Haile v R

1. [1]

   BELL CJ: I have had the privilege of reading Bellew J’s reasons. They express with great clarity the various respects in which the trial judge erred. Those errors dictate that the appeal must succeed, the appellant’s conviction and sentence be quashed and a new trial ordered. I agree with his Honour’s reasons for those orders.

2. [2]

   The facts of this case, as explained in Bellew J’s reasons, supply a graphic demonstration as to why a Liberato direction will invariably be essential where conflicting versions of events are presented in a criminal trial. The inappropriate language of “choice” as between “competing” versions employed by the trial judge in his directions to the jury wrongly and misleadingly suggested a binary inquiry was required in circumstances where the inculpatory “version” of events may have been quite inadequate to satisfy the standard of proof beyond reasonable doubt. Just as the Liberato direction “serves to clarify and reinforce directions on the onus and standard of proof” in a case where there are competing versions of events (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [10] extracted by Bellew J at [69] below), the failure to give a Liberato direction in such a case is apt to give insufficient guidance to a jury. To give, as occurred in the trial in the present case, a positive direction or series of directions in terms of “choice” of competing versions renders it highly likely that the jury will be misguided in its deliberations, and the trial miscarry. That was regrettably what occurred in this case.

3. [3]

   I also agree with Bellew J that the trial judge’s modification of the Black direction to omit any reference to the power of the trial judge to discharge the entirety of the jury in the event of a deadlock was apt to create an intolerable choice for the juror described in his Honour’s reasons as “the third juror”: either, on the one hand, to hold to his or her conscience as to the appellant’s guilt and keep a no doubt increasingly fraught jury in deadlock, or, on the other hand, to succumb against his or her oath and contrary to his or her duty to the majority position: see s 72A of the Jury Act 1977 (NSW). The third juror’s discharge on medical grounds appeared to have been brought about by the pressure which this apparently inescapable moral dilemma presented, and followed quickly on the heels of the discharge of another juror. For the reasons given by Bellew J, this was apt to and, with hindsight, did lead to the conversion of what was likely to be a hung jury of 10 to a unanimous jury of 9, an outcome permitted under s 22(a)(iii) of the Jury Act in a trial of longer than 2 months duration. In these circumstances, I agree with his Honour that the whole of the jury should have been discharged on the discharge of the third juror. The discharge of the third juror in the particular circumstances of this trial generated the risk of a substantial miscarriage of justice within the meaning of s 53C of the Jury Act. A majority verdict is not permitted in a jury comprising 10 or fewer jurors (see s 55F of the Jury Act) but in a functional sense, that is what in substance if not in form eventuated.

INTRODUCTION

1. [4]

   On 2 February 2016 Daniel Haile (the appellant) pleaded not guilty to an Indictment alleging that on 30 October 2013, at Pendle Hill in the State of New South Wales, he murdered Raymond Pasnin (the deceased). The appellant was jointly indicted with the following co-accused:

2. [5]

   Following a trial before R S Hulme AJ and a jury, the appellant was convicted of the deceased's murder. On 9 December 2016 he was sentenced to imprisonment for 32 years with a non-parole period of 24 years. [1] The jury were discharged without being able to deliver verdicts in respect of any of the three co-accused.

3. [6]

   The co-accused were subsequently tried before Rothman J, sitting without a jury. On 21 December 2017, Spiteri-Ahern was found guilty of murder, whilst Barber and Zraika were each acquitted. [2] Spiteri-Ahern was subsequently sentenced to 30 years’ imprisonment with a non-parole period of 24 years. [3] An appeal by Spiteri-Ahern against her conviction was dismissed by this Court. [4]

4. [7]

   The appellant now seeks to appeal against his conviction on the grounds set out below.

THE APPLICATION FOR AN EXTENSION OF TIME

1. [8]

   The appellant requires an extension of time in which to bring his appeal, and in that regard relies on affidavits of Benjamin Goh of 30 July 2021 [5] and Alessandro Albanese of 11 August 2021. [6] Those affidavits set out, in considerable detail, the chronology of events following the appellant’s sentence. They establish, amongst other things, that it took those acting for the appellant almost 12 months to obtain the summing-up of the trial judge, and a further 6 months to obtain copies of all of the trial exhibits. Those delays were not the fault of the appellant, nor were they the fault of those acting on his behalf.

2. [9]

   In light of the views that I have reached regarding the various grounds of appeal, an extension of time should be granted.

THE COURSE OF THE TRIAL

1. [10]

   Given some of the issues which have been raised in the grounds of appeal, it is appropriate to set out a summary of the course of the trial. The various times and dates of events which I have cited in this judgment, particularly insofar as those events are relevant to my consideration of grounds 3, 4, 5 and 6, have been drawn from an agreed chronology which was provided by the parties, at the Court’s request, following the conclusion of the hearing.

2. [11]

   The jury were empanelled on 22 February 2016. The evidence in the trial concluded on 22 April 2016. Within that period there were, for varying reasons (including illness of members of the jury and public holidays) a total of 13 days on which the Court did not sit and hear evidence.

3. [12]

   Closing addresses of counsel commenced on 26 April 2016 and continued for five days. However, the Court did not sit at all during the following week commencing 2 May 2016, in order to accommodate a juror’s pre-arranged holiday. Closing addresses resumed on 9 May 2016 and ended on 13 May 2016 (the Court not sitting on 10 May due to illness of Spiteri-Ahern).

4. [13]

   The summing-up of the trial judge commenced on 16 May 2016 and continued over the following five days. Jury deliberations commenced at 10:47am on 20 May 2016 and a verdict of guilty was returned in respect of the appellant at 11.19am on 6 June 2016.

5. [14]

   I have made further reference to specific events which occurred in the course of the jury’s deliberations when addressing grounds 3, 4, 5 and 6 below. However, it follows from that short summary that on any view, the trial was a protracted one, and was punctuated by a large number of days on which the Court did not sit and hear evidence.

AN OVERVIEW OF THE RESPECTIVE CASES

1. [15]

   The various grounds of appeal relied upon by the appellant centre upon issues arising firstly from the summing-up of the trial judge, and secondly from the deliberations of the jury. Given that the appellant does not assert that the verdict of the jury was not open, it is sufficient, for the purposes of considering the various grounds of appeal, to summarise the competing cases at trial. In doing so I have been greatly assisted by the comprehensive written submissions filed on behalf of the appellant.

The Crown case

1. [16]

   At approximately 11:55pm on 30 October 2013, the deceased was shot and killed in the car park of a unit block in Pendle Hill (the unit block). At the time of his death, he was in the company of his then partner, Lyndal Archbold (Archbold). There was no dispute at the trial that the shot which killed the deceased was fired by the appellant. Although there were other witnesses who gave evidence of hearing gunshots and seeing the deceased at or about the time that he was killed, Archbold and the appellant were the only eyewitnesses to the shooting.

2. [17]

   Spiteri-Ahern was a former partner of the deceased who was said to harbour some animosity towards him as a consequence of the breakdown in their relationship. On the Crown case, Spiteri-Ahern and the appellant were acting pursuant to a joint criminal enterprise in which they had agreed that the appellant would kill the deceased in return for the payment, from Spiteri-Ahern, of $4,000.00. The evidence which was relied upon by the Crown at the trial included mobile telephone records establishing communications between Spiteri-Ahern and the appellant. On the Crown case, those communications had escalated in the period leading up to the deceased’s murder.

3. [18]

   The Crown asserted that the appellant and Spiteri-Ahern were assisted in the joint criminal enterprise by Barber. Barber was also a former partner of the deceased, with whom she shared a daughter. On the Crown case, Barber assisted the appellant and Spiteri-Ahern by arranging for the deceased to have access to his daughter on the day of his murder, the details of which were passed on to the appellant to allow him to locate the deceased in order to kill him. Archbold gave evidence that it was unusual for access arrangements to involve the deceased’s daughter being collected from the unit block, and that Barber had insisted that this occur on the night of the shooting. The Crown relied on mobile telephone records to establish communications between Barber and Spiteri-Ahern in the lead-up to the deceased being killed, from which it sought to infer that Barber was corresponding with Spiteri-Ahern about the arrangements which had been put in place for the deceased to be with his daughter. On the Crown case Spiteri-Ahern then updated the appellant about those arrangements.

4. [19]

   The Crown also adduced evidence from an associate of the appellant who was referred to in the proceedings as “Tom Jones” (Jones). Jones gave evidence that on 29 October 2013, the day prior to the shooting, the appellant had called asking that Jones collect him. The appellant later cancelled that request, telling Jones that he would “leave it for another night". On the Crown case, this was because the arrangements for the deceased to have access to his daughter had not yet been settled with Barber.

5. [20]

   Jones gave evidence that on the following day, 30 October, the appellant contacted him again and asked to be collected. When Jones did so, the appellant was in possession of a plastic bag which contained a change of clothes. Jones drove the appellant to a location near the unit block where the appellant got out of the car, requesting that Jones wait for him to return. At about 11:00pm, the deceased entered the vicinity of the unit block accompanied by his daughter. Jones said that after approximately half an hour, the appellant returned and said words to the effect:

6. [21]

   On the Crown case, this statement was a reference to the appellant being misinformed by Spiteri-Ahern about the arrangements which had been made for the deceased to have access to his daughter.

7. [22]

   Jones said that after the appellant had returned to the car, and at the appellant’s request, he (Jones) drove to another location where, on the Crown case, the appellant contacted Spiteri-Ahern in order to clarify the deceased’s whereabouts. Following that, the appellant asked Jones to drive him back to the area of the unit block where, upon arrival, the appellant got out of the vehicle whilst Jones waited behind.

