Al-Salmani v R

1. [1]

   BELL CJ:

Introduction

1. [2]

   On 20 December 2019, a jury found the applicant, Mouhimen Al-Salmani, guilty of three counts of aggravated dangerous driving occasioning death pursuant to s 52A(2) of the Crimes Act 1900 (NSW). The trial was presided over by O’Brien DCJ (the trial judge). Subsequently, the applicant was sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 8 years. The applicant now seeks leave to appeal from his conviction.

2. [3]

   At trial, the Crown’s case was that, on 18 January 2017, the applicant drove a gold Citroen dangerously when under the effects of methylamphetamine and entered a “critical speed yaw” during which the vehicle lost traction with the road and travelled into the path of oncoming traffic. Thereafter, the vehicle collided with a Honda Jazz whose three occupants were killed as a result.

3. [4]

   The vehicle’s movements were captured on CCTV footage obtained from surrounding premises. It was observed travelling at speed and weaving in and out of traffic. That footage, together with other evidence such as tyre marks observed at the crash scene, was used by Mr Gavin Lennon (a crash scene expert) to estimate that the vehicle was travelling at no less than 108km/hr in a 60km/hr zone. This finding was consistent with the fact of the vehicle having entered a “critical speed yaw”.

4. [5]

   The applicant’s case at trial was that, after arguing in the vehicle, Ms Dahlia Olwan, his girlfriend and passenger, suddenly and unexpectedly applied the handbrake which led to the crash. Ms Olwan gave evidence denying that she had applied the handbrake. Images of the vehicle taken after the collision suggested that the handbrake was engaged. Mr Lennon’s evidence, however, was that the handbrake could not have been engaged at the time of the collision and that it must have been subsequently applied. Questions were put to the applicant about whether he had engaged the handbrake following the collision, which he denied. Questions were not put to any of the first responders who gave evidence in the Crown case as to whether they had applied the handbrake after the collision.

5. [6]

   The applicant also sought to argue at trial that he was not impaired by the consumption of illicit drugs but rather, on the basis of the evidence of Dr Michael Robertson (pharmacologist and toxicologist), his presentation was more consistent with shock following a traumatic event. The Crown relied on the expert assessment of Dr Judith Perl (forensic pharmacologist) who considered that the applicant’s dilated pupils and a white substance around his mouth observed by a first responder, together with his erratic driving and toxicology results, supported the case that he was affected by methylamphetamine at the time of collision.

6. [7]

   Although originally listed for two weeks, after commencing on 12 November 2019, the applicant’s trial lasted for nearly six weeks with the verdict being delivered on Friday 20 December 2019. During the trial, by way of various jury notes, the jury indicated its concern as to the trial’s expected completion date and several jurors also sent notes flagging pre-existing travel commitments in the lead up to Christmas. Ultimately, two jurors were discharged during the trial.

7. [8]

   On 13 December 2019, the applicant’s counsel made an application, which was opposed by the Crown, for the jury to be discharged on a number of bases including that it was subject to time pressure due to the expansion in the trial’s length and the imminence of the Christmas period. His Honour declined to rule on that part of the application and considered that the issue could be revisited if necessary. The application was revisited on 20 December 2019, but the jury was not discharged before the return of the verdict later on the same day.

8. [9]

   The draft Notice of Appeal was in the following terms, noting that the fourth “omnibus” ground and ground 1(iii) were added during the course of the hearing of the appeal:

Ground 1

1. [10]

   Grounds 1(i) and (iii) can conveniently be dealt with together. They relate to the fact that photos taken after the accident showed that the handbrake of the applicant’s vehicle was engaged, and the fact that there was an issue as to when it was engaged with Mr Lennon’s evidence being to the effect that it could not have been engaged prior to the collision. So also, the applicant’s expert, Dr George Rechnitzer, said in his report that “while it appears unlikely that anybody would have applied the handbrake at the scene post-collision, this may also need to be considered.”

2. [11]

   As noted at [5] above, some of the first responders at the scene of the collision were called in the Crown case and were not asked whether they had applied the handbrake after the collision. The applicant complained at the trial, and now complains on appeal, that they should have been, asserting that the failure to do so amounted to a breach of the requirements of the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn).

3. [12]

   This ground of appeal misconceives what that so-called rule in Browne v Dunn requires. It is essentially a rule of procedural fairness which requires notice to be given to a witness in cross examination of any intention to impeach the credibility of his or her account, so that the witness has a chance to respond: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [70]-[71]; Scaysbrook v R [2022] NSWCCA 6 at [92].

