Bahrami v R

1. [1]

   HOEBEN CJ at CL: I agree with R A Hulme J.

2. [2]

   R A HULME J: An unusual thing happened towards the end of the trial of Said Mir Bahrami for people smuggling offences. A juror sent a note (“MFI 62”) to the trial judge indicating, among other things, that she was “being mistreated by another juror (bullying)”. There was substantial discussion between the trial judge and counsel about what should be done. No investigation was carried out as to the juror's complaint. Ultimately the judge determined to discharge that particular juror and continue the trial with the remaining jurors.

3. [3]

   Mr Bahrami was found guilty of five out of the six charges. He was sentenced to a total term of imprisonment for 11 years and 3 months with a non-parole period of 7 years and 3 months.

4. [4]

   Mr Bahrami (“the appellant”) appeals against his conviction but not against his sentence. His grounds of appeal are:

   1. (1)

      The trial judge erred in determining not to investigate the circumstances in which the jury note (MFI#62) was authored;

   2. (2)

      A miscarriage of justice was occasioned by reason of:

5. [5]

   My conclusions are that there was no error in the manner in which the trial judge approached this rather unusual issue; there was no miscarriage of justice; and the appeal should be dismissed.

The course of proceedings

1. [6]

   The appellant was arrested in Malaysia on 5 August 2011. He was extradited to Australia on 8 November 2012. His trial was initially fixed for August 2013. His Honour Judge Charteris heard pre-trial issues on 19-20 August 2013. He then vacated the trial date for reasons which included the contemporary prominence of people smuggling and immigration issues in the then current federal parliamentary election campaign.

2. [7]

   His Honour heard further pre-trial issues over three days in December 2013 and a further four days in late-January 2014. The trial commenced with a jury on Monday 3 February 2014.

3. [8]

   When the juror’s note was received on Wednesday 5 March 2014 the defence case was soon to close with the imminent completion of the Crown Prosecutor’s cross-examination of the appellant.

4. [9]

   The judge’s summing up commenced on Tuesday 11 March and the jury returned with verdicts on Thursday 13 March 2014.

The juror’s note

1. [10]

   The Crown Prosecutor commenced cross-examination of the appellant immediately after lunch on Tuesday 4 March. By lunch on Wednesday 5 March it must have been apparent that there was little of the cross-examination left. Just before taking the luncheon adjournment the judge asked the appellant’s counsel whether there would be no other witnesses in the defence case. Upon receiving an affirmative response, the judge told the jury that when the appellant’s evidence finished after lunch they would be sent home as he had to deal with some legal matters in their absence. This was the 23rd day of the trial with the jury. It had proceeded without interruption except for one day when a juror was sick (not the author of the note).

2. [11]

   At the 2.00pm resumption the judge called for the jury to return to court but a moment later announced that he had received a note which was passed to counsel to read. The note (which was marked for identification 62) read as follows:

The trial judge’s response

1. [12]

   Counsel for the appellant (who did not appear on the appeal but who was appropriately described in the Crown submissions in this Court as a “senior junior with substantial experience in complex criminal trials”) referred his Honour to the then recent decision of the High Court of Australia in Smith v State of Western Australia [2014] HCA 3; 250 CLR 473. (AB 111)

2. [13]

   The judge indicated that he was minded not to have any juror give evidence about the note; he did not want to "magnify" the issue. Rather, he would say something to the effect that tensions sometimes arise in the jury room; jurors had a duty to listen to the views of others; no juror had the right to seek to overcome the decisions of another juror or to bully a juror; and to remind them of the oath or affirmation they took to decide the case on the evidence. (AB 112)

3. [14]

   It was agreed that the jury would be sent home after the judge had spoken to them as he had indicated. Neither counsel objected to the judge taking this course, although counsel for the appellant indicated he would like to reflect on it overnight and take instructions. (AB 112-3)

4. [15]

   The judge apparently spoke to the court officer to ask him or her to bring the jury down (what he said to the officer is not transcribed). He then said that the officer had told him that "the individual concerned feels very upset and doesn't want to come into the courtroom as a result of the exchange". (In oral submissions there was some debate about what "exchange" his Honour was referring to. (T2.35; 3.37; 9.48) It is unclear but unnecessary to determine.) With the agreement of counsel, the judge asked the court officer to tell the jury that they could leave and that "tomorrow I will call all of them in and speak with them about the matter". (AB 114)

5. [16]

