R v McNamara (No 27) [2016] NSWSC 152
Wu v The Queen (1999) 199 CLR 99
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 52
R v RogersonR v McNamara (No 27) [2016] NSWSC 152
Wu v The Queen (1999) 199 CLR 99
Judgment (3 paragraphs)
[1]
Ex TEMPORE Judgment (REVISED)
This is the 45th day of the trial by jury of Abdallah Hassan Al Batat, Ying Cheng Luo, Ian Fan, Jacob Bayliss, Jaiyu Liu and Nai An Li who are charged with, amongst other things, murder and attempted murder. The trial has proceeded with an expanded jury of 15 and despite a couple of days of absence due to particular jurors taking a COVID-19 test the jury has attended every day of the trial. Any interruptions to their attendance or delays in the trial have been caused either by legal arguments that needed to be undertaken in the jury's absence, or because of the unfortunate and reasonably consistent tardiness of the Department of Corrective Services getting the accused in court on time. Today, for example, we started 45 minutes late.
In any event, throughout the trial, the jury, as a collective, has appeared to be generally attentive and engaged in the process. Given the length of the trial, it is perhaps surprising we have not lost a juror at any stage. There was one very minor incident when one of the police witnesses appeared to wave at a juror who responded, but on examination it was clear that the juror had done nothing wrong and there was no suggestion that the appearance of justice, nor the impartiality of the jury or juror, would be compromised.
Ms Rigg of Senior Counsel, who appears for Mr Al Batat, now makes an application under s 53B of the Jury Act 1977 (NSW) seeking the discretionary discharge of a particular juror. That application arose in circumstances where, in the course of the last few days of the trial, I have brought my observations of the particular juror to the attention of counsel. Those observations were that at some stage last week, during the conclusion of the evidence being called in the prosecution case, the juror was clearly asleep for some period of time. [1]
I made those observations because the fact of their somnolence was brought to my attention by members of my staff. Yesterday, members of my staff again drew my attention to the juror and each of them could not only see that they appeared to be asleep, but were of the view that they could hear them snoring.
I can't say that my hearing is good enough to have made the latter observation but, when I looked over to the juror, it was obvious that a juror two seats down was patently aware of the problem. I also observed a juror to her immediate left looking at the juror in question as well. It seemed that some members of the jury were aware that the juror was having difficulties remaining awake.
My estimate is that I have observed the juror to be asleep on at least four separate occasions in the course of the final days of the prosecution case in the course of the address of the Prosecutor, which commenced yesterday. Indeed, they appeared to be sleeping within the first 45 minutes of the prosecution commencing its address.
There have been other occasions during the course of the trial when I have made observations of two jurors in particular who appeared to have their eyes closed. I have kept my eye on those jurors just to ensure they were in fact awake, as best as one can tell. My observation was that on none of those occasions could I be certain that either of the jurors in question, each of whom is sitting in the back of the Court, was actually asleep. I should indicate that the jury is separated between 10 in the traditional jury box and five sitting in the public gallery, which has been refashioned as part of the jury box. These precautions result from precautions taken due to the COVID-19 pandemic and the necessity to maintain social distancing. Those two jurors are further from the action, I suppose, and I have seen them close their eyes but I would not say they were actually asleep.
Ms Rigg's application is based on s 53B(d) of the Jury Act. That subsection states:
The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if -
…
(d) it appears to the court or coroner 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.
The application was not supported by all of the accused's representatives. Some opposed it and suggested that I continue to monitor the situation. Others suggested it would be appropriate to examine the juror to see if there was any particular reason why she was having difficulties staying awake. Those options are valid ones and I have taken into account the position taken by the accused who did not support the immediate discharge of the juror. Other accused appeared generally to be supportive, or not to oppose, the application. The Prosecutor, who also made observations in the course of yesterday's address, after it was drawn to his attention, generally supported the application.
I have not, in the time available, had any chance to review any authorities on jurors being asleep, but I have quickly read or reviewed the High Court's decision in the notorious "sleeping judge" case: Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52. In that case, the High Court reviewed a number of authorities concerning miscarriages of justice, noting at [90] that there was something of a history of sleeping judges going all the way back to the musings of Plato.
Their Honours observations clearly established that even though the trial judge was not the tribunal of fact, the fact that he was sleeping in the course of the evidence was such as to occasion a miscarriage of justice. French CJ said:
"[72] The appearance of a court not attending to the evidence and arguments of the parties and control of the conduct of the proceedings is an appearance which would ordinarily suggest to a fair and reasonable observer that the judicial process is not being followed. That is not to say that every minor distraction, inattention, sign of fatigue or even momentary sleepiness constitutes a failure of the judicial function. The courts are human institutions operated by human beings and there must be a margin of appreciation for human limitations. Otherwise the judicial system would be rendered unworkable by the imposition of unachievable standards. Nevertheless, it would be an unnecessarily narrow view of the judicial duty to say that appeal courts are to judge such lapses solely by reference to their effects upon the outcome of the case. In so saying, it must be accepted that the question will ordinarily fall for consideration in the application of statutory language, in this case the common form provision for criminal appeals reflected in s 6(1) of the Criminal Appeal Act.
