Bahrami v R

The course of proceedings

1. The appellant was arrested in Malaysia on 5 August 2011. He was extradited to Australia on 8 November 2012. His trial was initially fixed for August 2013. His Honour Judge Charteris heard pre-trial issues on 19-20 August 2013. He then vacated the trial date for reasons which included the contemporary prominence of people smuggling and immigration issues in the then current federal parliamentary election campaign.
2. His Honour heard further pre-trial issues over three days in December 2013 and a further four days in late-January 2014. The trial commenced with a jury on Monday 3 February 2014.
3. When the juror's note was received on Wednesday 5 March 2014 the defence case was soon to close with the imminent completion of the Crown Prosecutor's cross-examination of the appellant.
4. The judge's summing up commenced on Tuesday 11 March and the jury returned with verdicts on Thursday 13 March 2014.

The juror's note

1. The Crown Prosecutor commenced cross-examination of the appellant immediately after lunch on Tuesday 4 March. By lunch on Wednesday 5 March it must have been apparent that there was little of the cross-examination left. Just before taking the luncheon adjournment the judge asked the appellant's counsel whether there would be no other witnesses in the defence case. Upon receiving an affirmative response, the judge told the jury that when the appellant's evidence finished after lunch they would be sent home as he had to deal with some legal matters in their absence. This was the 23rd day of the trial with the jury. It had proceeded without interruption except for one day when a juror was sick (not the author of the note).
2. At the 2.00pm resumption the judge called for the jury to return to court but a moment later announced that he had received a note which was passed to counsel to read. The note (which was marked for identification 62) read as follows: "Am unwell/stressed extreme - not up to court this afternoon. Am being mistreated by another juror (bullying)."

The initial discussion of the juror's note

1. Counsel for the appellant (who did not appear on the appeal but who was appropriately described in the Crown submissions in this Court as a "senior junior with substantial experience in complex criminal trials") referred his Honour to the then recent decision of the High Court of Australia in Smith v State of Western Australia [2014] HCA 3; 250 CLR 473. (AB 111)
2. The judge indicated that he was minded not to have any juror give evidence about the note; he did not want to "magnify" the issue. Rather, he would say something to the effect that tensions sometimes arise in the jury room; jurors had a duty to listen to the views of others; no juror had the right to seek to overcome the decisions of another juror or to bully a juror; and to remind them of the oath or affirmation they took to decide the case on the evidence. (AB 112)
3. It was agreed that the jury would be sent home after the judge had spoken to them as he had indicated. Neither counsel objected to the judge taking this course, although counsel for the appellant indicated he would like to reflect on it overnight and take instructions. (AB 112-3)
4. The judge apparently spoke to the court officer to ask him or her to bring the jury down (what he said to the officer is not transcribed). He then said that the officer had told him that "the individual concerned feels very upset and doesn't want to come into the courtroom as a result of the exchange". (In oral submissions there was some debate about what "exchange" his Honour was referring to. (T2.35; 3.37; 9.48) It is unclear but unnecessary to determine.) With the agreement of counsel, the judge asked the court officer to tell the jury that they could leave and that "tomorrow I will call all of them in and speak with them about the matter". (AB 114)