   The proceedings commenced the following morning (Thursday 6 March) with counsel for the appellant announcing that he had an application to discharge the jury. In the course of making submissions in support of the application he said:

6. [17]

   The judge interrupted counsel to ask why that conclusion should be drawn. Counsel retreated slightly:

7. [18]

   Counsel described the juror as being "so upset and stressed that this juror felt yesterday afternoon that he or she was unable to perform his or her duties as a juror" and (after it was clarified that the juror was female) "she felt that she was unable to sit in court and listen to the evidence". (AB 136)

8. [19]

   Counsel referred (AB 136) to s 53A of the Jury Act 1977 (NSW) which provides (relevantly):

9. [20]

   Counsel submitted that there was "misconduct, of mistreatment and bullying by one juror towards another" which impacted upon the capacity of the author of the note to bring an impartial mind to the issues in the trial; "her free will will be overborne by that conduct". (AB 136-7)

10. [21]

    The judge remarked that "one person's idea of bullying is another person's idea of a frank and robust exchange" and queried why he should respond as counsel had suggested just on the written word. Counsel then submitted that his Honour should consider calling evidence from the juror. The judge replied:

11. [22]

    The judge indicated that he proposed to bring the jury in and direct them in terms similar to the manner he had outlined the previous afternoon. Counsel then engaged in an analysis of the High Court's judgment in Smith v State of Western Australia and a discussion followed, including about the prospect of an inquiry being carried out. The judge referred to s 73A of the Jury Act ("Investigation by sheriff of jury irregularities") but counsel remarked, "that's after verdict". (AB 139-143)

12. [23]

    The judge said:

13. [24]

    Counsel referred his Honour to an extract from the judgment of Mason CJ and McHugh J in Webb v The Queen; Hay v The Queen [1983] HCA 30; 181 CLR 41 at 53, quoted in the judgment of High Court in Smith v State of Western Australia at 486 [54]:

14. [25]

    A little later, his Honour said:

15. [26]

    Counsel for the appellant responded, "I don't have any difficulty with that type of direction" but he made some suggestion as to the wording: "that the word 'free will' should be used, not 'being overborne'". (AB 144)

16. [27]

    This discussion took place before the jury were expected to return to court (at 11.30am because some jurors had medical appointments). Counsel asked the judge to "not rule on my submissions until we know what the situation is when the jury reassembles … whether or not there's been any change overnight". The judge replied, "If there's a change of circumstance, then I will revisit it." (AB 145)

17. [28]

    The judge then took the morning adjournment.

18. [29]

    After the adjournment the judge asked the court officer a series of questions from which it emerged that the juror who was the author of the note had not returned; several messages had been left on her mobile phone answering service without response; and her nominated contact person (her father) had been telephoned but he did not know her whereabouts. The father had volunteered, "that she has had mental illness in the past so he was a bit worried now". It was clarified that "in the past" meant before the trial. He had also said that he was going to continue trying to make contact. The court officer had told him that if the officer managed to make contact or if she turned up at court, he would let her father know. (AB 149-152)

19. [30]

    The focus of the discussion that ensued was upon the fact that the juror was not in attendance; her apparent avoidance of any contact being made; and "she seems to have decided she's not coming to court". The Crown Prosecutor agreed that the latter was a reasonable inference but counsel for the appellant submitted that "it's a little too early to say that your Honour". He asked that more time be allowed, until 2 o'clock. (AB 152-3)

20. [31]

    Reference was made to the prospect of continuing the trial with the remaining jurors (10 because a juror had been discharged at an earlier stage). The judge raised the prospect that if he did discharge the juror who was the author of the note, before deciding whether to proceed with the remaining jurors he would ask each of them whether they felt that in any way their will had been overborne and whether they felt that they could discharge the duty as jurors. He would then hear submissions about whether to continue the trial. Counsel for the appellant said, "I agree with that course, your Honour". (AB 153-4)

21. [32]

    The court officer confirmed that he had tried to make contact with the juror again but had been unsuccessful. By now he had left four voicemail messages for her. The officer had also spoken again with her father and he had not heard from his daughter. (AB 156)

22. [33]

    The judge indicated that he had been contacted during the luncheon adjournment by "one of the senior people in the Sheriff's Department [sic] as to what step the Sheriff could take". He said:

23. [34]

    The judge raised the provision in s 53B of the Jury Act which included the discretionary power to discharge a juror in certain circumstances, including if:

24. [35]

