Citation: Gordon v R [2009] NSWCCA 60
Court: New South Wales Court of Criminal Appeal
Date: 9 March 2009
Judge(s): Grove J, Blanch J, Price J
Background
The appellant had been convicted in the District Court following a trial before Armitage A/DCJ. On the day of the appeal hearing, counsel for the appellant sought to add a new ground of appeal at the outset of proceedings, before the substantive hearing commenced.
The proposed new ground was that the verdict was "unsafe and/or dangerous in all the circumstances of the proceedings." Counsel particularised this ground around two complaints: first, that the jury had been subjected to undue time pressure; and second, that a juror had appeared visibly distressed at the time the verdict was returned.
The Crown opposed the amendment, and the Court dealt with the application on the spot, delivering an ex tempore judgment (a judgment delivered orally, without prior written reasons).
Legal Issues
- Whether leave should be granted to amend the grounds of appeal by adding a new ground asserting the verdict was unsafe or dangerous.
- Whether the two particulars advanced in support of that ground (alleged jury time pressure and an observation of juror distress) were capable of demonstrating a miscarriage of justice.
Decision
Grove J, with whom Blanch J and Price J agreed, refused leave to amend. His Honour's reasoning addressed each of the two particulars in turn.
On the time pressure complaint, the record showed that the jury retired at 12:58 pm on a Friday and returned its verdict at 6:35 pm that evening. Critically, the trial judge had told the jury during the afternoon that they were free to go home at around 5:30 pm and return the following Monday, or to continue if they wished. Grove J found no indication whatsoever of undue pressure being placed on the jury. The fact that deliberations began on a Friday afternoon was not, of itself, a basis for legitimate complaint.
On the juror distress observation, Grove J accepted for the sake of argument that such evidence could be given, but found it did not advance the appellant's case. The court noted that it is commonplace for presiding judges to observe jurors appearing distressed when returning a verdict, reflecting the gravity of the task they have performed rather than indicating anything irregular about the process.
Grove J concluded that, whether considered separately or together, the two particulars were incapable of supporting a finding of miscarriage. The proposed ground could not succeed on the material before the Court, and the Crown's opposition to the amendment was well founded.
Orders Made
- Leave to amend the grounds of appeal was refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that jury deliberations commencing on a Friday afternoon do not, without more, give rise to a viable complaint about undue time pressure on the jury.
- A trial judge's invitation to jurors to adjourn over a weekend and return on Monday is a relevant indicator that no improper pressure was applied, and the Court treated such an invitation as significant in assessing the time pressure complaint.
- Observable distress in a juror at the time of returning a verdict is a commonly noted phenomenon, reflecting the seriousness of the jury's function, and does not of itself suggest a miscarriage of justice occurred.
- Leave to amend grounds of appeal will be refused where the proposed new ground, together with its supporting particulars, is incapable on its face of demonstrating miscarriage of justice.
- Refusing leave to amend on this basis is characterised as a procedural ruling rather than a determination on the merits of the underlying conviction.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment or metadata.