4. [13]

   The question of whether a first responder may have engaged the brake after the collision was not part of the Crown case, and the possibility that a first responder may have done so only arose as a result of questioning of Mr Lennon by the applicant’s counsel at trial, Mr Scragg, and after the first responders had given their evidence, as will be seen below.

5. [14]

   In his “Collision Reconstruction & Analysis Report”, Mr Lennon expressed the opinion that the vehicle had entered a “critical speed yaw” resulting in the collision. His view was that, contrary to the applicant’s account of the events, several elements of the crash scene were inconsistent with the handbrake having been applied prior to the collision.

6. [15]

   During cross-examination, Mr Lennon was taken to photographs of the vehicle taken after the collision in which it appeared that the handbrake was engaged. The following exchange then took place between counsel for the applicant and Mr Lennon:

7. [16]

   In re-examination, the following exchange took place between the Crown and Mr Lennon:

8. [17]

   Following re-examination, counsel for the applicant raised a concern as to the suggestion arguably implicit in the last question asked by the Crown in this part of the transcript, namely that the handbrake may have been applied by a first responder:

9. [18]

   A number of points may be made at this stage. First, it was the applicant’s counsel who, in asking the question - “You wouldn't suggest, would you, that traffic investigators would do such a thing?” - first introduced the possibility that the handbrake may have been applied by a first responder. Second, Mr Lennon did not contend that this was the case. When it was put to him that it was “really just speculation on [his] part”, he replied, “yes, and I said that from the beginning”. Third, the trial judge made it plain that the Crown could not advance a positive case that one of the first responders had applied the handbrake after the collision. It did not do so.

10. [19]

    The Crown was later given permission, over objection, to ask the applicant about whether he had engaged the handbrake after the collision. The applicant denied having done so.

11. [20]

    In closing address, the Crown said the following with respect to the application of the handbrake following the collision:

12. [21]

    In summing up, the trial judge said the following to the jury in relation to the handbrake:

13. [22]

    Ms Rodger, who appeared for the applicant in this Court, accepted in oral argument that if one of the first responders had been questioned and admitted to applying the handbrake following the collision, this would have supported the Crown’s case, rather than that of her client, because it would have been inconsistent with the applicant’s evidence that his passenger had applied the handbrake whilst the vehicle was in motion. However, it was her submission that, if the evidence of all first responders had been that none of them touched the handbrake, there would have been a strong inference available in support of the applicant’s case that the handbrake must have been applied by his passenger prior to the first responders reaching the vehicle.

14. [23]

    I do not agree. The inference would equally have been open that it had been applied by the applicant after the event. It was never part of the Crown case that the handbrake had been applied by a first responder. The trial judge properly did not permit such a case to be advanced in the absence of evidence, and there was nothing improper about what was put to the jury.

15. [24]

    The Crown case rested on the fact that the handbrake had not been applied at the time of the collision and it was thus not to the point whether it was applied subsequently by the applicant or some other person. It was open to the jury to accept Mr Lennon’s evidence that the physical evidence at the crash site was inconsistent with the brake having been applied prior to the collision, a version of events that was inconsistent with the applicant’s account.

16. [25]

    Nor was there any unfairness to the applicant of a kind that the rule in Browne v Dunn is designed to protect against. The Crown fairly put to the applicant whether he had applied the handbrake after the collision. He maintained that he had not. Had the Crown put the submission it did in final address, namely that it was a logical inference that he had done so, without having given the applicant the opportunity to deny this, that may well have involved a breach of the rule in Browne v Dunn. But this was not the case.

17. [26]

    Appeal ground 1(i) is not made out.

18. [27]

    Turning to appeal ground 1(iii) which relates to the Crown’s obligation to present the whole case and call all relevant evidence (see Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [383], [404] and MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57 at [87]-[88]), what was relevant in this case was whether, as the applicant claimed, the handbrake had been applied by his passenger prior to the collision or whether the collision was the result of his dangerous driving.

19. [28]

    If the jury rejected the possibility that the handbrake had been applied prior to the collision, it was not relevant how it came to be engaged or partially engaged after the collision, as depicted in photographs. A fair presentation of the Crown case did not require it to call all first responders to give evidence as to whether any of them had engaged the brake after the event. If any of them said they had done so, that would have been wholly adverse to the applicant’s defence. If none of them said they had done so, the jury would still have been faced with the expert evidence of Mr Lennon that the road markings were inconsistent with the handbrake having been engaged at the time of the collision.