8. [23]

   By the time the appellant arrived at the unit block, the deceased was leaving the area in the company of Archbold. Archbold’s evidence was that the deceased was unarmed when they left, and that upon seeing the deceased the appellant fired a number of shots towards him. On Archbold's account, the deceased reacted by chasing the appellant, whilst Archbold ran to her car to take cover. According to Archbold, the chase ended with the appellant and the deceased in the vicinity of the car, at which time more shots were fired. Archbold got out of the car to assist the deceased, who fell to the ground with Archbold cradling him. At that point, the appellant ran from the area.

9. [24]

   Jones gave evidence that he heard gunshots whilst waiting for the appellant, who returned to the car shortly thereafter. The appellant and Jones then drove away, in the course of which the appellant told Jones that he had “fucked up". During the trip, the appellant changed his clothing and left a bag containing his original clothing in Jones' car, requesting that Jones burn it.

10. [25]

    The following morning, 31 October, Jones learned through the media of the deceased’s shooting. He contacted the police, who made arrangements to seize his car. Jones spoke with the appellant on 1 November, at which time he told him that the car, containing the appellant’s clothes, had been seized. In a statement relied upon by the Crown as an admission, the appellant replied:

11. [26]

    The Crown also relied on the evidence of Marko Pehar (Pehar) that on 3 November 2013 the appellant had asked him to contact Spiteri-Ahern and request that she pay the sum of $4,000.00. On the Crown case, this money was the payment due to the appellant for shooting the deceased.

12. [27]

    In the course of the investigation, conversations between Zraika and Barber were recorded by police, during which Zraika was said to have made statements indicating that he had knowledge of Barber’s involvement in the deceased’s shooting. Based on this evidence, the Crown alleged that Zraika was guilty of concealing a serious indictable offence.

THE APPELLANT’S CASE

1. [28]

   The appellant did not deny that he had fired the shot that killed the deceased, but asserted, in the course of sworn evidence before the jury, that he had acted in self-defence.

2. [29]

   The appellant gave evidence that he was involved in the supply of drugs, and that he had come to know the deceased as a consequence of having sold him significant quantities of ice. The appellant said that on one particular occasion on which he had supplied drugs to the deceased, the deceased had offered a firearm as a form of payment.

3. [30]

   Generally speaking, the appellant took no issue with the evidence of Jones regarding the arrangements which had been made to drive to the unit block on the night of the deceased’s murder. However, it was the appellant’s case that he had gone there, not to kill the deceased, but to recover money owed to him by the deceased from a recent drug transaction. The appellant's case was that when he first arrived, he saw the deceased returning his daughter to Barber, following which the deceased signalled him (i.e. the appellant) to wait. The appellant said that after Barber and his daughter had left, the deceased came and spoke with him, assured him that he would have the outstanding money within 40 minutes, and requested that he supply him with 2 ounces of ice.

4. [31]

   The appellant took no issue with Jones’ evidence as to what he had said when he returned to Jones’ vehicle. However, he maintained that this statement was a reference to the deceased’s failure to settle the existing debt. The appellant said that he then directed Jones to drive to a location that he (i.e. the appellant) used to store drugs, from which he retrieved the quantity of ice requested by the deceased, before returning to the unit block. The appellant agreed that he was in possession of a change of clothes at that time, and said that he adopted that practice to allow him to change his appearance so as to limit the risk of police attention during his drug dealing activities.

5. [32]

   When the appellant returned to the unit block, the deceased came outside in the company of Archbold. When they reached the car park, the deceased took the appellant aside to talk to him, with Archbold going in a different direction. At that point, the appellant asked the deceased whether he had the money, and the deceased sought to confirm that the appellant had the drugs that he had requested. When the appellant confirmed that he had the drugs, the deceased produced a firearm and pointed it at him. Fearing that he was to be shot, the appellant reacted by grabbing the firearm and twisting it from the deceased. He ran from the deceased, at which time Archbold entered the deceased's car. The deceased then moved towards the car, whilst the appellant attempted to flee. On the appellant's case, the deceased pursued him, lunging towards him and acting aggressively. The deceased then started punching the appellant, during which time the appellant raised the firearm and pulled the trigger. The deceased then came towards the appellant as though to tackle him. The appellant responded by striking the deceased to the head with the butt of the firearm. At that point, the deceased fell back and the appellant then tried to secure a firmer grip on the firearm which resulted in further shots being fired. The appellant then fled the area.

6. [33]

   The appellant took no issue with Jones’ evidence that when he returned, he changed his clothes and left his discarded clothes in Jones’ car. He said that he kept possession of the firearm but disposed of it shortly afterwards in an attempt to disassociate himself from the shooting. He said that he was unaware at the time whether the deceased was injured, and that he was concerned that he might be charged as a consequence of being in possession of, and discharging, a firearm.

7. [34]

   The appellant also took no issue with the statement attributed to him by Jones upon finding out that Jones’ car had been seized by the police. Similarly, he took no issue with the fact that he had an association with Spiteri-Ahern. On his case, that association had originated as a consequence of his supplying Spiteri-Ahern with quantities of prohibited drugs, following which a friendship had developed between them, in the course of which the appellant had loaned Spiteri-Ahern an amount of money. The appellant said that after the shooting, he did not want to have any direct contact with Spiteri-Ahern. As a consequence, he had asked Pehar to assist him in recovering the sum of $4,000.00 which he maintained was owing to him by Spiteri-Ahern.

The summing-up of the trial judge

1. [35]

   At the commencement of his summing-up, following a series of introductory remarks, the trial judge gave the jury what he described as “fundamental directions that apply in every criminal trial". [7] In the course of doing so, his Honour said: [8]

2. [36]

   Amongst those “fundamental principles” were the following: [9]

3. [37]

   His Honour then said: [10]

4. [38]

   His Honour returned to the subject of the standard of proof a short time later and said: [11]

5. [39]

   After further oral directions, his Honour provided written directions to the jury regarding the elements of the offences [12] which included a number of references to the onus of proof. Subsequently, and specifically in the context of the issue of self-defence which had been raised by the appellant, his Honour said: [13]

6. [40]

   In the third part of the summing-up, which the trial judge described as consisting of “some instructions not falling within the previous two groups and some advice as to the drawing of inferences”, [14] the jury were directed in the following terms: [15]

7. [41]

   It should be noted at this point that unlike the three co-accused, the appellant did give sworn evidence in his case. However, his Honour did not direct the jury, be it at this stage of the summing-up or at any other time, as to how the appellant’s evidence should be approached and evaluated, bearing in mind that the onus of proof was on the Crown.

8. [42]

   His Honour subsequently commenced to summarise various aspects of the evidence by reference to specific topics. Those topics, and the general structure of his Honour’s summing-up, are considered further in the context of ground 2. However, in the course of dealing with one such topic, defined as “The shooting and post-mortem”, his Honour said: [16]

9. [43]

   In the context of addressing the same topic, his Honour said: [17]

10. [44]

    A short time later, in addressing the head wound sustained by the deceased, his Honour said: [18]

11. [45]

    In addressing a further topic, defined as “Details of events in the car park”, the trial judge made reference to Archbold’s account on the one hand, and the appellant’s account on the other, in terms of what each had said had occurred at or about the time the deceased was shot. In doing so, his Honour said: [19]

12. [46]

    A short time later, having addressed aspects of Archbold’s evidence, his Honour said: [20]

13. [47]

    His Honour then said: [21]

14. [48]

    His Honour then summarised aspects of the appellant’s account of what had occurred, at the conclusion of which he said the following: [22]

The application for a Liberato direction

1. [49]

   Following these directions, counsel for the appellant (who was not senior counsel for the appellant before this Court) sought a specific direction from the trial judge, the nature of which he articulated in the following exchange with the trial judge: [23]

2. [50]

   Towards the end of the summing-up, counsel for the appellant renewed his application for a Liberato direction in the following exchange: [24]

3. [51]

   At that point counsel went on to make a further application which I have considered in the context of ground 2 below.

4. [52]

   The following exchange then took place between the Crown and the trial judge: [25]

5. [53]

   In rejecting the application for a Liberato direction, the trial judge said the following in ex-tempore reasons: [26]

The further directions of the trial judge

1. [54]

   Having determined that a Liberato direction should not be given, his Honour concluded the summing-up with the following final directions: [27]

2. [55]

   At that point the jury retired to commence deliberations.

Submissions of the appellant

1. [56]

   Senior counsel for the appellant submitted that in the various passages of the summing-up set out above, the trial judge had, in effect, repeatedly directed the jury that their deliberations required a choice between the evidence of Archbold on the one hand, and the evidence of the appellant on the other. It was submitted that in those circumstances, a “protective warning” had been required, in the form of a direction to the jury that even if they did not positively believe the evidence of the appellant, it was not open to find that the case against him was established if the evidence gave rise to a reasonable doubt.

2. [57]

   Senior counsel submitted that the Liberato direction which had been sought by counsel for the appellant constituted the minimum form of such protective warning, and the minimum means of providing the jury with a proper appreciation of the interrelationship between the onus of proof, the standard of proof, the evidence of Archbold, and the evidence of the appellant. Senior counsel acknowledged that the trial judge had directed the jury, on a number of occasions, as to the onus and standard of proof. However, it was submitted that those directions had been given in general terms, and that it was imperative that the jury understood that their task did not involve, as the trial judge had repeatedly directed, deciding or choosing between the accounts of Archbold and the appellant. Senior counsel submitted that if a reference to the jury having to decide, or choose, between those accounts was to be made at all, it should have been in terms which made it clear that even though it might have seemed like a choice was required, that was not the nature of the jury’s task.

