Solicitors
Solicitor for the Commonwealth DPP
Matouk Joyner Lawyers - Accused George Alex
Birchgrove Legal - Accused Kirschberg
McGirr & Associates - Accused McAndrew
Kingston Fox - Accused Loccisano
Nyman Gibson Miralis - Accused Bryers
Matouk Joyner Lawyers - Accused Arthur Alex
File Number(s): 2020/216740; 2020/213439; 2020/210570; 2020/212593; 2020/210541; 2020/210516
[2]
JUDGMENT
On Thursday 6 June 2024, the 73rd day of the trial before me of George Alex and others, I made an order discharging a juror pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW). I ordered the discharge of an additional juror in the exercise of my discretion pursuant to s 53B(b) and (d) of the Act. Immediately before those orders took effect there were 14 jurors and the trial had reached the commencement of the Crown's closing address. But for the individual discharges, the trial would have continued with 14 to the completion of the summing up, at which time a ballot would have been conducted to select a verdict jury of 12 in accordance with s 55G of the Jury Act. Under ss 22 and 53C I determined that the trial should continue with a jury constituted by the 12 who remained following the orders for individual discharge. The following are my reasons for the orders made.
At 9:25 am on Wednesday, 5 June 2024 (Day 72) I was informed by the Sheriff, Ms Tracey Hall, by phone that she had been contacted by the Australian Federal Police (AFP) concerning a member of the jury, Juror G. Ms Hall informed me that in the course of an investigation unrelated to the trial or to the individual's jury service, a search warrant had been executed at his residence earlier that morning and his mobile phone had been examined. The examination had revealed that in April 2024, approximately two months into this trial, Juror G had made internet searches relating to one of the accused and relating to at least one other person whose name is connected with evidence in the Crown case.
Pursuant to s 73A of the Jury Act, I requested Ms Hall to undertake a Sheriff's investigation of the matter and to report to me on the outcome. That request was conveyed in my initial phone conversation with Ms Hall at 9:25 am on 5 June 2024 and confirmed in an email from my Associate sent at 9:55 am. The email included the following (with numbers added for ease of reference):
1 In the first instance his Honour requests that the investigating police provide, through you, screen shots and/or other data from which his Honour could assess the nature and extent of the improper searches and their relative significance to the issues in the trial.
2 As soon as material of that nature can be provided, his Honour will be able to decide whether it appears likely that it would be sufficient to discharge the individual juror and continue the trial with strong directions to the remainder.
3 Secondly, his Honour requests that the sheriff's enquiry should include questioning of the juror, whom his Honour understands is presently co-operating with police, to obtain his version of whether there has been any discussion with other jurors of the information that he has improperly obtained.
4 In light of whatever information the above enquiries may reveal, his Honour will determine whether it may be necessary to question other jurors individually and/or whether it may be necessary to ask that sheriff's personnel undertake such broader enquiries within the jury.
In accordance with pars 1 and 2 of that request, at 10:03 am Ms Hall sent to me by SMS text message screenshots of Juror G's mobile phone, showing his search history. The history revealed that he had accessed the internet at three sites at which information relevant to the trial could be located. My staff in chambers downloaded the material at those sites and printed hard copies. At 10:41 am Ms Hall sent by email further screenshots from Juror G's phone showing that he had accessed further content relevant to the trial at another five sites. My staff prepared hard copies of that content also.
The content at the sites that were shown by the screen shots to have been searched by Juror G may be described as follows:
1. A report dated 22 July 2020 in Neos Kosmos, an online newsletter catering to the Australian-Greek community, under the headline "George Alex and son among 12 crime syndicate suspects arrested in police raids". The report recounted the arrest of George and Arthur Alex on 20 July 2020 and identified the charges in terms broadly consistent with those now on the indictment. It stated that police had also arrested Caitlin Hall who was described as "the wife of convicted drug dealer Michael Ibrahim". Reference was made to George Alex's evidence before the building industry Royal Commission in 2014 and to allegations made in that context that he had used companies that were "collapsed because of debt", with their assets being moved to other newly created entities to avoid payment of debts, including taxes. The report made reference to AFP action to restrain bank accounts and other assets in connection with the arrests.
2. A report dated 8 August 2020 in The Greek Herald under the headline "George Alex slapped with $2 million bail as construction boss walks free from prison". The report stated that George Alex had been arrested "over a $17 million tax fraud syndicate" and had been granted bail "over mental health issues". It stated that bail conditions included effective house arrest and that the magistrate who granted bail had been informed of a prior conviction for "sending death threats to his former lover Anna Lee".
3. A series of search results relating to Caitlin Hall, that had been generated in response to the search terms "catlin [sic] hall tax fraud trail [sic]". The results included links to articles referring to Caitlin Hall as the wife of Michael Ibrahim.
4. Search results generated in response to the search terms "athina alex".
5. Search results generated in response to the search terms "george alex".
6. Search results generated in response to the search terms "george alex earlwood". The accused George Alex resides in the Sydney suburb of Earlwood.
7. Search results generated in response to the search terms "nectaria alex wife of george alex".
8. An article published on the Sydney Morning Herald website updated on 1 July 2015 under the title "Wife of underworld figure George Alex knew nothing of alleged payments to union". The article concerned evidence given by Nectaria Alex to the building industry Royal Commission in 2015. The article stated that Ms Alex was questioned about text messages from George Alex's phone to her phone, conveying instructions for sums of money to be paid to individuals. The article made reference to allegations advanced before the Royal Commissioner that labour hire companies associated with George Alex made regular payments to a union official. It also referred to evidence from George Alex that the text messages could have been sent by his former business partner Joe Antoun who "was murdered in late 2013".
Hard copies of what could be found on the internet at the sites visited by Juror G and hard copies of his search results were included within a bundle of documents marked for identification 67 and placed with the Court file. My associate's email to the Sheriff of 9:55 am on 5 June 2024 was also incorporated in MFI 67. A full copy of that material was provided to all counsel when I reconvened the trial at approximately 11:00 am on 5 June to inform the parties of the information I had received and to advise them that the Sheriff had been requested to investigate. The proceedings were stood down until 2:00 pm.
At 12:10 pm Superintendent Matthew York of the Sheriff's Office reported to me by phone upon the outcome of his preliminary interview with Juror G, who was up to that time at his residence attended by AFP officers. They were continuing their unrelated investigation. The substance of Supt York's report concerning the interview was as follows:
1 Juror G admitted that he had conducted the internet searches of which there was a history recorded on his phone. He said that he knew that was in contravention of the trial judge's directions, which he acknowledged had been given repeatedly over the course the trial.
2 Juror G said he had spoken about his internet research to other jurors. He said he believed other jurors had also carried out searches because of their lack of reaction to things he said to them.
3 Juror G said that Juror A told him that he had been at school with the solicitor for one of the accused.
4 Juror G alleged that Juror A had told him there could be a financial incentive for a not guilty verdict. He did not say that any amount of money had been spoken of, or on whose behalf it would be paid or by what means the financial incentive would be delivered. Juror G did not suggest to Supt York that discussion of that subject had gone beyond the two of them.
5 Juror G claimed that Juror A had communicated with him about selling drugs and had suggested that they use an end-to-end encrypted messaging service called "SimpleX".
6 Juror G said that 10 of the 14 jurors were communicating with each other via a "private chat room" through which they organised who would call in sick for a particular day. He supplied the first name of a juror whom he said was the moderator of this chat room.
The information in Point 1 above necessitated that Juror G should be individually discharged. Point 2 required that the Sheriff's investigation continue with respect to the conduct of the other 13 jurors.