20. [29]

    There was no breach by the Crown of any relevant obligation in the presentation of this aspect of its case. The possible engaging of the handbrake by a first responder was raised as a result of a loose question by the applicant’s counsel which called for and resulted in speculation. Mr Lennon’s response was accepted to be speculative and was not permitted to be used by the Crown as a result of a clear ruling by the trial judge, and it was not so used.

21. [30]

    Further, the failure to examine the first responders on their potential application of the handbrake must be understood in the context of the trial as a whole, including the fact that there was considerable evidence of the applicant’s dangerous driving, evidence of intoxication and the CCTV footage in which the applicant could be observed speeding and darting in and out of traffic. It could not be said that the failure to examine the first responders as to whether any of them had engaged the handbrake after the collision gave rise to a “real chance” that the Crown’s conduct was “capable of affecting the result of the trial” or had the “capacity for practical injustice”: Hofer v The Queen (2021) 395 ALR 1; [2021] HCA 36 at [41], [47] and [118]; Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 at [74]; see also Zhou v R [2021] NSWCCA 278 at [22].

22. [31]

    Turning then to ground 1(ii), this ground alleged that a miscarriage of justice arose from the fact that the applicant’s expert pharmacologist and toxicologist, Dr Robertson, was cross-examined as to his credibility without notice or prior leave as required by s 103 of the Evidence Act 1995 (NSW) (Evidence Act).

23. [32]

    Dr Robertson’s evidence went to the question of whether the applicant’s symptoms of impairment pointed to by the Crown’s expert, Dr Perl, were consistent with shock following the collision, rather than illicit drug use.

24. [33]

    In the course of the Crown’s cross-examination of Dr Robertson, the following exchange took place:

25. [34]

    The Crown Prosecutor asked three more questions of Dr Robertson before completing his cross examination. Dr Robertson was then re-examined by Mr Scragg for the applicant. At a particular point in the re-examination, Mr Scragg sought to raise a number of matters with the trial judge in the absence of Dr Robertson and the jury. One of these matters related to the question asked by the Crown Prosecutor to which objection was taken, namely whether Dr Robertson had been fired from some earlier employment. The relevant portion of the transcript reads as follows:

26. [35]

    Shortly thereafter, the trial judge issued the following direction to the jury in relation to that line of questioning:

27. [36]

    When considering the duties of a prosecutor, it is always salutary to refer to the oft-cited restatement of those duties by Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; [1983] HCA 42:

28. [37]

    These obligations require a prosecutor to be meticulous in observing requirements in the Evidence Act which are calculated to ensuring that a trial does not miscarry. Where the Evidence Act requires the leave of the Court to adduce certain evidence, that will invariably be because of the legislature’s concern that, without the filter of leave, prejudicial evidence may be adduced which may jeopardise the fairness of the trial.

29. [38]

    Section 103 of the Evidence Act is one such requirement. It operates as an exception to the credibility rule set out in s 102 which simply states that “credibility evidence about a witness is not admissible”. Section 103 provides that:

30. [39]

    In Montgomery v The Queen [2013] NSWCCA 73 (Montgomery) at [6], Simpson J (as her Honour then was) observed that it was:

31. [40]

    There can be no doubt that, in the present case, the prosecutor was in error in seeking to ask the question he did without the leave of the Court. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 (Libke) at [2], Gleeson CJ emphasised that questions of degree were involved in any assessment as to whether the conduct of a prosecutor as cross-examiner resulted in an unfair trial and a miscarriage of justice and noted that it is:

32. [41]

    On the other hand, where the trial judge has intervened and acted expeditiously to correct or remediate any overstepping of conduct by a prosecutor, that will be some evidence of the trial judge’s assessment that any prejudice occasioned was capable of being cured by a suitably worded direction to the jury: see, for example, Anderson v R (2010) 202 A Crim R 68; [2010] NSWCCA 130 at [34]; Fadel v R (2017) 94 NSWLR 670; [2017] NSWCCA 134 at [89]. Also relevant will be whether trial counsel who raised the objection in the first place was content with the course taken by the trial judge: Crofts v The Queen (1996) 186 CLR 427 at 431-432; [1996] HCA 22 (Crofts); Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [456], [498].

33. [42]

    Ultimately what is determinative is whether the objectionable part of the question was such as to be productive of an unfair trial: Montgomery at [181]. In my opinion it was not.

