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Court of Criminal Appeal 17 May 2023

Haines v R; Brown v R

[2023] NSWCCA 108

Theft & property
CRIME APPEALS APPEALS FROM JURY VERDICT

Citation: Haines v R; Brown v R [2023] NSWCCA 108
Court: Court of Criminal Appeal, NSW
Date: 17 May 2023
Judges: Ward P; Walton J; Davies J

Background

Two applicants, convicted following a jury trial in the District Court, sought leave to appeal their convictions arising from a series of home break-and-enter offences across several Sydney suburbs in February 2019. The Crown's case was that the offenders operated as part of a joint criminal enterprise. One applicant was convicted of seven counts and sentenced to five years and six months' imprisonment; the other was convicted of nine counts and sentenced to six years and six months' imprisonment.

At the outset of the trial, one of the twelve empanelled jurors was discharged for misconduct following a joint application by all accused and the Crown. The trial then proceeded with eleven jurors. During the trial, the Crown relied substantially on circumstantial evidence, including CCTV footage, asking the jury to identify the applicants by comparing the footage with photographs taken at arrest and with the applicants as they appeared in the courtroom.

Each applicant raised a distinct ground of appeal. The first challenged the trial judge's refusal to discharge the entire jury after the individual juror was removed. The second challenged the adequacy of the trial judge's directions to the jury regarding the CCTV identification evidence.

  • Whether the trial judge erred in refusing to discharge the whole jury under s 53C(1)(a) of the Jury Act 1977 (NSW) after discharging the single juror for misconduct, thereby allowing the trial to continue with eleven jurors.
  • Whether CCTV footage used by the Crown to identify an accused constituted "identification evidence" within the meaning of s 165 of the Evidence Act 1995 (NSW), such that specific warnings or directions were required.
  • Whether the trial judge was required to give a so-called Shepherd direction (an "indispensable link" direction) instructing the jury that, unless it was satisfied beyond reasonable doubt the accused appeared in the CCTV footage, it must acquit.

Decision

On the jury discharge ground (first applicant): The Court granted leave to appeal but dismissed the appeal. Under s 53C(1)(a) of the Jury Act, a trial judge must discharge the whole jury after discharging an individual juror only if the judge forms the opinion that there is a risk of a substantial miscarriage of justice. Once that evaluative judgment is made and the judge concludes no such risk exists, there is no residual discretion to discharge the whole jury. The Court found no inconsistency between the trial judge finding misconduct by the discharged juror and simultaneously concluding that no risk of substantial miscarriage of justice arose from continuing with eleven jurors. No specific act of misconduct by any other juror was identified, and it was not suggested how the discharged juror's conduct could practically have influenced the remaining jurors.

The Court also addressed the argument that the prima facie right to trial by a jury of twelve, under s 19 of the Jury Act, had been improperly disregarded. That right is necessarily limited by s 22 of the same Act, and the trial judge had in fact considered the desirability of a twelve-person jury before ordering the trial to continue with eleven.

On the identification directions ground (second applicant): The Court refused leave to appeal on both grounds advanced. The CCTV footage in question did not constitute formal "identification evidence" within s 165 of the Evidence Act in the strict sense. The trial judge had directed the jury to use the CCTV footage itself rather than stills, and the visibility difficulties were self-evident to the jury. In those circumstances, no special warning was required, and the Court distinguished the present situation from the principles established in Domican v The Queen.

On the Shepherd direction point, the Court accepted the Crown's submission that such a direction would have been confusing on the facts. There was a real possibility the jury could have found the accused appeared in some but not all segments of the footage, yet still be satisfied of guilt beyond reasonable doubt when the other evidence was taken into account. A blanket direction requiring acquittal if the accused could not be identified in "any" CCTV footage would not have accurately reflected the jury's task. No miscarriage of justice was established.

Orders Made

  • Application by Brown: Leave to appeal granted. Appeal dismissed.
  • Application by Haines: Leave to appeal refused.

Key Takeaways

  • Under s 53C(1)(a) of the Jury Act 1977 (NSW), the obligation to discharge the whole jury following the removal of an individual juror arises only if the trial judge forms the opinion that there is a risk of a substantial miscarriage of justice. Once the judge determines no such risk exists, no discretion to discharge the full jury remains.
  • A finding of misconduct against a discharged juror does not, without more, require the whole jury to be discharged. The applicant must point to some practical way in which the discharged juror's conduct may have influenced the remaining jurors.
  • CCTV footage used to invite jury comparison with an accused does not automatically constitute "identification evidence" attracting the warnings under s 165 of the Evidence Act 1995 (NSW), particularly where the jury can view the footage directly and any visibility limitations are obvious.
  • In dismissing both appeals, the Court confirmed that a Shepherd "indispensable link" direction is not required where the circumstantial evidence item in question (here, CCTV footage) is not an essential precondition to guilt on every charge, and where giving such a direction would mislead or confuse the jury.
  • The failure by trial counsel to seek a particular direction at first instance remains a relevant consideration on appeal, and the applicable court rules governing such omissions were applied by the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6B
- Evidence Act 1995 (NSW), ss 116, 152, 165; Pt 3.9
- Jury Act 1977 (NSW), ss 19, 22, 53B, 53C; Pt 7A
- Crimes Act 1900 (NSW), ss 97(1), 112(2), 113(2), 114(1)(a), 154A(1)(b), 154F
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Key Cases:
- Watson v R [2022] NSWCCA 208
- Haile v R [2022] NSWCCA 71
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Bulejcik v The Queen (1995-96) 185 CLR 375; [1996] HCA 50
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Farrell v The Queen (1998) 194 CLR 286; [1998] HCA 50
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398