Agelakis v R

1. [1]

   BATHURST CJ: Mr Miki Agelakis (the appellant) was charged on indictment with the following offences:

2. [2]

   Following a trial by a jury, the appellant was acquitted of the first charge on the indictment but convicted of the second charge. The second charge was brought in the alternative to the first charge.

3. [3]

   On 22 February 2017, the appellant was sentenced to a term of 4 years imprisonment with a non-parole period of 2 years and 6 months, to date from 13 December 2016. The appellant’s non-parole period expired on 12 June 2019. The sentence will expire on 12 December 2020.

4. [4]

   It should be noted that following his conviction at the subject trial, the appellant was tried in August 2017 and found not guilty of two counts of aggravated sexual assault involving another complainant, the aggravating factor being that the alleged victim was a person under 16 years of age. The appellant had also been previously charged in July 2016 with another sexual offence in relation to another complainant, which was dismissed in the Broken Hill Local Court.

5. [5]

   The appellant appealed against his conviction on the following grounds:

6. [6]

   Following a hearing on the appeal on 2 October 2019, the Court made the following orders:

7. [7]

   These are my reasons for joining in those orders.

The Crown case

1. [8]

   Because of the concession made by the Crown at the hearing of the appeal that the grounds of appeal were made out and that it was appropriate the conviction be quashed, it is only necessary to set out the Crown case briefly.

2. [9]

   The Crown case was that the complainant was an intellectually disabled man who, at the time of the offence, lived with his sick mother and two similarly disabled brothers. He stated that he knew the appellant who worked at the Barrier Social Democratic Club (the Demo Club) and that the appellant had stated that he looked up the complainant’s address on the computer at work.

3. [10]

   The complainant alleged that on or about 19 November 2006 the appellant came to the door at his home and asked him for a “blow job”. The complainant declined. The appellant then hurdled the fence and went down a passageway at the side of the complainant’s house to an external laundry. The appellant took down his pants and lay on a table in the laundry and told the complainant to suck his penis. The complainant, who had walked through the house and out the back door to the laundry, complied because he was terrified of the appellant. When the complainant’s brother came to hang out washing on the line, the complainant told the appellant to go. The appellant dressed himself, ran out of the laundry, jumped the back fence and left.

4. [11]

   There was evidence supportive of the complainant’s account of events, particularly that of a neighbour who saw the appellant jumping over the fence. However, because of the nature of the appeal, it is unnecessary to outline the further evidence.

The circumstances giving rise to the appeal

1. [12]

   On 29 March 2019, following a complaint by the appellant, the Court of Criminal Appeal in Agelakis v R [2019] NSWCCA 71 ordered an investigation by the Sheriff of New South Wales pursuant to s 73A of the Jury Act 1977 (NSW). This was in respect of the following matters as set out in the appellant’s submissions:

2. [13]

   On 21 May 2019, a report made by the Sheriff was provided to the Court. That report, along with a statement made by a juror (Juror 3) to the Sheriff on 8 May 2019, and a transcript of an interview with Juror 1, was admitted into evidence at the appeal without objection.

3. [14]

   Juror 3’s statement referred to a conversation with another juror in the following terms:

4. [15]

   Juror 3 said that the conversation did not affect Juror 3’s decision.

5. [16]

   Juror 1 was referred in her interview to a Facebook post which said, “When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?” with a picture of an electric chair. Juror 1 agreed that she shared that Facebook page the day before she and the other jurors deliberated. She said, “Yeah I probably did because not thinking about the court, […] not thinking at all about the court because if that comes up even now, I will share because why should people touch old people or young people, your children, my children”. She agreed that her personal view was what was contained in the Facebook post, but said it had nothing to do with the court. She agreed she probably shared it again the following year, and stated that if she saw the post again, she would probably share it again.

The admissibility of the material

1. [17]

   At the hearing, both counsel for the appellant and the Crown agreed that the Sheriff’s report, the statement, and the record of interview obtained during the course of the investigation were admissible on the appeal. However, they disagreed on the basis of that admissibility. The appellant submitted that the evidence did not fall within what has been described as the exclusionary rule, namely, that the Court does not admit evidence of a person on a jury as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of a statement as to what he or she believed its effect to be: see Ellis v Deheer [1922] 2 KB 113 at 121; Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [10]. Counsel for the appellant submitted that the evidence was “extrinsic to the jury deliberations” and thus did not fall within the rule.