34. [43]

    First, the initial question asked of Dr Robertson did not pertain to him directly but rather to a “toxicologist beneath [him]”, although the second question asked concerned Dr Robertson himself. Unlike Libke, where there was a lack of objection to improper questioning, in the present case, Mr Scragg immediately objected to the proposed question, and the witness was not required to answer it. Thirdly, the trial judge gave a clear direction to the jury very shortly after the question had been asked and objected to, saying to the jury that:

35. [44]

    Mr Scragg, who had been assiduous in raising objection to the question in the first place, indicated that he was content with the trial judge’s direction.

36. [45]

    Also of some relevance is the fact that complaint is really only made in relation to one question which appears to have been the result of genuine oversight on the part of the prosecutor, rather than the employment of a deliberate and improper forensic course. So much emerges from the prosecutor’s candid acknowledgment of the impropriety of the question, as noted in the extract of the transcript at [34] above: “Your Honour, on reflection is a matter I should have sought leave about and I didn't and I apologise for that. That was an oversight.” The case is a world away from the “wild, uncontrolled and offensive” cross-examination in Libke, so characterised at [121] of that decision.

37. [46]

    Considering the issue in the context of the entirety of the trial, including the objection to the question, its disallowance and the trial judge’s direction to the jury, the objectionable question did not result in an unfair trial of the applicant or any miscarriage of justice.

Ground 2

1. [47]

   The applicant’s second ground of appeal was that, in giving evidence when under cross-examination as to the time it would take for the “effects of shock” to affect the applicant, Dr Perl gave evidence outside her area of expertise. It was thus contended that the admission of this evidence was contrary to s 79(1) of the Evidence Act and gave rise to a miscarriage of justice.

2. [48]

   Dr Perl, whose evidence went to whether the applicant was impaired at the time of the collision and whose curriculum vitae was in evidence, has a Doctor of Philosophy in pharmacology (1988) and since 1979, has been involved in research relating to the effects of alcohol and other drugs on cognitive functions and skill performances, particularly driving ability. She has also published widely in this field and has acted as a consultant pharmacologist for the New South Wales Police since 1984.

3. [49]

   Dr Perl formed the opinion that the applicant was impaired on the basis of a toxicology report from 18 January at 2.45pm which suggested that there was both amphetamine at a level of 0.2mg/L and methylamphetamine at a level of 0.1mg/L in the applicant’s blood together with footage of the applicant’s driving and the account of a first responder, Mr Lyle Walker, who observed that the applicant had dilated pupils and saliva around his mouth.

4. [50]

   The core of Dr Perl’s opinion on the extent of the applicant’s impairment was as follows:

5. [51]

   In cross-examination, the following exchange took place between the applicant’s counsel and Dr Perl:

6. [52]

   It was the applicant’s submission that, although Dr Perl’s “specialised knowledge based on … training, study or experience” was in pharmacology, “[u]nfortunately Dr Perl was asked questions [by the applicant’s counsel at trial] outside of her expertise in relation to the period of time expected for the symptoms of shock to manifest as a result of major trauma”. Reference was made to Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (Dasreef) at [32] and [37] and the High Court’s discussion in that case of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita). What was said in Dasreef at [37] was that it is:

7. [53]

   These observations, and those in Makita, were directed towards the admissibility of an expert’s written opinion. In the present case, the objection raised for the first time on appeal concerned evidence given by the Crown’s expert when under cross examination in answer to questions from the applicant’s counsel. There was no objection to the admissibility of that evidence when it was given nor any attempt to have it struck from the record or by way of a direction to the jury to disregard it.

8. [54]

   In oral submissions, counsel for the applicant relied on the definition of “pharmacology” as being “a branch of medicine concerned with the uses, effects and modes of action of drugs”. It was put that Dr Perl’s training, study and experience as a pharmacologist rendered her suitably qualified to give opinions as to the extent to which the applicant was impaired as a consequence of methylamphetamine use but that her opinions on the “bodily manifestation of symptoms of shock as a result of major trauma such as a car accident” were outside her relevant field of expertise.

9. [55]

   The Crown in response argued, first, that the applicant had failed to demonstrate that Dr Perl’s impugned opinions were not substantially based on her qualifications as a pharmacologist specialising in crash investigations, including the effects of illicit drugs on the human body and behaviour under varied conditions.

