HIS HONOUR: This is an application for a request to be made to the Sheriff to investigate, and report to the Court the outcome of the investigation, the possibility of improper conduct by a member of a jury which may have affected the verdict of the jury in the applicant's trial. The application is based upon s 73A of the Jury Act 1977 (NSW).
The applicant was found guilty by a jury at a trial before Hidden AJ between 24 October and 12 November 2018 of a charge that he murdered Luke Browning at St Clair on 14 April 2015.
The evidence upon which the application is based is within an affidavit of Mr Bechalany's solicitor, Mr Mohammad Chahine of 18 August 2021.
According to a letter written by Mr Chahine to the Registrar of the Court of Criminal Appeal dated 5 June 2020, which in turn referred to a report by the Sheriff dated 9 February 2019, a juror sent an email to the Commonwealth Attorney General and to the National Security Committee with a heading: "Torture and inhumane from intelligence agencies". The email apparently requested that the National Security Committee investigate the "cover abuse and torture with remote voice to skull, electromagnetic mind control frequency technologies and Gang Stalking used by Intelligence Agencies."
The email is said to set out various purported beliefs, including that the author:
"(1) had been 'first attacked by such technologies in November 2015' when he or she was studying. A Gang Stalking campaign had also been launched against him or her.
(2) had learnt of the technologies that are being secretly used or covered up by intelligence agencies in the world and Australia to control and harass the populace.
(3) was 'a victim of such torture and recently it has been so unbearable as they are threatening to kill me, and my family, physical pain to my body, internal organs with the use of directed energy weapons and many nights of sleep deprivation after I have started reporting this.'
(4) had experienced noticeable effects starting with noises (voices) like threats to his or her life and families.
(5) suffered many specified symptoms that disappeared without any treatment or sometimes pain persisted even if he had 'strong medication'.
(6) suspects a group of 20 to 30 intelligence operatives and their leader, from an intelligence agency, had controlled the author's 'actions' including his or her speaking, walking, eating, sleeping, and thoughts.
(7) since 2015 had been 'unable to tend to anything in life due to fighting these people 24 hours a day as a result I could not finish my degree and was not able to hold any jobs, lost over 20 kgs and my health deteriorated'.
(8) had reported this 'crime' to police but had not received any response and also to the Inspector-General of Intelligence and Security (IGIS) who had responded.
(9) emphasises the importance of an investigation being carried out into the 'cover up abuse of inhumane torture of the use of electronic warfare and cyber warfare technology/weapons like directed energy weapons on a civilian like me'
(10) states he or she was 'part of the Jury' in the 'Queen v Robert Bechalanchy [sic]. Case for Murder of Luke Browning at Sydney Darlinghurst Supreme Court 24/10/2019', provided a list of juror's names, email addresses and mobile phone numbers being persons who 'may know something about' the intelligence operatives."
Upon receipt of this email, it or its substance was forwarded to the Sheriff who referred the matter to the NSW Police for a welfare check to be made in respect of the juror. It is said that police attended the juror's residence, the juror denied hearing voices or that they had any thought of harming him or herself and stated that a mental health team had already attended and assessed him or her.
The Sheriff expressed an opinion about the juror's mental state at the time the email was sent as well as concerns about the juror's decision-making process during the trial. This appears to be just conjecture.
The report of the Sheriff also included reference to the juror having been charged in August 2018 with driving under the influence of the drug colloquially referred to as "ice". In his letter to the Registrar, Mr Chahine said there was no information as to the outcome of the charge, specifically as to whether any sentencing order was made that would render the juror ineligible under s 6 and Sch 1 of the Jury Act.
On 14 June 2019, Mr Bechalany was sentenced by Hidden AJ to imprisonment for 22 years with a non-parole period of 16 years, 6 months. A notice of intention to appeal to the Court of Criminal Appeal has been filed. No notice of appeal, as such, has been filed.
The letter of the applicant's solicitor of 5 June 2020 sought that an investigation be requested of the Sheriff pursuant to s 73A of the Jury Act. The matter was referred to Hidden AJ as well as to the Acting Chief Justice.
There is annexed to Mr Bechalany's solicitor's affidavit an email from Hidden AJ's Associate dated 11 June 2020 advising that the Acting Chief Justice had sought an investigation earlier in the year but only in relation to the possible misconduct of the juror by contravening s 68 of the Jury Act (ie, disclosure of the identification details of jurors). Hence the report that was obtained as a result of that investigation was confined to that issue.
Hidden AJ invited further submissions as to whether the verdict may have been affected by improper conduct pursuant to s 73A. In subsequent months his Honour received submissions in writing from the Crown and from the applicant's solicitor, and on 21 September 2020 his Honour ordered a s 73A investigation be carried out.
The investigation was carried out and on 10 February 2021 the Sheriff provided a report. She noted that enquiries in relation to the juror's mental health would require access to private health records and a referral to NSW Police to conduct an investigation. Nothing further is said in relation to the pursuit of either of those.
It was reported that the juror was not "scheduled" by NSW Police or NSW Health in the time leading up to the trial or during the trial. There were no notations on JusticeLink in relation to any mental health assessment. The Sheriff reported that an answer could not be provided as to what mental health treatment the juror may have received during the course of the trial.
