Studdert J, Adams J

Background

The appellant was convicted in the District Court, following a two-week trial, of robbery with violence alongside two co-accused. The alleged robbery occurred in October 1994 at Parkes, where the victim was said to have been robbed of a ring, wallet, personal papers and cash. Key Crown witnesses gave evidence placing the appellant at the scene and connecting him to the stolen items.

On the fifth day of trial, it emerged that a juror was acquainted with certain witnesses, including two women whose evidence bore directly on the appellant's guilt. The juror had also mentioned to fellow jurors that she knew one of those witnesses.

The appellant challenged the conviction on two principal grounds: first, that the trial judge should have discharged the jury following the revelations about the juror's acquaintances; and second, that the verdicts were unreasonable having regard to the reliability of the Crown witnesses.

  • Whether the trial judge erred by not discharging the juror, or the whole jury, after it emerged that a juror knew certain Crown witnesses and had communicated that knowledge to other jurors
  • Whether the trial judge's questioning of the juror in open court was an appropriate procedure
  • Whether the jury was given adequate directions regarding the discharge of a juror and the circumstances giving rise to it
  • Whether the Crown witnesses were sufficiently "doubtful" to warrant a warning under s 165 of the Evidence Act 1995
  • Whether those witnesses should have been treated as "unfavourable" under s 38 of the Evidence Act 1995, permitting the Crown to cross-examine them
  • Whether the verdicts were unreasonable in light of the weaknesses in the Crown evidence

Decision

Juror bias and discharge. The Court found no error in the trial judge's decision not to discharge the juror or the whole jury. The juror's acquaintance with the witnesses was slight: she knew one woman only to say hello to, and had warned her daughter years earlier not to associate with another because she was "a bad influence." The Court applied the test from Livesey v NSW Bar Association and Webb & Hay v The Queen, asking whether a fair-minded observer might reasonably apprehend that the juror might not bring an impartial mind to the verdict. On the facts, the Court concluded that no such apprehension was established.

Questioning of the juror and directions. The Court accepted that questioning the juror in open court, with counsel's consent, was an appropriate procedure in the circumstances. The trial judge's direction to the remaining jurors explaining why a juror might be discharged was also found to be adequate and not productive of any unfairness.

Section 165 and section 38 of the Evidence Act. The Court rejected the argument that the Crown witnesses were "doubtful" in the technical sense required to trigger a s 165 warning. It also found no error in the trial judge's refusal to permit the Crown to cross-examine its own witnesses as "unfavourable" under s 38, as the threshold for that designation had not been reached on the evidence.

Unreasonableness of the verdicts. The Court acknowledged there were reasonable grounds for questioning the reliability of the witnesses who implicated the appellant. However, applying the test from M v The Queen and Jones v The Queen, the Court concluded that the jury's advantage in seeing and hearing all witnesses was substantial. It was open to the jury to convict despite the weaknesses in the Crown case, and no significant possibility of an innocent person being convicted was established.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A juror's casual or historical acquaintance with Crown witnesses does not automatically require discharge of the juror or the whole jury; the operative test is whether a fair-minded observer might reasonably apprehend a real danger of bias, assessed on the specific facts.
  • Questioning a juror in open court about potential conflicts, conducted with counsel's consent, can constitute an appropriate procedure for investigating potential bias.
  • Under s 165 of the Evidence Act 1995, a warning about the dangers of acting on particular evidence is only required where a witness is genuinely "doubtful" in the relevant sense; mere challenge in cross-examination does not automatically enliven that obligation.
  • The M v The Queen test for an unreasonable verdict requires the appellate court to ask whether, making full allowance for the jury's advantage in observing witnesses, there is a significant possibility that an innocent person has been convicted. A stricter formulation, such as asking whether the evidence was "so weak or flawed" that no jury could accept it, was confirmed to misstate that test.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that credibility assessments made by a jury who observed witnesses firsthand carry substantial weight on appeal, particularly where transcript review discloses no reason independent of demeanour to reject the Crown evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 165
- Criminal Appeal Act 1912 (NSW)

Cases
- Livesey v New South Wales Bar Association (1983) 151 CLR 228
- Webb & Hay v The Queen (1994) 181 CLR 41
- Pitkin v The Queen (1995) 69 ALJR 612
- Regina v Paul Darryl Meier (unreported, NSWCCA, 28 May 1996)
- Regina v GAC (unreported, NSWCCA, 1 April 1997)
- R v Shepherd (1990) 170 CLR 576
- Fleming v The Queen [1998] HCA 68
- M v The Queen (1994) 184 CLR 487
- Jones v The Queen (1997) 191 CLR 439