10. [56]

    In written submissions the Crown contested the applicant’s narrow conception of the field of pharmacology and the breadth of Dr Perl’s specialised knowledge, based on training, study and experience in pharmacology. It was submitted that pharmacology “necessarily involves understanding the naturally occurring symptoms, signs and chemicals within the human body particularly those associated with injury that could operate to account for … physical symptoms associated with a particular drug”. Additionally, the Crown argued that, in order to outline and give reasons for her view that the applicant was affected by methylamphetamine, Dr Perl had to be able to discount any other reason for that presentation such that her evidence as to the effects of shock was within her pharmacological expertise.

11. [57]

    Alternatively, it was contended, correctly, that the opinions expressed by Dr Perl need not have been based only on her formal academic qualifications in pharmacology. Rather, opinions can be supported by specialised knowledge based on experience and, as evidenced by Dr Perl’s curriculum vitae, she is a highly experienced expert who has given evidence in numerous driving cases across an extended period of time. It was thus put that the applicant had also failed to demonstrate that Dr Perl’s long experience (as opposed to formal qualifications) did not provide a sufficient basis upon which to express the opinions she gave as to the likelihood that it was shock, as opposed to methylamphetamine, that had affected the applicant’s eyes in the period shortly after the collision.

12. [58]

    The Crown also pointed out that similar questions were put by the applicant’s counsel to his own expert, Dr Robertson, whose experience and expertise, like Dr Perl, also lay in pharmacology and toxicology. The applicant did not in submissions in this Court illustrate how the specialised knowledge or expertise of Dr Robertson differed from that of Dr Perl such that he was appropriately qualified to give evidence on the effects of shock in ways that she was not.

13. [59]

    The fact that Dr Robertson also gave evidence as to the effects of shock undermined whatever (if any) cogency existed in the attack on Dr Perl’s expertise. It suggested that the impugned topic upon which both Dr Perl and Dr Robertson were asked questions was in fact within their expertise. The applicant’s written submission on appeal to the effect that this aspect of Dr Robertson’s evidence was in fact beyond his expertise did not rise any higher than assertion.

14. [60]

    Even if it were able to be demonstrated that opinions as to the effect of shock were beyond the expertise of both Dr Perl and Dr Robertson, which it was not, the fact that both side’s experts gave evidence on this topic greatly diminished any likelihood of a miscarriage of justice having occurred.

15. [61]

    In this context, the Crown also submitted that, even if the relevant aspect of Dr Perl’s evidence went beyond her training, qualifications or expertise, a miscarriage of justice did not arise. It was submitted that the now impugned evidence was elicited by the applicant’s counsel at trial with a forensic motivation, namely to pursue an alternative hypothesis upon which the applicant’s case at trial rested and that no objection was raised to the now impugned evidence at the time it was given, nor at any other time during the trial, and that a direction to limit or exclude the use of the evidence was not sought.

16. [62]

    The Crown’s submission was thus that, rather than giving rise to a miscarriage of justice, the admission of Dr Perl’s evidence concerning the symptoms of “shock” was the result of a forensic choice pursued by the applicant’s trial counsel.

17. [63]

    I accept the submissions advanced on behalf of the Crown.

18. [64]

    It is important to differentiate between a case where an admissibility objection is taken to an expert’s written evidence or report and evidence given by an expert orally in chief or given when under cross examination. In the case of objection being taken to an expert’s report, that will occur before the report is tendered. The jury is thus immunised from the receipt of expert evidence that might otherwise be objectionable on the basis that it transcends the witness’ expertise, or does not adequately disclose the expert’s reasoning process or the assumptions upon which it is based.

19. [65]

    When objection is taken to such evidence, moreover, it will often be possible, subject to considerations of fairness to the objecting party, to cure any deficiencies by adducing supplementary evidence going, for example, to the extent of a witness’s particular experience on a topic which is contended to be beyond his or her expertise, or clarifying the expert’s reasoning process or exposing any underlying assumptions upon which the evidence is given.

20. [66]

    By way of contrast, a cross examining counsel has the ability to confine cross examination to the fields of a witness’s expertise and if the cross examiner chooses to go beyond that field, that is the consequence of the cross examiner’s forensic choice. The very fact that the question is asked of the expert necessarily implies an acceptance by the cross examiner that the expert is capable of answering it within the expert’s field of expertise.

21. [67]

    Of course, non-responsive answers given by an expert when under cross examination which stray beyond the field of that witness’s expertise may be the subject of objection which may require a voir dire. It will be a rare case, however, where responsive answers by an expert to a cross examiner’s questions would be objectionable, and it is incumbent on counsel to raise any objections on the basis that an expert has strayed beyond his or her expertise at the trial.

22. [68]

    For the above reasons, I reject the second ground of appeal.