    The Crown Prosecutor said that "there's no reason why your Honour shouldn't exercise that power. If a juror is unable to attend or chooses not to attend, without explanation, then clearly in my submission they can't perform their functions as a juror". (AB 157)

25. [36]

    The judge asked counsel for the appellant "what do you say" and the following exchange ensued:

26. [37]

    The judge delivered an ex tempore judgment in which, after recounting the facts he said:

27. [38]

    The judge then sought submissions as to whether, pursuant to s 53C of the Jury Act, the trial should continue or the balance of the jury should be discharged. Section 53C(1) provides (relevantly) that if a juror is discharged, the court must discharge the jury if the court is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. If the court is of the opinion that there is no such risk, then (subject to s 22), the court must continue with a reduced number of jurors.

28. [39]

    The Crown Prosecutor supported the continuation of the trial. His Honour then turned to counsel for the appellant:

29. [40]

    The discussion that followed concerned the content of the questions that would be posed for each juror. Counsel for the appellant agreed that posing the questions before considering whether to discharge the jury was "in the circumstances of this case … entirely appropriate". (AB 168)

30. [41]

    The judge had caused to be prepared a document for each juror (headed with their juror number) which posed the following questions:

31. [42]

    The jury was brought back into court. Immediately prior to giving them the questions, his Honour said a number of things to them about the events of the previous 24 hours and the context in which the questions were being asked. What his Honour said included:

32. [43]

    After making a number of remarks about the need for jurors to listen to the opinions of others, discuss the evidence and "freely, politely and respectfully exchange views", his Honour continued:

33. [44]

    Having then said something of the content of each of the questions posed, his Honour continued:

34. [45]

    His Honour then reminded them that he expected the evidence in the trial would be complete within about half an hour and that what would follow was the party's addresses and his own summing up. The jury then retired to answer the questions. Once the jury had left the court room the judge sought comment about what he had said:

35. [46]

    After a short adjournment the judge advised the parties of the jurors' responses which were all in the affirmative. Most of them had simply written against each question "Yes" but some had added remarks:

36. [47]

    The following exchange occurred:

37. [48]

    Another ex tempore judgment was given:

38. [49]

    The jury were brought back into court and told that the each member had responded to the questions in the affirmative and the judge had resolved to continue the trial. (AB 178)

Some principles fundamental to the competing cases on appeal

1. [50]

   Mr Game SC submitted at the outset of the hearing of the appeal that the case depended upon the principles in Webb v The Queen; Hay v The Queen. He put it quite frankly: "We either succeed on that basis or we don't succeed". (T2.10)

2. [51]

   The "principles in Webb v The Queen; Hay v The Queen" was a reference to the test therein laid down for determining whether an irregular incident involving a juror warrants, or warranted, the discharge of a juror or the jury which was described by Mason CJ and McHugh J as follows (at 53):

3. [52]

   The test was derived from earlier decisions concerned with the test to be applied when a question of bias of a judge arises which their Honours described as follows (at 47):

4. [53]

   Mr Game emphasised that the test so expressed twice uses the word "might". (T3.43)

5. [54]

   In Smith v State of Western Australia the High Court held that the Western Australian Court of Appeal had erred by not applying the test in Webb v The Queen; Hay v The Queen when a juror left behind a note which came to light after a guilty verdict had been returned ("I have been physically coerced by a fellow juror to change my plea"). Applying the test for itself, the High Court found that it was "not possible to exclude a reasonable suspicion that the note described conduct which was an offence". It said (at 487 [59]), "if a court of appeal is unable to exclude a real suspicion that a juror has been improperly influenced, then the conviction cannot be allowed to stand".

6. [55]

   The Crown pointed to some fundamental matters derived from Wu v The Queen [1999] HCA 52; 199 CLR 99. The issue in that case concerned a juror who was absent through illness who was discharged by the trial judge with the trial continuing nonetheless. Included in the various issues raised on appeal was a contention that the trial judge should not have acted so peremptorily in discharging the juror. To this suggestion that there should have been some delay, perhaps even for weeks or months, Gleeson CJ and Hayne J said:

7. [56]

   In speaking of the provisions of s 22 of the Jury Act, but in terms just as applicable to the power to discharge a juror in s 53B(d) ("any other reason affecting the juror's ability to perform the functions of a juror"), their Honours said (at 105 [14]):

8. [57]

   Their Honours also said (at 105 [16]) that "it is not right to assume … that the power to discharge a juror because the juror is ill requires in every case some elaborate factual inquiry about the juror's health". The fact that the juror was absent was the critically important fact. Why she was absent was important only in deciding how long the interruption to the proceedings would be.