3. [58]

   It was submitted that his Honour had erred, not only in directing the jury in the terms in which he did, but in refusing to give the Liberato direction which had been sought.

Submissions of the Crown

1. [59]

   The Crown submitted that in the circumstances of this case, a direction in the terms which had been proposed by counsel for the appellant was entirely inappropriate. The Crown emphasised that there had been an alternative case brought against the appellant, namely that even on his own evidence he had not believed that he needed to act as he had in self-defence, and was therefore guilty. It was submitted that in these circumstances, a Liberato direction simply could not have been given.

2. [60]

   The Crown further submitted that there was a need to view the summing-up as a whole, and not in piecemeal way. Adopting that approach, the Crown pointed to the directions given by the trial judge at an early stage of the summing-up as to the onus and standard of proof, and to his Honour’s final directions to the jury which contained an express reference to the importance of the jury not losing sight of the fact that the onus of proof remained on the Crown to prove its case beyond reasonable doubt. It was submitted that the terms of those directions could not have left the jury in any doubt about the nature of their task, or the fact that the onus of proof always remained on the Crown. It was submitted that those directions, which were given to the jury immediately before they retired to commence deliberations, were more than sufficient to address any risk which may have arisen from his Honour’s earlier references to the necessity to decide or choose between the accounts of Archbold and the appellant.

Consideration

1. [61]

   In Liberato v The Queen [28] the Crown case against the accused, who had been charged with rape, depended upon the evidence of the victim, MK. MK denied that she had consented to any act of sexual intercourse, and described the relevant events in terms from which it was open to the jury to infer that the accused must have had a guilty state of mind at the relevant time. The accused denied having that state of mind, and described the relevant events in terms from which it was open to the jury to infer that MK may have consented. Against that background, the trial judge, in the course of his summing-up, made reference to the jury having to choose between the evidence of the accused and MK, adding that if the jury were unable to make such a choice it would follow that they were not satisfied beyond reasonable doubt of the accused’s guilt.

2. [62]

   The South Australian Court of Criminal Appeal concluded that these directions undermined the principle that the onus of proof remained with the Crown throughout, but determined that there had been no substantial miscarriage of justice. A majority of the High Court concluded [29] that special leave to appeal should not be granted, saying:

3. [63]

   In a dissenting judgment, Brennan J (with whom Deane J agreed) said: [30]

4. [64]

   In Murray v The Queen [31] the accused had been convicted of murdering the deceased by shooting him. The accused admitted having pointed a gun at the deceased with the intention of frightening him, but denied having deliberately pulled the trigger. In the course of her summing-up, the trial judge drew the jury's attention to the prosecution and defence cases and instructed the jury that it was necessary “to decide which versions of those events” was to be accepted.

5. [65]

   The plurality [32] allowed the accused’s appeal against his conviction. Gummow and Hayne JJ said: [33]

6. [66]

   Gaudron J said: [34]

7. [67]

   In Douglass v The Queen [35] the accused had been convicted of the aggravated indecent assault of his granddaughter. The only evidence of the commission of the offence came from the victim, and the accused gave evidence denying the victim's account. In allowing an appeal against conviction, the plurality said the following: [36]

8. [68]

   Their Honours went on to cite, with approval, the passage from the judgment of Gummow and Hayne JJ in Murray extracted above. [37]

9. [69]

   In De Silva v The Queen [38] the accused had been convicted of two counts of rape. He did not give evidence at his trial but had made a number of exculpatory statements to police which were admitted into evidence. The trial judge was not requested to, and did not, give a Liberato direction. It was argued on appeal that the failure to give such a direction was an error. Whilst concluding [39] that when the summing-up was read as a whole, the trial did not miscarry by reason of the omission of a Liberato direction, the plurality [40] made a number of observations as to the circumstances in which such a direction might be appropriate. Those observations included the following: [41]

10. [70]

    Their Honours went on to observe: [42]

11. [71]

    Although the judgment in De Silva was delivered after the appellant's conviction and sentence, it was not suggested by either party before this Court that such judgment materially changed the law set out the in various authorities which preceded it. In my view, the following propositions may be distilled from those authorities, as well as from the judgment in De Silva.

12. [72]

    First, it is never appropriate for a trial judge to frame the issue for a jury’s determination as one which involves the making of a choice between conflicting Crown and defence evidence. In a criminal trial, the issue is always whether the Crown has proved its case beyond reasonable doubt.

13. [73]

    Secondly, a direction of the kind postulated by Brennan J in Liberato will be appropriate for the purposes of reinforcing directions as to the onus and standard of proof in any case where, absent such a direction, there is a risk that the jury may be left with an impression that:

14. [74]

    Thirdly, if such a direction is considered appropriate, it should be given in terms which make it clear that:

15. [75]

    Bearing in mind these principles, and for the reasons that follow, I am satisfied that this ground of appeal is made out in the present case.

16. [76]

    The trial judge appropriately directed the jury, both at the commencement of his summing-up and at its conclusion, that the Crown bore the onus of proof. However, it remains the case that on a series of occasions in the course of a summing-up which extended over a number of days, the trial judge directed the jury in terms which, expressly or by implication, framed the issue for the jury in terms of the requirement for a choice between the evidence of Archbold and the evidence of the appellant. Those directions were erroneous. The authorities to which I have referred make it clear that framing the issue in such terms is never appropriate, for the simple reason that doing so has the clear tendency to obscure the fundamental fact that in any criminal trial, the issue for the jury is whether the Crown has established its case beyond reasonable doubt. I should also say that his Honour’s direction to the jury that they should ask themselves “Why should [Archbold] lie?” was also an error, for the reasons I have expressed in considering ground 2 below.

17. [77]

    There was a clear risk that the jury may have understood that their task involved choosing between the two competing accounts. Unfortunately, that risk was created by the terms of the directions which his Honour gave, and which are set out in the passages above. Moreover, that risk was heightened, and the identified errors of the trial judge compounded, by the fact that at no stage was the jury directed as to how the sworn evidence of the appellant was to be assessed, and how that assessment was to be undertaken bearing in mind the fact that the Crown bore the onus of proof.

18. [78]

    These errors were further compounded by the trial judge’s error in refusing to give the Liberato direction which had been sought. The basis of that refusal was his Honour’s assessment that the circumstances of this case did not “bring the principles referred to in [Liberato] into operation” because this was not a case of “one witness against [the appellant]”. Analysing the case in that way may have been correct in the (very technical) sense that there were a number of witnesses called by the Crown who gave evidence as to the circumstances in which the deceased was shot and killed. However, such analysis completely overlooked the fact that there were only two eyewitnesses to the deceased’s murder, namely Archbold and the appellant. His Honour’s repeated directions as to the necessity for the jury to decide or choose between their respective accounts effectively framed the case as one in which there was indeed “one witness against [the appellant]”. Accordingly, the analysis of the case that had been conveyed by his Honour’s directions was precisely the analysis, the disavowal of which was used by his Honour as a basis for concluding that a Liberato direction was not warranted.

19. [79]

    In the course of oral submissions before this Court the Crown relied upon the decision of the Western Australian Court of Appeal in De Pledge v Western Australia [43] to support the proposition that because the Crown had brought an alternative case against the appellant, a Liberato direction could not have been crafted, and that such a direction was therefore not appropriate. I do not accept that to be the case. The fundamental conclusion reached by the Court in De Pledge was that a Liberato direction was not required because there was no conflict between the accounts of any prosecution witness and the accused. [44] Because there was no conflict, there was no risk that the jury might have viewed their task as one which required them to choose between competing accounts. That, without more, distinguishes the circumstances in De Pledge from the circumstances of the present case.

20. [80]

    Having reached that conclusion, the Court went on to state the following in a passage on which the Crown before this Court particularly relied: [45]

21. [81]

    In light of the Court’s conclusion that the circumstances of the case did not warrant a Liberato direction being given, this passage of the judgment should be viewed as obiter. In any event, and even allowing for the alternative case brought by the Crown against the appellant, a Liberato direction was clearly able to be formulated in the present case, whilst preserving the Crown’s alternative position. There was no suggestion to the contrary on the part of the Crown when opposing the direction at the time. Further, and more importantly, if the circumstances of a particular case are such as to require a Liberato direction, the fact that such a direction may require some modification to suit those circumstances is highly unlikely to ever justify a decision not to give such a direction at all.

22. [82]

    For all of these reasons, this ground is made out.

