Citation: Mikael v Regina [2015] NSWCCA 294
Court: Court of Criminal Appeal, NSW
Date: 25 November 2015
Judge(s): Macfarlan JA, Hall J, Bellew J
Background
The appellant was convicted in the District Court of supplying a large commercial quantity of methylamphetamine and knowingly receiving proceeds of crime, following a trial that ran for 31 days. It was the third time the appellant had stood trial on these charges, the first two trials having been aborted at the defence's request. He was sentenced to a head sentence of 10 years and 6 months with a non-parole period of 6 years and 6 months.
During defence counsel's closing address, a jury note reported that two men had entered the back of the courtroom and that five jurors had seen what appeared to be a flash from a mobile phone directed towards them. The jurors were concerned that a photograph had been taken of them. The two men were later identified as a solicitor and a law student doing work experience; the phone had flashed upon receiving text messages, and the court sheriff confirmed no photographs had been taken.
The trial judge investigated the incident, directed the jury with a full explanation, and the jury confirmed it was content to proceed. On the following Monday, defence counsel applied for the jury to be discharged. The trial judge refused, finding no prejudice to the accused had resulted. The jury deliberated for eight days before returning guilty verdicts on two counts.
Legal Issues
- Whether the trial judge erred in failing to discharge the jury following the phone flash incident
- Whether the incident gave rise to prejudice to the accused sufficient to warrant a discharge
- Whether the inference that the person with the phone was acting as an agent of the accused was a rational or irresistible one
Decision
Hall J (with whom Macfarlan JA and Bellew J agreed) dismissed the appeal on all grounds. The trial judge's finding that no prejudice resulted from the phone flash incident was described as soundly based. The investigation was thorough: the phone was examined by the court sheriff, the two men were identified, and a detailed explanation was provided to the jury about the innocent cause of the flashes.
The argument advanced at trial was that the only rational inference available to the jury was that the person with the phone was an agent of the accused. The Court of Criminal Appeal found this submission to be without substance or merit, noting that no such suggestion had even been raised by defence counsel at trial in its direct form.
The jury's conduct also supported the trial judge's finding. After receiving the full explanation, the jurors expressed no further concern when specifically invited to do so, and they indicated they wished the summing up to continue. The provision of transcripts of both closing addresses also addressed any concern that individual jurors may have momentarily missed part of the defence address due to the distraction.
At the time of the discharge application, the Court of Criminal Appeal found there was no basis for concluding that the jury could not perform its duty to determine the issues impartially. No error of fact or law was established in the trial judge's decision.
Orders Made
- The appeal was dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge's refusal to discharge a jury will not be disturbed on appeal where the judge investigated the incident thoroughly, gave an adequate direction, and could rationally find no prejudice to the accused resulted.
- A jury's conduct following a direction, including the absence of further concern when specifically invited to raise any, is a relevant consideration when assessing whether a discharge is warranted.
- Where a jury was concerned it had been photographed, a confirmed finding that no photographs were taken, communicated clearly by the trial judge, was sufficient to dispel the concern and remove the basis for a prejudice finding.
- No error is established simply because five jurors perceived a phone flash as a potential photograph: the critical question is whether the incident gave rise to a real risk that the jury would not perform its duty impartially.
- Providing jurors with transcripts of closing addresses was treated as an adequate remedy for any momentary distraction during those addresses.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193V(2)
Cases:
- Black v R (1993) 179 CLR 44
- Webb & Hay v The Queen (1994) 181 CLR 41
- Crofts v R (1996) 186 CLR 427
- R v Pearson (2000) 114 A Crim R 80
- Lyndon v R [2014] NSWCCA 112