Since posting Emailing judges last month, my attention was drawn to another appeal which claimed unfair prejudice as a result of the actions of a Judge’s Associate. While the Victorian case was open to interpretation, the facts in R v Phillips  QCA 57 are slightly more clear-cut.
The trial concerned four counts of rape. According to the facts of the hearing as summarised by Holmes JA on the appeal:
 The appeal record shows that the prosecutor’s address concluded at 3.56 pm and the trial judge immediately adjourned the court. The appellant, his sister and his de facto wife all swore affidavits to the effect that, immediately after the prosecutor concluded her address, the judge’s associate gave her a ‘thumbs up’ signal and mouthed the words, “That was great”. That evidence is largely confirmed by the trial prosecutor who has also provided an affidavit; she says that she recalls the judge’s associate raising her hands at waist level with clenched fists and both thumbs raised in a ‘thumbs up’ gesture, and mouthing words to the effect, “That was awesome”. At the time that occurred, she deposes, the jurors had filed past the bar table towards the courtroom door behind her and behind the dock.
The Queensland Court of Appeal, while describing the associate’s behaviour as “grossly improper”, rejected the appeal on that ground. They found there was no evidence that the jury had not approached their deliberations with the requisite degree of care and seriousness.