2. [18]

   By contrast the Crown, whilst not submitting that the exclusionary rule would otherwise apply, said the evidence was admissible in any event, by virtue of the operation of s 73A of the Jury Act.

Whether the evidence was admissible irrespective of s 73A

1. [19]

   In Smith, a person was convicted of two counts of indecently dealing with a child under the age of 13 years. After the jury had been discharged, an anonymous note was found in the jury room which claimed a fellow juror had physically coerced the writer to change his or her vote on the verdict. The High Court, reversing the decision of the Court of Appeal of Western Australia, held that the note was admissible evidence to impugn the conviction, and that it was capable of creating a reasonable suspicion that criminal conduct had influenced the vote of a juror contrary to s 123 of the Criminal Code (WA). The Court held that the matter should be remitted to the Court of Appeal to assess whether an inquiry should be conducted by the Sheriff of the juror who made the note, to resolve any doubt or ambiguity as to its true meaning.

2. [20]

   In the course of the judgment, the High Court made the following remarks concerning the limits of the admissibility rule:

3. [21]

   In dealing with the need for free and frank deliberations, the Court pointed out (at [36]-[37]) that unlawful physical coercion exercised by one juror upon another cannot properly be regarded as part of the course of free and frank deliberation by the jury, and that jurors could not sensibly be said to have an expectation that they may, with impunity, commit a crime in the jury room, secure in the knowledge that the authorities will turn a deaf ear to any complaint. So far as questions of the finality of a jury verdict were concerned, the Court stated (at [45]) that if public confidence in the system of criminal justice is to be deserved, criminal misconduct calculated to prevent free and frank deliberation by a jury must not be kept secret lest it become endemic. They stated that in such cases, the application of the exclusionary rule to preserve finality would be contrary to the first duty of the courts to preserve the integrity of the system of criminal justice which they administer.

4. [22]

   In those circumstances, the Court concluded (at [48]) that it was consistent with the rationale for the exclusionary rule to conclude that evidence by a juror that unlawful pressure or influence has been applied to him or her by another juror in relation to his or her verdict falls outside the scope of the rule.

5. [23]

   In the present case, the first complaint relates to the knowledge that one juror had of other charges against the appellant and that juror’s communication of that knowledge to another juror, Juror 3 (see [14]). Whilst the fact that the communication may not have taken place whilst the jury was formally deliberating may not be of particular significance (see Smith at [28]), evidence that a juror had knowledge of matters which should not have been taken into account by the jury in their deliberations, and had communicated that knowledge to another juror, is something which in my opinion falls outside the rationale of the exclusionary rule.

6. [24]

   The same may be said of the complaint concerning Juror 1. Her publicly expressed attitudes did not form part of the jury deliberations. The complaint in respect of Juror 1 is not that she expressed her views in an endeavour to improperly influence the jury, but rather that those views of themselves might lead a fair minded observer to conclude that she might not bring an impartial mind to her deliberations.

Section 73A

1. [25]

   In those circumstances, it is strictly unnecessary to deal with the question of whether, regardless of the exclusionary rule, s 73A of the Jury Act renders material obtained as a result of a report of the Sheriff admissible on an appeal against conviction, irrespective of whether the material falls within the terms of the exclusionary rule. However, I will make some brief comments on the issue.

2. [26]

   Section 73A needs to be considered in conjunction with s 68A, s 68B and s 68C of the Jury Act. So far as is relevant, these sections are in the following terms:

3. [27]

   Section 73A was introduced into the Jury Act by the Jury Amendment Act 2004 (NSW). In the Second Reading Speech to the introduction of the Bill, the following remarks were made:

4. [28]

   In Petroulias v The Hon Justice McClellan [2013] NSWCA 434; (2013) 246 A Crim R 6, Basten JA, after reviewing the history of the section, made the following comments (at [44]-[45]). The other members of the Court agreed with his judgment:

5. [29]

   It is arguable that it is a necessary implication from the terms of s 73A, considered in context, that use could be made of material obtained by the Sheriff, at least for prosecutions for contraventions of s 68B and s 68C of the Jury Act. Further, contrary to what was said by Basten JA, the Second Reading Speech does seem to contemplate that a Court could use the information obtained by the Sheriff in considering whether to allow an appeal against a conviction (bearing in mind the limitations that can be made on the use of extrinsic material, see Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25]; Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40 at [110]).

