Wong v State of Western Australia [2012] HCATrans 155 (22 June 2012)

Last Updated: 25 June 2012

[2012] HCATrans 155

Office of the Registry
Perth No P34 of 2011

B e t w e e n -

CHRISTINE WONG

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 22 JUNE 2012 AT 12.09 PM

Copyright in the High Court of Australia

MR A.C. McINTOSH: If the Court pleases, I appear for the applicant. (instructed by Thames Legal)

MR J. McGRATH, SC: May it please the Court, I appear for the respondent with my learned friend, MS S.H. LINTON. (instructed by Director of Public Prosecutions (WA))

FRENCH CJ: Yes, Mr McIntosh.

MR McINTOSH: Your Honours, this case does take on a special significance for this reason. The applicant was convicted of murder after two juries previously were unable to reach a unanimous verdict, so, given the direction right the jury has an added importance in this matter. Going to the nub of the issue, your Honours, Justice McKechnie gave this direction: “On murder, the only verdict I can accept whether guilty or not guilty is a verdict of which all 12 of you agree, there is no point, should you get to a majority, in holding out because I only can accept a verdict of 12”.

Now, it is common cause in this case that the court below and the State today that the direction, viewed in isolation, is wrong. The point I wish to raise today is with the court below in reaching that decision applied the test in Peers. In particular, the court said the only way to examine this – the particular words “may have effect on a reasonable jury”. I am taking issue today with the concept of a reasonable jury.

Now, the issue I take is this. The applicant says that that test is failed, that the test is not adequate. The test applied by the court is not adequate because it focuses on what was said and not how the message is received by 12 - interactive dynamics with 12 jurors. The direction is a reasonable juror. Now, we do not have a reasonable juror. We have 12 jurors. It is an interactive dynamic. We deal with the issue. The inconvenient truth is that there are 12 interactive people – 12 people whom can hold different opinions honestly.

Now, the difficulty we have with that dynamic is the direction given viewed in this context. There was only one mention of holding out. There was one mention of what the court could do in that situation. The direction only becomes relevant when there is a holding out so it takes no importance when there is a holding out. The dynamic can be explained in this way by illustration.

If we have a juror who holds an opinion that the person is guilty, as a holding-out situation - it does not happen often - the direction that was given to that juror by Justice McKechnie is that there is no point holding out. So in the interactive dynamic of a jury room, that one juror is armed with information and he could turn to another juror and say, “You heard the direction of Justice McKechnie. It was there is no point holding out. Which of those words do you not understand?”

BELL J: Mr McIntosh.

FRENCH CJ: Just a minute, Mr McIntosh.

BELL J: Mr McIntosh, the Court of Appeal approached this complaint by considering that it was necessary to look at what his Honour had to say in context, and in the context the court concluded that the jury would have understood that the judge was explaining there could be no majority verdict in the case of the trial of a charge of murder. Now, when one reads what his Honour had to say, it is difficult to resist the good sense of that conclusion, surely?

MR McINTOSH: The test applied the words “what would a reasonable juror think”. Now, I would submit the words “no point holding out” is a situational dynamic - - -

BELL J: Mr McIntosh, one can hardly take words out of a summing-up in isolation and invite consideration that a juror might reason irrationally from them divorced from their context. That would be a difficult basis upon which to conduct criminal appeals.

MR McINTOSH: True. The issue is what is the context - the context, in my submission, needs to be looked at - a situational dynamic of one juror holding an opinion and another juror holding a different opinion armed with those words “there is no point holding out”. In that situation – in that context – in the context of the jury room rather than the context of the transcript of judgment, in that context it takes on a different meaning. It is a weapon – it is a stick that can be used by one juror to persuade another juror that there is no point holding out.

FRENCH CJ: Well, part of the context is – the significance of this statement made by the trial judge in the direction must, as Justice Bell says, be read in context and if you look at page 22 of the application book about line 32:

Whether or not you have a reasonable doubt is a matter for each of you. Only if each of you is satisfied beyond reasonable doubt –

and so forth. So you do not cavil with that direction obviously?