Application to discharge the jury

1. The proceedings commenced the following morning (Thursday 6 March) with counsel for the appellant announcing that he had an application to discharge the jury. In the course of making submissions in support of the application he said: "[I]t can be inferred or it can be concluded that the bullying related to a matter in the trial and that in all likelihood it related to an issue in the trial of some importance and in all likelihood, your Honour, it related to a discussion of what verdict or verdicts the jury were - should be brought in in relation to the --." (AB 135)
2. The judge interrupted counsel to ask why that conclusion should be drawn. Counsel retreated slightly: "[I]t's gone beyond in my submission what might be considered robust discussion about issues in the trial and it's gone onto an allegation that the juror is being mistreated by another jury (as said), (bullying) and although perhaps it would be perhaps taking it a little far to say that it related to a verdict or verdicts it's a reasonable inference to be drawn that it relates to an issue in the trial." (AB 135)
3. Counsel described the juror as being "so upset and stressed that this juror felt yesterday afternoon that he or she was unable to perform his or her duties as a juror" and (after it was clarified that the juror was female) "she felt that she was unable to sit in court and listen to the evidence". (AB 136)
4. Counsel referred (AB 136) to s 53A of the Jury Act 1977 (NSW) which provides (relevantly): 53A Mandatory discharge of individual juror (1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest: … (c) the juror has engaged in misconduct in relation to the trial or coronial inquest. (2) In this section: misconduct, in relation to a trial or coronial inquest, means: … (b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.
5. Counsel submitted that there was "misconduct, of mistreatment and bullying by one juror towards another" which impacted upon the capacity of the author of the note to bring an impartial mind to the issues in the trial; "her free will will be overborne by that conduct". (AB 136-7)
6. The judge remarked that "one person's idea of bullying is another person's idea of a frank and robust exchange" and queried why he should respond as counsel had suggested just on the written word. Counsel then submitted that his Honour should consider calling evidence from the juror. The judge replied: "I don't see at this early stage that I should do so. People have disagreements. The Court has a reluctance or a caution, a cautious approach to going behind or into the jury room. " (AB 137)
7. The judge indicated that he proposed to bring the jury in and direct them in terms similar to the manner he had outlined the previous afternoon. Counsel then engaged in an analysis of the High Court's judgment in Smith v State of Western Australia and a discussion followed, including about the prospect of an inquiry being carried out. The judge referred to s 73A of the Jury Act ("Investigation by sheriff of jury irregularities") but counsel remarked, "that's after verdict". (AB 139-143)
8. The judge said: "The High Court is saying there is not a blanket rule about not going behind the jury's deliberations and I would include in that their exchanges during the evidence before even addresses or summing-up. The issue is whether on the evidence I have in this case, I would be taking the appropriate step to try to seek some evidence on the topic. In my view the first step is to say to the jurors, 'This is how you must approach your task and be respectful of different views, consider different views' - similar to the approach the Court takes in the Black direction." (AB 143)
9. Counsel referred his Honour to an extract from the judgment of Mason CJ and McHugh J in Webb v The Queen; Hay v The Queen [1983] HCA 30; 181 CLR 41 at 53, quoted in the judgment of High Court in Smith v State of Western Australia at 486 [54]: "The test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
10. A little later, his Honour said: "[W]hat's wrong with the process I suggest? I am going to say to the jury, those things that I have said and I am going to say to each of the jurors that if any juror feels that he or she cannot bring an impartial consideration to her function as a juror or his function as a juror, as regards any exchanges between any other members of the jury, let me know." (AB 144)
11. Counsel for the appellant responded, "I don't have any difficulty with that type of direction" but he made some suggestion as to the wording: "that the word 'free will' should be used, not 'being overborne'". (AB 144)
12. This discussion took place before the jury were expected to return to court (at 11.30am because some jurors had medical appointments). Counsel asked the judge to "not rule on my submissions until we know what the situation is when the jury reassembles … whether or not there's been any change overnight". The judge replied, "If there's a change of circumstance, then I will revisit it." (AB 145)
13. The judge then took the morning adjournment.

The juror not in attendance

1. After the adjournment the judge asked the court officer a series of questions from which it emerged that the juror who was the author of the note had not returned; several messages had been left on her mobile phone answering service without response; and her nominated contact person (her father) had been telephoned but he did not know her whereabouts. The father had volunteered, "that she has had mental illness in the past so he was a bit worried now". It was clarified that "in the past" meant before the trial. He had also said that he was going to continue trying to make contact. The court officer had told him that if the officer managed to make contact or if she turned up at court, he would let her father know. (AB 149-152)
2. The focus of the discussion that ensued was upon the fact that the juror was not in attendance; her apparent avoidance of any contact being made; and "she seems to have decided she's not coming to court". The Crown Prosecutor agreed that the latter was a reasonable inference but counsel for the appellant submitted that "it's a little too early to say that your Honour". He asked that more time be allowed, until 2 o'clock. (AB 152-3)
3. Reference was made to the prospect of continuing the trial with the remaining jurors (10 because a juror had been discharged at an earlier stage). The judge raised the prospect that if he did discharge the juror who was the author of the note, before deciding whether to proceed with the remaining jurors he would ask each of them whether they felt that in any way their will had been overborne and whether they felt that they could discharge the duty as jurors. He would then hear submissions about whether to continue the trial. Counsel for the appellant said, "I agree with that course, your Honour". (AB 153-4)