Point 3 was of no consequence because the solicitor concerned had informed counsel instructed by him about his high school acquaintance with Juror A immediately upon recognising him after the jury had been selected. Counsel advised, in open court but in the absence of the jury, that there had been no contact between the two, in person, by phone, through social media or by any other means, during the past 10 years: T 19-20. Neither the Crown nor any other party raised objection to Juror A continuing to serve on the jury. Accordingly, I saw no risk of any perception of partiality and Juror A remained.
Point 4 required that the Sheriff's investigation continue with respect to the conduct of Juror A and to ascertain whether any other juror had heard of any inducement having been offered.
Point 5 is a matter for investigation by NSW Police, if the information is passed on to them and if they see fit. It is of no relevance to any orders I might make under the Jury Act, other than that it is some indication of a degree of closeness between Jurors G and A in their association outside court hours.
Point 6 required further investigation to enable the Sheriff to ascertain whether jurors' remuneration entitlements were being abused but that question was not material to my decision.
I requested that Supt York interview the remaining jurors concerning Juror G's allegations about them. Superintendent York attended Darlinghurst Court No 2 after 2:00 pm on 5 June and over approximately 2½ hours he spoke with each juror individually, requiring those whose interviews had concluded to wait in a room separate from those yet to be interviewed.
At 5:00pm Supt York attended my chambers and reported to me orally on what he had been told in the interviews. In the following paragraphs, numbered in accordance with the subjects raised by Juror G as set out at [7] above, I summarise Supt York's oral report, with the addition of some information available to me from the course of proceedings and some reference to my own assessments:
2 Two jurors, A and C confirmed that juror G had told them he had made internet searches. They said he had not conveyed to them the substance of any information he claimed to have acquired by that means. Juror A asserted that G had spoken about his internet research to Jurors C and O together but Juror O did not confirm that that had occurred. All other jurors denied that Juror G had told them of having searched the internet. (I had originally understood there to have been three jurors in addition to A who had been told of Juror G's searches, but that was a misinterpretation of the information from Supt York). Apart from G, all 13 of the other jurors denied having made searches of their own.
3 Juror A confirmed that he had known one of the defence instructing solicitors at school but that he had not been in contact with him for 10 years. That was consistent with what the Court and the parties had been told by counsel on the first day of the trial. One of the other jurors told Supt York that she was aware of that past acquaintance and understood that the Court was also aware. I have subsequently confirmed to all continuing jurors that I was informed of this on the first day of the trial and that there was no irregularity or impropriety in Juror A's service from that time up until he was discharged by me on 6 June 2024. The matter has played no part in my determination of the orders to be made pursuant to the Jury Act in response to the circumstances that emerged on 5 June 2024.
4 Juror A refuted Juror G's claim that Juror A had spoken of a financial incentive for a not guilty verdict. Each of the other jurors was asked by Supt York whether he or she had heard of any offer of inducement or threat directed to any juror to influence the decision in the case. All jurors replied in the negative, in some cases accompanied by expressions of surprise at the question.
5 Juror A said that communications between himself and G on the subject of drugs concerned prescription medication that Juror G was trying to sell to him. Superintendent York had examined the relevant messages on Juror G's phone and was satisfied that they related to proposed drug dealing. The Superintendent was unable to establish from examination of Juror G's phone whether he had downloaded or used the SimpleX encrypted messaging application. Such communications as had taken place through other applications or functions were stored on G's device and were able to be read.
When Supt York informed the 13 jurors that he would interview them one by one, Juror A deleted from his phone the record of messages between himself and G concerning drugs. Juror A was interviewed last and he admitted having deleted the messages. They had been available to the Superintendent on G's phone, so the deletion was ineffectual.
6 The jurors who were members of a messaging group confirmed that fact to Supt York. He examined the messages and questioned each of the participants about them. He formed the view that the messaging group was benign. So far as he could see jurors had from time to time asked one another to inform court officers that they would be late for court, or conveyed messages to each other of a similar kind. The Superintendent could see no evidence of collusion about sick days being claimed. In my assessment of the jury's attendance over the first 16 weeks of the trial, the absences for illness were within the limits that would normally be expected for a jury of 14 in a protracted trial through autumn months. The average was slightly less than one sick day per person over nearly four months, equating to three days per person for a full year. For the most part, medical certificates were produced. The record of attendance would not suggest a collusive arrangement to make false claims of illness, as alleged by Juror G.
While Supt York was arranging with court officers to commence his juror interviews, my Associate received an email from a solicitor at the office of the Commonwealth Director of Public Prosecutions (CDPP) attaching a typed note from an AFP officer who was involved in the unrelated investigation of Juror G. The note included the following regarding a conversation between the officer and the juror at his residence, prior to the attendance there of Supt York:
[He said]: "I'm not the only one. There are others who've done worse than me."
I asked what he meant by that and he replied, "Well what would you do if you got offered something. Be better than having a target on your back."
I asked if he was referring to money and he said yes. I asked if he had received any money to which he said no. He said that six jury members were approached. I asked how he knew about this and he said they had conversations about it.
Those statements concerned the same subject as points 2 and 4 of what Juror G told Supt York some little time later on the same day, except that Juror G did not repeat to Supt York anything about having "a target on [his] back" or about six jurors having been "approached". Superintendent York reported to me late on the afternoon of 5 June 2024 that during his interview with Juror G at his residence he had pressed the juror for detail of his alleged conversation with Juror A about an "incentive", to which Juror G gave vague and contradictory answers. Juror G had ultimately asserted to Supt York that A told him, "Name your price". In their subsequent interviews with the Superintendent all jurors, including A, denied any knowledge of an attempt to induce any of them.
Copies of the AFP officer's note referred to above were provided by the CDPP to all defence representatives by email shortly after 10:00 am on 6 June 2024.
[3]
Relevant sections of the Jury Act 1977
Relevant extracts of the sections of the Jury Act applicable to the situation described above are as follows:
22 Continuation of trial or inquest on death or discharge of juror
Where in the course of any trial … any member of the jury … is discharged by the court … under Part 7A, the jury shall be considered as remaining for all the purposes of that trial .. properly constituted if -
(a) in the case of criminal proceedings, the number of its members -
(i) is not reduced below 10,
[…]
and if the court … orders that the trial … continue with a reduced number of jurors under Part 7A.
Part 7A Discharge of jurors
53A Mandatory discharge of individual juror
(1) The court … must discharge a juror if, in the course of any trial … -
[…]
(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 …, means -
(a) conduct that constitutes an offence against this Act, or
Note -
For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.
(b) any other conduct that, in the opinion of the court …, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.
53B Discretionary discharge of individual juror
The court … may, in the course of any trial …, discharge a juror if -
[…]
(b) it appears to the court … (from the juror's own statements or from evidence before the court …) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or
[…]
(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.
Note -
Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.
53C Discretion to continue trial or coronial inquest or discharge whole jury
(1) If … the court … discharges a juror in the course of a trial …, the court … must -
(a) 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, or
(b) if of the opinion that there is no such risk and subject to section 22, order that the trial … continue with a reduced number of jurors.
Part 10 General
73A Investigation by sheriff of jury irregularities
(1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation.
(2) Section 68A(1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation.
(3) Section 68B(1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation.
(4) Section 139(2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official).
(5) The sheriff may, despite sections 29 and 68, include a juror's name or other matter that identifies a juror in a report to the court under this section.
75C Juror may report misconduct and other irregularities
(1) A juror who in the course of the trial … has reasonable grounds to suspect any irregularity in relation to another juror's membership of the jury, or in relation to the performance of the other juror's functions as a juror, may disclose the suspicion and the grounds on which it is held to the court … .
[...]