MR McINTOSH: Not at all. The point I am making, your Honours, is this. When you look at the transcript of what he said as a document in itself, from a point of view of analysing the transcript it may not be objectionable, but when you look at it in the context of a jury room and what happens in an interactive situational dynamic you have a juror armed with some words about holding out. Now, on the issue of - - -

FRENCH CJ: I suppose the question is this. I mean, you are offering, if you like, an evaluation of the significance of the particular direction complained of by reference to an assessment of the sorts of things that could happen in a jury room. The Court of Appeal obviously came to a different assessment. The question is does this really raise an issue of principle warranting the grant of special leave, or is it just a difference in the weight that you give to context and the particular direction?

MR McINTOSH: Your Honour, it is a wrong principle because the court below said you look at what a reasonable juror would say. I am saying that is incorrect. The test should be what 12 jurors are saying, the difference being when you look at the test applied and entrenched in this State the test is “a reasonable juror”. That is not the dynamic in the real world. We have 12 reasonable jurors as an interactive dynamic. So the test applied by this court below was wrong because it does not relate to the situation, which is an interactive dynamic. Now the test that should have been applied is could the statement that “there is no point in holding out” could be used inappropriately by a juror - - -

FRENCH CJ: You say the direction created an unacceptable risk that the jury would not reach its verdict unanimously according to law.

MR McINTOSH: Correct. But this is also recognised by the court below because when the direction was given the court below said - and this is at page 44 of the appeal book:

The impugned direction was brought to his Honour’s attention immediately after the jury retired. Out of caution, a redirection could have been given without compounding any mischief. The jury could have been told –

et cetera. So the court below accepted that it could have been corrected. The point I am raising before this Court is not only that it could be corrected, it should have been corrected to overcome that mischief. The fundamental principle and the test the court below applied was the wrong test. The test has to be - of not a reasonable juror, but an interactive dynamic and that is the point of the appeal.

The position in Western Australia is entrenched by that test and it is an important issue because dissent amongst jurors is an important issue. We have dissent in the High Court. We have dissent in juries. So not just in a situation that when Justice McKechnie described holding out he did not

describe it in positive terms, he just said there is no point. Once the.....is raised holding out should not be described in negative terms. As Justice Deane said, quite correctly, that a juror who conscientiously holds out against the majority and thereby prevents unanimity has not failed to properly do what he is to do, to the contrary, he has done no more than discharge his duty.

So it is an important issue and a fundamental issue of how one addressed the jury as an interactive dynamic and it was a matter which the court below could have been corrected, and should have been. The court below has applied the wrong test. The correct test has to be.....that holding out dissent, difference of opinions, is not a bad thing. It may result in another trial, but at the end of the day each juror should be treated with the respect that it can have a different opinion.

I would invite the High Court to consider reformulating the test from not what a reasonable juror is, but have regard to the fact that there are jurors, and a test is not as stated in Peers’ Case. I have no further comments to make, your Honours.

FRENCH CJ: Thank you, Mr McIntosh. We will not need to trouble you, Mr McGrath.

The applicant seeks special leave to appeal against a decision of the Court of Appeal of Western Australia dismissing her application against a conviction for the murder of her father. The applicant complains that the trial judge erred in directing the jury that there was a requirement for a unanimous verdict and that “there is no point, should you get to a majority, in holding out, because I can only accept the verdict of all 12 of you, a unanimous verdict”. The Court of Appeal observed correctly that it would have been better if the trial judge had not used those words. Nevertheless, the Court of Appeal was satisfied that, taken in context, they would not have misled a reasonable juror into thinking that he or she had to subordinate his or her views to the will of the majority.

There was, in our opinion, no error of principle in the approach taken by the Court of Appeal. Its conclusion depended upon a contextual reading of the trial judge’s direction. The case is not a suitable vehicle for the grant of special leave. Special leave will be refused.

The Court will now adjourn to reconstitute.

AT 12.25 PM THE MATTER WAS CONCLUDED