Proceedings after the luncheon adjournment

1. The court officer confirmed that he had tried to make contact with the juror again but had been unsuccessful. By now he had left four voicemail messages for her. The officer had also spoken again with her father and he had not heard from his daughter. (AB 156)
2. The judge indicated that he had been contacted during the luncheon adjournment by "one of the senior people in the Sheriff's Department [sic] as to what step the Sheriff could take". He said: "I indicated it was not a matter for the judge. The Sheriff was more concerned as to the wellbeing of the juror and although I'm not unconcerned about the juror's wellbeing, it's part of the protocol in place for the sheriff if they are concerned about a juror who hasn't turned up and hasn't explained, for them to make some inquiries. I explained to the sheriff and I thank him for the courtesy of the call but it's nothing to do with the court. So the Sheriff will take his normal course." (Emphasis added) (AB 156-7)
3. The judge raised the provision in s 53B of the Jury Act which included the discretionary power to discharge a juror in certain circumstances, including if: "(d) it appears to the court … that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror."
4. The Crown Prosecutor said that "there's no reason why your Honour shouldn't exercise that power. If a juror is unable to attend or chooses not to attend, without explanation, then clearly in my submission they can't perform their functions as a juror". (AB 157)
5. The judge asked counsel for the appellant "what do you say" and the following exchange ensued: "SCRAGG: Yes well that's correct. Your Honour, it appears that the juror, that she is not here because of what happened yesterday. HIS HONOUR: I think that would be a large jump in conclusions. I don't know what the diagnosis would be in relation to this person. The cause and effect are always controversial but there's an absence of evidence. Do you say there is contemporaneity between the writing of that letter and not turning up the next day but-- SCRAGG: There's a temporal connection and this juror has attended, I don't know whether or not she was one of the jurors that was sick at some stage but the juror, apart from that, this juror has attended court every day. HIS HONOUR: Yes. SCRAGG: And this is the only day that she has been absent without an explanation. … SCRAGG: So this is the only day that she's not attended and the reason in my submission, is connected to what occurred to her yesterday, during the lunch break. HIS HONOUR: Well I say, I do not know that. SCRAGG: Yes, your Honour. HIS HONOUR: It's possible but I couldn't find, on the balance of probabilities, that is the reason for her failure to attend today. I simply don't know. SCRAGG: Yes, your Honour. HIS HONOUR: If it be the case that the person has a problem in relation to a mental health issue and I can't determine that either. SCRAGG: No. HIS HONOUR: But if that's the case, aetiology and whether there's been recurrence and what could've caused the recurrence, it would be too difficult for me to - it would be speculative for me for me to understand it. SCRAGG: Yes, your Honour. Your Honour has really only two choices, discharge the jury [it was agreed that counsel said, or meant to say, "juror" (T6.10)] or stand the matter over until tomorrow and see if she makes contact during the afternoon or overnight. HIS HONOUR: It's now more than twenty-four hours since I received her note. We were going to resume cross-examination of your client after lunch yesterday. She wrote it during the luncheon adjournment obviously, because it was handed to me as I came onto the bench. So it's been more than a day and there's nothing which encourages me to the view that she would turn up tomorrow. The reason I say that is that even if she be unwell, she has the capacity to be contacted via her phone. For some reason, she is not picking up the phone from the Sheriff but also from her father. I am looking at balancing Mr Scragg, the fact that this trial has been going a long time. We are now in day 24, since we started with the jury. Of course there were a few days of consideration of pre-trial issues before that, without the jury. SCRAGG: Yes. HIS HONOUR: We're in day 24. There is a significant sacrifice in jury service particularly with long trials and none of us would like to have five weeks or six weeks carved out of our lives. Personal and professional lives, so it's that balancing exercise. I can't conclude that there's any real prospect that she would appear tomorrow. SCRAGG: A matter for your Honour, as always. I've got nothing further to say on that point, your Honour. HIS HONOUR: Yes, Mr Crown? CROWN PROSECUTOR: I've got nothing further to say, your Honour." (AB 157-9)

The juror who sent the note discharged (s 53B)

1. The judge delivered an ex tempore judgment in which, after recounting the facts he said: "The matter then comes before me to determine what course I should now take. I have expressed the preliminary view that I should exercise my powers to discharge that juror. Mr Scragg, whilst not arguing against that proposition, asks that I consider the possibility of adjourning the trial until tomorrow. I have considered that submission. In my view, the trial has already lost one day as a result of the juror having difficulties in apparently 'not wishing to sit yesterday afternoon'. The inference I drew was that she was not saying she would not be fit at any stage in the future to continue serving on the jury. But I have reached the view that in all the circumstances where the juror is not able to be contacted - not only on the number she provided to the Court, but also through contact with her father, the person she nominated as a contact - I should not adjourn the matter any further. I am very conscious of the fact that an accused in normal circumstances has the entitlement to a trial by a jury of 12 persons, as does the prosecution have the right to have the matter heard by 12. I have already discharge a juror who had fallen ill for yet a second time and had resulted in the loss of some three or four days of hearing. I am extremely cautious about taking a decision to reduce a jury to 10. Obviously, however, the Parliament, through the provisions of the Jury Act 1977 (NSW), has contemplated that such a circumstance may arise; the circumstances of this case do respond to the powers given in the Jury Act to the judge. The initial submission by the Crown was that I could consider utilising my powers under s 53A. That is not a discretionary exercise. It is a mandatory discharge of an individual juror if the juror was found to be relevantly engaged in misconduct in relation to the trial. Misconduct is defined. On the material before me, I could not be satisfied that the juror has engaged in such misconduct as understood under s 53A of the Jury Act. I do have discretionary power to discharge an individual juror under s 53B. In particular, in my view, s 53B(d) gives the Court wide powers to discharge a juror 'for any other reasons affecting the juror's ability to perform the functions of a juror' and if it appears to the Court that 'the juror should not continue to act as a juror'. These matters are not easily determined. There are many matters to take into account. I have sought to consider all of the relevant matters. I have listened to submissions on behalf of each of the parties. I have reached the view that in all the circumstances, on the evidence before me, I would exercise my power under s 53B(d). I therefore discharge that juror from the jury." (AB 315-6)

Whether to continue or to discharge the jury (s 53C)