(3) Section 68B(1) does not prohibit a juror from making a disclosure under this section.
(4) In this section -
irregularity, in relation to a juror's membership of a jury, or the performance of the juror's functions as a juror, means the following -
(a) the commission by the juror of an offence under this Act or any other misconduct,
[…]
(e) the juror's inability to be impartial because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror, or any similar reason.
[4]
Discharge of Jurors G and A
Juror G's admitted searching on the internet was a clear breach of s 68C(1) for which s 53A(1)(c) mandated the order I made on 6 June 2024 that he be discharged. As reported to me orally on 5 June 2024, the Sheriff's investigation did not establish that Juror A had misconducted himself within the meaning of s 53A(1)(c). Juror G's allegation that A spoke of a financial incentive for a not guilty verdict is not credible. It is inherently improbable that A would have spoken on such a subject without specific details, as to which Juror G has not said that any were mentioned. Juror A denied having said anything of a bribe, or inducement and none of the other jurors had heard any talk of such a thing. An attempt to interfere with the jury's decision could not be meaningfully advanced unless it was broached with other jurors. If broached, it would involve obvious and very serious impropriety. It is not reasonably possible that such a matter would have come to the attention of multiple members of the jury and yet not one of them would acknowledge it when asked about the subject in the course of the formal interviews conducted by the Sheriff's investigator.
Although Juror A did not inform Supt York of the content of Juror G's internet searches, a significant apprehension that he may have been told by G about that content arises from the extent of A's out of court contact and communication with G. They socialised to a degree and exchanged one-to-one messages. Further, the lack of complete frankness shown by Juror A in deleting his phone messages prior to being interviewed by Supt York gives rise to reservation about statements from him concerning the extent of what Juror G may have told him. Juror G's allegation that A spoke of an incentive for a not guilty verdict is not credible and is denied by A but it might support a perception that he could be inclined to dispel suspicion about himself by favouring the Crown. Juror A's communications with respect to illicit drug dealing with his fellow juror, G, have been exposed as a result of Juror G coming under attention. That would likely cause A discomfort in continuing to sit in judgment on the accused and would adversely affect his ability to concentrate on the task and perform his functions as a juror. For those reasons I made the order for his discharge on 6 June 2024.
[5]
Continuance of the trial with the remaining 12 jurors
On 6 June 2024 I also ordered that the trial continue with the remaining 12 jurors. I was satisfied, in accordance with s 53C(1)(b) of the Jury Act, that no risk of a substantial miscarriage of justice arose from the reduction of numbers. Section 22 was not an impediment to continuing the trial, as there were still 12 jurors. In a case of jury irregularity, as occurred in this case with respect to Jurors G and A, there is more to consider in determining whether the trial should proceed than merely whether the reduction of numbers may of itself create a risk of miscarriage of justice.
In Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 Mason CJ and McHugh J explained why, in cases of conduct by a juror that raises a question about possible bias, the test of "whether fair-minded people might reasonably apprehend or suspect that [the juror …] might prejudge the case" ("the reasonable apprehension test", at [3]) is to be preferred over the test of whether the trial judge, or an appellate court, finds a reasonable likelihood or real danger of bias ("the test of reasonable likelihood or real danger"). As will be seen, the High Court's subsequent decision in HCF v The Queen [2023] HCA 35 has established that the reasonable apprehension test is to be applied in all cases of jury irregularity, not just in cases where the possibility of bias arises.
Mason CJ and McHugh J in Webb & Hay v The Queen referred to English decisions, including Reg v Spencer [1987] AC 128 and Reg v Gough [1993] AC 646, wherein the House of Lords rejected the test of whether a member of the public might hold a reasonable suspicion of the possibility of bias. Mason CJ and McHugh J noted that in Reg v Gough Lord Goff of Chievely:
felt that it was unnecessary "to have recourse to a test based on mere suspicion, or even reasonable suspicion" (at 668.). He also thought that the concept of the reasonable person was inapplicable because the court acted as the reasonable person and inquired into the circumstances about which the reasonable "observer" in the courtroom would not necessarily have any knowledge (at 670).
Mason CJ and McHugh J declined to follow the House of Lords'approach. Brennan, Deane and Toohey JJ, likewise, confirmed and applied the reasonable apprehension test, in accordance with earlier High Court authority, although Brennan and Deane JJ differed from the other judges as to the result on the relevant ground of appeal.
The following extracts from the joint judgment of Mason CJ and McHugh J explain the Court's reasons for supporting continued adoption of the reasonable apprehension test:
[9] In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of "reasonable likelihood" or "real danger" of bias tends to emphasise the court's view of the facts. In that context, the trial judge's acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident.
[…]
[11] … [The] premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. … [Earlier High Court decisions] indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta v. Kelly [1989] HCA 44; (1989) 167 CLR 568 at 585, in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings.
[12] A further reason for rejecting the Reg v Gough formulation is that, where the conduct of a juror is in issue, it will often be difficult to determine objectively whether the incident has affected or might affect the impartiality of the juror and whether directions to the jury were or will be adequate to protect the parties from the effect of the irregular incident. To place confidence in a test based on the assumption that an investigation will reveal all the facts of the incident may lead to a miscarriage of justice. In our experience, the investigation of such incidents during the course of the trial is not exhaustive. Ordinarily, the judge simply asks the juror for an explanation. However, a juror involved in an irregular incident may feel defensive about his or her role. Understandably, the juror may seek to put the best light on the matter. Seldom, if ever, is there a detailed cross-examination of the juror by counsel or by the judge in such a case. Indeed, many counsel would consider it unwise to cross-examine the juror while the possibility existed that the trial would continue with that juror. One can never be certain, therefore, whether all the circumstances have been elicited by the trial judge. If real danger of bias was the governing criterion, the judge might reach a conclusion opposite to that which he or she might have reached if all the facts were known. The reasonable apprehension test, on the other hand, allows a margin for error in evaluating the facts as elicited. It concentrates not on whether there is a danger of bias as an objective fact, but whether a fair-minded and informed person might apprehend or suspect that bias existed.
[13] Furthermore, if the reasonable apprehension test remains the test for alleged bias on the part of a judge, as we think it should, it is not easy to see why a different test should be applied to a juror. In criminal trials in particular, the jury's function is of great public importance. It is certainly no less important than that of the judge sitting alone in a civil trial, a commissioner determining an industrial dispute or a member of a statutory tribunal inquiring into conduct in an industry which it supervises. The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias. It is true that, unlike the judge and persons exercising quasi-judicial functions, the juror is subject to the directions of a third party - the trial judge. In considering whether a reasonable apprehension of bias exists, it is therefore necessary to consider the likely effect of the judge's directions (if any) as well as the irregularity in question. But that difference does not seem to us to be sufficient to distinguish the test for juror bias from the test for judges and persons who exercise quasi-judicial functions.
[14] It follows that 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.
The majority joint judgment of Gageler CJ, Gleeson and Jagot JJ in HCF v The Queen has established that the reasonable apprehension test, as affirmed in Webb & Hay v The Queen, must be applied in determining whether a risk of substantial miscarriage of justice should be recognised as arising from any form of juror irregularity, not limited to cases of possible bias. Edelman and Steward JJ addressed the issues in that appeal on a quite different legal basis but I am bound to apply the principles endorsed by the majority. The reasonable apprehension test is to be applied to the circumstances that came to light in this trial on 5 June 2024.
The appeal in HCF v The Queen arose from disclosures made by one juror after verdicts had been returned, to the effect that another juror had exhibited bias against conviction from early in the trial and that during deliberations that same juror had undertaken internet research to ascertain sentence maxima for the offences charged and had discussed the results of his research with other jurors.
