A "comprehensive review" is underway into how Queensland court bailiffs are trained, after an officer's exchange with a juror partly led to an appeal court quashing the rape convictions of a Gold Coast man and ordering a retrial.
The statewide review was triggered after a Queensland Criminal Court of Appeal decision quashed two rape convictions against Benjamin Graeme Pearce in August last year.
A Southport District Court jury found Mr Pearce, 27, guilty of raping a then-18-year-old woman at Burleigh Heads in 2019.
Mr Pearce originally appealed the jury's verdict, but later abandoned that appeal. He instead filed an amended appeal that was based on two grounds, one of which was that there had been a miscarriage of justice because the trial judge failed to discharge the jury.
A Queensland Court of Appeal decision released last month revealed that, before jury deliberations began, it was reported to the trial Judge Rowan Jackson that a juror had a note hidden in her phone case relating to a conversation with a bailiff.
The appeal decision noted the juror was questioned about the note and its contents, but not about when the conversation took place with the bailiff.
Judge Jackson allowed the juror to return to the jury room with the other jurors.
The bailiff was then questioned in court.
Court of Appeal documents outlined what the bailiff told the judge.
"I was in there to take their phones off them," the bailiff told the court.
"And she asked me a question while they're all sitting around the table. She just said, 'What happens if we can't all agree?'
"I said 'Well, that is why 12 of you are here, so that youse [sic] can all come together, everyone speak, and your – your opinion could be swayed by another juror,' and that was the – the context of our conversation."
According to documents, the juror sat in the jury room with the other jurors while the discussion was taking place before the judge.
Following lengthy discussions between counsel and Judge Jackson, the juror was then dismissed.
The 11-member jury later delivered a guilty verdict on two counts of rape against Mr Pearce.
Prospect of fair trial 'poisoned' by 'foolish action'
In setting aside the convictions, Court of Appeal Judge John Bond said it was evident there had been "an unauthorised communication between the bailiff and jury which constituted a clear departure from this fundamental tenet".
Judge Bond also noted the "operative assumption" was the entire jury was exposed to the exchange with the bailiff.
"On both versions of events, the bailiff acted contrary to [their] oath and also exposed [themselves] to punishment for contempt", he said.
Mr Pearce's appeal lawyer, Bill Potts, said his client's case showed that the idea of a fair trial had been "poisoned" as it was unknown what the jury was told or what influenced them.
"It's not just the defendants whose rights have been abrogated by this foolish action," Mr Potts said.
"The victim has to give evidence again, all of the trauma and trouble of doing that a second time is going to cause enormous stress."
Mr Potts said the first trial and appeal would have cost the taxpayer around $300,000.
Mr Potts said the exchange between the bailiff and juror was a breach of the Jury Act and should be referred to an external agency, such as the Queensland Crime and Corruption Commission, for investigation.
"We've got to have a system that is fair to both the victims and to the defendants,'' he said.
Mr Potts said that, while he did not believe the bailiff intended to do anything wrong in their exchange with the juror, it showed a need for better and regular training, as well as enforcement of the rules with penalties to deter any further incidents.
He said part of a bailiff's role was to ensure the jury was secure, communicating any messages from them to the court and ensuring no-one approached them during their deliberations.
"You need them to understand the extraordinary seriousness of their roles,'' he said.
Retrials re-traumatise sexual assault survivors
The Gold Coast Centre Against Sexual Violence said only a small percentage of sexual crimes before the courts ended with guilty verdicts.
"It's so hard for women to report sexual crime to police and so hard for sex crimes to advance through the criminal justice process," centre director Di Macleod said.
"It's so hard to get the matters committed for trial and to get a guilty outcome."
Survivors of sexual crimes have described going through the criminal justice system as a "secondary trauma", she said.
"In supporting many women whose many cases are overturned by appeal, they really start to think whether they have energy to go through it again,'' Ms Macleod said.
Ms Macleod said that, generally, bailiffs' dealings with juries were a small part of the criminal justice system and were not the only "interactional space" that needed to be reviewed.
Judgement to be included in training review
Queensland's Department of Justice and Attorney-General confirmed the incident was investigated internally following last August's trial, and while the bailiff's training was reviewed, "no changes were identified".
A "comprehensive review" of bailiffs' training was launched only after the Court of Appeal's decision last month, the department confirmed.
The spokesperson said all Southport bailiffs had been reminded of their responsibilities and duties, including communication protocols with juries.
"This was further reinforced during November and December 2021 when all Southport bailiffs attended refresher training in Brisbane. Specialised training is provided to all Supreme and District Court bailiffs when they are appointed,'' the department said.
The spokesperson said the judgement would be incorporated into the training material and communicated to all bailiffs across the state.
Queensland's public service watchdog, the Crime and Corruption Commission, declined to comment as to whether it had received a complaint or were investigating the matter.
It is not known when the retrial will be held.