Ground 3

1. [69]

   The applicant’s third ground of appeal asserted that a miscarriage of justice had occurred by reason of a “multi-factorial time pressure situation” in which the jurors were not free to deliberate without any pressure being imposed upon them.

2. [70]

   It is a fundamental rule that the jury must be free to deliberate without any form of pressure being imposed upon it, whether by way of promise, threat or otherwise: R v Black (1993) 179 CLR 44 at 46, 50; [1993] HCA 71; R v Tangye (1997) 92 A Crim R 545 at 550.

3. [71]

   At the outset of the trial, the jury was advised that the trial was expected to run for two weeks. In fact, the trial went for almost six weeks from 12 November 2019 until 20 December 2019.

4. [72]

   During the trial, the jury sent several notes expressing concern as to the length of the trial and its expected completion date.

5. [73]

   On 28 November 2019, after the trial had been running for two weeks, notes were sent by the jury which included the following:

6. [74]

   On 6 December 2019, a first juror was discharged due to a pre-arranged overseas trip.

7. [75]

   Later on the same day, the trial judge instructed the jury to come in at 9.30am on Monday 9 December 2019 and advised that there would be longer sitting days finishing at 4.30pm in order to “move it [the trial] more speedily”.

8. [76]

   On 9 December 2019, the following note was received from the jury:

9. [77]

   Later on 9 December, the applicant’s case opened and the trial judge reminded the jury that they would be sitting on until 4.30pm that day and would do so for the remainder of the week.

10. [78]

    On 10 December 2019, the trial judge instructed the jury to make arrangements such that the court might sit until 5pm the following day in order to “keep the trial moving”.

11. [79]

    On 11 December 2019, a jury note was received in the following terms:

12. [80]

    On 12 December 2019, the jury sent further notes documenting that one juror would need to leave for a holiday by 3pm on 20 December and another by 4pm on 23 December.

13. [81]

    On Friday, 13 December 2019, a second juror was discharged due to their pre-arranged holiday commitment.

14. [82]

    Later on 13 December 2019, an application was made to discharge the jury. This was advanced on two bases:

15. [83]

    In support of the second aspect of the discharge application, Mr Scragg’s submissions were as follows:

16. [84]

    In refusing to discharge the jury on the impartiality ground, the trial judge referred to R v Ahola (No 6) [2013] NSWSC 703 at [17]-[18], Miller v The Queen [2015] NSWCCA 206 at [126], R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [45] and Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]. His Honour then noted:

17. [85]

    As to the second aspect of the application, namely that the jury was subject to time pressure, the trial judge said that “[t]hat can be revisited by Mr Scragg if and when it becomes appropriate to do so”.

18. [86]

    This practical and succinct response did not attract any demur from Mr Scragg, and rightly so. The application was premature and the trial judge’s adoption of slightly extended sitting hours was a practical measure entirely within his discretion and designed to allay any prospect that the jury would feel pressure and have inadequate time when it came to consider its verdict.

19. [87]

    On Thursday 17 December 2019, there were delays in sourcing an Iraqi interpreter when the proceedings commenced. The trial judge observed that:

20. [88]

    In the course of exchanges between the trial judge and counsel on the morning of 17 December, the Crown said:

21. [89]

    After some further discussion, the following exchanges occurred:

22. [90]

    This is an important exchange, not least because of Mr Scragg’s observations which were effectively entirely consistent with the pragmatic approach the trial judge had taken to the discharge application the previous Friday (see [85] above).

23. [91]

    On 18 December 2019, there was some issue as to whether the applicant had withdrawn instructions in relation to his counsel. The issue was resolved and the applicant’s case recommenced at 1:32pm and closed on the same day. The Crown delivered its address to the jury and Mr Scragg commenced his address which was completed the following morning.

24. [92]

    On 19 December 2019, the Crown requested that the trial judge ask the jury to consider whether, in the event that it was were unable to reach a verdict, the members of the jury would be willing to sit longer to deliberate. That course of action was opposed by the applicant’s counsel on the basis that it would send a message to the jury that it was being placed under pressure to return a verdict. The following exchange then occurred:

25. [93]

    Later that morning, in the absence of the jury, the trial judge flagged that the Court may sit until 5pm but that possibility did not eventuate as two members of the jury needed to leave by 4 pm. The trial judge noted that:

26. [94]

    The trial judge commenced his summing up to the jury and, before completing his summing up, said to the jury:

27. [95]

    After the conclusion of the summing up, counsel were asked whether either of them had anything to raise. Other than some brief discussion in the absence of the jury as to provision of copies of some exhibits to the jury, nothing was raised and, in particular, nothing was raised about the jury having an inadequate period of time within which to consider a verdict. The Crown prosecutor mentioned, immediately before adjourning, that if by the end of the following day the jury had not reached a verdict, “I've already flagged what application I'll be making, your Honour, if we reach that stage. Which we may not, but if we do I'll have an application at that point.” This was a reference to the potential application that he had foreshadowed, as referred to in [88]-[89] above. His Honour then adjourned the Court with the jury to commence its deliberations at 8.30am the following morning.