1. The judge then sought submissions as to whether, pursuant to s 53C of the Jury Act, the trial should continue or the balance of the jury should be discharged. Section 53C(1) provides (relevantly) that if a juror is discharged, the court must discharge the jury if the court 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. If the court is of the opinion that there is no such risk, then (subject to s 22), the court must continue with a reduced number of jurors.
2. The Crown Prosecutor supported the continuation of the trial. His Honour then turned to counsel for the appellant: "HIS HONOUR: Yes, very well. Now what are your submissions contrary to that, if they be contrary? SCRAGG: They are contrary, your Honour. Your Honour, there is evidence that there's in my submission a rogue juror of the ten jurors who remain who is prepared to exercise intimidatory influence to get his or her point of view across. HIS HONOUR: Well that throws up the issue as to whether I can't really exercise my discretion until I go through the process of then asking them whether each believes that they can discharge their function as a jury to which they have sworn or affirmed and that they do not feel that their will is overborne. SCRAGG: Yes, well that's my submission, your Honour, that as it stands there is some evidence before your Honour of a rogue juror. HIS HONOUR: Very well. Mr Crown, I think I will bring the jury in and explain to them what has occurred and ask them, as I've said to each individually, on a piece of paper with their own envelope, write their number and then record whether they believe they individually - I'm just expanding upon this, should I just ask them because it's somewhat new territory in its own way, every case is individual - whether they believe they individually can discharge their functions and whether they believe the jury of ten - because what I'm contemplating is if there was someone who is, forget this case, imagine another case, who is trying to overbear the other jurors that person might write a very nice note to me saying everything is fine; the other nine will also do the same thing, but maybe they should be asked to express the view, two things, whether they feel they can discharge their function in accordance with their oath and that they do not feel overborne and secondly, whether they believe the jury of ten can do so. Because that second question would enable a juror to say, I'm imagining a situation, Mr Crown, imagine there were two jurors who were trying to overbear others, on what I'm proposing now I get ten notes back saying everything is fine because they individually feel that they can discharge their onus, but then they might be able to say I don't think the jury can. What do you say about that? SCRAGG: Yes, your Honour, I agree with it, I agree with what your Honour proposes. And as I understand - - ." (AB 164-5)
3. The discussion that followed concerned the content of the questions that would be posed for each juror. Counsel for the appellant agreed that posing the questions before considering whether to discharge the jury was "in the circumstances of this case … entirely appropriate". (AB 168)

Questions posed for individual jurors

1. The judge had caused to be prepared a document for each juror (headed with their juror number) which posed the following questions: "1 Do you personally as a juror consider that you can continue to freely discharge your function as a juror in accordance with your oath or affirmation? 2 Do you consider that the jury (meaning the ten remaining jurors) can continue to freely discharge its function in this trial?" (Emphasis in original) (AB 318ff)
2. The jury was brought back into court. Immediately prior to giving them the questions, his Honour said a number of things to them about the events of the previous 24 hours and the context in which the questions were being asked. What his Honour said included: "... As you can see there are now ten of your number. Yesterday I had received a note from a juror and that juror indicated to me that she was feeling unwell and stressed and was not up to sitting in Court in the afternoon. I sent a message to you all that I'll have you come in and I could deliver a message to you. However, that juror did not believe that she was up to coming into the Court yesterday afternoon. She raised the issue that she had felt that in some way she was being bullied by another juror but she did not expand upon that. We were to start at 11.30 this morning but that juror has not attended and Parliament, through the relevant Act, has given the Court the power to continue without that juror and I have considered the law and the evidence before me. Attempts have been made to contact the juror on a number of times, including her contact person, all of which has been unsuccessful. So I have reached the view that the trial should continue without that juror. The next matter I have to consider is whether we should continue the trial with a jury of ten, and the Parliament gives me the power to continue the trial with a jury of ten...." (AB 170)
3. After making a number of remarks about the need for jurors to listen to the opinions of others, discuss the evidence and "freely, politely and respectfully exchange views", his Honour continued: ".... Now because of the non-attendance of the juror concerned and the note that she has written me, I have taken the somewhat unusual decision to ask you each, to send individually, a note to me. I am going to give you each a pro forma and that pro forma is going to have two questions upon it It will have your jury number on it I will ask you fill it in, in your own words and that you put it in an envelope. You don't discuss the view you have. You just put it in an envelope. Obviously, a trial of this nature, it's important to the community. It's important to the accused. The conduct of a trial of this nature is very expensive for our community … So what I need to determine, is that you individually, form the view that you can continue to discharge your duties, freely discharge your function as a juror. Obviously this Court notes that there has been a lot of your time taken up. A lot of time of the accused, the legal representatives and of the Court time, all of which is expensive and also has its other effects." (Emphasis added) (AB 171)
4. Having then said something of the content of each of the questions posed, his Honour continued: "Normally I would just ask the foreperson, but because of the note I've received, I have reached the view I should receive it from each of you and that's no discourtesy to the foreperson but I think I should receive it from each of you. And I'd ask that you write your answers to those two questions independently of the others. Don't bother showing what you have or haven't written. Put it in the envelope. I will access the envelopes and then I'll make my decision. But of course, paramount in any trial is the issue of the need to ensure that justice is done to each of the parties and of course, I have to make decisions in the background of many witnesses being called. We're now in day 24 of this trial and as I said to you, I had to do some pre-trial procedures, so there's a lot of resources, there's a lot of not only financial resources, but human resources, has gone into the trial." (emphasis added) (AB 172)
5. His Honour then reminded them that he expected the evidence in the trial would be complete within about half an hour and that what would follow was the party's addresses and his own summing up. The jury then retired to answer the questions. Once the jury had left the court room the judge sought comment about what he had said: "HIS HONOUR: Very well, the comments I made to the jury, was there any slip of the tongue? CROWN PROSECUTOR: No, your Honour. SCRAGG: No, your Honour. HIS HONOUR: Is there any submission about that I should put anything else? CROWN PROSECUTOR: No, your Honour. SCRAGG: No, your Honour. HIS HONOUR: I drew the jury's attention to the length of the trial to go so as to avoid any prospect that a juror might think 'We were told four weeks. It's going on for five or six or seven or eight weeks' and impermissibly include that in their decision-making. Very well, I will have that - if the parties can wait, I don't think - if I can say not before 3.35. I'll go and have that prepared now." (AB 174)