Several passages in the judgment of Gageler CJ, Gleeson and Jagot JJ, recognise that application of the reasonable apprehension test by a trial judge, where a jury irregularity has emerged before verdict, may be affected by circumstances that would not be present in a case where an irregularity first arises for consideration on appeal, having not been discovered until after verdict. Their Honours adverted to the fact that in the former case the trial judge will usually have inquired into the facts of the irregularity and will have given additional directions to forestall any miscarriage of justice. In determining whether a fair-minded and informed observer might consider that the jury might not discharge their function as required, the fact that the trial judge has become aware of the circumstances and has given such a direction must be taken into account as part of the whole picture that would inform the hypothetical observer's perception. That consideration was also adverted to in Webb & Hay v The Queen: see the latter parts of [11] and of [13], as well as [14], quoted above.
In HCF v The Queen at [6], the majority discussed Webb & Hay v The Queen and Smith v Western Australia [2014] HCA 3; (2014) 250 CLR and concluded as follows:
[The] test should be understood in terms of whether a fair‑minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of deciding an accused's guilt according to law (which includes but is not limited to the requirement of impartiality), on the evidence, and in accordance with the directions of the judge. The "double might" test was confirmed as the test for reasonable apprehension of bias (including on the part of a jury or juror) in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6].
[Emphasis added].
Their Honours explained the universal application of the test at [8], in the following terms:
While the irregularity in Webb involved conduct of a juror that called into question the juror's impartiality, and in Smith involved alleged coercion by one juror of another juror, the "double might" test of whether a fair‑minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function impartially ("the reasonable apprehension test") is not to be confined to any particular class of irregularity of juror conduct; the "double might" test is sufficiently liberal to subsume the range of potential miscarriages of justice by reason of jury (or juror) misconduct or irregularity irrespective of the legal label that might otherwise apply to that misconduct or irregularity.
[Emphasis added].
The words "or might not discharge" in the above quotations have been emphasised to draw attention to the fact that the "double might" test is to be applied in a situation such as that which arose in this trial on 6 June 2024, where a prospective assessment had to be made as to whether verdicts returned in this trial if it should continue would be flawed by the risk of miscarriage of justice owing to jury irregularity. At [11] the majority in HCF v The Queen rejected any distinction between possible juror bias and procedural irregularity as a basis for determining whether the reasonable apprehension test is to be used:
Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect". In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict" cannot be dispelled, that the trial is "incurably flawed", that there has been a "serious breach of the presuppositions of the trial", and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict".
[Emphasis in original, citations omitted].
The second half of that extract explains why the proviso to the common form criminal appeal provision in each of the Australian states has no field of operation if miscarriage of justice is shown according to the "reasonable apprehension test" in cases of jury irregularity. Gageler CJ, Gleeson and Jagot JJ made that clear at [7]:
If the irregularity gives rise to such a reasonable apprehension, then there has been a "failure to observe the requirements of the criminal process in a fundamental respect", in that "the integrity of the trial process" has been undermined. In such event, regardless of any potential effect on the trial, there has been a miscarriage of justice which is inherently substantial and there is accordingly no scope for the application of the proviso.
[Citations omitted].
At [43] the majority considered the application of the "reasonable apprehension test" where a jury irregularity becomes known during the course of a trial. Their Honours made the point that I have mentioned at [28] above, concerning the need to take into account how the apprehension of a fair-minded informed member of the public would be affected by the circumstance of the trial judge giving a direction specifically designed to neutralise the irregularity. Their Honours said this:
If the trial judge had been aware of the conduct before the verdicts were entered, the trial judge would have had a power of discharge under both ss 56(1)(a) and 60(1) [of the Jury Act 1995 (Qld), making provision for discretionary discharge of individual jurors or of the whole jury], the criterion for the exercise of which would have been whether discharge of the juror or the jury as a whole was necessary to maintain the fairness of the trial, having regard to all relevant circumstances, including "the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact" [Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 440; see also Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 at 103‑104 [9]‑[10]]. If the trial judge had been called on to decide whether to exercise the power, the trial judge could have questioned juror X and other members of the jury, if appropriate, to assist in deciding if each member remained capable of discharging their function in accordance with their oath or affirmation as a juror to "give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury's deliberations except as allowed or required by law"[s 50 of the Jury Act 1995 (Qld)]. The trial judge also could have assessed whether giving further directions to the jury would ameliorate any risk of a reasonable apprehension that the jury might not discharge its function according to law, on the evidence, and in accordance with the directions of the judge.
[Emphasis added].
To similar effect at [45] the majority considered the question that I have had to determine in this trial - which had become merely hypothetical with respect to the appeal in HCF v The Queen - as follows:
The first question is: the evidence of the conduct remaining as it is, but the verdicts not yet having been entered, would the trial judge have discharged the jury? Answering this first, hypothetical, question would have involved making a prospective - that is, forward‑looking - assessment of the risk of the occurrence of a miscarriage of justice by reason of the reasonable apprehension test. In the case of juror misconduct, the reasonable apprehension test, that a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function as required, must be applied to the facts as then known and with due recognition of the difficulty of a trial judge in eliciting all relevant evidence from questioning of the juror or jury [Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 52]. A proper exercise of power in such a prospective assessment would generally result in discharge of the jury if, by reason of the nature and extent of the misconduct, there was any real risk of a miscarriage of justice occurring (that is, any risk of satisfaction of the "double might" test for the requisite reasonable apprehension) that could not be ameliorated by further directions. The focus would be whether, despite any further direction, it was appropriate to discharge the jury or a juror because otherwise the trial realistically might miscarry.
[Emphasis added; some citations omitted].
Their Honours noted the relevance of s 50 of the Jury Act 1995 (Qld) to the question whether a fair-minded and informed member of the public might reasonably apprehend that jurors might not discharge their legal function, in the following passage:
[16] Evaluation of the available evidence from the perspective of a fair-minded and informed member of the public must take account of the requirement of s 50 of the Jury Act that "[t]he members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried". Apprehension of a violation of that oath is not lightly to be inferred.
The equivalent provision in the Jury Act 1977 (NSW) is s 72A, as follows:
72A Juror's oath or affirmation
(1) The form of oath or affirmation to be taken or made by a person before serving as a juror is an oath or affirmation that the person will give a true verdict according to the evidence.
[…]
(4) The words of the oath or affirmation are the following words, or words to the following effect -
(a) "I swear by Almighty God that I will give a true verdict according to the evidence" (in the case of an oath),
(b) "I solemnly and sincerely declare and affirm that I will give a true verdict according to the evidence" (in the case of an affirmation).
Each juror in the present case was sworn or affirmed in accordance with s 72A at the completion of jury selection, whereupon the accused were put in their charge for trial.
[6]
The Crown's submissions concerning orders for continuance of the trial
On 6 June 2024 I recounted to all parties in closed court a summary of the oral reports I had received from Supt York, first at about 12:10 pm the preceding day and then after 5:00 pm in the afternoon, to the effect of what I have set out at [7], [14] and [16] above. Counsel for the Crown supported the discharge of Jurors G and A and an order for the trial to continue with the remaining 12. Crown counsel invited me to consider direct questioning of the remaining jurors. The provisions of the Jury act applicable to that procedure are as follows:
55D Examination of jurors - publication of prejudicial material during trial or inquest
A judge or coroner may examine a juror on oath to determine -
(a) whether the juror has read, seen or heard alleged prejudicial material published or broadcast during the trial or inquest, and
(b) whether the juror has been influenced by the material.
55DA Examination of juror - juror making private inquiries about trial matters
(1) A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention of section 68C.