28. [96]

    At the commencement of the following morning, following an application by Mr Scragg for the trial judge to summarise for the jury the evidence of the applicant, his Honour did so, and the jury then retired at 9.20am to consider its verdict.

29. [97]

    After the jury had retired, but before the judge formally adjourned, the Crown raised with the trial judge the deferred application by the applicant for a discharge of the jury as disclosed in the following passage:

30. [98]

    The jury subsequently requested a transcript. The trial judge noted that it was “quite a lot of evidence” and thus elected to provide the jury with all of the evidence, rather than removing only those parts which it had not requested. The applicant’s counsel noted his obligation to check the transcript and promised to do so as quickly as possible such that it could be provided to the jury.

31. [99]

    It is unclear at what point the jury was provided with the disc containing the transcript before its verdict was returned at 11.45am.

Consideration

1. [100]

   Ms Rodger, who appeared for the applicant, sought to identify a number of aspects of the trial which contributed, in her submission, to the creation of a situation of undue time pressure. These were:

2. [101]

   Ms Rodger characterised the time pressure as arising in both an objective and subjective sense.

3. [102]

   Objectively, Ms Rodger suggested that the fact that Christmas was approaching, two jurors had already been discharged and further jurors were expected to be discharged at 3pm on 20 December 2019 and 4pm on 23 December 2019 meant the jurors must have been under pressure to reach a verdict.

4. [103]

   Additionally, the extended sitting hours and the concern expressed by the trial judge as to the length of the trial were pointed to. Taken together, these factors were said to establish an “atmosphere or temper” of time pressure. This expression was a reference to the language employed by Hunt AJA in El Hassan v R [2007] NSWCCA 148 at [15], in turn quoted by Rothman J in Trieu v R [2012] NSWCCA 169 (Trieu) at [28] in the context of a review of a refusal to discharge a jury. What was said in fact highlights the fact that the trial judge will usually have a superior view of issues such as pressure on a jury than an appeal court:

5. [104]

   This passage in Trieu was cited with approval in Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 at [97].

6. [105]

   It was further put on behalf of the applicant that the notes passed by the jurors to the effect that they had to leave by 3pm on 20 December 2019 and 4pm on 23 December 2019 respectively were contemporaneous statements as to the time pressure they were actually under. Ms Rodger also pointed in written submissions to the fact that the deliberations lasted less than two hours after a six week trial in which there were said to be complex legal and factual issues for determination.

7. [106]

   Although Ms Rodger acknowledged that the trial judge had explicitly directed that the jury should not feel any pressure to reach a verdict, it was put that this direction was insufficient in that, unlike the direction given in Issakidis v R (2019) 379 ALR 292; [2019] NSWCCA 302 where a miscarriage of justice was held not to have arisen, the trial judge did not specify that a verdict did not need to be returned by a particular time or date.

8. [107]

   In all these circumstances, Ms Rodger put that it was incumbent upon the trial judge to alleviate the time pressure on the jury by, at minimum, considering the Crown’s suggestion of an adjournment to January and alerting the jury to the availability of that option. This would, it was submitted, have alleviated any concern and associated pressure felt by the jury that a verdict had to be reached before Christmas.

9. [108]

   I reject these submissions. The trial judge managed the application for a discharge in an exemplary manner. He ruled that the first application was in effect premature (as it was) and it was notable that it was not in substance pressed again by Mr Scragg until it was brought up by the Crown after the jury had retired. Again, his Honour took a “let’s wait and see” approach in circumstances where consideration of the application may have proved to be unnecessary, as it did.

10. [109]

    The jurors were expressly directed to proceed at their own pace and not to feel rushed or pressured by time. No deadline was given to the jury nor was any expectation of how long the deliberations would take raised. There was nothing to suggest that the jury did not think that deliberations could not continue after the Christmas period in the event that they could not reach a verdict prior to that time.