The jurors' response

1. After a short adjournment the judge advised the parties of the jurors' responses which were all in the affirmative. Most of them had simply written against each question "Yes" but some had added remarks: "There is no reason why we can't" "Absolutely!" and "Without a doubt!" "100%" and "The team has been polite & respectful" "The remaining 10 are able to make the decision for this case as a group. I believe we have been on the trial for long enough and would like to see the trial til the end." (AB 321, 325, 327)
2. The following exchange occurred: "Now what do you propose? Do you want to keep cross-examining the accused, what would you prefer today? CROWN PROSECUTOR: I suppose in some respects I'm in my friend's hands. I don't know if he wants to make further submissions about whether or not your Honour should be discharging even though-- HIS HONOUR: Well I don't think so but. SCRAGG: No, I've got nothing further to add, your Honour. HIS HONOUR: Yes, very well." (AB 174)

Determination to continue

1. Another ex tempore judgment was given: "HIS HONOUR: I marked for identification the question asked by the jury. I was very conscious that I am taking an unusual step but the circumstances, in my view, demanded that I do so. I reached that view after hearing the submissions on behalf of the parties. Each of the jurors - and some of them in the most emphatic terms - has indicated they can individually deal with their function as a juror and collectively can do so. That makes me far more confident in making the decision pursuant to s 53C. I have considered all the matters referred to in exchange with counsel, at the outset. I have had regard to those portions of the judgments of Wu v The Queen (1999) 199 CLR 99, Gallagher v R (1987) 29 A Crim R 33 and BG v R [2012] NSWCCA 139. I have had regard to the stage that the trial has reached. It is day twenty-four, a very long trial, with many interstate witnesses. The cross-examination of the accused, the only witness called in his case is almost complete. There is just the addresses and the summing up to be completed. I also have regard to the amount of time that has been devoted to the trial and the length of time the accused has been in custody. I also take into account the answers of the individual jurors, expressing opinion as to their individual capacity to discharge their duty and also the unanimous opinion that the jury of ten jurors can continue to discharge freely its function. Taking all of those matters into account, I have reached the view that there is no miscarriage of justice, and there is no risk of a miscarriage of justice, by my continuing the trial with ten jurors. I therefore, pursuant to s 53C(1)(b), record that I am of the opinion there is no such risk of a substantial miscarriage of justice - there is no risk of a miscarriage at all, in my view. I order that the trial will continue with the remaining ten jurors." (AB 316A-B)
2. The jury were brought back into court and told that the each member had responded to the questions in the affirmative and the judge had resolved to continue the trial. (AB 178)