The final address to the jury of counsel for the appellant

1. [83]

   Counsel for the appellant addressed the jury over a period of two days, in the course of which he advanced a number of propositions in support of the ultimate submission that the appellant should be found not guilty. Amongst the principal submissions that counsel put to the jury were the following:

2. [84]

   In addition to putting these (and other) specific submissions, counsel for the appellant mounted, as one might have expected, an attack on the evidence of Archbold. That attack was extensive and covered, in considerable detail, numerous aspects of Archbold’s evidence of what had occurred on the night of the shooting. [57]

The summing-up of the trial judge

1. [85]

   It is convenient to begin an analysis of the trial judge’s summing-up by setting out its general structure, which was explained by his Honour as follows: [58]

2. [86]

   The “fundamental directions that apply in every criminal trial” encompassed the following propositions: [59]

3. [87]

   His Honour also gave the following further direction in this context: [60]

4. [88]

   All of those directions were repeated in a summary form [61] before his Honour said the following: [62]

5. [89]

   The trial judge then commenced the second part of his summing-up by distributing written directions to the jury setting out the elements of each offence. Those written directions were then supplemented by oral directions. [63] His Honour then commenced the third part of his summing-up [64] in which he gave the jury a number of specific directions in relation to discrete issues including the choice of the three co-accused not to give evidence, expert opinion evidence, unreliable evidence, lies, and the drawing of inferences. But for the fact that no direction was given to the jury regarding the appellant’s evidence and how it should be assessed, the second and third parts of the summing-up are, of themselves, generally uncontroversial.

6. [90]

   In commencing the fourth part of his summing-up, his Honour said: [65]

7. [91]

   The topics identified by his Honour for the purposes of this part of his summing-up were: [66]

8. [92]

   In addressing the first of those topics his Honour said: [67]

9. [93]

   His Honour then said the following about Archbold’s evidence: [68]

10. [94]

    His Honour then made reference to what he apparently perceived were inconsistencies between the evidence of the appellant and evidence given by other witnesses called by the Crown. For example, in dealing with the evidence of Tom Jones, his Honour said: [69]

11. [95]

    A short time later, in respect of the same issue, his Honour said: [70]

12. [96]

    In addressing the appellant's drug dealing activities, his Honour said: [71]

13. [97]

    In respect of the appellant's knowledge of the deceased's address, his Honour said: [72]

14. [98]

    As to the events on the night of the murder, and the appellant’s assertion of self-defence, his Honour said: [73]

15. [99]

    Later in the summing-up, his Honour addressed criticisms of Archbold’s evidence which were the subject of submissions to the jury by counsel for the appellant. His Honour scrutinised some of those submissions in a way which openly questioned the weight which might be given to them. For example, his Honour said: [74]

16. [100]

    I have previously noted in my consideration of ground 1 [75] that his Honour also posed the question, “Why should (Archbold) lie?” in his final directions to the jury.

17. [101]

    In addressing other aspects of the appellant's evidence, his Honour said: [76]

18. [102]

    His Honour also addressed one aspect of Pehar’s evidence when he said to the jury: [77]

19. [103]

    His Honour's summing-up also questioned the approach which had been taken by counsel for the appellant to the cross-examination of various witnesses. For example, when addressing aspects of the cross-examination of Archbold, his Honour said: [78]

20. [104]

    His Honour concluded his summing-up by reminding the jury of some of the submissions which had been advanced by counsel for the appellant in his closing address. [79] That summary was bereft of any reference to a number of the principal submissions put by counsel to the jury which I identified above.

21. [105]

    In considering the effect, on the jury, of what his Honour said in the passages extracted above, it is important to note that the transcript of the summing-up records a number of instances in which the foreperson of the jury interrupted his Honour and asked him to repeat matters, and/or slow down the speed at which he was speaking. [80] The only available conclusion is that at least some of the members of the jury were taking contemporaneous notes of, and thus closely following, what his Honour was saying.

The applications made at the conclusion of the summing-up

1. [106]

   At the conclusion of the summing-up, counsel for the appellant made an application to his Honour to discharge the jury, or alternatively, to “take the summing-up away from the jury …… and to start over”. [81] Counsel submitted that in dealing with the factual issues, his Honour had “embarked upon what could only be described as a second Crown address” the aim of which had been to “demolish the defence case”. [82]

2. [107]

   Counsel went on to articulate, in considerable detail, the bases of his applications by reference to statements made by the trial judge in the course of his summing-up. Counsel submitted that the trial judge had:

3. [108]

   The gravamen of these various complaints was encapsulated by counsel in the following submission to the trial judge: [87]

4. [109]

   When the trial judge called upon the Crown to respond, the following exchange took place: [88]

5. [110]

   In rejecting both applications, his Honour said the following in ex-tempore reasons: [89]

Submissions of the appellant

1. [111]

   Senior counsel for the appellant submitted that the summing-up of the trial judge was entirely unfair to the appellant. In particular, it was submitted that:

Submissions of the Crown

1. [112]

   The Crown submitted that in the course of the summing-up his Honour had made clear, in an objective way, the appellant’s case, and his evidence in support of that case. It was submitted that the complexity of the case rendered it essential that the trial judge have an appropriate degree of flexibility as to how the summing-up was to be approached and structured.

2. [113]

   It was further submitted that the approach adopted by the trial judge was appropriate because it reminded the jury of the evidence they had heard, and how that evidence fitted in to the respective cases which had been presented for their consideration.

3. [114]

   In advancing these submissions, the Crown addressed the specific passages of the summing-up set out above, and emphasised the need to read the summing-up as a whole. The Crown submitted that when this approach was taken, it was evident that the summing-up was not lacking in balance, or otherwise unfair.

Consideration

1. [115]

   In Popovic and Ors v R [90] Adamson J observed that the purposes of a summing-up are to:

2. [116]

   Her Honour went on to say: [91]

3. [117]

   Bearing in mind this general framework, the authorities establish the following propositions regarding the obligations of a trial judge in terms of a summing-up to the jury:

4. [118]

   In the circumstances of the present case, it is necessary to make specific reference to one further proposition. A trial judge's discretion to comment on the facts should be exercised with circumspection, to the point where, unless there is a specific need to do so, the wise course will often be not to comment at all. Any comment a trial judge does choose to make must exhibit a judicial balance, so that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. Comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury carry the risk of occasioning a miscarriage of justice, particularly when they amount to expressions of opinion as to the determination of disputed issues of fact. [98] There is also a degree of tension between a judge commenting on the facts, and then cautioning the jury that any opinion which might be apparent as a result should not influence them, to the point where it may become questionable whether there is any point in the comment having been made at all. As was said in R v Pavlukoff: [99]

5. [119]

   A determination of whether a comment goes beyond the bounds of what is permissible will generally depend upon its extent and content.

6. [120]

   In my view, for the reasons that follow, the summing-up of the trial judge in the present case contravened a number of the principles set out above. In particular, the comments made, and the views expressed, by the trial judge regarding the evidence, the facts, and the appellant’s case generally, extended well beyond what was permissible. The end result is that when it is viewed as a whole, the summing-up was lacking in balance, and was unfair to the appellant.

7. [121]

   To begin with, his Honour’s indication that he would not spend “a great deal of time” dealing with Archbold’s evidence was, to say the least, a somewhat curious approach given the importance of Archbold’s evidence to the Crown case, and the attack made upon her evidence by counsel for the appellant in his closing address to the jury. However, contrary to that initial indication, his Honour proceeded to spend a considerable amount of time addressing aspects of Archbold’s evidence. Some of the passages in which he did so, and which are set out above, [100] demonstrate that his Honour addressed that evidence in terms which were pejorative towards the appellant, and which had a clear tendency to question the reliability of, and generally undermine, the appellant’s case.

8. [122]

   The unfairness which resulted was compounded by his Honour repeatedly asking the question, “Why should (Archbold) lie?” Asking such a question on a single occasion would have been entirely inappropriate. [101] The fact that it was asked on several occasions, one of which was in the course of that part of the summing-up in which his Honour was summarising the submissions put by counsel for the appellant, simply exacerbated its prejudicial effect.

9. [123]

   Further, even accepting that a degree of leeway is permitted in terms of the structure of a summing up, the length and complexity of the present case demanded that there be a specific and clearly articulated summary of the appellant’s case, and the evidence relied upon to support it. No part of the summing-up answers that description. Rather, as will be evident from the passages set out above, many of his Honour’s references to the appellant’s evidence were interposed with expressions of his Honour’s personal opinions, the vast majority of which questioned the reliability of the appellant’s case, and highlighted what the trial judge obviously viewed as inconsistencies in the appellant’s evidence. Some of those expressions of opinion were openly disparaging of the appellant’s case, his Honour at one point expressing the view that such case raised “an appreciable number of questions”, before inviting the jury to “reflect on the other questions which arise”. [102] His Honour made those comments without clearly articulating what the “questions” were said to be, and how they were said to arise.

10. [124]

    These various expressions of opinion contributed to a summing-up which was unfair to the appellant. They gave rise to a real risk of the jury forming the impression that his Honour was simply advancing views of the evidence which were adverse to the appellant’s case. [103] That risk was not, in my view, ameliorated by his Honour’s direction to the jury as to how any comment he might make as to the facts should be treated. There is a clear danger that the expression of personal views of the kind repeatedly expressed by his Honour in the present case will overawe a jury, even in the face of conventional directions (of the kind his Honour gave) that the facts are for the jury’s determination. [104] Significantly, those personal views were expressed by his Honour in circumstances where he expressly acknowledged an expectation that much of what he was going to say would be “contentious”. [105] That, without more, was reason to refrain from expressing such personal views at all.