11. [110]

    Although the jurors may have expected, on the morning of 20 December 2019, that a further two of their number may be discharged to meet their pre-existing commitments (as two had already been), there is no basis for thinking that they were aware that deliberations could not continue thereafter without consent. Moreover, as the Crown pointed out, the jury notes upon which the applicant relied to found part of his submission in relation to jury pressure had been handed up on 12 December 2019. Importantly this meant that there were no expressions of concern about time pressure in the immediate period leading up to the delivery of the verdict.

12. [111]

    Insofar as the trial judge had extended the sitting hours, the extensions of time were modest and made in consultation with the jury. Moreover, they were not insisted upon in circumstances where sitting longer hours was not convenient to one or more jurors. There was nothing artificial or conditional about the trial judge’s direction that the jury should not feel pressured. In these circumstances, it cannot be said that the conduct of the trial judge gave rise to an environment in which the jury must have felt pressured to reach a verdict.

13. [112]

    Equally, the fact that the jury deliberations only lasted two hours cannot found an inference, either alone or taken together with other matters, that the jury was subject to undue time pressure. The issues in the case were not overly complex nor many in number. The trial judge’s summing up was clear and no complaint is made in relation to it. Furthermore, the deliberation period was not the only time the jury had available to it to consider the evidence. It would be purely speculative to suggest that the length of time the jury took to reach its verdict was as the result of or evidenced time pressure which it felt under.

14. [113]

    Ground 3 also alleged that a miscarriage of justice arose because the trial judge’s failure to deal with the discharge application, either on 13 December 2019 or at a later time, constituted a denial of procedural fairness and a fundamental defect in the trial process: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [23].

15. [114]

    As already indicated, the trial judge’s decision in effect to defer that part of the 13 December discharge application on the basis that it was premature was entirely within his case management discretion. His decision attracted no demur at the time it was communicated and not another word was said about the possibility of an adjournment or discharge until 17 December when it was raised by the Crown and not on behalf of the applicant. Indeed, Mr Scragg said on that occasion, “Let's just wait and see what happens”: see [89] above.

16. [115]

    It was not raised again until 20 December, and then only when prompted by the Crown. At that time it was quite possible that the jury could have returned a verdict before any further jurors had to be discharged if, in fact, they had not already altered their other commitments that had led to the earlier jury notes. The trial judge was uniquely capable of assessing any time pressure on the jury and whether a verdict might be returned prior to a third juror needing to be discharged.

17. [116]

    The trial judge’s further decision to defer the hearing of the application on the morning of 20 December was entirely appropriate. As he indicated, it may have become appropriate later in the day if no verdict had been brought in by then but this scenario did not eventuate. The application was neither rejected nor dismissed without a hearing. As his Honour said “We can deal with all those issues if and when the need arises, later today”: see at [97] above. Ruling on the discharge application prematurely would have had little utility.

18. [117]

    Just as a decision to discharge a jury or not falls within the broad discretion of the trial judge (Crofts), so too does the decision as to when to hear a particular application. The course taken by the trial judge was, in my view, entirely open to him and appropriate in the circumstances. There was no denial of procedural fairness or any consequent miscarriage of justice.

Ground 4

1. [118]

   The fourth “omnibus” ground was that if the applicant’s three grounds of appeal did not give rise to a miscarriage of justice considered individually, they did so cumulatively.

2. [119]

   The Crown accepted that it was open for the Court, in assessing whether there was a miscarriage of justice, to combine or aggregate irregularities and that in doing so, the relevant test was whether the applicant had received “a trial according to law or has not received a fair trial”: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [14]; see, also R v Ireland (1970) 126 CLR 321 at 331; [1970] HCA 21.

3. [120]

   It was submitted by the Crown that if error falling short of a miscarriage of justice was established in relation to any of grounds one to three, it did not follow that the combination of errors would give rise to a miscarriage of justice. Rather, the asserted irregularities in grounds one to three were independent from each other and of a “markedly different character” such that their cumulative effect was less likely to give rise to an unfair trial. Furthermore, it was put that the applicant did not demonstrate that the irregularities gave rise to a miscarriage of justice.

4. [121]

   I agree. In fact, not only did each of grounds 1-3 fail, none was of any particular strength for the reasons given in some detail above.

5. [122]

   I would grant leave to appeal but dismiss the appeal.

6. [123]

   WALTON J: I agree with the Chief Justice.

7. [124]

   DAVIES J: I agree with the Chief Justice for the reasons he gives.