Fairness in joint trials - exclusion of evidence improperly prejudicial to a co-defendant: McNamara v The King [2023] HCA 36

In McNamara v The King [2023] HCA 36 the appellant had been tried jointly with one other defendant, and each blamed the other for the offending. Mr McNamara wanted to include in his evidence allegations of previous criminality by his co-defendant, but the judge ruled that the proposed evidence was inadmissible. This ruling was on the footing that the prejudicial effect of the evidence on the co-defendant outweighed its probative value for the defendant’s case.

Such a basis for excluding evidence is commonly found in evidence laws, and it functions to assist the judge in ensuring that the trial is fair. [1]

Mr McNamara submitted through counsel on this appeal that the judge had no such power in a joint trial. This was rejected unanimously by the Court in two judgments.

Gageler CJ, Gleeson and JagotJJ considered in some detail the interesting  [2] history of joint trials [25]ff. Included in this is a period during which it was unclear whether the supposedly unfettered right of a defendant to adduce otherwise admissible evidence was limited by the probative value vs prejudicial effect discretion [49]. The issue was settled by legislation [52]. This came down to the interpretation of the section mentioned at [59] and described in more detail at [1]:

“Section 135(a) of the Evidence Act 1995 (NSW) ("the Evidence Act") empowers a court to refuse to admit evidence, that is relevant and otherwise admissible in "a proceeding", if the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to "a party". The question in this appeal is whether "a party" includes a co-accused in a joint criminal trial. The answer is that it does. The Court of Criminal Appeal of the Supreme Court of New South Wales was correct so to hold, and the appeal must be dismissed.”

A joint trial is a proceeding and each defendant is a party, as is the prosecutor [62], and the exclusionary discretion applies [64]-[69], consistently with the operation of other relevant provisions [72]-[75].

Gordon and Steward JJ similarly analysed the legislation, and considered the on-going relevance of common law principles [92]ff, concluding at [109] that, consistently with dicta in other cases, “The existence of the discretion at common law to refuse to admit evidence coheres with the duty of the trial judge to provide an accused with a fair trial.”

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[1] We have a similar provision in s 8 of the Evidence Act 2006 [NZ]. In this, “proceeding” includes joint trials, and “the right of the defendant to offer an effective defence” is taken to mean the right to a fair trial: R v Moffat [2009] NZCA 437, [2010] 1 NZLR 701, (2009) 24 CRNZ 242, Bracken v R [2016] NZCA 79 (leave refused Bracken v R  [2016] NZSC 124), Ambler v R [2018] NZCA 245 at [41].

[2] I say “interesting” because the following points are among those mentioned: during the eighteenth century criminal proceedings changed from being essentially inquisitorial to essentially adversarial [25]; at common law a defendant could not give sworn evidence, the right to do so being introduced in 1891 (NSW) and 1898 (England) [26]; the exclusionary rule for when probative value of evidence was outweighed by its prejudicial effect was only developed in 1914 ([27], and see my note here on 8 October 2019, particularly at footnotes 6 and 7); the requirement to acquit if there was a reasonable doubt about guilt was “discovered” only in 1935 [27]; the indictment is a foundational and constant feature of the criminal trial throughout the centuries [28]; in a criminal trial there is one indictment, which may include more than one defendant, and the jury can only determine issues in that indictment [29]. While it has been common to tell juries that where there is more than one defendant charged in the indictment there are separate trials for each of them, this should really be phrased as there are separate “cases” for the jury to consider (cf [36]).

Juror or jury misconduct and miscarriage of justice: HCF v The Queen [2023] HCA 35

Disobedience to the judge’s instructions by both a juror and the jury were the basis for the appeal in HCF v The Queen [2023] HCA 35.

The instructions were to not use the internet, and to inform the judge if the jury became aware that any of their number had contravened that instruction. A juror had investigated the meaning of the alleged offences and the relevant sentencing levels, and had then told his fellow jurors what he had found out. The jury had not informed the judge of this.

These irregularities were only discovered well after the verdicts had been returned and the defendant (appellant) had been convicted of some of the charges.

Had these irregularities constituted a miscarriage of justice? If they had, what should the result of the appeal be?

The Court divided 3 -2.

The minority justices, Edelman and Steward JJ, decided that there had been a miscarriage of justice and that the issue of whether this had been “substantial” in terms of the proviso (allowing the appeal to be dismissed if the miscarriage was not substantial) should be remitted to the lower appeal court as it had not been argued on this appeal.