6. [30]

   The cases which have subsequently considered the operation of s 73A (Lane v R [2017] NSWCCA 46; Higgins v R [2018] NSWCCA 258 and Agelakis v R [2019] NSWCCA 71) did not deal with this issue.

7. [31]

   In the present case, no direct challenge was made to Petroulias, which was a unanimous decision of the Court of Appeal sitting also as the Court of Criminal Appeal. Having regard to the facts of the present case, it is unnecessary to reach a final view on the admissibility of material that is obtained as a result of an investigation pursuant to s 73A.

Whether there was a miscarriage of justice

1. [32]

   As each of the parties agreed that a miscarriage of justice occurred as a result of the matters complained of, this matter can be dealt with shortly.

2. [33]

   In Webb v The Queen (1994) 181 CLR 41 at 53; [1994] HCA 30, Mason CJ and McHugh J stated that the test to be applied for determining whether an irregular incident involving a juror warrants a discharge of the juror or jury is as follows:

3. [34]

   So far as Juror 3 was concerned, the fact that this juror had some knowledge about other charges at the time of the jury deliberations might lead a fair minded and informed member of the public to conclude that Juror 3 and the person who communicated the information would not discharge their task having regard only to the evidence admitted at the trial, but also taking into account the fact that there were other charges against the appellant. Had the matter been raised at the trial it may have been possible to deal with the problem by a warning to the jury. However, as it did not emerge until after the trial, it was impossible to take that course.

4. [35]

   So far as Juror 1 is concerned, whilst it is true that jurors will always have their own particular views and opinions about matters including matters the subject of the trial, which are generally dealt with by a warning to the jurors to act only on the evidence, in the present case, the views of Juror 1 were not only extreme but apparently persistently held over a lengthy period. In these circumstances, a fair minded observer might reasonably apprehend that the juror in question might not discharge her task impartially.

5. [36]

   In these circumstances, the matters the subject of the Sheriff’s report would have warranted the discharge of the jury. It follows that there was a miscarriage of justice and the conviction should be quashed.

6. [37]

   The parties agreed that this was not an appropriate case for the operation of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW).

Whether a retrial should be ordered or a verdict of acquittal entered

1. [38]

   Counsel for the appellants submitted that it was appropriate in the circumstances of the present case to enter a verdict of acquittal rather than order a retrial.

2. [39]

   Particular reliance was placed on the fact that at the time of the hearing of the appeal, the appellant was on parole and his sentence was due to expire on 12 December 2020. It was submitted that in those circumstances the appellant should not be put to the expense and stress of a new trial where a significant portion of the sentence had been served and where the appellant has already been released from custody: see Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14; R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [55].

3. [40]

   However, there were countervailing considerations. First, the charge is a serious one and an order for acquittal conflicts with the desirability of having the guilt or innocence of the accused determined by a jury: see Taufahema at [51]. Second, unlike many of the authorities reviewed in Taufahema (at [61]-[66]), this is not a case where the Crown would seek to bring a case different to the one which it had advanced at the trial. Third, it is generally a matter for the prosecution to determine in all the circumstances whether a further indictment should be presented. These considerations made it appropriate to order a new trial rather than to enter a verdict of acquittal. It will of course be a matter for the prosecuting authorities to determine whether or not to present a fresh indictment on count 2.

4. [41]

   For those reasons I joined in the orders made on 2 October 2019.

5. [42]

   JOHNSON J: The reasons of the Chief Justice reflect my own reasons for joining in the orders made on 2 October 2019.

6. [43]

   FULLERTON J: The reasons of the Chief Justice also reflect my reasons for joining in the orders made on 2 October 2019.