11. [125]

    Further, having read the transcript of the Crown’s closing address, I can find no reference to the Crown having made any submission to the jury based upon an asserted inconsistency arising from the applicant’s evidence as to what he had said when informed that Jones’ car had been seized, or an asserted inconsistency arising from the applicant’s evidence as to his previous drug dealings with the deceased. Notwithstanding that, his Honour expressed the view to the jury that such inconsistencies arose on the evidence. [106] Those expressions contravened the principle that except in limited circumstances (which have no application in this case) a trial judge should not, in the course of a summing-up, put propositions in support of the Crown case which were not relied upon by the Crown in the closing address. For his Honour to have done so was entirely inconsistent with judicial impartiality. [107]

12. [126]

    Moreover, and even accepting that the obligation of the trial judge did not extend to a requirement to summarise every aspect of the appellant’s case, the approach taken by his Honour to addressing the submissions put by counsel for the appellant to the jury was, with respect, perfunctory. His Honour failed to refer to many of the substantive submissions which had been advanced by counsel, in considerable detail, in his closing address. The unfairness arising from that failure was made worse by the fact that when his Honour did refer to some of the submissions, he criticised them in terms which suggested that they ought not be accepted. [108] The unfairness arising from his Honour’s failure to put the appellant’s case properly and fairly was one thing. The inappropriate deprecation of some of the submissions of counsel to which his Honour did choose to refer, was quite another.

13. [127]

    When giving reasons for rejecting the applications made on behalf of the appellant, his Honour accepted that he had spent more time addressing the Crown case than the appellant’s case, and expressed the view that this did not support a conclusion that the summing-up was unbalanced. That conclusion was perfectly correct. The issue is not the length of time devoted to the case for the Crown or the accused, but the fairness, balance and impartiality of the summing-up as a whole. [109] However, for the reasons set out above, his Honour’s summing-up was lacking in fairness and balance, to the point where it was unfair to the appellant. A miscarriage of justice has been made out because the appellant was denied a fair trial.

14. [128]

    Finally, as I have noted, [110] when giving reasons rejecting the applications made on behalf of the appellant, his Honour made reference to the fact that in the event that the appellant or any of his co-accused were convicted, this Court would “be given an opportunity of considering” whether the summing-up was unbalanced or otherwise unfair. That was entirely irrelevant to the issue that his Honour was being asked to determine.

15. [129]

    For all of these reasons, this ground is made out.

GROUND 5 – THE TRIAL MISCARRIED BY REASON OF THE DURATION OF, AND THE CIRCUMSTANCES PERTAINING TO, THE JURY DELIBERATIONS AND DELIVERY OF THE VERDICT

1. [130]

   It is convenient to deal with these three grounds together. The sequence of events set out hereunder has been drawn from the agreed chronology provided by the parties.

2. [131]

   It should be noted at the outset that although all three grounds were pressed, the submissions of senior counsel for the appellant before this Court tended to focus upon grounds 4 and 5 rather than ground 3.

The discharge of the first juror

1. [132]

   On Friday 4 March 2016, well before the close of the Crown case, his Honour informed the parties that one of the members of the jury (the first juror) was in hospital, having been admitted the previous evening. His Honour expressed the view that the first juror should not be discharged at that point, a course with which counsel for all accused agreed. [111]

2. [133]

   The trial did not resume until Tuesday 8 March 2016, at which time his Honour informed the parties that he had received a medical certificate indicating that the first juror would be “unfit for work/school/usual activities from 4 March 2016 to 11 March 2016”, and was being treated in hospital for what his Honour referred to as “some stomach condition” [112] . There was an accompanying note from the first juror's wife confirming the admission to hospital. [113]

3. [134]

   On the basis of this material, his Honour expressed the preliminary view that the first juror should be discharged, and that the trial should continue with a jury of 11. [114] His Honour then informed counsel that he had received a note from the remaining members of the jury which was in the following terms: [115]

4. [135]

   Counsel for Spiteri-Ahern informed his Honour that all defence counsel were “unanimous in the submission that we make the effort to continue with 12 jurors”, [116] and submitted that there were no grounds which would warrant the discretionary discharge of the first juror, having regard to the provisions of the Jury Act 1977 (NSW) (the Act). [117] The Crown submitted that the first juror should be discharged and that the trial should proceed with a jury of 11. [118]

5. [136]

   His Honour subsequently ordered that the first juror be discharged, and that the trial continue with a jury of 11. In ex-tempore reasons, his Honour said: [119]

6. [137]

   His Honour then informed the remaining members of the jury that in their absence, he had ordered that the trial continue with a jury of 11. [120] That jury of 11 persons subsequently retired to commence deliberations on 20 May 2016. [121]

The jury’s indication of an inability to reach a unanimous verdict

1. [138]

   On the morning of 1 June 2016, which was the eighth day of the jury’s deliberations, his Honour received a note from the jury which was in the following terms: [122]

2. [139]

   The Crown, supported by counsel for Spiteri-Ahern, Barber and Zraika, submitted that the jury should be given what is generally referred to as a Black direction. Counsel for the appellant submitted that the giving of such a direction was premature, following which there was argument as to whether or not such a direction, if given, should be followed by a direction as to the availability of a majority verdict.

3. [140]

   Although nothing turns on it, there was no substance in the submission that a Black direction was “premature”. On the contrary, such a direction was clearly warranted given the jury’s unequivocal indication that they were unable to reach a unanimous verdict at that point.

4. [141]

   Having heard submissions, his Honour concluded: [123]

5. [142]

   His Honour then directed the jury in the following terms: [124]

6. [143]

   I have considered that direction, and its effect on the events that followed, further below. At this stage it should simply be noted that the terms of the direction which was given were, as his Honour had foreshadowed, not in accordance with the form of suggested direction set out in Black v The Queen. [125] In particular, the direction was bereft of any reference to the fact that this Honour had the power to discharge the whole jury in the event that a unanimous verdict could not be reached.

7. [144]

   Following that direction, the jury of 11 continued to deliberate for the balance of 1 June 2016 without reaching a unanimous verdict.

The discharge of the second juror

1. [145]

   The transcript records that the jury returned to the jury room at 10:00am the following day, 2 June 2016. [126] To the extent that this notation suggests that all 11 members of the jury returned to the jury room at that time, it was, in light of the events which followed, misleading. I have considered these circumstances further below when addressing ground 6.

2. [146]

   When the Court was reconvened (the transcript does not indicate at what time that occurred) his Honour indicated that he had received a medical certificate under the hand of Dr Gaurav Tewary, pertaining to a member of the jury (the second juror) which was in the following terms: [127]

3. [147]

   There was general agreement between all counsel that the second juror should be discharged. However, at that point, counsel for the appellant made an application that if that course were taken, the entire jury should then be discharged. In light of these grounds of appeal, it is appropriate that counsel’s articulation of the basis of that application be set out in full: [128]

4. [148]

   The Crown did not oppose the discharge of the second juror, but did oppose the application to discharge the entire jury. In doing so, the Crown described as “pure speculation” any suggestion that the second juror was seeking to excuse themselves for the reasons advanced by counsel for the appellant. [129]

5. [149]

   In ordering that the second juror be discharged and that the trial continue with a jury of 10, his Honour said the following in ex-tempore reasons: [130]

6. [150]

   When the 10 members of the jury returned to Court at 11:17am, his Honour said the following: [131]

7. [151]

   The jury (now a jury of 10) then resumed deliberations which continued until 4:00pm that day without reaching a verdict. [132]

The illness of the third juror

1. [152]

   The transcript of proceedings on the following day, 3 June 2016, records that the jury continued to consider their verdicts at 10:00am. [133] The Court then reconvened (again, the transcript does not indicate precisely when this occurred) at which time his Honour indicated that he had received a note regarding another member of the jury (the third juror) which was in the following terms: [134]

2. [153]

   Having read the note, his Honour said: [135]

3. [154]

   Counsel for the appellant, supported by counsel for Barber, then said the following: [136]

4. [155]

   His Honour indicated that he was prepared to make that request.

5. [156]

   When the jury returned to Court at 11:05am, his Honour repeated the terms of the note before saying: [137]

6. [157]

   In light of the views that I have reached in relation to this ground, it is noteworthy that although his Honour told the jury (in the italicised portion of the passage above) that he had the power to “excuse one of the jury”, the jury were (and remained) unaware that his Honour had the power to discharge the entirety of the jury in the event that a unanimous verdict could not be reached. The purported Black direction which had previously been given had also omitted any reference to that power. [138]

7. [158]

   The jury left Court at 11:10am. Sometime later (again, it is not precisely clear how long) his Honour received a further note which was in the following terms: [139]

8. [159]

   In the absence of the jury, his Honour said: [140]

9. [160]

   Counsel for the appellant, whilst expressing concerns about what he described as “this developing situation”, did not oppose the course that his Honour foreshadowed. [141]

10. [161]

    When the jury returned to Court at 11:42am, his Honour said the following: [142]

11. [162]

    The foreperson of the jury was then affirmed and gave the following evidence in answer to questions from his Honour: [143]

12. [163]

    A second member of the jury was then affirmed who gave the following evidence in answer to questions from his Honour: [144]

13. [164]

    Following this evidence, the jury were directed to continue their deliberations at 11:51am. [145]

14. [165]

    At this point, counsel for the appellant made a further application that the jury be discharged in the following terms: [146]

15. [166]

    Whilst the Crown opposed the application that the jury be discharged, the Crown acquiesced to his Honour reminding the jury that it was open to take separate verdicts. The Crown also suggested that the jury be reminded they were required to arrive at separate verdicts in respect of each individual accused. [147]

16. [167]

    His Honour rejected the application to discharge the jury, saying the following in ex-tempore reasons: [148]

17. [168]

    The jury returned to Court at 12 noon, at which time his Honour said the following: [149]

18. [169]

    The jury’s deliberations then resumed at 12:03pm and continued, with the presence of the third juror, for the balance of that day. At the end of that day, no unanimous verdict had been reached. The proceedings were then adjourned until 6 June 2016.

