Barber v R; Zraika v R

1. [1]

   JUDGMENT of THE COURT delivered by BASTEN JA: The applicants for leave to appeal are two of four accused put on trial together for offences arising out of the death of Raymond Pasnin in Pendle Hill in October 2013. There was no dispute that one of the accused (Daniel Haile) shot the victim. He claimed that he acted in self-defence, but the jury convicted him of murder.

2. [2]

   A second offender and former girlfriend of the victim, Louise Spiteri-Ahern, was charged with the murder and, in the alternative, with soliciting Haile to murder the victim. The jury was unable to agree in relation to Ms Spiteri-Ahern.

3. [3]

   Shortly after 3pm on Thursday, 9 June 2016, the jury having advised that they were unable to reach a verdict, the trial judge, R S Hulme AJ, discharged them both with respect to the charges against Ms Spiteri-Ahern and with respect to the present applicants. The applicants, who thereby lost an opportunity for an acquittal following a lengthy trial, sought leave to appeal the decision to discharge the jury with respect to them.

4. [4]

   Counsel for the applicant April Barber applied to the trial judge for a stay of his order discharging the jury: that application was refused. The following morning, Friday, 10 June 2016, there was an application to this Court for a stay. Although the jury had already been discharged, and over the objection of counsel for the prosecution, this Court ordered a stay and gave directions to the Sheriff to advise the jurors that the order discharging them was the subject of an appeal, that this Court had stayed the order, that the appeal would be heard on Tuesday, 14 June 2016 and that pending further advice from the Sheriff, they should abide by the orders made during the trial not to discuss the case with others or inquire of others about matters relating to the trial.

5. [5]

   Following that order and direction, the long weekend intervened. On Tuesday, 14 June 2016 the Court heard the application for leave to appeal. Leave was granted in each application, but the appeals were dismissed. The Court reserved its reasons. These are the reasons of the Court for the orders made on Tuesday, 14 June. It is convenient to outline first the circumstances which gave rise to the application.

Background circumstances

1. [6]

   There were only two issues to be determined by this Court, namely (a) whether the trial judge was wrong to discharge the jury with respect to the charges against the applicants, and (b), if so, whether the Court should set aside the order, or grant other relief.

2. [7]

   The indictment provided to this Court included four counts. The first charged Daniel Haile and Louise Spiteri-Ahern with murder; the second was an alternative count against Ms Spiteri-Ahern that she “did solicit” Daniel Haile to murder the victim. The third count charged April Barber with inciting Haile and Spiteri-Ahern to murder the victim. The fourth count charged Amin Zraika with concealing a serious indictable offence because he knew of the matters alleged against Ms Barber and failed to report those matters to the authorities.

3. [8]

   The first issue of significance for present purposes arose from the manner in which the jury were instructed to address the charges. In a report furnished to this Court pursuant to s 11 of the Criminal Appeal Act 1912 (NSW), the trial judge described the course taken in that regard in the following terms:

4. [9]

   The last reference to “Mr Haile” was clearly intended to be a reference to Mr Zraika. It followed that, at the time the jury was discharged, they had neither been instructed by the judge in relation to the particular evidence relevant to the applicants, nor had they been directed to consider the charges against them.

5. [10]

   After setting out some circumstances relating to the lengthy period of deliberation, the judge explained the final steps taken in the following terms:

6. [11]

   The first question is whether the judge was correct in discharging the jury on that basis. However, before considering that question it is necessary to set out some further details in relation to the procedure adopted immediately prior to the discharge of the jury.

7. [12]

   First, the trial had run, with some short interruptions, from 22 February 2016 until 20 May 2016 when the jury were directed to consider their verdicts with respect to Mr Haile and Ms Spiteri-Ahern. The jury returned its verdict of guilty of murder with respect to Mr Haile on 6 June 2016. They were directed to continue to deliberate with respect to Ms Spiteri-Ahern and did so for three further days before they reported that they were unable to reach agreement.

8. [13]

   Secondly, over the period of the trial, the jury had been reduced to nine members. It was open for the trial to proceed despite the reduction in numbers, pursuant to s 22 of the Jury Act 1977 (NSW). However, the reduction below 11 members meant that any verdict was required to be unanimous. [1]

9. [14]

   There was no dispute in this Court that, as a result of the formulation of the charges, the trial judge was correct in saying that, given the failure to agree with respect to Ms Spiteri-Ahern, the only affirmative verdict that could be reached with respect to the applicants was the acquittal of each. Accordingly, the discharge of the jury in circumstances where it had not been required to consider its verdict with respect to the applicants, left open the possibility that they and Ms Spiteri-Ahern could be put on trial again with respect to the unresolved charges.