(2) A juror is not excused from a requirement to give evidence on such an examination on the ground that the evidence may tend to prove that the juror has committed an offence against section 68C.
(3) However, if the judge is satisfied, after the evidence has been given, that the evidence may tend to prove that the juror has committed an offence against section 68C, the judge is to cause the juror to be given a certificate under this section in respect of the evidence.
(4) In any proceedings for an offence against section 68C, evidence given by a person in respect of which a certificate under this section has been given cannot be used against the person.
With respect to s 55D, some of the matter that Juror G admitted having found through his internet searches would fairly be regarded as prejudicial and I considered it to have been published during the trial in the sense that it had been accessible on the internet while the trial had been running. Each relevant item is likely to have been posted considerably before the commencement of the trial. However, on 6 June 2024 following the report to me from Supt York the previous afternoon, I had no reason to believe that any of the remaining 12 jurors had read, seen or heard any of that material or any other prejudicial matter published or broadcast during the trial. There was no basis upon which I could question the jurors to challenge the answers they had given Supt York.
With respect to s 55DA, rather than examine the remaining 12 jurors on oath I preferred to have them interviewed by Supt York as part of the Sheriff's investigation that I had requested under s 73A. He is a trained and experienced investigator and he had spoken directly with Juror G, whose conduct and assertions were the basis for inquiring further amongst the jury. Superintendent York was the person best placed to advance the inquiries. The results of his interviews, as reported to me, did not disclose any prima facie basis for proceeding to a further stage of direct judicial questioning.
From Supt York's oral report of his investigation, provided to me on the afternoon of 5 June 2024, it did not appear that any juror other than G had made independent searches or inquiries that would attract mandatory discharge under s 53A. Apart from G and A, only one of the other 12 jurors had definitely been made aware that Juror G had searched the internet. That was Juror C. She had not been informed of the content found. On 6 June 2024, after informing the remaining 12 jurors that I had discharged Jurors G and A and of the reasons for having done so, for more abundant caution I reiterated emphatically my direction from earlier in the trial that they must decide the case on the evidence tendered in court and disregard anything that may have come to their notice otherwise. It was not necessary to question them further about communications from Juror G because any reasonable apprehension of risk of miscarriage of justice could be allayed by the repetition and reinforcement of that direction.
With respect to Juror G's claim that A had mentioned a financial incentive, again there was no foundation for questions to be put from the bench to challenge Juror A's denial of this (in his interview with Supt York) or to challenge the statements of the remaining 12 jurors that they had not heard of an incentive or received any "approach". Superintendent York perceived this allegation to have been advanced to him by Juror G in an unconvincing manner. I have referred above to the contradictions within what Juror G said to the AFP officer about this (speaking of both an incentive and a threat - "a target on your back"). I have referred the different terms of his allegation to Supt York (with no mention of six jurors having been approached) compared to what was said to the AFP officer. I have mentioned my own reasons for regarding as improbable that such a matter would be raised without specifics and that multiple other jurors would have heard of the matter, or been separately approached, yet denied it when given the opportunity to tell the Superintendent. It may be added that Juror G was an inherently unreliable source. He was caught with records on his phone of (a) searches undertaken in knowing breach of the Jury Act and (b) messages about a proposed illicit drug transaction with Juror A. His claims about other jurors, including A, are most readily and reasonably explained as an attempt to dilute his personal responsibility by spreading fault to others, without foundation. Juror G was shown objectively to be a false accuser in relation to the messaging group, whose communications Supt York examined and found to be innocuous.
[7]
Accused's submissions that the whole jury be discharged to abort the trial
In the event of discharge of an individual juror, s 53C of the Jury Act provides for either mandatory discharge of the whole jury if the court "is of the opinion that to continue the trial … with the remaining jurors would give rise to the risk of substantial miscarriage of justice" or mandatory continuance of the trial "with a reduced number of jurors", "if of the opinion that there is no such risk". The choice between those mandatory alternative courses of action turns upon the trial judge's conclusion about risk of miscarriage of justice, rather than upon an assessment of how a fair-minded informed member of the public might perceive the possibility of such risk.
Section 53C is primarily concerned with whether a risk of miscarriage of justice has arisen from the reduction of the number of jurors. The section is wide enough to permit the trial judge, in determining whether such risk is present, to consider the circumstances that may have led to the individual discharge and, hence, to the reduction. In my view the section does not exclude application of the reasonable apprehension test, which calls for assessment of whether a fair-minded informed member of the public might perceive risk rather than whether the trial judge actually perceives risk, where the circumstances may have involved a jury irregularity such as a manifestation of bias or an instance of misconduct. As earlier noted, where there remained 12 jurors following my orders for individual discharge of Jurors G and A, I was satisfied for the purposes of s 53C(1)(b) that the reduction from 14, of itself, did not give rise to any risk of a substantial miscarriage of justice.
In so far as s 53C required me as trial judge to form my own view whether a risk of miscarriage has arisen, I considered carefully whether, in light of the information reported to me orally by Supt York, there appeared to be any reasonable possibility that (a) other jurors may have been affected by Juror G's misconduct and/or (b) other jurors may also have misconducted themselves and/or (c) other jurors may have been offered an inducement, or heard of an offer of inducement - and, as a result of any one or more of those things, there was any reasonable possibility that the remaining jurors might not decide the case according to the evidence they had received and the directions of law that they were to be given, including further directions to disregard any information acquired other than through the evidence given in court. I explain below my reasons for having concluded that there arose no material risk that a fair-minded informed member of the public might conclude that any juror might fail in the discharge of his or her duty. For those same reasons I, as trial judge, perceived no "risk of substantial miscarriage of justice", particularly taking into account the specific additional directions that I proposed to give and have now given for the purpose of countering any such risk.
Despite the accused's counsel having cited HCF v The Queen as authority for the "double might" test, counsel's further submissions on 6 June 2024 were predominantly couched in terms of whether I, as trial judge, should perceive a risk that the remaining 12 members of the jury might not perform their duty. I nevertheless treated the intent of the submissions as directed also to what I should conclude about how a fair-minded reasonable member of the public would assess the circumstances. In the words of Mason CJ and McHugh J quoted earlier in these reasons, "it is the court's view of the public's view, not the court's own view, which is determinative".
[8]
Submission concerning failure of other jurors to report Juror G' searches
In opposition to an order for continuance of the trial, counsel made the following submission on 6 June 2024, after I had recounted the essentials of Supt York's oral report:
G said that he had told others that he'd done internet searches. … the rest of the jury who had been told that he had done internet searches have not [reported that to you] and … if there's any prospect that that has in fact happened then your Honour's faith in the balance of the jury being able to deal appropriately with this trial is, with great respect, misplaced.
[The failure of other jurors to report to the trial judge Juror G's misconduct in making internet inquiries is] a lack of frankness, it's a lack of honesty, and your Honour did instruct them that it was their duty to report it.
Contrary to counsel's recollection I had not directed the jurors at any time prior to 6 June 2024 that it would be the duty of each to report upon any other juror's contravention of s 68C of the Jury Act. Section 75C permits report by any individual juror of misconduct by any other but failure to report is not of itself misconduct according to the prescriptions of the Act. Against that background a fair-minded informed member of the public would not reasonably conclude that the failure of Juror C to advise me of Juror G's internet searching activity was misconduct let alone that it was of such an order as to indicate a risk that she, or the jury as a whole, might not follow my directions, as earlier given and as would be reiterated in the summing up, and that they might not return verdicts according to the evidence and the law.