9. [58]

   Counsel for the Crown also submitted that the following passage in the judgment (at 106 [18]) described what should have been the central focus of the trial judge when the issue arose upon receipt of the juror's note:

Submissions and consideration

1. [59]

   The appellant submitted that the terms of the note (MFI 62) were sufficient to create reasonable grounds for suspecting that one juror had exercised unlawful intimidation over another which would be "a serious breach of the presuppositions of the trial" (Smith v State of Western Australia at 486 [54]). The juror's reluctance to come back into court after having sent the note was said to strengthen those grounds. It was submitted that it was open to the trial judge to have questioned the author at that time in an attempt to establish the genesis of the note. (AWS [99])

2. [60]

   It was submitted that "you had to get the juror in and find out what the situation is … you can't ignore an allegation of bullying". It was also submitted that the trial judge's proposal of speaking to the entire jury foreclosed the possibility of finding out from the juror what the nature of the bullying was. (T3.8; 4.8)

3. [61]

   The note did not positively assert that there had been bullying in the sense of an attempt to intimidate or coerce the juror in relation to an issue concerning the trial, although it must be accepted that something like that might have prompted it. It was well possible, as the trial judge observed, that the juror perceived robust discussion as something that caused her to feel stressed and unwell which prompted her to characterise it as bullying.

4. [62]

   What to do in these circumstances is a matter about which the minds of trial judges might reasonably differ. In my view, it was open to the judge in this case to speak with the jury as a whole. It was understandable that he would be reticent about inquiring into what was going on the jury room. The first response of the experienced counsel who appeared for the appellant at trial did not involve any opposition to his Honour's suggestion (although he did ask for the opportunity to reflect upon it overnight and to take instructions).

5. [63]

   As he articulated it the following morning (AB 138), the judge was minded to include in what he told the jury that "if any juror feels that the conduct of another juror is interfering with that juror's capacity to discharge the functions of the juror, then drop me a note".

6. [64]

   If the judge did speak to the jury as a whole in the manner he proposed there might have been three possible outcomes. First, there might have been another note from the juror explaining that the issue did involve an attempt to improperly intimidate or coerce her. That would certainly require some action by the judge. Secondly, there might have been another note from the juror explaining that the issue did not involve anything of that sort but something quite peripheral or unrelated. That is likely something that could be resolved in a different way. Thirdly, there might have been no further response because the juror had a better understanding of her role after having heard the judge's remarks. The possibility that a juror was being improperly intimidated or coerced but not raising it further with the judge may be excluded on the expectation that the jurors would heed the advice they had received from his Honour.

7. [65]

   The juror's reluctance to return to the court after having sent the note did not strengthen the grounds for suspecting that one juror had exercised unlawful intimidation over another as the appellant submitted. It simply confirmed what was in the note: "not up to court this afternoon". As a practical matter, it would have been unreasonable, perhaps even harsh, for the judge to insist upon the juror, or the whole jury, being brought back into court that afternoon despite what the juror had conveyed. Again, the appellant's counsel was content with the judge's suggestion that the jury be sent away with a view to some remarks being addressed to them in the morning.

8. [66]

   The juror's unexplained absence the following day was said to further strengthen the inference of mistreatment or bullying as it was open to conclude that such absence, in the context of her refusal to come into court the previous day, was related to the alleged bullying. Any remaining uncertainty should have been investigated. The juror could have been required to return to court. There had been an inability to contact her but the means of locating her had not been exhausted. (AWS [100])

9. [67]

   It was submitted that the judge should have ensured that every effort was made to investigate whether or not improper pressure had been applied to the author of the note. Section 53A required discharge of a juror if found to be responsible for misconduct. The judge should have initiated an investigation by the Sheriff; such investigation being authorised by s 73A. The judge was wrong to say that such investigations had "nothing to do with the court". (AB 157.2) (AWS [101]-102])

10. [68]

    The appellant submitted that it was erroneous for the judge to say that he "couldn't find, on the balance of probabilities that [bullying] is the reason" for the juror's absence. (AB 158.20) In his judgment concerning the discharge of the juror he made no reference to the possible link and overlooked the court's ability to further investigate it. He also made no reference to the test in Webb v The Queen; Hay v The Queen in his judgment dealing with the discharge of the individual juror. (AWS [103]; T6.30) As to the latter, it must be remembered that the judge was there dealing with the ability of the juror to perform her functions as a juror (s 53B(d)).