Some principles fundamental to the competing cases on appeal

1. Mr Game SC submitted at the outset of the hearing of the appeal that the case depended upon the principles in Webb v The Queen; Hay v The Queen. He put it quite frankly: "We either succeed on that basis or we don't succeed". (T2.10)
2. The "principles in Webb v The Queen; Hay v The Queen" was a reference to the test therein laid down for determining whether an irregular incident involving a juror warrants, or warranted, the discharge of a juror or the jury which was described by Mason CJ and McHugh J as follows (at 53): "whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
3. The test was derived from earlier decisions concerned with the test to be applied when a question of bias of a judge arises which their Honours described as follows (at 47): "When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case." (Emphasis added)
4. Mr Game emphasised that the test so expressed twice uses the word "might". (T3.43)
5. In Smith v State of Western Australia the High Court held that the Western Australian Court of Appeal had erred by not applying the test in Webb v The Queen; Hay v The Queen when a juror left behind a note which came to light after a guilty verdict had been returned ("I have been physically coerced by a fellow juror to change my plea"). Applying the test for itself, the High Court found that it was "not possible to exclude a reasonable suspicion that the note described conduct which was an offence". It said (at 487 [59]), "if a court of appeal is unable to exclude a real suspicion that a juror has been improperly influenced, then the conviction cannot be allowed to stand".
6. The Crown pointed to some fundamental matters derived from Wu v The Queen [1999] HCA 52; 199 CLR 99. The issue in that case concerned a juror who was absent through illness who was discharged by the trial judge with the trial continuing nonetheless. Included in the various issues raised on appeal was a contention that the trial judge should not have acted so peremptorily in discharging the juror. To this suggestion that there should have been some delay, perhaps even for weeks or months, Gleeson CJ and Hayne J said: "Trial by jury is not episodic; it continues from day to day (except on weekends and holidays). The construction urged by the appellant would have the trial proceed in fits and starts with all the deleterious consequences that would have on the ability of members of the jury to perform their function as judge of the facts."
7. In speaking of the provisions of s 22 of the Jury Act, but in terms just as applicable to the power to discharge a juror in s 53B(d) ("any other reason affecting the juror's ability to perform the functions of a juror"), their Honours said (at 105 [14]): "The incapacity to which s 22 refers when it speaks of a juror 'being through illness incapable of continuing to act' is the incapacity of a juror to perform his or her duties as a juror. Those duties ordinarily require the juror to attend from day to day during ordinary court hours until the jury is discharged. If a juror is not present at the court when the trial is ready to proceed, the juror is unable to perform his or her duties. If the juror is absent because of illness, the juror is unable to perform his or her duties 'through illness' and that is so whether or not the juror will recover from the illness and whether that recovery will be quick or slow."
8. Their Honours also said (at 105 [16]) that "it is not right to assume … that the power to discharge a juror because the juror is ill requires in every case some elaborate factual inquiry about the juror's health". The fact that the juror was absent was the critically important fact. Why she was absent was important only in deciding how long the interruption to the proceedings would be.
9. Counsel for the Crown also submitted that the following passage in the judgment (at 106 [18]) described what should have been the central focus of the trial judge when the issue arose upon receipt of the juror's note: "The appellant's submissions suggested that the trial judge's focus should have been on the absent juror: why was she absent? How long would she be away? But that is to direct attention away from the central question which the trial judge had to determine which was how best the trial of the appellant should proceed. That required attention to the fair and lawful trial of the appellant by a properly constituted jury and it also required attention to how best that trial might be conducted promptly and without delay."

Events following receipt of the note

1. The appellant submitted that the terms of the note (MFI 62) were sufficient to create reasonable grounds for suspecting that one juror had exercised unlawful intimidation over another which would be "a serious breach of the presuppositions of the trial" (Smith v State of Western Australia at 486 [54]). The juror's reluctance to come back into court after having sent the note was said to strengthen those grounds. It was submitted that it was open to the trial judge to have questioned the author at that time in an attempt to establish the genesis of the note. (AWS [99])
2. It was submitted that "you had to get the juror in and find out what the situation is … you can't ignore an allegation of bullying". It was also submitted that the trial judge's proposal of speaking to the entire jury foreclosed the possibility of finding out from the juror what the nature of the bullying was. (T3.8; 4.8)
3. The note did not positively assert that there had been bullying in the sense of an attempt to intimidate or coerce the juror in relation to an issue concerning the trial, although it must be accepted that something like that might have prompted it. It was well possible, as the trial judge observed, that the juror perceived robust discussion as something that caused her to feel stressed and unwell which prompted her to characterise it as bullying.
4. What to do in these circumstances is a matter about which the minds of trial judges might reasonably differ. In my view, it was open to the judge in this case to speak with the jury as a whole. It was understandable that he would be reticent about inquiring into what was going on the jury room. The first response of the experienced counsel who appeared for the appellant at trial did not involve any opposition to his Honour's suggestion (although he did ask for the opportunity to reflect upon it overnight and to take instructions).
5. As he articulated it the following morning (AB 138), the judge was minded to include in what he told the jury that "if any juror feels that the conduct of another juror is interfering with that juror's capacity to discharge the functions of the juror, then drop me a note".
6. If the judge did speak to the jury as a whole in the manner he proposed there might have been three possible outcomes. First, there might have been another note from the juror explaining that the issue did involve an attempt to improperly intimidate or coerce her. That would certainly require some action by the judge. Secondly, there might have been another note from the juror explaining that the issue did not involve anything of that sort but something quite peripheral or unrelated. That is likely something that could be resolved in a different way. Thirdly, there might have been no further response because the juror had a better understanding of her role after having heard the judge's remarks. The possibility that a juror was being improperly intimidated or coerced but not raising it further with the judge may be excluded on the expectation that the jurors would heed the advice they had received from his Honour.
7. The juror's reluctance to return to the court after having sent the note did not strengthen the grounds for suspecting that one juror had exercised unlawful intimidation over another as the appellant submitted. It simply confirmed what was in the note: "not up to court this afternoon". As a practical matter, it would have been unreasonable, perhaps even harsh, for the judge to insist upon the juror, or the whole jury, being brought back into court that afternoon despite what the juror had conveyed. Again, the appellant's counsel was content with the judge's suggestion that the jury be sent away with a view to some remarks being addressed to them in the morning.