10. [15]

    Finally, it should be noted that, although the judge prepared a report for this Court, he did not deliver a judgment with respect to his decision to discharge the jury. Following the discharge of the third juror, he did give reasons for not discharging the remaining members of the jury, pursuant to s 53C(1) of the Jury Act, a judgment delivered on 6 June 2016. With respect to events thereafter, the Court was provided with copies of the transcript of 7, 8 and 9 June 2016. The judge stated to the jury, after receiving the note to the effect that they were unable to reach a unanimous verdict:

11. [16]

    After some further words of explanation in relation to the system and expressing the Court’s thanks to the jury for their contribution, the following exchange took place with Ms Francis, counsel for Ms Barber: [2]

12. [17]

    The prosecutor then objected to the exchange occurring in front of the jury, presumably on the ground that they might not be discharged. The jury was then discharged and the judge made the following further statement:

13. [18]

    Although there was no discussion with counsel immediately prior to the statements set out above, there had been consideration in the morning as to what steps should be taken if the jury were deadlocked. The trial judge noted that they could not convict Ms Barber if they did not convict Ms Spiteri-Ahern, noting with respect to Ms Barber that “they could theoretically acquit her, they could, on the other hand, disagree.” The prosecutor agreed with that assessment but said that “to send a jury out where the only verdict they could reach is a verdict of not guilty would be manifestly unfair because the danger that there would be pressure on the jury to produce a result in such a circumstance has in it such a degree of procedural unfairness that it should not be done.” [3]

14. [19]

    Counsel for Ms Barber took issue with the proposed course of action and the reasoning behind it. Counsel for Ms Barber, in a submission adopted on behalf of Mr Zraika, stated: [4]

15. [20]

    The prosecutor’s submission in response was merely that the situation was not the same as if the jury had been sent out to consider all four accused at the same time. [5]

16. [21]

    In the light of these earlier exchanges, it is clear that all counsel had a sufficient opportunity to address the Court in relation to the circumstances that eventuated.

Nature of appeal

1. [22]

   The right of appeal to this Court, with leave, arises under s 5G of the Criminal Appeal Act, which reads as follows:

2. [23]

   This provision was inserted by the Jury Amendment Act 2008 (NSW), following upon recommendations made by the NSW Law Reform Commission in September 2007. [6] In R v Abdul-Razzak [7] this Court considered an appeal by the Director of Public Prosecutions pursuant to s 5F of the Criminal Appeal Act (providing an appeal against an interlocutory judgment or order) in circumstances where the trial judge had decided to discharge the jury, but had not taken that step pending an indication that the prosecutor intended to appeal. In the event, the Court held there was no error in the approach proposed by the trial judge. However, the Court noted submissions by Mr Game SC for the accused that there had been no judgment or order to appeal and that, once one was made, it would not be an interlocutory order, but a final order bringing the trial to an end. [8] Those circumstances cast doubt on the availability of an appeal under s 5F, which have been resolved by the enactment of s 5G.

3. [24]

   It was accepted by both parties, in accordance with the established approach to appeals in this jurisdiction, that the applicant was required to establish an error of the kind identified in House v The King [9] including, relevantly, that the judge had acted upon a wrong principle or had made a decision which was unreasonable or plainly unjust.

Whether error established

1. [25]

   The underlying circumstances which gave rise to the discharge of the jury with respect to two accused as to whose guilt the jury had not deliberated, did not themselves reveal error. In Smith v The Queen [10] a jury in a conspiracy case had been sent out to consider their verdict with respect to a particular accused who was alleged to have conspired with each of the other accused. They returned a verdict of guilty. The judge then summed up specifically in relation to each of the other accused persons, guilty verdicts being returned by the jury. On an appeal to the High Court the validity of that course was challenged. Menzies J (with whom other members of the Court agreed) stated: [11]

2. [26]

   That objection was rejected on the basis that a person could be tried for, and convicted of, conspiracy alone. [12] Otherwise, the Court concluded that the trial judge “had a discretion to conduct the trial as he did, and that, in choosing the course which was followed, there was no error of law.” [13] Whilst agreeing that the course taken was not wrong in law, Walsh J continued: [14]

3. [27]

   This was not a conspiracy trial, nor was the Court invited to conclude that the approach adopted in separating the accused for the purpose of the jury considering their verdicts, was erroneous. There was no material before this Court to suggest that that course should not have been taken.

