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Court of Criminal Appeal 17 August 2012

TRIEU v R

[2012] NSWCCA 169

Assault & violenceTheft & property
CRIMINAL LAW APPEAL TRIAL JUDGE REFUSED TO DISCHARGE JURY NO MISCARRIAGE OF JUSTICE TRIAL JUDGE DIRECTED JURY APPROPRIATELY PRINCIPLE DISCUSSED.

Citation: TRIEU v R [2012] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 17 August 2012
Judge(s): McClellan CJ at CL, Johnson J, Rothman J (judgment by Rothman J, others agreeing)

Background

The appellant had been convicted by a jury of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900, following a seven-day trial in the District Court. The offence involved an armed robbery at a Paddington hotel in which approximately $50,000 in cash was stolen at gunpoint. The Crown relied on circumstantial evidence and the testimony of a co-offender to identify the appellant as the second robber.

During jury deliberations, a court officer informed the trial judge that jurors had reported a man loitering near the jury exit on three consecutive afternoons, walking past them slowly and staring. The man was understood to be acquainted with the appellant. Several jurors expressed some concern about their safety after the verdict was delivered.

Both defence counsel applied to have the jury discharged, arguing that jurors may have drawn impermissible inferences connecting the man's conduct with one or both accused, and that this could amount to a consciousness of guilt. The trial judge refused the discharge application, gave a direction to the jury, and arranged for jurors to be provided with taxis after delivering their verdict.

  • Whether the trial judge erred in the exercise of his discretion in refusing to discharge the jury
  • Whether the jury's awareness of the loitering bystander, and any inferences drawn from it, constituted a miscarriage of justice
  • Whether the trial judge's direction to the jury was sufficient to cure any potential prejudice

Decision

Rothman J (with whom McClellan CJ at CL and Johnson J agreed) approached the appeal on the basis that interfering with a trial judge's discretion requires more than a finding that the appellate judges would have acted differently. The applicable standard, drawn from House v The King (1936) 55 CLR 499, permits intervention only where the discretion was exercised on wrong principle or where a miscarriage of justice has resulted.

The Court found that the circumstances here were materially different from those in Munn & Miller [2006] NSWCCA 61, where there was evidence that a juror had been subjected to overnight intimidation capable of being understood as an admission of guilt. In the present case, the jury's conduct pointed to caution rather than alarm. The jurors did not put their concerns in writing, which the trial judge noted as an indicator that their concerns were not serious, and their primary preoccupation appeared to be the protection of their anonymity after the verdict, not any connection between the bystander and the accused.

The trial judge's direction clearly informed the jury that there was no suggestion the loitering individual was acting at the request or direction of either accused, and the Court considered this direction appropriate and sufficient. Arrangements for juror transport after verdict further addressed the jurors' concerns without any need to abort the trial.

Rothman J concluded that the trial judge had acted wholly within his jurisdiction and discretion, and that no miscarriage of justice had occurred. Because the ground of appeal did not raise a question of law alone, leave to appeal was required, and the Court found the ground insufficiently arguable to warrant it.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Appellate intervention in a trial judge's exercise of discretion to discharge a jury requires more than disagreement with the approach taken; it requires error in principle or a resulting miscarriage of justice, consistent with the test in House v The King.
  • A conviction will not be disturbed merely because jurors noticed and reported a bystander near the jury exit; the surrounding circumstances must demonstrate a real risk that the jury drew impermissible inferences connecting the conduct to an accused.
  • The Court of Criminal Appeal distinguished cases involving actual overnight juror intimidation, holding that cautious reporting by jurors, without written complaint and with anonymity concerns as the dominant preoccupation, pointed away from any improper influence on deliberations.
  • A clear judicial direction, informing the jury that the bystander had no connection to either accused, was treated as an adequate and appropriate remedy in the circumstances of this case.
  • In dismissing the leave application, the Court confirmed that where an appeal does not raise a question of law alone, the ground must be sufficiently arguable before leave will be granted under s 5(1)(b) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 6(1)

Cases:
- House v The King (1936) 55 CLR 499
- Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
- Munn & Miller [2006] NSWCCA 61
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- El Hassan v R [2007] NSWCCA 148
- Maric v The Queen (1978) 52 ALJR 631
- R v Glennon (1992) 173 CLR 592