Events the following morning

1. The juror's unexplained absence the following day was said to further strengthen the inference of mistreatment or bullying as it was open to conclude that such absence, in the context of her refusal to come into court the previous day, was related to the alleged bullying. Any remaining uncertainty should have been investigated. The juror could have been required to return to court. There had been an inability to contact her but the means of locating her had not been exhausted. (AWS [100])
2. It was submitted that the judge should have ensured that every effort was made to investigate whether or not improper pressure had been applied to the author of the note. Section 53A required discharge of a juror if found to be responsible for misconduct. The judge should have initiated an investigation by the Sheriff; such investigation being authorised by s 73A. The judge was wrong to say that such investigations had "nothing to do with the court". (AB 157.2) (AWS [101]-102])
3. The appellant submitted that it was erroneous for the judge to say that he "couldn't find, on the balance of probabilities that [bullying] is the reason" for the juror's absence. (AB 158.20) In his judgment concerning the discharge of the juror he made no reference to the possible link and overlooked the court's ability to further investigate it. He also made no reference to the test in Webb v The Queen; Hay v The Queen in his judgment dealing with the discharge of the individual juror. (AWS [103]; T6.30) As to the latter, it must be remembered that the judge was there dealing with the ability of the juror to perform her functions as a juror (s 53B(d)).
4. I accept that the juror's failure to attend the following morning (6 March) strengthened an inference that the juror felt upset and extremely stressed over what she perceived as mistreatment by another juror (according to the note). However, whether such perceived mistreatment was in the form of bullying in the sense of an inappropriate attempt to intimidate or coerce her in relation to an issue in the trial is another matter.
5. The appellant submits that this should have prompted an investigation but I cannot accept that. There was clearly no means of inquiring of the juror herself. Quite a deal of effort was devoted to try and make contact with her, directly and via her father, to no avail. The option of further delaying the trial while such attempts continued, including as Mr Game suggested by sending a sheriff's officer to the juror's home, had to be balanced against the other considerations discussed in Wu v The Queen at [18] (see above at [55]).
6. A request to the sheriff pursuant to s 73A to carry out an investigation could have been made if there was cause to think that there was "reason … to suspect that the verdict of [the] jury … may be … affected because of improper conduct by a member or members of the jury". However, counsel then appearing for the appellant retreated from such a suggestion: "it would be perhaps taking it a little far to say that it related to a verdict or verdicts". (AB 135.47) Moreover, rather than an investigation there was alternative and more expeditious action available to the judge; that which he took.
7. I do not accept the submission (AWS [102]) that the judge's statement that it was "nothing to do with the court" (see above at [33]) involved a misconception because the court had the power to investigate pursuant to s 73A. That statement by the judge has been taken out of context. In my view, what the judge was referring to was the physical and mental safety and wellbeing of the juror; a matter about which the Sheriff was concerned. It is not the case that the judge did nothing to investigate; he did so by posing questions to the other jurors with the concurrence of counsel.