The discharge of third juror

1. [170]

   The transcript of 6 June 2016 notes that the jury “returned to the jury room at 9:45am”. [150] At that stage, the jury comprised 10 persons. To the extent that this notation in the transcript suggested that all 10 members of the jury returned at that time, it was misleading in light of the events which followed.

2. [171]

   When the Court reconvened (again, the transcript does not record when this occurred) his Honour informed the parties that he had received a medical certificate in relation to the third juror from a Dr Marinucci which was in the following terms: [151]

3. [172]

   Part of the certificate was illegible in the form in which it had been provided to his Honour. Further, notwithstanding the terms of the certificate, there had obviously been no “jury decision” at that point.

4. [173]

   Following an exchange between his Honour and the Crown, [152] the jury returned to Court at 10:16am, at which time they were directed not to deliberate any further, pending additional directions being given to them. [153] The circumstances which led to that direction being given are, in part, the subject of ground 6. In considering that ground below I have set out the relevant extracts of the transcript in full.

5. [174]

   His Honour then raised the absence of the third juror and the terms of the medical certificate. It was agreed between counsel for all parties that the third juror should be discharged. [154] In making an order to that effect, his Honour said the following in ex-tempore reasons: [155]

6. [175]

   Following that order being made, his Honour raised the broader question of whether the entire jury should be discharged. The Crown, by reference to s 22 of the Act, submitted that the trial should continue with a jury of 9. Having had his attention drawn by the trial judge to s 53C of the Act, the Crown submitted that proceeding with a jury of 9 persons did not give rise to a risk of a substantial miscarriage of justice, in circumstances where the jury were “continuing with their deliberations and doing their job diligently”. [156]

7. [176]

   Counsel for the appellant made an application that the jury be discharged. In doing so, counsel made the following submissions: [157]

8. [177]

   In ex-tempore reasons refusing the application, his Honour said the following: [158]

9. [178]

   The transcript records that the jury (now a jury of 9 persons) returned to Court at 10:54am at which time, his Honour said: [159]

The verdict of the jury

1. [179]

   The transcript records that the jury left to resume deliberations at 10:55am, [160] and that a verdict of guilty against the appellant was delivered at 11:19am. [161] However, it should be noted that counsel for the appellant later indicated to his Honour that he had received notification at 11.07am that there was a necessity to reconvene the Court. [162] That strongly suggests that it was around that time that the jury had indicated to the Sheriff that a verdict had been reached. That was only 12 minutes after the jury had been directed by his Honour to resume deliberations. Significantly, those deliberations had resumed, and had resulted in a verdict in 12 minutes, in the absence of the third juror who had been discharged.

2. [180]

   A further three days of deliberations took place before the jury indicated that they were unable to reach a unanimous verdict in respect of Spiteri-Ahern. [163] His Honour took the view that this meant that the jury were also unable to reach a unanimous verdict in relation to Barber or Zraika. His Honour proceeded to make an order discharging the jury in relation to the remaining three accused. [164]

The relevant legislative provisions

1. [181]

   There are a number of provisions of the Act which are relevant to these grounds of appeal.

2. [182]

   To begin with, s 19(1)(a) provides that except as provided by s 22, the jury in any criminal proceedings is to consist of 12 persons. However, provision is made in s 22 for the continuation of a trial following the discharge of an individual juror which results in the number of the jury been reduced to less than 12:

3. [183]

   In determining, following the discharge of the third juror, that the trial should continue with a jury of 9, his Honour obviously relied (at least in part) on sub-para (a)(iii).

4. [184]

   Section 53B confers a discretion to discharge an individual juror and is in the following terms:

5. [185]

   In the event that an individual juror is discharged, s 53C of the Act requires a separate determination to be made as to whether the trial should continue, or whether the entire jury should be discharged:

Submissions of the appellant

1. [186]

   Senior counsel for the appellant submitted that the events which followed the trial judge giving the purported Black direction clearly indicated that a significant issue had arisen with the jury. It was submitted that such significance stemmed from the fact that the second juror had not sought to be discharged because of (for example) professional or social considerations, but because they were suffering from anxiety and stress to a sufficient degree to cause a medical practitioner to express the view that they should not continue. Senior counsel submitted that in circumstances where deliberations had, at that point, been ongoing for almost two weeks, and in the absence of the trial judge informing the jury that he had the power to discharge them if a unanimous verdict could not be reached, there was a risk that the jury may have come to perceive that their ultimate discharge depended upon reaching such unanimous verdict. It was submitted that there was an obvious inference that the second juror represented a minority view, and that their request to be discharged stemmed from perceived pressure for unanimity.

2. [187]

   Senior counsel for the appellant submitted that, against this background, and following the discharge of the third juror, proceeding with the trial gave rise to a substantial miscarriage of justice which had become so acute that the discharge of the jury was required. It was submitted that there was an obvious and justifiable concern that the third juror had simply adopted the course adopted by the second juror in seeking to be discharged, so as in effect to escape from an intolerable position from the juror’s perspective.

3. [188]

   Senior counsel further submitted that by the time the trial judge received the medical evidence that led to the discharge of the third juror:

4. [189]

   Senior counsel submitted that these circumstances gave rise to the inescapable inference that the second and third jurors had represented a dissenting view, leading to the conclusion that the verdict which was returned had resulted from the exclusion of such views. It was submitted that such a conclusion was fortified by the speed of the jury's verdict following the discharge of the third juror.

5. [190]

   Senior counsel emphasised that at the time of the discharge of the third juror, a majority verdict was not permitted. However, senior counsel submitted that this was, in effect, the verdict which was returned once the third juror was no longer present. It was submitted that as a consequence of all of these circumstances, a risk of a substantial miscarriage of justice had arisen and that the trial judge was in error in not discharging the entire jury following the discharge of the third juror.

Submissions of the Crown

1. [191]

   The Crown submitted that it was “perfectly reasonable” to conclude that the jury intended to arrive on the morning of 6 June to bring in a verdict of guilty against the appellant, and that there was no reason to think that it was likely, or even possible, that there was a “winnowing out” of jurors who did not support a verdict of guilty. The Crown submitted that it was not possible, then or now, to infer that the second and third jurors were, as the Crown put it, “in the appellant’s camp” and that in those circumstances, there was no error in the trial judge rejecting the application to discharge the jury.

Consideration

1. [192]

   I turn firstly to ground 3 which asserts error on the part of the trial judge in discharging the first juror.

2. [193]

   In my view, that asserted error is not made out. Although, on one view, the discretion to discharge the first juror might more properly have been exercised pursuant to s 53B(a) of the Act rather than s 53B(d), the gravamen of his Honour’s conclusion was that the discharge of the first juror was warranted because of the interruption that would otherwise be caused to the trial if it were adjourned, pending the first juror regaining their health to a sufficient degree to be able to resume their duties. It was open to his Honour to take that view. The submission which was advanced (on behalf of all counsel) by counsel for Spiteri-Ahern, namely that there were “no grounds” which warranted the discharge of the first juror, was, given the evidence of the juror’s ill-health and the expected period of their recovery, untenable, in light of the reference in s 53B(a) of the Act to a juror becoming “so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict …….”

3. [194]

   Similarly, his Honour’s reasons do not indicate any error in his separate determination to continue the trial with a jury of 11. The effect of his Honour’s reasons for continuing was that there was nothing which would support the forming of an opinion, in terms of s 53C(1)(b), that to continue the trial would give rise to the risk of a substantial miscarriage of justice. That conclusion was also open.

4. [195]

   In the course of written submissions senior counsel for the appellant made reference to the following observations of McHugh J in Wu v The Queen [165] which, as I understood it, were said to support ground 3:

5. [196]

   McHugh J’s observations must be viewed in context. They were made well prior to the provisions of s 53B of the Act coming into effect. [166]

6. [197]

   For these reasons, ground 3 is not made out.

7. [198]

   I turn to grounds 4 and 5. Whilst these grounds overlap to a considerable degree, the essence of the complaint in both is that in the entirety of the circumstances which I have set out, his Honour erred in not discharging the jury after the discharge of the third juror. In considering these grounds it is convenient to commence by addressing some of the relevant statutory provisions, and the principles which govern their application.

8. [199]

   Any determination that a jury be discharged following the discharge of an individual juror involves the exercise of the power contained in s 53C of the Act. Although the heading to s 53C makes reference to a discretion, the terms of s 53C(1)(a) are such that if the Court, having discharged a member of the jury, 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, the discharge of the jury is mandatory. In order to discharge the jury pursuant to that power, the Court does not have to be satisfied that a miscarriage of justice will eventuate, but only that there is a risk that this will be the case. The position was explained by Price J (with whom Hoeben CJ at CL and Fullerton J agreed) in Phan v R: [167]

9. [200]

   Because the circumstances which may give rise to a substantial miscarriage of justice are difficult to define, [168] it is similarly difficult to formulate rigid rules governing the circumstances in which it may be necessary to discharge a jury because the risk of a substantial miscarriage of justice has arisen. [169] However, some guidance can be obtained from the decision of the plurality in Filippou v The Queen: [170]

10. [201]

    In Phan, Price J concluded that this definition applied to decisions pursuant to s 53C(1)(a), and that the overriding consideration must be the entitlement of the parties to a fair trial. [171]

11. [202]

    The chain of events giving rise to grounds 4 and 5 can be taken to have commenced when the jury (then a jury of 11) indicated to the trial judge that they were unable to reach a unanimous verdict. It was at that point that the trial judge gave what purported to be a Black direction. In Black, the High Court considered the terms of the direction which should be given to a jury upon an indication being given to a trial judge that there is difficulty reaching a unanimous verdict. The plurality [172] observed that:

12. [203]

    The plurality [173] concluded that should the occasion arise, a trial judge should give a direction along the following lines:

13. [204]

    In the present case the trial judge expressed the view that the terms of the direction set out by the plurality were “extremely stilted”, before stating that he preferred to use what he described as an “adaptation” of them. To describe the terms of his Honour’s direction as an “adaptation” of what the plurality said is something of a misnomer. The direction his Honour gave departed from the terms adopted by the plurality in a material way. It completely omitted any reference to the fact that the jury could be discharged in the event that unanimity was not reached. That reference, which appears in the italicised portion of the passages from Black above, is an important component of the direction.