The majority, Gageler CJ, Gleeson and Jagot JJ, held, after close examination of the circumstances of the trial, that there had been no miscarriage of justice and therefore that the appeal should be dismissed.

The decision criterion for whether jury or juror misconduct amounts to a miscarriage of justice is set out in the majority judgment. Significantly, the majority held that if this sort of error had occurred it would of itself, without further inquiry, require that the appeal against conviction be allowed [7]. The test for identifying this sort of error is described as a “double might” test [6]:

“ … the test should be understood in terms of whether a fair-minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of deciding an accused's guilt according to law (which includes but is not limited to the requirement of impartiality), on the evidence, and in accordance with the directions of the judge. …”

Descriptions of the consequences of this test being met are set out at 11:

“… If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect". In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict" cannot be dispelled, that the trial is "incurably flawed", that there has been a "serious breach of the presuppositions of the trial", and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict". [footnotes omitted]

The inquiry is not as to what might reasonably have been the effect of the misconduct on the actual jury that convicted the appellant ([12], referring to Weiss v The Queen (2005) 224 CLR 300 at 313-315 [34]-[38]). Rather, the inquiry is (my terminology here) objective. The perspective is that of a fair-minded and informed member of the public [13]. The facts that “inform” this fair-minded person are facts that are determined on the balance of probabilities [14]:

“On the facts to be found on the balance of probabilities, might a fair-minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?”

Mere disobedience by a juror or jury to a judge’s instruction is not in and of itself sufficient to give rise to a miscarriage of justice [48]. On close inspection of the facts here it could not be concluded that the disobedience was wilful [49]-[57], rather it was properly described as misconduct and irregular [59]. Further considerations, including the verdicts, took the issue no further. Speculation would not amount to a reasonable apprehension that the jury might not have discharged its function according to law and in accordance with the directions of the judge [69].

One can see that this fair-minded and reasonable observer is very well informed about the trial, and is not just some casual visitor to the public gallery in the courtroom. Really, I suggest, this person is an appeal judge, but in any event the focus is on the objectively assessed effect of the irregularity on the actual jury in the trial (the ‘this jury’ test [12]). Here, on the majority analysis, the convictions had not been demonstrated to have involved a miscarriage of justice, and therefore there was no occasion to consider the application of the proviso.

By what course of reasoning did the minority conclude that there had been a miscarriage of justice? Following Weiss, the occurrence of “any departure from trial according to law, regardless of the nature or importance of that departure” is a miscarriage of justice ([75], citing Weiss at [52] with emphasis in the original). The only qualification on this should be that the departure must be capable of affecting the result of the trial [78]. Other qualifications have been stated, as reviewed at [76]-[77], but reconciliation of them did not need to be attempted in the present case [79], as here a failure to ensure that the rules of procedure and evidence were strictly followed amounted to a miscarriage of justice [82]. While there is a range of irregular behaviour, from the trivial and inconsequential to the serious kind that will always constitute a substantial miscarriage of justice (such as proof of  apprehended bias), the present case is one of the many where irregular behaviour or misbehaviour will have the capacity to prejudice the jury’s consideration of the defendant’s case and where the Crown therefore has the burden of satisfying the appellate court that there was no substantial miscarriage of justice [84].

Here, on the minority view, there was capacity for the misconduct to affect the jury’s consideration of the defendant’s case [113]-[123]: the acts of disobedience could not be described as merely trivial or of no moment, their effect on the jury’s reasoning could not be known, the Crown had correctly conceded that if the misconduct had been known before the verdicts were returned the judge would almost inevitably have discharged the whole jury (but see the majority judgment at [45]-[46]), the disobedience of the jury was capable of casting a shadow of injustice over the whole verdict, and the discussion of the potential sentences for the alleged offending was a denial of procedural fairness to both the defendant and the Crown. Consequently, in the judgment of the minority, the existence of the miscarriage required consideration of the application of the proviso, and the matter should have been remitted to the Court of Appeal for determination of that issue.

The minority’s need, upon concluding that there had been a miscarriage of justice, to consider the application of the proviso (that is, to decide whether the miscarriage of justice had been substantial) is in contrast to the majority’s view of the consequence if it had found that there had been a material miscarriage of justice. The majority would have regarded the misbehaviour, had it had an objectively perceived effect on the verdicts of guilty, as of itself requiring the convictions to be quashed. The difference emerges from differing treatments of Weiss.