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Court of Criminal Appeal 4 October 2002

R v Allan

[2002] NSWCCA 412

Also reported as (2002) 133 A Crim R 444
Assault & violenceTheft & property
CRIMINAL PRACTICE AND PROCEDURE WHETHER MISCARRIAGE OF JUSTICE.

Citation: R v Allan [2002] NSWCCA 412
Court: NSW Court of Criminal Appeal
Date: 4 October 2002
Judge(s): Wood CJ at CL, Howie J, Smart AJ

Background

The appellant was tried before Judge Moore in the District Court on two counts of robbery in company, alleged to have occurred in Cabramatta on 13 August 2000. The Crown case on the second count rested substantially on eyewitness identification: the complainant, Glen Hurry, identified the appellant as the person wearing a distinctive red and dark blue Nike jacket who had robbed him and then entered a nearby shop, where a stolen mobile phone was later found.

The jury acquitted the appellant on the first count during the trial, following a direction that permitted early acquittal. The second count proceeded to deliberation. On the morning after the jury retired, a note was sent to the trial judge disclosing that jurors had found two medical swabs and a glass tube with a sharp end concealed in the lining of the Nike jacket, which had been tendered in evidence and sent to the jury room.

The trial judge declined to discharge the jury and instead directed them to disregard the objects entirely. The jury convicted the appellant. He appealed to the Court of Criminal Appeal on the sole ground that a miscarriage of justice had occurred because the objects had inadvertently entered the jury room.

  • Whether the accidental presence of non-evidentiary material (items found in the jacket lining) in the jury room gave rise to a miscarriage of justice.
  • Whether the trial judge's direction to disregard the objects was adequate to cure any resulting prejudice.
  • Whether the jury may have drawn impermissible inferences from the objects, including that the appellant was a drug user and therefore more likely to have been involved in a drug-related robbery.

Decision

Howie J, with Wood CJ at CL and Smart AJ agreeing, dismissed the appeal. The court found no real possibility that the jury would have used the discovered objects to reason that the appellant was guilty. The objects were not necessarily indicative of drug use, and even assuming they were, the inferential chain needed to connect that conclusion to guilt was characterised as untenable.

The court noted that those best placed to assess prejudice at the time were the trial judge and defence counsel. Neither had raised any concern that the objects would cause the jury to reason adversely about the appellant as a drug user. Defence counsel had in fact supported the direction to disregard, while noting the speculative risk.

The court also considered whether the jury might have drawn on the evidence of Mr Austin (the complainant on the acquitted count), particularly his evidence that something sharp had been pressed into him. It found there was no real possibility the jury imported that evidence into its deliberations on the second count, both because of the character and manner of Austin's evidence and because of the directions given to exclude it from consideration.

In all the circumstances, the trial judge's direction to disregard the objects was sufficient, and no miscarriage of justice resulted from their inadvertent presence in the jury room.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the presence of non-evidentiary material in a jury room does not automatically constitute a miscarriage of justice; the question is whether there is a real possibility the material caused prejudice that a direction could not cure.
  • A trial judge retains the discretion to address the irregular availability of material through a strong direction to disregard, rather than discharging the jury, where adequate curative directions can be given.
  • Where both the trial judge and defence counsel assessed the situation at the time and neither identified a realistic risk of prejudice from the material, that contemporaneous assessment carries weight on appeal.
  • Speculative reasoning chains, such as an inference from unexplained items to drug use and from drug use to participation in a drug-related robbery, will not readily be treated as generating a miscarriage of justice in the absence of concrete evidence that the jury actually reasoned in that way.
  • Directions to exclude one complainant's evidence from consideration of a separately charged count may be reinforced by the circumstances in which that evidence was given, reducing the risk that a jury impermissibly imports it into a different count.

Legislation and Cases Referenced

Cases cited:
- R v Landsell (NSWCCA, unreported, 22 May 1995)
- R v Gilbert Adam (1999) 47 NSWLR 267
- Crofts v The Queen (1996) 186 CLR 427