14. [205]

    His Honour's material departure from the terms of the model direction outlined in Black was, to say the least, unfortunate. For the reasons developed further below, that departure contributed materially to the circumstances which have led me to the view that these grounds should be upheld.

15. [206]

    There may be instances in which the suggested terms of a “model” direction require modification to suit the circumstances of the particular case at hand. However, instances in which such modification might be appropriate are, in my view, highly unlikely to ever include those in which a direction is required to be given to a jury in response to an indication that they are having difficulty reaching unanimous verdict. I am unable to envisage any situation in which, that circumstance having arisen, and a discretionary determination having been made that a direction is appropriate, a departure from the terms of the direction formulated by the plurality in Black would ever be warranted. On the contrary, giving a direction which departs from those terms is not something which should be encouraged. The circumstances of this case simply affirm the proposition, if indeed any affirmation were needed, that when the circumstances require a Black direction, the terms of the direction set out by the plurality in Black should be followed. The present case serves as a stark example of the problems that can arise when those terms are not followed. I should note that neither the Crown, nor counsel for any of the accused, took issue with the form of the direction that his Honour gave. Whilst the failure to do so was regrettable, I do not regard it as fatal to the appellant’s position in respect of these two grounds.

16. [207]

    Before going on to consider the effect of what followed after this direction was given, it is necessary to refer to some further authorities.

17. [208]

    In BG v R [174] Adamson J considered the power in s 53C of the Act and identified three categories of case in which a question may arise as to whether a trial should continue with a reduced number of jurors:

18. [209]

    Her Honour went on to observe, by reference to authority, that if a trial judge has discharged a member of the jury, it will not be appropriate to continue to the trial with a reduced number of jurors if the case falls into either the second or third category. Her Honour concluded [175] that in such circumstances, there is a risk of a substantial miscarriage of justice because:

19. [210]

    Her Honour also observed [176] that what distinguishes the second and third categories from the first is that in each of those two categories, something is known, or can be inferred, about what has transpired in the jury room, so as to give rise to a risk of a substantial miscarriage of justice if the trial continues with the remaining members of the jury.

20. [211]

    In reaching these conclusions, her Honour made reference to a number of authorities, including R v Roberts [177] in which Cullinane J observed:

21. [212]

    With these matters in mind I return to the circumstances of the present case.

22. [213]

    It is significant that it was following the purported Black direction that the trial judge received the note regarding the second juror’s state of health. Importantly, that state of health arose from anxiety and stress which, inferentially, was linked to the second juror’s duties and responsibilities as a member of the jury. That anxiety and stress resulted in a medical practitioner expressing the view that the second juror should be discharged. The incomplete Black direction made no reference to the trial judge’s power to discharge the jury if unanimity could not be reached. The direction which was given had the clear capacity to lead the second juror (and, indeed, all those who were members of the jury at that point) to believe that there were only two options available, namely to seek to be discharged, or join in a verdict of guilty. The second juror chose the former option.

23. [214]

    Such concerns increased as a result of what occurred on the following day when an issue was raised by the third juror as to their ability to continue. When the trial judge indicated to the jury that he would require further information as to the third juror’s state of health, he informed the jury that he had “power to excuse one of the jury”. Again, his Honour omitted any reference to the fact that he had power to discharge the entire jury if a unanimous verdict could not be reached. Significantly, by the time that his Honour received the medical certificate pertaining to the third juror on the following sitting day, the jury (then a jury of 10) had deliberated for a significant part of 3 June, with the participation of the third juror, without being able to reach a unanimous verdict.

24. [215]

    When his Honour received that medical certificate, the following circumstances prevailed:

25. [216]

    In my view, all of these circumstances support a conclusion that second and third jurors represented a minority view.

26. [217]

    That conclusion, particularly insofar as it relates to the third juror, is significantly strengthened by the fact that on 6 June the transcript notes that the jury were informed at 10.54am that the third juror had been discharged, and resumed deliberations at 10.55am. At 11.07am, counsel for the appellant was informed that there was a need to reconvene the Court. The only available inference is that the need to do so arose because the jury (now a jury of 9 persons) had reached a unanimous verdict. On the evidence, that decision was reached within 12 minutes of deliberations resuming without the third juror, in circumstances where deliberations had continued for the entirety of the previous day, with the third juror taking part, without such verdict having been reached.

27. [218]

    What also assumes significance in these circumstances is 55F(3) of the Act which defines the term “majority verdict” as:

28. [219]

    Bearing in mind the sequence of events I have set out, it is impossible to view the end result as anything other than a de facto majority verdict in circumstances where, given the number of members of the jury at that point, a majority verdict was expressly prohibited by statute.

29. [220]

    The gravamen of his Honour’s conclusion that the jury should not be discharged after the discharge of the third juror was that it was “mere speculation” to suggest that the third juror’s difficulties arose from not being able to join in the views of the majority. Needless to say, the views of the third (or for that matter, the second) juror are not known. However, for the reasons I have outlined, the conclusion that both of them were not satisfied beyond reasonable doubt of the appellant’s guilt, and were dissenting from the majority, is frankly overwhelming. [178]

30. [221]

    It is also of some significance that in declining to discharge the jury his Honour relied upon his purported Black direction. For the reasons I have pointed out, that direction was deficient in a material respect. It provided absolutely no support for the conclusion that the jury should not be discharged.

31. [222]

    Viewing the evidence as it stood at the time, the circumstances fall within the second category identified by Adamson J in BG. Viewing the evidence retrospectively, the circumstances fall within the third category identified by her Honour. In either case, a risk of a substantial miscarriage of justice has been made out. The trial judge erred in not discharging the jury following the discharge of the third juror, and the verdict which was returned is tainted with that error.

32. [223]

    It follows that grounds 4 and 5 are made out.

GROUND 6 – THERE WERE IRREGULAR JURY DELIBERATIONS IN THE ABSENCE OF ALL MEMBERS WHICH RESULTED IN A MISCARRIAGE OF JUSTICE

1. [224]

   During the course of the hearing of the appeal, an issue was raised with the parties which resulted in senior counsel for the appellant being granted leave to rely on this additional ground. In setting out the circumstances which give rise to it, I should note that in the course of reviewing the material and submissions, it became apparent to me that there were in fact two separate occurrences in the trial which were relevant. Only the second of those was raised with counsel during the course of the hearing, and therefore only that occurrence has been the subject of submissions. However, this has not affected my ultimate conclusion in respect of this ground.

The directions of the trial judge

1. [225]

   His Honour delivered some brief opening remarks to the jury following their empanelment, [179] in the course of which he emphasised that they should not speak to anyone in the vicinity of the Court complex. [180] At the conclusion of those remarks, the following exchange took place between his Honour and the Crown: [181]

2. [226]

   At no stage of the trial did his Honour direct the jury as to the necessity for discussions and deliberations to take place only when all of the jury members were present. Further, at no stage following the commencement of the jury’s deliberations did his Honour make a formal order pursuant s 54(1)(b) of the Act which is in the following terms:

The first period of deliberations in the absence of all members of the jury

1. [227]

   As of 2 June 2016, the jury numbered 11 persons. I have previously noted [182] that the transcript of the proceedings of that day indicates that “the jury” returned to the jury room at 10.00am. However, it is clear from what followed [183] that there were, in fact, only 10 members of the jury who returned at that time. The second juror was not present, having provided a medical certificate to the Court seeking to be discharged. To the extent that the notation in the transcript might convey the suggestion that all 11 members of the jury returned at 10.00 am, it is misleading.

2. [228]

   It was not until 11.17am that his Honour informed the jury that the second juror had been discharged. [184] It follows that from 10.00am until 11.17am, 10 members of the jury were in the jury room, in circumstances where the jury was, in fact, a jury of 11. No direction was given by the trial judge at any time that the 10 remaining members should cease any deliberations on the basis that not all members were present.

The second period of deliberations in the absence of a member of the jury

1. [229]

   The transcript of the proceedings on 6 June 2016 records that the jury “returned to the jury room at 9.45am”. [185] The second juror had been discharged. The third juror was not in attendance at Court but had not been discharged, and accordingly remained a member of the jury. Accordingly, as at 9.45am the jury comprised 10 persons. In light of the third juror’s absence, to the extent that the notation in the transcript suggests that all 10 members of the jury returned to the jury room at 9.45am, it is misleading.