[73] The standards to which courts are held and to which they hold themselves have become higher in recent times. Lord Steyn, giving the opinion of the Appellate Committee of the House of Lords in Lawal v Northern Spirit Ltd, said:
"What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago."
[74] In a jury trial it is not the judge but the jury which finds the facts. It reaches a verdict by applying to the facts the law as explained to it by the judge. But the judge's function in such a trial is not exhaustively described by saying that he or she rules on questions of law including the admissibility of evidence, sums up to the jury, directs the jury on matters of law and otherwise acts as a kind of referee between prosecution and defence. These are all attributes of a more broadly expressed function of supervision and control of and participation in the trial process. That is a function which has long been understood. It requires no less a standard of attentiveness to the evidence and the conduct of the trial generally than the standard applicable to a judge sitting alone. Indeed, because of the involvement of the jury it requires more."
(Footnotes omitted.)
His Honour went on to say at [92] to [93]:
"[92] The general principle that a fair trial requires a judge to be attentive to the evidence and submissions of the parties was supported by the judgment of the Court of Appeal of England and Wales in Stansbury v Datapulse Plc. Peter Gibson LJ (Latham LJ and Sir Martin Nourse agreeing) said:
"A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause that hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before him or her. That is the position, as I see it, under English law, quite apart from the European Convention on Human Rights."
Peter Gibson LJ saw the proposition as reinforced by Art 6(1) of that Convention.
[93] If, by reason of sleep episodes or serious inattention, the reality or the appearance exists that a trial judge has substantially failed to discharge his or her duty of supervision and control of the trial process in a trial by jury, then enough has been made out to establish a miscarriage of justice. The question whether there has been the reality or appearance of a substantial failure by the judge to perform his or her duty will require assessment of a number of factors including:
1. Whether the conduct of the judge can be said to have affected the outcome of the trial.
2. Whether the conduct of the judge has created a risk that the outcome of the trial may have been affected.
3. Whether counsel raised the question of the trial judge's conduct at the trial.
4. Whether the jury appeared to have noticed or to have been distracted or otherwise affected by the judge's conduct.
None of these factors, taken by itself, is determinative. There is an overall assessment to be made in deciding whether a failure or apparent failure by the judge for whatever reason to attend to the duty of supervising and controlling the trial process amounts to a miscarriage of justice. In so saying it should be emphasised that the duty of counsel in a case of non-trivial inattention or sleep episodes is to draw these issues to the attention of the judge in the absence of the jury. The failure of counsel to do so may support an inference that the judge's conduct did not amount to a substantial failure in the judicial process at trial. However, it will not always be determinative."
(Footnotes omitted.)
The juror's inability to remain awake during the course of last week's evidence, some of which was very important for the accused, involving cross-examination of the police investigators, and yesterday during the Prosecutor's address, caused me to conclude that there is a reason affecting the juror's ability to perform the functions of a juror. That is an alternative to matters set out in paragraphs (a), (b) and (c) which have more to do with impartiality or illness. Subparagraph (d) is more of a catch all provision and clearly encapsulates a situation where a juror is unable to remain awake. I am satisfied that that provision is enlivened.
The fact that some of the accused do not support or, indeed, oppose the application is a relevant consideration to take into account in determining whether the discretion to discharge the individual juror should be exercised. I have certainly taken into account the submissions made, in particular by Mr Webb on behalf of Mr Luo, and Ms Carroll on behalf of Mr Liu. I do not accept that it is appropriate in the circumstances to examine the juror. I think it would be, whether the questions were specific or general, such as to constitute an invasion of their privacy. Having made the observations myself, there is no doubt that the juror slept during important parts of the trial. I do not know what enquiry could do, other than to embarrass the juror in circumstances where she would clearly have to accept that she nodded off, nodded off on more than one occasion, and nodded off for extended periods of time.
Another relevant consideration is that we have a jury of 15. If the juror is discharged we will be down to 14. We are towards the end of the trial and whilst one can never be certain of what will happen in a jury trial, it would seem that we will have a jury of 12 when we come to send the jury out to consider its verdict. It is not a case like Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 where the parties will be left with less than the 12 jurors traditionally associated with a criminal trial in New South Wales and going back some centuries in the United Kingdom.
I am satisfied the discretion should be exercised without further examination of the juror and I propose to accede to the application by counsel that the individual juror be discharged.
[I then considered whether the trial should continue with a reduced number of jurors and determined that a reduction of the number of jurors did not give rise to the risk of a substantial miscarriage of justice: s 53C Jury Act.]
Accordingly, I make the following orders:
1. Pursuant to s 53B(d) of the Jury Act 1977 (NSW), the juror [number 9 from call number 707 at the Downing Centre, Sydney] is discharged.
2. Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) the trial is to continue with a reduced number of jurors, namely 14 jurors.
[2]
POST SCRIPT
Upon bring the individual juror into Court in order to give effect to these orders, the juror explained the medical reason for her somnolence. It should be recorded, without reference to private information, that the juror was diligent and attentive until the last week or so of the trial, and their inability to remain awake was understandable and beyond their control.
[3]
Endnote
Compare R v Rogerson; R v McNamara (No 27) [2016] NSWSC 152 (Bellew J).
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Decision last updated: 25 November 2020