Events following the discharge of the juror

1. Following the discharge of the juror who was the author of the note there was no further attention given to the possibility of there having been bullying of her and identifying who may have been responsible. The judge proceeded to ask the jurors the two written questions. But before inviting the jurors' responses, his Honour made a number of comments the appellant described as "a thinly veiled signal to the jury that the resolution of the proceedings without a verdict would result in a significant waste of time and money". It was submitted that such comments were contrary to the principle emphasised in Black v The Queen [1993] HCA 71; 179 CLR 44 that a jury must be free to go about their task without any form of pressure being imposed upon them. The High Court was critical of reference being made to expense and public inconvenience. The appellant contended that the answers provided by the jurors were "unsurprising" in reflecting a confidence that they could discharge their duty freely. The reliance the judge placed on the positive jury responses (those that were more emphatic than just "yes") ignored the role the judge's comments may have had in eliciting them. (AWS [105]-[107]; [109])
2. The Crown (correctly) pointed out that these submissions failed to acknowledge that except for discharging the remaining 10 jurors, everything that the trial judge did in this phase of the matter was affirmatively endorsed by the appellant's trial counsel.
3. The reference to Black v The Queen does not assist the appellant. That case was concerned with comments about expense and inconvenience made to a jury which had reached an impasse during the course of deliberations; comments which were held to run the risk of a juror inappropriately compromising with other jurors in reaching a verdict: see Mason CJ, Brennan, Dawson and McHugh JJ at 50 and Deane J at 56. In the present case, the comments of the judge merely pointed out matters that would have been patently obvious to the jurors in any event and they were not made in the context of any apparent disagreement between jurors as to the verdicts to be returned. Moreover, if there was any risk that the comments might be productive of miscarriage then one would well have expected that trial counsel would have been alive to it. His response, however, was to confirm that there had been no "slip of the tongue" or anything else that the judge should say to the jury: see above at [45].
4. Mr Game sought to distinguish the approach taken by the judge in posing questions for the jury with what occurred in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 ("Elomar v R"). (T7.30) In that case the trial judge refused to discharge the jury following incidents in which a relative of one of the accused was seen to be monitoring jurors after they had left court for the day. By inference, the person was seen on the second of the two occasions to be recording the registration details of a juror's car. This was at an early stage of what was anticipated to be (and was) a very lengthy trial.
5. The first response of the trial judge in Elomar v R was to remind the jury of the importance of deciding the case on the evidence and not to assume that the actions of the person in question were instigated or supported by any of the accused. He then sent the jury home. The next morning he invited the jurors to self-assess their ability to discharge their duty impartially. Upon receiving an affirmative response after allowing the jury to retire to consider the issue, the judge refused an application to discharge them. It was held by this Court that the judge had applied the correct (Webb v The Queen; Hay v The Queen) test and had not erred: see Elomar v R at [292]-[324].
6. The point of distinction Mr Game sought to raise was that the event in Elomar v R was "about some external influence on the jury whereas this is something about something going on inside the jury itself". (T7.35) With respect, however, I cannot see such distinction. Elomar v R implicitly endorsed the approach taken by the trial judge of seeking a self-assessment by jurors of their ability to discharge their duty in accordance with their oath or affirmation. (The Crown cited R v Spilios [2016] SASCFC 6 as another example where such an approach was regarded as appropriate.) In the present case, the appellant's counsel considered that "it's entirely appropriate": see above at [40].
7. The Crown pointed out that after the judge had determined to continue the trial with the remaining jurors there were a number of notes received by the trial judge but they concerned other issues; there was no indication of any difficulties or disharmony, let alone bullying or mistreatment by one or more jurors towards another or others.
8. A further submission was that the juror who was the subject of the discharged juror's note, and any others who may have witnessed any bullying, may have interpreted the judge's response as some form of tacit endorsement of any bullying or like conduct that had occurred. The fact, as they might have perceived it, was that the juror who had complained of bullying was no longer part of the jury while the person responsible remained with no investigation having been carried out. Further, the judge did not expressly criticise such conduct by saying, for example as he had earlier indicated he would, that jurors "had no right to seek to overcome the rights or the decision of another juror or to bully that juror". (AWS [108])
9. The first problem with this submission is that it is based upon speculation but a more fundamental problem is that no such concern was raised by trial counsel. The judge certainly had raised the possibility of saying something to that effect but as events transpired it would seem that trial counsel did not consider it to be necessary.
10. Finally, there was criticism of the ex tempore judgment by the trial judge determining to continue the trial with a reduced number of jurors rather than discharging them in that, like the earlier judgment discharging the individual juror, there was no reference to the test in Webb v The Queen; Hay v The Queen. (T8.25) However, and as previously observed, the earlier judgment was concerned with the issue posed by s 53B(d). The second judgment needs to be assessed in the context of the issue the judge was called upon to determine.
11. To summarise, after the discharge of the individual juror, trial counsel for the appellant made an application that the entire jury be discharged because "there's … a rogue juror of the ten jurors who remain who is prepared to exercise intimidatory influence to get his or her point of view across". The trial judge responded by indicating that he could not assess whether this was so without asking the jurors "whether each believes that they can discharge their function as a jury to which they have sworn or affirmed and that they do not feel that their will is overborne". Trial counsel maintained his submission. The judge then explained why he would pose two questions for the jurors to answer. Trial counsel then agreed that this was appropriate. After the jurors' responses were received, counsel had nothing further he wished to put. (See above at [39], [47]).
12. In these circumstances, having regard to the stance taken by the appellant. I am not persuaded that there was any error in the trial judge not making express reference to the test in Webb v The Queen; Hay v The Queen. The position might have been different if there had been a suggestion that notwithstanding the jurors' responses there remained an issue as to whether fair-minded people might reasonably apprehend or suspect that the remaining jurors, or any or them, had prejudged or might prejudge the case. There was no suggestion of this and, in hindsight, I do not accept that there was.

Conclusion

1. Situations such as that which arose in this case arise from time to time but are always unique in their particular circumstances. A great responsibility falls upon a trial judge to tread what is sometimes quite a delicate path to their resolution. The judge in this case was very experienced in criminal trials, both as a judge and in his previous life at the bar.
2. While this Court is always alive to the need to detect and deal with miscarriages of justice it is also necessary to respect the sometimes very difficult judgment calls made in the atmosphere of a trial in which there is usually little if any time for calm and leisurely reflection. Moreover, it is often the case that the atmosphere of the trial cannot only be gauged by the response of the trial judge to these types of situations, but also by the submissions that are made, particularly when experienced counsel are appearing.
3. For the reasons given above, I am not satisfied that there was any wrong decision of any question of law or any miscarriage of justice: s 6(1) of the Criminal Appeal Act 1912 (NSW).

Orders

1. I propose the following order: Appeal against conviction dismissed.
2. SCHMIDT J: I agree with R A Hulme J.

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