I do not accept that Juror C's failure to report known misconduct of Juror G constitutes "a lack of honesty", particularly in the absence of a direction from me that they should report such an event. Even if I had given a direction to report on any other juror's breach of s 68C, failure to do so would not in all circumstances be regarded by a hypothetical member of the public as wilful or defiant or as presaging disobedience to other, more central directions concerning the duty to decide the case according to the evidence and the law. Failure to report might be attributable to mere reticence about causing trouble for the juror who admitted breach, especially in circumstances such as the present where none of the remaining 12 jurors has said that the content derived by G from his internet searching was disseminated amongst them.
[9]
Submissions based on circumstances of Juror G's improper searches
Defence counsel submitted that Juror G may have made the improper internet searches on his phone when in company with other jurors. Counsel said that he had been observed in company with "at least two" other jurors at a nearby hotel after court hours, from time to time. From this it was said to follow that what he found on the internet may have become known to other jurors at the time when the searches were carried out. Counsel further submitted that because the remaining jurors' phones had not been examined, there had not been eliminated the possibility that some of them may have made their own searches. Superintendent York did not seek to examine the phones of the remaining 12 jurors. He had no grounds for doing so as they all said they had not undertaken prohibited internet searches and Juror G's claim to the contrary was, expressly, mere surmise on his part. Counsel sought to cast doubt upon the 12 jurors' responses to Supt York, submitting that it was "unlikely [they] would admit to juror misconduct when questioned by the investigator" and "there is clearly a self-interest in denials in light of the nature of the investigation and what's been suggested to them".
The burden of counsel's submission was that lack of complete information, or of rigorous forensic testing of information, should lead to recognition of a risk that, notwithstanding their denials at interview, some of the remaining 12 jurors may have become aware of prejudicial information published on the internet, either by their own searches or by learning of what Juror G had found. But a jury is not to be discharged merely on a reasonable apprehension that one or more of them may have come into information extraneous to the evidence. That is only part of the matter. The question is whether a fair-minded reasonable member of the public might perceive a risk that "the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge". Relevant to that ultimate question, one must consider the circumstances in which the remaining 12 jurors may have received extraneous information, if they did at all. If any of them received such information only because G foisted it upon them, this would not indicate an unwillingness or inability to disregard matters outside the evidence.
Also, to repeat from the majority judgment in HCF v The Queen at [45]:
A proper exercise of power in such a prospective assessment would generally result in discharge of the jury if, by reason of the nature and extent of the misconduct, there was any real risk of a miscarriage of justice occurring (that is, any risk of satisfaction of the "double might" test for the requisite reasonable apprehension) that could not be ameliorated by further directions. The focus would be whether, despite any further direction, it was appropriate to discharge the jury or a juror because otherwise the trial realistically might miscarry.
This jury were expressly directed, from the first day of the trial, to disregard all extraneous information and to decide the case on the evidence adduced in court. If there should be perceived any residual risk that G may have passed on information to other jurors notwithstanding their denial that that occurred, the hypothetical person would bear in mind the specific reminder that I gave on 6 June 2024 after the remaining 12 jurors had been told of the discharge of G and A, that they must disregard extraneous information. The fair-minded informed member of the public would regard the directions as efficacious, as I do myself, absent any basis for judging the remaining jurors to be wilfully disobedient or incapable of putting aside any out-of-court information that may have come to them.
[10]
Submission concerning Juror G's position as foreman
The jury did not select Juror G as their foreman until about 9 May 2024. That was after he had made his internet searches, during April. Naturally, it is not known by what process the selection was made, or how many of the jurors supported Juror G to be their foreman, or upon what criteria. Counsel submitted that the jury "elevated" and "rewarded" Juror G with knowledge of his contravention of s 68C. That submission is without foundation. His selection is equally consistent with almost all of the jurors having been unaware that Juror G had searched the internet, as they told Supt York. A fair-minded informed member of the public obviously could not know the process or discussions that preceded Juror G becoming foreman and could not reasonably infer from his selection that any juror endorsed his misconduct.
The hypothetical fair-minded and informed member of the public, acting reasonably, would note the absence of positive information that the other 12 had relevantly misconducted themselves, the absence of any affirmative indication that they were resistant to judicial directions and the fact that the trial judge would give a further reinforcing direction to disregard any information, extraneous to the evidence tendered in court, of which they may have become aware by any means. With those matters taken into account, the hypothetical member of the public would not find any significance in the fact that the miscreant Juror G was chosen as foreman. That circumstance would provide no rational ground for an apprehension that the jury might not discharge their lawful duty.
[11]
Submission concerning a juror's note about use of phones in court
On 8 April 2024 (Day 34) the Court received a note from a juror expressing discomfort about an individual in the upper gallery using his mobile phone in court. The person concerned had held the phone up in a manner that caused the juror to think that he may have been taking photographs or filming. The person was directed from the bench not to do this: T 1995. Counsel sought to draw from this an inference that the juror who sent the note must have become aware of the internet content that Juror G had researched, some of which counsel described as portraying George Alex as a gangster.
The inference is unfounded. From experience in other trials I am aware that jurors are conscious of their entitlement to anonymity and security. This is not the first occasion on which I have been asked by jurors to direct members of the public to desist from using their phones in court. The note from the juror on 8 April 2024 was understandable in circumstances where, up to that point, on more than one occasion people seated in the gallery had held up their phones to look at their screens in a manner that could have been interpreted as attempting to record an image.
The incident concerning use of phones in court provides no basis for perceiving a heightened risk that jurors may have acquired knowledge of what Juror G found on the internet. In any event, for reasons given at [50] and [51] above, the possibility that jurors may have learned of matters extraneous to the evidence would not lead a fair-minded member of the public to perceive a risk that that the jurors in this case might fail to discharge their duty, especially when account is taken of subsequent repeated directions that they should not have regard to any such matters.
[12]
Conclusion on 6 June 2024
It was my view on 6 June 2024 that a fair-minded informed member of the public, aware of all the circumstances recounted in this judgment, would not perceive a risk that the jury constituted by the 12 remaining members "might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge". That conclusion was supported by the absence of evidence from which a fair-minded person could conclude that any of the remaining 12 jurors had in any respect disregarded directions given to them to date - at all, let alone wilfully or in a manner demonstrating incapacity to conform.
I would add that the fair-minded informed observer would reasonably expect the jury to have no difficulty following my direction not to be influenced by material extraneous to the trial. The jury have been immersed, during the 64 days of evidence, in voluminous banking records, financial tracing analyses in chart form, emails and accounting records and transactional documents concerning the conduct of a labour hire business, oral evidence regarding that business and 110 hours of intercepted conversations. To my observation the jury have been alert and attentive throughout. This is a vast circumstantial case arising from an 18 month investigation. Apart from media reports of arrests (concerning which the jury have received evidence) and information regarding Caitlin Hall (who has been identified in the evidence only as a recipient of funds distributed by George Alex), the content found at the internet addresses searched by Juror G did not relate to events that are subject of the trial. It mostly concerned unrelated events pre-dating the charge period. There is no factual issue in the case upon which material of the nature that Juror G researched would likely be influential, even if any of the remaining jurors had learned of it. So far as any of that material is prejudicial in a more general sense, particularly with respect to the background and reputation of George Alex, there is no reason for me or a fair-minded observer to perceive a risk that the jury might not carry out the directions to decide the case only on the evidence, according to whether it does or does not prove the elements of the charges beyond reasonable doubt, and to dismiss from their minds all sentiments and prejudices.