4. [28]

   Nevertheless, the result that the jury was unable to agree in relation to Ms Spiteri-Ahern was seen to give rise to a dilemma as to what course should be taken with respect to the two accused whose cases had not been addressed by the jury.

5. [29]

   There is much to be said for the position taken by the applicants in this Court, namely that, having been charged and tried with serious offences which, at least with respect to Ms Barber, could have led to a conviction for being an accessory to a murder, they were entitled to have verdicts unless the trial had miscarried.

6. [30]

   There are a number of ways in which a jury trial might not reach a final verdict. One possibility is that, where jurors are discharged in the course of a trial, so that, by a process of attrition, there is no longer an adequate number to allow the trial to continue, in accordance with s 22 of the Jury Act. That had not occurred in this case, but it appears that the trial judge was concerned about the length of the trial (which had exceeded expectations). [15] The jury had retired to consider the charges against Mr Haile and Ms Spiteri-Ahern at about 11am on May 20 and had concluded that they could not agree with respect to Ms Spiteri-Ahern at 3pm on 9 June, a period of some 15 days.

7. [31]

   The judge stated in his report:

8. [32]

   Whether such circumstances could have warranted the discharge of the jury, over the objection of an accused, was not addressed specifically in submissions before this Court. It is sufficient to say that the material which was before the Court did not warrant the discharge of the jury over the objection of two of the accused. That factor justifies a grant of leave to appeal.

9. [33]

   It should be added that it was not appropriate for the prosecutor to complain of “unfairness” if the charges against the applicants were to be left to the jury.

Availability of relief

1. [34]

   On the basis that there was error in failing to put the charges against the applicants to the jury, it is necessary to consider whether relief should now be granted under s 5G of the Criminal Appeal Act.

2. [35]

   The difficulty at the heart of the application arose from the fact that the trial judge declined to stay his decision to discharge the jury. As a result, the jury separated on the understanding that their functions had been completed.

3. [36]

   The directions subsequently given by this Court, and transmitted to the members of the jury by the Sheriff, were that they should continue to act in accordance with the directions given by the trial judge, namely that they should disregard media publicity, not make inquiries about matters outside the courtroom and not discuss the case with others. That communication was conveyed to all members of the jury, but not until about 24 hours after the order discharging them. In these circumstances, the prosecutor submitted that the Court should be satisfied as to what he called “presumptive prejudice”. That expression appeared to cover the likelihood that jurors would have had extraneous discussions about the case, examined material on the internet and had regard to publicity from other sources.

4. [37]

   In response, counsel for the applicants submitted that the case should not be disposed of on such presumptions, and that there were powers available under the Jury Act which would allow the judge to determine whether there had in fact been extraneous communications, the effect of which could not be dissipated by appropriate directions.

5. [38]

   Counsel for Ms Barber also referred the Court to the consideration given to such issues by the Supreme Court of the United States in Dietz v Bouldin, [16] a decision handed down on 9 June 2016.

6. [39]

   The case involved a civil trial in which the jurors had delivered a verdict and were discharged. The trial judge, immediately realising that the verdict was not legally available, ordered the clerk to bring the jurors back, a direction which was effected before they left the building. (One had left the building, but only to obtain a receipt for expenses and had returned immediately.) The first question considered by the Court was whether, in the absence of a specific rule, the judge had an inherent power to reassemble a jury after discharge. The opinion of the Court, delivered by Sotomayor J, upheld that power but noted that it should be “exercised with restraint” and subject to careful consideration of discretionary limits. [17] The Court noted:

7. [40]

   The reasons of the Court [18] stated that the trial judge in considering whether to rescind a discharge order should determine whether any juror has been “directly tainted”, for example by discussing the case with others and the judge should also take into account “factors that can indirectly create prejudice in this context, any of which standing alone could be dispositive in a particular case.” Three particular factors were identified: [19]

8. [41]

   Although the Court held there was no abuse of power in the case before it, the Court emphasised that it was dealing with a civil case and not a criminal trial. (Indeed it was a very small claim, arising out of a motor vehicle accident.) The court referred to its own decision in Remmer v United States [20] in which it had said:

9. [42]

   Similar considerations arise in this jurisdiction, although due regard must be paid to constitutional differences and differences in the relevant statutory schemes governing trials. Nevertheless, the factors to be considered are common.