11. [69]

    I accept that the juror's failure to attend the following morning (6 March) strengthened an inference that the juror felt upset and extremely stressed over what she perceived as mistreatment by another juror (according to the note). However, whether such perceived mistreatment was in the form of bullying in the sense of an inappropriate attempt to intimidate or coerce her in relation to an issue in the trial is another matter.

12. [70]

    The appellant submits that this should have prompted an investigation but I cannot accept that. There was clearly no means of inquiring of the juror herself. Quite a deal of effort was devoted to try and make contact with her, directly and via her father, to no avail. The option of further delaying the trial while such attempts continued, including as Mr Game suggested by sending a sheriff's officer to the juror's home, had to be balanced against the other considerations discussed in Wu v The Queen at [18] (see above at [55]).

13. [71]

    A request to the sheriff pursuant to s 73A to carry out an investigation could have been made if there was cause to think that there was "reason … to suspect that the verdict of [the] jury … may be … affected because of improper conduct by a member or members of the jury". However, counsel then appearing for the appellant retreated from such a suggestion: "it would be perhaps taking it a little far to say that it related to a verdict or verdicts". (AB 135.47) Moreover, rather than an investigation there was alternative and more expeditious action available to the judge; that which he took.

14. [72]

    I do not accept the submission (AWS [102]) that the judge's statement that it was "nothing to do with the court" (see above at [33]) involved a misconception because the court had the power to investigate pursuant to s 73A. That statement by the judge has been taken out of context. In my view, what the judge was referring to was the physical and mental safety and wellbeing of the juror; a matter about which the Sheriff was concerned. It is not the case that the judge did nothing to investigate; he did so by posing questions to the other jurors with the concurrence of counsel.

15. [73]

    Following the discharge of the juror who was the author of the note there was no further attention given to the possibility of there having been bullying of her and identifying who may have been responsible. The judge proceeded to ask the jurors the two written questions. But before inviting the jurors' responses, his Honour made a number of comments the appellant described as "a thinly veiled signal to the jury that the resolution of the proceedings without a verdict would result in a significant waste of time and money". It was submitted that such comments were contrary to the principle emphasised in Black v The Queen [1993] HCA 71; 179 CLR 44 that a jury must be free to go about their task without any form of pressure being imposed upon them. The High Court was critical of reference being made to expense and public inconvenience. The appellant contended that the answers provided by the jurors were "unsurprising" in reflecting a confidence that they could discharge their duty freely. The reliance the judge placed on the positive jury responses (those that were more emphatic than just "yes") ignored the role the judge's comments may have had in eliciting them. (AWS [105]-[107]; [109])

16. [74]

    The Crown (correctly) pointed out that these submissions failed to acknowledge that except for discharging the remaining 10 jurors, everything that the trial judge did in this phase of the matter was affirmatively endorsed by the appellant's trial counsel.

17. [75]

    The reference to Black v The Queen does not assist the appellant. That case was concerned with comments about expense and inconvenience made to a jury which had reached an impasse during the course of deliberations; comments which were held to run the risk of a juror inappropriately compromising with other jurors in reaching a verdict: see Mason CJ, Brennan, Dawson and McHugh JJ at 50 and Deane J at 56. In the present case, the comments of the judge merely pointed out matters that would have been patently obvious to the jurors in any event and they were not made in the context of any apparent disagreement between jurors as to the verdicts to be returned. Moreover, if there was any risk that the comments might be productive of miscarriage then one would well have expected that trial counsel would have been alive to it. His response, however, was to confirm that there had been no "slip of the tongue" or anything else that the judge should say to the jury: see above at [45].

18. [76]

    Mr Game sought to distinguish the approach taken by the judge in posing questions for the jury with what occurred in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 ("Elomar v R"). (T7.30) In that case the trial judge refused to discharge the jury following incidents in which a relative of one of the accused was seen to be monitoring jurors after they had left court for the day. By inference, the person was seen on the second of the two occasions to be recording the registration details of a juror's car. This was at an early stage of what was anticipated to be (and was) a very lengthy trial.

19. [77]

    The first response of the trial judge in Elomar v R was to remind the jury of the importance of deciding the case on the evidence and not to assume that the actions of the person in question were instigated or supported by any of the accused. He then sent the jury home. The next morning he invited the jurors to self-assess their ability to discharge their duty impartially. Upon receiving an affirmative response after allowing the jury to retire to consider the issue, the judge refused an application to discharge them. It was held by this Court that the judge had applied the correct (Webb v The Queen; Hay v The Queen) test and had not erred: see Elomar v R at [292]-[324].