With respect to Juror G's allegation about A's mention of an inducement, I did not consider it to be necessary or useful to issue, out of more abundant caution, a specific, immediate direction that the jury should not allow themselves to be influenced by any offer or threat. To have done so would potentially have been counter-productive in circumstances where the remaining 12 jurors denied any knowledge of such a thing. When making the orders on 6 June I intended that in summing up the jury would be given the usual direction to arrive at their verdicts impartially by objective assessment of the evidence. A fair-minded informed member of the public would regard that usual direction as sufficient, in the absence of any credible evidence that jurors may have been exposed to a specific cause of possible bias.
[13]
Written material received after 6 June 2024
On 13 June 2024 Supt York informed me that his written report of the results of the investigation carried out on 5 June 2024 would likely be available in the week commencing 17 June 2024. My reasons for having made the orders of 6 June 2024 were prepared to this point by the afternoon of 14 June. I refrained from delivering the reasons pending receipt of the Superintendent's written report so that any additional relevant information therein could be taken into account.
[14]
Material from Juror G's phone: received 14 June 2024
Late on the afternoon of 14 June 2024 the solicitor with conduct of the case at the office of the Commonwealth Director of Public Prosecutions (CDPP) sent to the solicitors for all accused, with a copy to my Associate, an email attaching the following:
(1) A letter addressed to the solicitors (a) describing other attachments comprised of material downloaded from Juror G's mobile phone; (b) containing a link to a video recording of a police officer scrolling through the internet search history on Juror G's phone and (c) stating that the applications SimpleX, Snapchat and Signal had been downloaded to Juror G's phone but that no data in those applications had been found as at 14 June 2024.
(2) Item A, an Excel spreadsheet of messages in a WhatsApp chat group constituted by Jurors G and A only. The messages were sent between 26 February 2024 and 12 March 2024. Their subject is predominantly the sale of drugs, apparently by G to A. On 4 March 2024 A sent to G an invitation to communicate on SimpleX.
(3) Item B, a 31 page PDF schedule of messages in a Facebook Messenger chat group entitled "Jury Duty Fam". The messages are dated between 13 April 2024 and 3 June 2024, with nine participants including Jurors G and A.
(4) Item C, a one page Excel spreadsheet of messages in the same Facebook Messenger chat group as that to which Item B relates, containing a message dated 11 April 2024 plus a subset of the messages in Item B dated between 16 April 2024 and 3 June 2024.
(5) Item D, an Excel spreadsheet of messages in a chat group constituted by Jurors G and A only. The messages are dated between 26 February 2024 and 11 April 2024.
The CDPP solicitor's letter containing the link to the video of Juror G's search history, with its attachments, was forwarded to the Sheriff on Monday, 17 June 2024 for Supt York's attention. The material from Juror G's phone accords with Supt York's oral report to me on the afternoon of 5 June 2024, based on his direct examination of the device. Notably, I found nothing improper in any of the 31 pages of communications between the jurors in the Facebook Messenger chat group. The innocent nature of those messages demonstrated that Juror G's allegation to Supt York that the chat group was a vehicle for collusive claims of illness was false. As a participant in the chat group Juror G must have known his allegation to be false.
[15]
Sheriff's written report received 18 June 2024
Superintendent York's written report dated 17 June 2024, countersigned by the Deputy Sheriff, was delivered to my chambers by email early on 18 June. It included as attachments the letter from the CDPP and the material downloaded from Juror G's phone (items 1-5 listed at [62] above). Also attached were transcripts of Supt York's interviews on 5 June 2024 with Jurors G, A and C. My staff prepared paginated copies of the report with the names of jurors obscured and with redaction of one brief passage in which Juror G described jury discussion of the case. A copy of the redacted report was provided to counsel for each party (MFI 75) under directions that no copies be made before conclusion of the trial and that access be restricted to counsel, until further order.
The report and its attachments confirmed the information that I had received orally from Supt York on 5 June, as set out at [7], [14] and [16] above, upon which I based the decision to discharge Jurors G and A and to continue the trial with the remaining 12.
On 24 June counsel for George Alex provided the Court with written submissions in support of an application to discharge the jury on the basis of the Sheriff's report and the transcripts of the juror interviews. The Court was also provided with an affidavit of George Alex's solicitor, Anushka Murugkar affirmed 24 June 2024. That affidavit set out a full account of what appeared to be Juror G's internet search history, derived from the video recording referred to at 62 above. The Crown provided written submissions opposing the application for discharge. The application was heard on 25 June 2024. The submissions in support of discharge of the jury on this occasion were advanced by reference to s 53C of the Jury Act on the basis that, as the presiding judge, I should form "the opinion that to continue the trial … with the remaining jurors would give rise to the risk of a substantial miscarriage of justice". However, I considered both the question whether the full Sheriff's report, including transcripts of interviews with Jurors G, A and C, warranted formation of that opinion and also whether a fair-minded member of the public might consider that that the jury might not discharge their duty according to the evidence and the law.
I found in the written report and transcripts no material difference from the evidence and information upon which I had made the order of 6 June 2024 for continuation. After hearing argument on 25 June 2024 I saw no reason to depart from the conclusion I had reached when making that order, namely, that there was no risk that the jury might not fulfil their duty and no reasonable possibility that a fair-minded member of the public might perceive such risk. I dismissed the further application and confirmed that the trial would proceed with the remaining 12 jurors. My reasons, with some reference to additional detail from the transcripts of the juror interviews, are given in the following paragraphs. Errors of expression and/or of transcribing are as they appear in the transcripts provided.
At the time of hearing and determining the application, on 25 June 2024, the transcripts of interviews with 11 of the 14 jurors were outstanding. However, I was able to rely upon Supt York's oral summary of those interviews, as provided on 5 June. The remaining transcripts were subsequently received on 27 June and 1 July 2024. The detail in them was in accordance with what I had earlier been told. The additional transcripts were distributed to counsel promptly after receipt, with juror names deleted.
[16]
Transcript of Juror G's answers concerning internet searching by other jurors
Juror G's answers to Supt York at pp 61-63 and 66 of the report show that he had no basis for asserting that other jurors had carried out internet research about the trial. Viewed most favourably to Juror G, his claim in that respect might be said to have been speculative. My own conclusion is that it was made recklessly, without any genuine belief in the truth of what he said about other jurors' conduct. I would expect a fair-minded member of the public reading the transcript to form the same view. Reading Juror G's answers confirms me in the conclusion that such a hypothetical observer would not derive from his assertions any reason to doubt the 12 remaining jurors' denials of misconduct with respect to independent searches.
[17]
Other jurors' answers concerning knowledge of Juror G's searches
Juror A said he had not undertaken any internet research about the case himself. He said that Juror G's only discussion with him about the results of G's own research was "just … the case was connected somehow to … the bigger picture". Juror A also gave the following answers::
(From 82.6):
Q […] Has he discussed [his Internet research] with any other else in the group?
A I believe so.
Q Do you know who?
A Uhm, not not specifically because I'm not there every second that he's talking to people.
Q … So, what, what have you observed? So, what have you seen or who have you seen him talk about this too?
A I've seen him talk about this to uhm [Jurors O and C], that's about it.
Juror C identified Juror G as the only member of the jury who had had spoken to her about research outside the courtroom. She gave these answers:
(At 71.5):
A Uhm, he mentioned about looking something up. I don't know what it was. I can't remember. This was some time ago. Uhm, but I don't remember who he looked up. Or it didn't actually go any further. … I don't know who it was, so he was looking up. Can't remember if it was a male or a female.
[…]
Q Can you remember any of the conversation?
A Uhm, I can't recall the whole conversation. But it was something to do with one of the defenses that are not actually in here in this court was he was probably in another court. But I don't know who the name was.
Q So, he's uhm, so that's someone that's connected to the case, but not necessarily in the courtroom …
A Correct.
[…]
Q Are there any other jurors that you've had discussions with. That suggests any of this. Are you aware of that juror having discussions with others about this information?
