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Court of Criminal Appeal 17 December 2002

R v CZAJKOWSKI; R v SHEPHERD

[2002] NSWCCA 530

Also reported as 137 A Crim R 111
Drugs
CRIMINAL LAW AND PROCEDURE TRIAL BY JURY IMPARTIALITY BIAS WHETHER JURY TO BE DISCHARGED WHETHER DIRECTION OVERCAME PREJUDICE

Citation: R v Czajkowski; R v Shepherd [2002] NSWCCA 530
Court: NSW Court of Criminal Appeal
Date: 17 December 2002
Judges: Sheller JA; Wood CJ at CL; Sully J

Background

Two appellants were charged with attempting to obtain possession of a prohibited import, namely a commercial quantity of MDMA (ecstasy), at Sydney in January 2000. The prosecution alleged the appellants were knowingly involved in collecting more than fifty kilograms of ecstasy that had been intercepted and substituted by police in a controlled delivery operation. Both appellants maintained they had no idea the foil rolls they helped transport contained prohibited drugs.

The trial ran for approximately three weeks before Judge Keleman in the District Court. After the evidence concluded and addresses were delivered, but before the trial judge's summing-up began, the jury foreperson sent a handwritten note to the judge. The note stated that some jurors were "slightly bias against drugs" and had already made up their minds on day one of the trial.

Defence counsel for both accused applied immediately for the jury to be discharged. The trial judge declined and instead delivered a detailed direction to the jury, instructing them to set aside any prejudice and decide the case solely on the evidence. The jury subsequently convicted both appellants, who then appealed their convictions to the Court of Criminal Appeal.

  • Whether the trial judge erred in refusing to discharge the jury following the foreperson's note indicating possible bias and prejudgment by unspecified jurors.
  • Whether the directions given by the trial judge were capable of overcoming any apprehension of bias or prejudice arising from the note.
  • Whether, in all the circumstances, a fair-minded and informed member of the public would have a reasonable apprehension that the jury had not discharged its task impartially.

Decision

Sheller JA, with Wood CJ at CL and Sully J agreeing, held that the trial judge should have discharged the jury. The foreperson's note disclosed that, before deliberations even began, some jurors had already formed a concluded view and had done so from day one of the trial, in the context of a stated bias against drugs. That combination, premature judgment and acknowledged partiality, created a clear case for concern.

The court accepted that judges must generally operate on the assumption that juries can follow proper directions, as stated in Crofts v R (1996) 186 CLR 427. However, the court found that principle could not rescue the convictions here. The direction given by Judge Keleman was careful and comprehensive, but it could not undo the problem that the note itself implied the affected jurors had not listened to the evidence with an open mind and had already prejudged the facts before the summing-up was delivered.

Sheller JA concluded that a fair-minded and informed member of the public would reasonably apprehend that the jury had failed to discharge its task impartially. The note pointed to bias that had crystallised from the very first day of the trial, meaning the appellants could not be confident they had received a fair hearing regardless of the quality of the subsequent directions. The court found this was a clear case requiring discharge, and the convictions could not stand.

Orders Made

  • Appeals allowed.
  • Convictions and sentences of both appellants quashed.
  • New trials ordered for both appellants.

Key Takeaways

  • A foreperson's note disclosing that jurors had already made up their minds and held a bias against drugs, received before summing-up, was sufficient to raise a reasonable apprehension of partiality that could not be cured by subsequent judicial direction.
  • The standard applied was whether a fair-minded and informed member of the public would reasonably apprehend that the jury had not discharged its task impartially, drawing on the test articulated in Webb and Hay v R (1994) 181 CLR 41 and Johnson v Johnson (2000) 201 CLR 488.
  • Judicial directions are generally presumed effective in addressing juror prejudice, but this presumption has limits where the evidence of bias indicates the affected jurors had not approached the evidence with an open mind from the outset of the trial.
  • Prejudgment formed on day one of a trial is particularly problematic because it suggests the jurors in question did not evaluate the evidence as it was presented, meaning no direction delivered at the end of the evidence could rectify the defect.
  • The Court of Criminal Appeal treated this as a clear case, finding it difficult to reach any conclusion other than that the apprehension of bias was well-founded on the facts disclosed by the note.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Criminal Appeal Act 1912 (NSW)

Cases:
- Webb and Hay v R (1994) 181 CLR 41
- Johnson v Johnson (2000) 201 CLR 488
- Crofts v R (1996) 186 CLR 427
- Sussex Justices; ex parte McCarthy [1924] 1 KB 256
- R v Stretton; R v Story (1982) VR 251
- R v Maxwell (23 December 1998, NSWCCA)
- R v Piccin [2001] NSWCCA 35
- R v van Hoang (2002) 128 A Crim R 422
- Bright (2000) 114 A Crim R 466
- R v Pearson (2000) 114 A Crim R 80
- Williams v R (2000) 119 A Crim R 490