10. [43]

    The first consideration is that the jurors in the present case were discharged, and were entitled to consider themselves free of the immediate obligations imposed on them and applicable during the trial, for a period of some 24 hours. Secondly, there was before this Court some evidence of pre-trial publicity which suggested that the initial crime had received considerable coverage in the media, both at the time of the offence in 2013 and again on 6 June 2016, following Mr Haile’s conviction. There was, therefore, a very real prospect that members of the jury would have considered extraneous material, discussed the case with friends and family and, away from the “crucible of the jury’s group decisionmaking enterprise”, [22] reassessed the material they had heard at the trial, free from the effect of the directions given by the trial judge.

11. [44]

    The suggestion that the effect of actual prejudice could be assessed by the trial judge raises additional difficulties. While it is an offence for a juror to make inquiries about matters relevant to the trial, except in the proper exercise of his or her functions as a juror, pursuant to s 68C of the Jury Act, any such inquiries made in the present case would not have been made whilst the person was a juror for the trial of the matter and hence would not have constituted any offence under that provision. Importantly, the power of the judge to examine a juror on oath to determine whether such conduct has occurred, pursuant to s 55DA of the Jury Act, would be unavailable.

12. [45]

    The judge also has power to examine a juror to determine whether the juror has read, seen or heard alleged prejudicial material “published or broadcast during the trial” and whether such juror has been influenced by the material. [23] However, the present hypothesis concerns material which may have been published after the trial was understood to have concluded. There would be a live issue as to whether jurors could properly be examined pursuant to that provision on the basis that the trial had not been completed once the order discharging the jury was revoked.

13. [46]

    There may be other powers of inquiry vested in a trial judge, but this possibility was not explored. There are other difficulties in belatedly recalling the jurors. The matters referred to by the trial judge in his report, set out at [31] above, are not to be disregarded. Although the judge was careful to state the limitations on his opinion, the circumstances of the trial give them a significant degree of plausibility.

14. [47]

    Pursuant to s 5G of the Criminal Appeal Act, this Court is required to act expeditiously in determining such appeals. Although, as in Abdul-Razzak and other matters, the Court has been able to address the application for leave and the appeal within three working days of the decision of the trial judge, the fact that a long weekend intervened is also not to be disregarded.

15. [48]

    A combination of the circumstances set out above satisfied the Court that, the jury having in fact been discharged, it was not an appropriate case in which to intervene. Accordingly, the appeal was dismissed.

Other matters

1. [49]

   In recommending the provision of a right to appeal, with leave, with respect to the discharge or non-discharge of an individual juror or the whole jury, the Law Reform Commission expressly took into account the ability of this Court to deal with such questions expeditiously. [24] That fact, together with the statutory requirement for a determination “as soon as possible”, make it appropriate that, in all but exceptional cases, a judge who is minded to discharge a juror or the jury, over the opposition of one party, should stay his or her decision to allow an application to be made to this Court, if so requested. There will, of course, be circumstances where, because the trial judge is not persuaded that any other course is reasonably available, or for other reasons, the decision should be given effect immediately. However, those cases will be the exception to the rule.

2. [50]

   A second matter to be noted was an application on behalf of the applicants that there be a permanent stay with respect to the charges laid against them. There were two difficulties in acceding to that course. The first was that the Director had no notice that such an application was to be made. The second was that such an order could properly be made only after the Director had decided whether to present a further indictment involving the applicants. That step may or may not be taken: it involves the independent exercise of the prosecutorial discretion which is not within the control of this Court. If the applicants were to be charged on a fresh indictment, they would have available to them the right to seek relief by way of permanent stay or otherwise, based on the circumstances revealed by the present application. The dismissal by this Court of the appeal under s 5G should not be taken to influence the way in which such an application is determined, if it becomes necessary. It certainly does not preclude such an application, nor any anticipatory application which may now be made to the Director being given independent and unfettered consideration.