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Court of Criminal Appeal 25 July 2000

Regina v M A BRIGHT

[2000] NSWCCA 258

Also reported as [2000] 114 A Crim R 466
Assault & violenceTheft & property
CRIMINAL LAW PRACTICE AND PROCEDURE APPEAL CONTAMINATION OF JURY

Citation: Regina v M A Bright [2000] NSWCCA 258
Court: Court of Criminal Appeal, New South Wales
Date: 25 July 2000
Judge(s): Meagher JA, Grove J, Kirby J

Background

The appellant stood trial in the Goulburn District Court in February 1998 on two charges arising from an incident in July 1996. The prosecution alleged she was part of a group that surrounded and invaded a residential dwelling, caused malicious damage, and that she was armed with a tomahawk with intent to commit assault. She pleaded not guilty and relied on an alibi defence. The jury convicted her on both counts after approximately two hours of deliberation.

The day after the verdict, information came to light that, during the trial, a part-time Sheriff's Officer had spoken directly to the female members of the jury panel. The Sheriff's Officer had become concerned that a juror may have had a prior connection to someone associated with the accused's family. After being discouraged from raising the matter with the trial judge, she took it upon herself to question the jurors directly. One juror indicated she had some knowledge of the case.

This irregular contact was not raised with the trial judge until after the verdict had been delivered and the jury discharged. Because the judge had no opportunity to investigate or respond during the trial, the matter was referred to the Court of Criminal Appeal by way of appeal against conviction.

  • Whether the irregular contact between the Sheriff's Officer and members of the jury panel gave rise to a reasonable apprehension that the jury, or the affected juror, may not have brought an impartial and unprejudiced mind to the resolution of the issues.
  • Whether the convictions could stand in the absence of any investigation or remedial direction by the trial judge at the time the irregularity occurred.
  • Whether the contamination, if established, may have extended beyond the individual juror to the entire panel.

Decision

Kirby J, with whom Meagher JA and Grove J agreed, found that the circumstances gave rise to a reasonable apprehension that the jury had not been impartial. Three critical questions remained unanswered: when the juror first acquired knowledge of the incident; what specific information she held; and whether she had communicated anything to other panel members. Each of those questions was capable of affecting the suitability of the juror or the entire panel.

The court observed that the Sheriff's Officer's intervention, however well-intentioned, had compounded rather than resolved the problem. Because the conversation took place in front of several jurors, there was a real possibility that other panel members had observed the exchange and may have drawn adverse inferences. Specifically, they may have perceived an attempt to influence the jury on behalf of the accused, and reacted adversely to her as a result.

The court noted that the fact the communication appeared to originate from a source associated with the accused's family, and may have been favourable to her, did not diminish the irregularity. The absence of any warning or investigation by the trial judge, through no fault of his own, meant the contamination was never addressed. General directions about impartiality given in the summing up could not cure what the trial judge was never told about.

The court concluded that a new trial was required. The existing convictions could not safely stand given the reasonable apprehension that an impartial verdict may not have been reached. Kirby J also observed that the Sheriff's Officer's underlying concern for fairness was commendable, even though the method she chose was inappropriate.

Orders Made

  • The appeal was allowed.
  • The convictions were quashed.
  • A new trial was ordered.

Key Takeaways

  • A conviction will be vulnerable to appeal where circumstances create a reasonable apprehension that a juror, or the entire panel, may not have brought an impartial and unprejudiced mind to the resolution of the issues at trial.
  • Irregular communication directed at members of a jury panel can contaminate not only the juror directly involved, but potentially the entire panel, particularly where the contact occurs in front of multiple jurors.
  • The Court of Criminal Appeal confirmed that a communication apparently favourable to an accused does not, of itself, neutralise the apprehension of partiality arising from irregular juror contact. Other jurors who witnessed the exchange might have inferred an improper attempt at influence and reacted adversely.
  • Where an irregularity is not brought to the trial judge's attention until after the verdict, no investigation or remedial warning is possible at trial, and general directions to the jury on impartiality cannot substitute for a specific response to a known irregularity.
  • Prosecuting authorities and court officers who become aware of a possible jury irregularity during a trial bear responsibility to raise it with the trial judge promptly, rather than dismissing it or suppressing it. Failure to do so deprives the judge of any opportunity to investigate and, where appropriate, discharge the affected juror or give a corrective direction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 114(1)(a)
- Jury Act 1977 (NSW), s 38(7)

Cases:
- Liversey v NSW Bar Association (1983) 151 CLR 288
- Webb & Hay v The Queen (1994) 181 CLR 41
- R v Gibson [1999] NSWCCA 370