A Yes.
Q Do you know who they have spoken to?
A Uhm, A.
[…]
Q OK, so as in Juror A?
A Yep. … [INAUDIBLE]. Because this was like early on. I can't remember, sorry.
Q No, that's right. So, it was definitely A, but there were others as well.
A [INAUDIBLE].
Q Alright. In relation to research and discussion of that amongst others, have you got any other information about that?
A No.
Q If anyone else is talking, anyone else is involved in any of that?
A No, no. Because, the ruling is, you just don't. You don't go looking it up. And that's what we've been told. So, I kind of move away from the big discussion.
The above extracts from the interviews appear to be all that is in any way relevant to the possibility that other jurors may have learned something of what Juror G found by his improper internet searches. The answers quoted provide no basis for a suspicion that Juror A was told anything of substance by Juror G. It would be of no consequence if Juror A did learn anything by that means because he has been discharged. Although Juror G spoke to Juror C about his internet searches her answers to the Superintendent indicate that she learned and retained nothing of substance from such conversations.
Juror A told Supt York that he had "seen" both Jurors C and O speaking to G about his research but Juror O said there had been no discussion amongst other jurors about any internet research "that I can think of". The answers given in the interviews do not support a reasonable possibility that any of the 12 jurors who remained after the removal of G and A may have acquired by this means information extraneous to the evidence in the trial that might cause a juror or the whole jury to fail in their duty to decide the case according to the evidence and the law.
From the transcripts of the interviews I perceive, and I would expect a fair-minded member of the public to perceive, negligible risk that any of the remaining jurors acquired from Juror G any substantive internet-derived information that those jurors would have to put out of mind, pursuant to the directions they have received, in deciding upon their verdicts.
[18]
Answers by Jurors G and A concerning inducement
The upshot of Juror G's claims to Supt York about a financial inducement to affect the jury's verdicts, recorded at pp 58-59 and 65 of the report, is that Juror G said he was not aware of "anyone else besides [Juror A]" involved in the supposed offer. For his part, Juror A denied that he initiated any discussion of an incentive with Juror G but said, in effect, that Juror G discussed with him the subject of jury tampering in terms that were not specific to any alleged actual attempt to influence. Juror A did not take this seriously. He gave the following general answers concerning G's conduct and presentation:
(From 86.6):
A [...] Like I was good friends with INAUDIBLE [Juror G]. … and he had theories going on while INAUDIBLE it was a bit of a, A loose cannon, you would say. So, I just didn't know what to believe. What came out of his mouth. He was saying all sorts of things.
Q … Uhm, what was he saying?
A … I can't. I can't think of anything. Off the top of my head, but he was. I'm sure you've heard from other jurors. He's pretty, pretty wild dude. And you could you just couldn't trust what he said or did.
Q … And why is that? What made you come to that conclusion?
[…]
A Uhm, just his demeanour, the way he acted, the way he held himself, spoke to other people. He just [INAUDIBLE].
Taken as a whole the answers given by Jurors G and A leave open the possibility that they may have discussed between themselves the subject of financial inducement for favourable verdicts. Their answers to Supt York's questions provide no basis for recognising even a possibility that any person outside the jury had actually offered such an inducement or that any juror other than themselves had discussed the idea, or had been aware of it being discussed, even in the abstract, by Jurors G and A.
On this subject Supt York summarised the responses of the remaining 12 jurors as follows:
The jurors were not offered an incentive for threat for a particular jury outcome or verdict.
[19]
Submissions on behalf of George Alex re the Sheriff's written report
Mr Agius SC submitted that the juror interviews were conducted in a sequence that was not optimal for testing answers that conflicted with assertions by Juror A. Juror O said that he did not speak with G about the latter's internet searches. Juror C made no mention of Juror O having spoken to G about that subject. Juror A was interviewed last and asserted that he had seen Juror G speaking with Jurors O and C, together, about that subject. Jurors O and C were not reinterviewed to respond A's assertion.
A further criticism was that each juror was first warned by Supt York that he or she need not answer questions but that any answers given might be used in evidence. Then each juror was asked whether he or she had been directed by the trial judge not to make independent enquiries - to which the answer was yes - before being asked whether the juror had breached the directions. It was submitted that this sequence may have induced jurors to deny such activity, out of embarrassment at the least, even though they may in fact have undertaken independent enquiries on the internet.
The limitations upon thorough investigation into possible communications between the jurors in this trial, following upon the misconduct of one of them, are obvious. The difficulty of ascertaining all the facts with complete confidence in such a situation was remarked upon by Mason CJ and McHugh J in Webb & Hay v The Queen at [12] and by the majority in HCF v The Queen at [43] and [45]. Those passages are quoted above. That very consideration has contributed to the High Court's adoption of the reasonable apprehension test in preference to the test of reasonable likelihood or real danger.
However, the submissions on behalf of George Alex, as summarised above, are again formulated as if the risk that, should it be present, might require discharge of the whole jury is the risk that Juror G may have passed on some of his internet findings. As stated at [50]-[52] above, the question whether the judge or a fair-minded member of the public would perceive that risk is only a preliminary to the question whether there might, further, be perceived a risk that jurors in receipt of such information might not discharge their duties according to law. That ultimate question inherent in the reasonable apprehension test must be answered with due regard for (a) the circumstances in which the remaining 12 jurors might have received extraneous information - involuntarily, through Juror G, without deliberate disregard of directions on their own part - and (b) the capacity of supplementary directions to keep the jury to their oaths and affirmations. Taking into account those matters, the reasonable apprehension test is not satisfied here and so far as the existence of the risk is a matter for the trial judge under s 53C(1), I find that there is no risk
It was further submitted on behalf of George Alex that some of the material Juror G had examined was so highly prejudicial to him that if any of the remaining jurors had become aware of it, through Juror G, they would find it impossible to disregard and would inevitably be influenced adversely in arriving at their verdict. I do not accept that submission. There is nothing particular about this jury or the circumstances in which they will continue to try this case that would contradict the fundamental presumption of the trial, that jurors will obey the directions of the presiding judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] (McHugh J).
A further submission was made as follows:
The very fact that the Sheriff asked jurors about whether they were aware of any offer of money for a verdict itself is likely to have raised a suspicion by the jurors that this had happened and was being investigated. This is highly prejudicial to the accused and especially Mr Alex given the character destruction included in some of the articles searched.
The fact that these questions were asked by Supt York must be taken together with the lack of credibility of Juror G, who asserted that there had been talk of an "incentive", Juror A's contradiction of Juror G and the denial by each of the remaining 12 jurors that there had been any approach to influence them. It can be accepted with confidence that there was no such approach to any of the remaining 12. They therefore know that this has not occurred with respect to themselves and they have been informed of the reasons for discharge of Jurors G and A, which did not include anything to do with jury tampering by those two. There is no reason for me or a fair-minded member of the public to apprehend that the jury might be prejudiced against George Alex and might not discharge their duty according to the evidence and the law by reason of the Sheriff's enquiries on this subject.
[20]
Conclusion on 25 June 2024
Taking into account the Sheriff's written report and the answers given to Supt York by each of the remaining 12 jurors, I am further assured that, with the discharge of Jurors G and A and with the further directions that I have given to those remaining, no fair-minded informed member of the public would perceive any risk that the jurors who continue to serve might fail to discharge their duty. I am satisfied for my own part that there is no such risk. Nothing that has come to light since 6 June 2024 would justify revocation of the order made that day for continuance of the trial. It was on the basis of these conclusions that I dismissed the discharge application that was argued on 25 June 2024.
[21]
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Decision last updated: 05 September 2024