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Court of Criminal Appeal 13 June 2000

Regina v Pearson

[2000] NSWCCA 149

Also reported as 114 A Crim R 80
Fraud & dishonesty
APPEAL AGAINST CONVICTION FAILURE TO GIVE DIRECTIONS TO THE JURY FAILURE TO DISCHARGE JURY FAILURE TO DISCLOSE CONTENTS OF AN MFI.

Citation: Regina v Pearson [2000] NSWCCA 149
Court: New South Wales Court of Criminal Appeal
Date: 13 June 2000
Judge(s): Dunford J; Foster AJA; Smart AJ

Background

The appellant was the owner of a smash repair business in Coogee, New South Wales. He was charged under section 197(b) of the Crimes Act 1900 with dishonestly destroying property by fire with a view to making a gain, namely, by burning down his own business premises to claim on an insurance policy.

The prosecution case was entirely circumstantial. The Crown relied on expert evidence that the fire had been deliberately lit, along with evidence of the business's financial difficulties and the fact that the appellant was the last person to leave the premises shortly before the fire took hold. The defence called its own expert evidence suggesting an accidental cause was reasonably possible, including the potential for spontaneous combustion or an electrical malfunction in old, sometimes-wet wiring.

This was the appellant's second trial, conducted over 21 days before Latham DCJ in the District Court. The jury returned a guilty verdict on 31 May 1999. The appellant appealed on four grounds, three of which related to a significant procedural incident involving the defence's instructing solicitor and members of the jury during deliberations.

  • Whether the verdict was unreasonable and unsupportable having regard to the totality of the evidence, including the possibility of an accidental cause
  • Whether the trial judge erred by failing to disclose to defence counsel the contents of an exhibit marked for identification (MFI 46), which related to the solicitor-jury contact incident
  • Whether the trial judge erred by failing to discharge the jury after the instructing solicitor came into inadvertent contact with two jurors
  • Whether the trial judge erred by failing to give the jury appropriate directions in consequence of the incident

Decision

Unreasonable verdict (Ground 4): The Court addressed this ground first because a finding in the appellant's favour would have resulted in an acquittal rather than a new trial. The appellant conceded that, if the evidence was capable of supporting a finding of deliberate ignition beyond reasonable doubt, the further finding that the appellant was responsible was also available on the evidence. The Court found it was open to the jury to conclude the fire was deliberately lit and to reject an accidental cause as a rational inference. This ground was not established.

The solicitor-jury contact incident (Grounds 1, 2, and 3): During deliberations, the appellant's instructing solicitor, Ms Hirata, approached two jurors in a hotel near the Downing Centre complex and attempted to hand over an envelope. The trial judge investigated the matter and formed the view that the solicitor had engineered the situation. The trial judge declined to discharge the jury and did not disclose the contents of MFI 46 (which related to the incident) to defence counsel, apparently because she considered those factors in context, including the length of the trial and the stage of deliberations.

The Court of Criminal Appeal found this approach was not appropriate. The identity and contents of the envelope were unknown, and it could not be determined whether the contact was an attempt to procure a discharge or to improperly influence the verdict. Because a significant portion of the jury had been involved in the incident in full public view, any direction to the jury (of the kind approved in Elfar v Tier) could not reasonably have cured the problem. In those circumstances, the only proper course was to discharge the jury.

Foster AJA, with whom Dunford J and Smart AJ agreed, noted that it was most regrettable that members of the legal profession involved in proceedings at the Downing Centre complex could come into contact with jurors at nearby hotels, and suggested that steps should be considered to prevent such occurrences. Both Dunford J and Smart AJ reserved for future consideration the question of whether an accused who was a party to an attempt to improperly influence a jury and was subsequently convicted would nevertheless be entitled to a new trial.

Orders Made

  • The appeal is upheld
  • The conviction is quashed
  • A new trial is ordered

Key Takeaways

  • Where a solicitor made contact with jurors during deliberations in circumstances that could not be fully explained, and a significant number of jurors were involved in the incident in full public view, the Court of Criminal Appeal held that discharging the jury was the only appropriate course.
  • Failing to disclose to defence counsel the contents of an exhibit directly related to an incident of jury contact during deliberations was found to be an error contributing to the miscarriage of trial.
  • A direction to the jury (sometimes called an Elfar-type direction) will not always be a sufficient remedy for improper jury contact; the nature and extent of the contact may render the situation uncurable by direction alone.
  • The Court expressly reserved the question of whether a convicted accused who was personally a party to an attempt to improperly influence a jury would nonetheless be entitled to a new trial on that basis.
  • Proximity of hotels to court complexes, and the associated risk of solicitors coming into contact with deliberating jurors, was identified by the Court as a matter warranting consideration by those responsible for court administration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 197(b)

Cases:
- Chamberlain v The Queen (1983) 72 FLR 1
- Elfar v Tier, unreported, NSWCCA, 9 October 1995
- Webb v R; Hay v R (1994) 181 CLR 41