It was reported that the Court Officer at the trial said that the Officer did not observe anything unusual about the juror's behaviour, nor had any report been made to the Court Officer by other jurors.
It was reported that the juror had received a Court Attendance Notice for driving under the influence of a drug, and that fact was entered on JusticeLink on 16 September 2018. The proceeding in respect of that charge was finalised on 20 November 2018 (i.e. after Mr Bechalany's trial), whereupon the juror was fined and received a six-month disqualification. It was noted that according to cl 4(2)(b) of Sch 1 of the Jury Act the juror would thereby have been ineligible at the time of the trial if the juror was at that time awaiting trial or sentence.
The Sheriff noted that there were opportunities for disclosure of ineligibility provided to potential jurors. Such was provided in the notice of inclusion on a jury roll and also in a brochure enclosed with that notice that is sent to potential jurors. It was also noted that on attendance at Court an announcement is made to all jury panels in the induction process in relation to exclusions that apply, and it includes whether a potential juror has any pending trial or sentence for an offence. It was noted that the juror in question had not disclosed anything about any proceedings pending against him/her in the Local Court.
It was confirmed that following the juror having sent the email to the Commonwealth Attorney General on 16 January 2019, the Sheriff's Office initiated a request to NSW Police to attend the juror's home and conduct a "welfare check". The police advised that the juror had been in attendance at the home in question and appeared to be well.
Before the Court today is a notice of motion whereby there is an application for the Court to order the Sheriff to conduct a further investigation of whether the subject juror was fit to discharge his or her duties during the trial or was otherwise excluded from jury service when he or she was empanelled. In oral submissions, Mr Chahine made clear that what is sought is an investigation as to the mental health of the juror at all times during the trial.
The Crown has been provided with all the documentary material and has indicated that it does not wish to be heard. It indicated in email communications that it was the Crown's position that no further investigation was necessary. It suggested that the matter could be referred to the Court of Criminal Appeal as had occurred in a relatively recent case: Agelakis v R [2019] NSWCCA 71.
The application and the material before the Court raise a number of issues. One is that a further investigation would entail the jurors in the trial being interviewed about their observations of one of their number, now almost three years after the event. That is in circumstances where it is already known that the Court Officer has indicated that he or she did not notice anything untoward, and nothing untoward was reported to the Court Officer. In addition, it may be assumed that the trial Judge did not see anything or had anything reported to him that was troubling.
It is of concern that the investigation requested by Hidden AJ did not entail the investigating officers making any attempt, it seems, to interview the juror or any fellow jurors. Whether or not the juror in question may have permitted access to his or her medical records is unknown, but the fact is that no request has been made.
There is another matter, and it is far from being determinative, but the time that has elapsed is now almost three years, and amongst the various interests of justice that might fall for consideration is one of finality. But I repeat, that is far from determinative. I mention this only to avoid any suggestion it has been overlooked but it is not a matter of any great weight in circumstances where Mr Bechalany has been found guilty of the most serious crime of murder and has been sentenced to serve a lengthy sentence.
Section 73A is concerned with an investigation by the Sheriff into whether "there is reason… to suspect that the verdict of a jury" may have been "affected because of improper conduct" (emphasis added). There does not appear to be any conduct of a juror per se that is in question here. It is the mental state of a juror that is in question.
Schedules 1 and 2 of the Jury Act provide categories of persons who are excluded from jury service or who are entitled to be exempted from jury service. Mental illness is not a factor mentioned in either. Many people in the community, unfortunately, suffer from mental illnesses, but that does not necessarily disentitle them from engaging in the community activities that other people in the community engage in, and that includes jury service.
I think it is safe to assume that the vast majority of people who are mentally ill to the extent that it impedes their ability to function in society are in receipt of medication that controls the condition. Having a mental illness does not necessarily or automatically lead to a conclusion of incapacity. Specifically, mental illnesses do not necessarily, by themselves, involve incapacity to engage in processes such as jury service. It may depend upon the type of mental condition the person might be afflicted with and whether it is under control with the assistance of medication or otherwise.
It is of some significance to note that the applicant has the information provided to him of the previous investigation by the Sheriff, that is, that the juror in question seems to have been ineligible to be a juror simply by virtue of the fact that he or she had a trial or sentence pending at the time of serving as a juror in the applicant's trial.
It seems strange that the provision in cl 4(2)(b) of Sch 1 of the Jury Act is expressed in such broad terms that it would extend to a person who had a charge for a summary offence, that in the vast majority of cases has an outcome of a fine and disqualification, brought within its meaning. But the fact is that the juror seems to be caught by that exclusionary provision and seemingly had the exclusionary terms brought to his or her attention and failed to disclose the fact that it applied to him or her. That is a matter that is open to the applicant to take up in relation to any appeal that might be brought in relation to the trial at which the applicant was convicted.
I return to the primary difficulty, as I see it, for the application. The matter does not seem to come within the terms of s 73A of the Jury Act, in that there does not appear to have been any "improper conduct" by a member of the jury that may have affected the verdict.
Accordingly, the application is refused.
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Decision last updated: 05 October 2021