20. [78]

    The point of distinction Mr Game sought to raise was that the event in Elomar v R was "about some external influence on the jury whereas this is something about something going on inside the jury itself". (T7.35) With respect, however, I cannot see such distinction. Elomar v R implicitly endorsed the approach taken by the trial judge of seeking a self-assessment by jurors of their ability to discharge their duty in accordance with their oath or affirmation. (The Crown cited R v Spilios [2016] SASCFC 6 as another example where such an approach was regarded as appropriate.) In the present case, the appellant's counsel considered that "it's entirely appropriate": see above at [40].

21. [79]

    The Crown pointed out that after the judge had determined to continue the trial with the remaining jurors there were a number of notes received by the trial judge but they concerned other issues; there was no indication of any difficulties or disharmony, let alone bullying or mistreatment by one or more jurors towards another or others.

22. [80]

    A further submission was that the juror who was the subject of the discharged juror's note, and any others who may have witnessed any bullying, may have interpreted the judge's response as some form of tacit endorsement of any bullying or like conduct that had occurred. The fact, as they might have perceived it, was that the juror who had complained of bullying was no longer part of the jury while the person responsible remained with no investigation having been carried out. Further, the judge did not expressly criticise such conduct by saying, for example as he had earlier indicated he would, that jurors "had no right to seek to overcome the rights or the decision of another juror or to bully that juror". (AWS [108])

23. [81]

    The first problem with this submission is that it is based upon speculation but a more fundamental problem is that no such concern was raised by trial counsel. The judge certainly had raised the possibility of saying something to that effect but as events transpired it would seem that trial counsel did not consider it to be necessary.

24. [82]

    Finally, there was criticism of the ex tempore judgment by the trial judge determining to continue the trial with a reduced number of jurors rather than discharging them in that, like the earlier judgment discharging the individual juror, there was no reference to the test in Webb v The Queen; Hay v The Queen. (T8.25) However, and as previously observed, the earlier judgment was concerned with the issue posed by s 53B(d). The second judgment needs to be assessed in the context of the issue the judge was called upon to determine.

25. [83]

    To summarise, after the discharge of the individual juror, trial counsel for the appellant made an application that the entire jury be discharged because "there's … a rogue juror of the ten jurors who remain who is prepared to exercise intimidatory influence to get his or her point of view across". The trial judge responded by indicating that he could not assess whether this was so without asking the jurors "whether each believes that they can discharge their function as a jury to which they have sworn or affirmed and that they do not feel that their will is overborne". Trial counsel maintained his submission. The judge then explained why he would pose two questions for the jurors to answer. Trial counsel then agreed that this was appropriate. After the jurors' responses were received, counsel had nothing further he wished to put. (See above at [39], [47]).

26. [84]

    In these circumstances, having regard to the stance taken by the appellant. I am not persuaded that there was any error in the trial judge not making express reference to the test in Webb v The Queen; Hay v The Queen. The position might have been different if there had been a suggestion that notwithstanding the jurors' responses there remained an issue as to whether fair-minded people might reasonably apprehend or suspect that the remaining jurors, or any or them, had prejudged or might prejudge the case. There was no suggestion of this and, in hindsight, I do not accept that there was.

Conclusion

1. [85]

   Situations such as that which arose in this case arise from time to time but are always unique in their particular circumstances. A great responsibility falls upon a trial judge to tread what is sometimes quite a delicate path to their resolution. The judge in this case was very experienced in criminal trials, both as a judge and in his previous life at the bar.

2. [86]

   While this Court is always alive to the need to detect and deal with miscarriages of justice it is also necessary to respect the sometimes very difficult judgment calls made in the atmosphere of a trial in which there is usually little if any time for calm and leisurely reflection. Moreover, it is often the case that the atmosphere of the trial cannot only be gauged by the response of the trial judge to these types of situations, but also by the submissions that are made, particularly when experienced counsel are appearing.

3. [87]

   For the reasons given above, I am not satisfied that there was any wrong decision of any question of law or any miscarriage of justice: s 6(1) of the Criminal Appeal Act 1912 (NSW).

Orders

1. [88]

   I propose the following order:

2. [89]

   SCHMIDT J: I agree with R A Hulme J.