2. [230]

   The necessity that the jury not continue deliberations until such time as the third juror’s position was resolved was recognised by the Crown in the following exchange with the trial judge and counsel for the appellant when discussing the medical certificate which had been received in relation to the third juror from Dr Marinucci: [186]

3. [231]

   The comments of the trial judge recognise the obvious, that the jury’s deliberations had, in all likelihood, been continuing in the absence of all the jury members being present. The transcript then records that “the jury” returned to Court at 10:16am. [187] For the reasons previously set out, to the extent that such a note might suggest that all 10 members of the jury returned to Court, it is misleading, for the simple reason that there were, in fact, only 9 members present.

4. [232]

   When those 9 jury members returned to Court, his Honour said the following: [188]

5. [233]

   The transcript records that the 9 members of the jury left the Court at 10.17am. [189] It follows that a period of 31 minutes had elapsed between the time at which the 9 jurors were recorded as having returned to the jury room at 9:45am, and the time at which his Honour gave that direction at 10:16am. The jury were then brought back into Court at 10.54am and informed that the third juror had been discharged. They were then directed to continue their deliberations. [190]

Submissions of the appellant

1. [234]

   Senior counsel for the appellant acknowledged that the Act does not prescribe the conditions under which deliberations of a jury are to be conducted. However, it was submitted that the fact that deliberations should not occur unless all jury members were present was reflected in a generally accepted practice (albeit one which was not followed in the present case) that in the opening directions of the trial judge, as well as on each occasion when the jury separates during the course of deliberations, a direction is given that deliberations should not take place unless all jury members are present.

2. [235]

   Senior counsel acknowledged that there will be occasions on which deliberations may continue for short periods in the absence of a member or members of a jury, and accepted the need for a pragmatic and flexible approach to overcome any unrealistic expectation to the contrary. However, senior counsel stressed the importance of adhering to fundamental rules governing the trial process, and submitted that it was open to infer, in particular, that the 9 jurors who ultimately returned a verdict of guilty were deliberating, for a not insignificant period, in the absence of the third juror.

3. [236]

   Accepting that this constituted an irregularity, senior counsel submitted that it was necessary to then determine whether such irregularity gave rise to a miscarriage of justice. In this regard, it was submitted that the irregularity was material, that it had arisen at a critical time, and in circumstances where:

4. [237]

   As I understood it, senior counsel did not submit that this irregularity was sufficient, of itself, to give rise to a miscarriage of justice. However, it was submitted that such irregularity simply fortified the conclusion that the ultimate verdict of the jury was tainted with the trial judge’s error in failing to discharge the jury.

Submissions of the Crown

1. [238]

   The Crown submitted that the fact that jurors may have deliberated for a period in which not all of them were present did not amount to an irregularity. In this regard, the Crown drew attention to the fact that, as a matter of practicality, jurors separate in the course of deliberations for many reasons.

2. [239]

   The Crown further submitted that even if this did amount to an irregularity, it was not one which was of such materiality as to give rise to a miscarriage of justice. It was submitted, in particular, that in circumstances where the jurors who were present were those who ultimately delivered the verdict against the appellant, there had been no risk of “caucusing”.

Consideration

1. [240]

   Before addressing the substance of this ground, it is appropriate to make two observations.

2. [241]

   First, at the end of each day of deliberations in the present case, the trial judge obviously allowed the jury to separate. However, his Honour did so in the absence of an order pursuant to s 54(1)(b) of the Act allowing such separation to occur. The absence of a formal order under s 54(1)(b) does not have the consequence that the jury ceases to be a jury, or that any verdict which follows is not valid. [191] The reality is that there may well be instances where a jury “separates” without the express knowledge or permission of the trial judge. For example, it is not uncommon for members of a jury to leave the jury room, in the company of a sheriff’s officer, for the purposes of going to have a cigarette. Those occasions aside, the making of an order under s 54(1)(b) when a jury leaves the Court to return home at the end of each day of deliberations would be a prudent course for a trial judge to take. Apart from any other consideration, the making of such an order would go some way to eliminating any issue which might arise from the jury’s separation.

3. [242]

   Secondly, as I have previously noted, at no stage in the present case did the trial judge ever direct the jury that their deliberations should not continue unless and until all members of the jury were present. The omission of such a direction was, to say the least, highly regrettable. The prudent course is for a trial judge to give that direction at the commencement of the trial, and to repeat it at appropriate intervals during the trial, particularly when deliberations are ongoing.

4. [243]

   Turning to the circumstances of this ground it is, even in the absence of any evidence, entirely unrealistic to think that during each of the two periods of separation, the jury’s deliberations were not continuing. Accepting that they were, the first step in a consideration of this ground is to determine whether that constitutes an irregularity. In written submissions the Court was referred to a number of cases where irregularities had arisen in factual circumstances far removed from the present case. [192] However, some of those cases, even though they are distinguishable on their facts, provide some guidance to the principles to be applied in determining whether an irregularity is made out. For example, in R v Forbes [193] the appellant had been found guilty by a jury of manslaughter and appealed against his conviction partly on the basis that during the trial, a member of the jury had been found in possession of a book on guns, and a brochure for ammunition, and that such misconduct had caused the trial to miscarry. In dismissing the appeal, Spigelman CJ formulated the following general propositions:

5. [244]

   The factual circumstances considered in R v Locchi [199] were closer to those of the present case. A member of the jury had not attended Court due to illness, at a time when the jury had commenced their deliberations. The trial judge directed the jury that they could retire to the jury room and remain for as long (or as short) a time as they wished, that they could discuss the case, and that they could look at the written material and talk about it provided that they did “not come to any final conclusions until [they were] together as a full jury". In dismissing an appeal against conviction, Samuels JA observed: [200]

6. [245]

   In Tennant v R [201] two members of the jury had been taken from the jury room, in the company of a sheriff’s officer, to have a cigarette. The remaining 10 jurors remained in the jury room, in the absence of any order being made allowing the jury to separate. This Court concluded [202] that a strict interpretation of the word “separate” in s 54 would be liable to lead to absurd results and that no miscarriage of justice had arisen. James J said: [203]

7. [246]

   In determining whether what occurred in the present case amounts to an irregularity it seems to me that the following considerations are relevant.

8. [247]

   First, unlike the circumstances in Tennant, the trial judge did not direct the jury, at any time in the course of their deliberations, that they should not deliberate or discuss the case unless all members were present.

9. [248]

   Secondly, there were two occasions on which separation occurred.

10. [249]

    Thirdly, each of those periods of separation arose after deliberations had been ongoing for a significant period of time, and had not resulted in the return of a verdict.

11. [250]

    Fourthly, the combined periods of separation totalled 1 hour and 48 minutes, which was not insubstantial.

12. [251]

    Fifthly, during each period of separation, those members of the jury who were present were deprived of the views of individual jurors, in circumstances where it may reasonably be inferred that the views of each of those individual jurors were in the minority.

13. [252]

    Sixthly, it was not until after the second period of separation that the jury were directed, for the very first time in the trial, that deliberations should not continue absent a member of the jury. That circumstance can be usefully contrasted with the position in Locchi where the trial judge had given such a direction to the jury in the course of the trial, and importantly before the separation occurred.

14. [253]

    Seventhly, the circumstances of this case were quite different to those in Locchi in another material respect. In that case, once all jurors were present, deliberations continued for 2 days before a verdict was returned. In this case, the verdict of guilty was returned within minutes.

15. [254]

    Given all of these circumstances, I am satisfied that the two periods of separation constitute an irregularity.

16. [255]

    Whether those irregularities give rise to a miscarriage of justice warranting the quashing of the appellant’s conviction is a separate question. Not all irregularities justify that conclusion. [204] Much will necessarily depend on the circumstances of the case. There have been many instances where an irregularity of some kind or other has been established, but a conclusion has been reached that no miscarriage of justice had arisen. [205] The guiding principle is that there must be a new trial unless the Court can be satisfied that the irregularity has not affected the verdict, and that the jury would have returned the same verdict if the irregularity had not occurred. [206]

17. [256]

    His Honour’s decisions to discharge the second and third jurors were made with the consent of all parties at the trial and were therefore not, of themselves, the subject of challenge before this Court. Accepting that those decisions were correct, it is evident for the reasons I have expressed that once the point was reached where the second and third jurors no longer played a part in deliberations, a verdict of guilty was inevitable. That verdict was, as I have found, tainted with, amongst other things, the error arising from his Honour’s failure to discharge the jury and must be quashed.

18. [257]

    In considering whether the two periods of separation constitute a material irregularity, I regard it as particularly significant that in each case, the deliberations continued in the absence of individual members of the jury who, I have determined, were obviously in the minority. In those circumstances, I am unable to be satisfied that the irregularities constituted by the two periods of separation did not affect the verdict which was returned. On the contrary, I am satisfied that the two periods of separation materially contributed to the risk of a miscarriage of justice which I have identified in grounds 4 and 5, for the simple reason that in each case, the jury deliberations continued in circumstances where the jury were deprived of one dissenting voice. For those reasons this ground of appeal is made out. It is appropriate that, having reached that view, I reiterate the importance of trial judges making orders for separation, and giving directions not to continue deliberations without all members of the jury being present. Doing so will go a long way to ensuring that the circumstances giving rise to ground 6 of this appeal are avoided in the future.

ORDERS

1. [258]

   I propose the following orders:

   1. (1)

      The time for filing the notice of appeal is extended to 13 August 2021.

   2. (2)

      The appeal against conviction is allowed.

   3. (3)

      The appellant’s conviction and sentence are quashed.

   4. (4)

      The matter is remitted to the arraignments Judge on 6 May 2022 to set a new trial date.

2. [259]

   IERACE J: I agree with Bellew J and with the additional observations of Bell CJ.