R v Botrus

THE EVIDENCE

1. The uncontested evidence on the application was given through the affidavit of Alen Sahinovic, solicitor for the accused, and the affidavit of the accused, sworn 8 and 9 September 2020, respectively.
2. Prior to turning to a summary of that evidence, in light of the issues raised on the application, it is useful to briefly set out the layout of the courtroom and my own observations of the jury during the playing of the ERISP.
3. The trial was being conducted in King Street Court 3. The layout had been adjusted to ensure compliance with social distancing requirements pursuant to the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 under the Public Health Act 2010 (NSW). As such, the jury panel was situated in two discrete sections of the courtroom: 1. five jurors were seated in the traditional jury box, situated on the western side of the courtroom; and 2. seven jurors were seated in the public gallery, in a cordoned off section, directly behind the bar table on the northern side of the courtroom.
4. For completeness, the dock was situated on the eastern side of the courtroom. As such, the legal representatives for the accused were seated on the eastern side of the bar table, closest to the dock. Limited seating for the general public remained available in the balance of the public gallery that was not cordoned off for the jury. The sisters were seated in the public gallery space adjacent to the accused.
5. The ERISP was played on two large screens situated on either side of the courtroom: one above the traditional jury box and the other above the dock.
6. I now turn to a summary of the evidence, which commences with the playing of the ERISP on the seventh day of the trial: 1. On Tuesday, 8 September 2020 at 1.38pm, the Crown tendered the ERISP. During the playing of the ERISP, the sisters of the accused were present in the courtroom. They were seated in the public gallery on the eastern side of the courtroom, in the public seating next to the dock. The accused gave evidence that they were "seated to my right". 2. Prior to playing of the ERISP, the sisters were, at various times throughout the day, accompanied by two further persons. It is not in dispute that the two persons were the parents of the sisters and the accused. 3. During the playing of the ERISP, Mr Sahinovic heard "10-15 short outbursts" of "giggling and laughter" coming from the direction of the public gallery to the rear of the courtroom on the eastern side (hereinafter referred to as "the laughter"). Mr Sahinovic was seated on the eastern side of the bar table, directly in front of the dock. 4. Mr Sahinovic initially dismissed the sound without further inquiry. Upon the continuation of the laughter, Mr Sahinovic turned to observe that the laughter was coming from the sisters of the accused. Upon this discovery, Mr Sahinovic attempted to make eye contact with the sisters in an effort "to signal that their behaviour was inappropriate". The laughter, whilst not sustained in its frequency, did not cease to occur. 5. At 2.13pm, whilst the Court remained in session and the ERISP continued to play, Mr Sahinovic sent a series of short texts messages in quick succession to the mobile telephone number of Valnten Botrus. Those messages are extracted below: Please stop laughing It's a very bad look We are in a murder trial 1. Each message was time stamped at being set at 2.13pm. No reply was received during the playing of the ERISP. 2. The laughter continued. Mr Sahinovic deposed at para 8 of his affidavit that he recalled hearing laughter from the sisters when the accused mentioned and/or referred to the following: 1. the words "piss" and "shit"; 2. provided an account of the colour of the bike; 3. his knowledge about the bike; and 4. the circumstances in which the towel located in the garage was said to be wet. 1. Mr Sahinovic deposed that he observed the following: 1. A number of jurors seated within his line of sight, namely, those seated in the traditional jury box, "turn[ed] their gaze towards the sisters laughing". He further observed that the look on the face of "two or three" jurors, in particular, was one of "clear disgust". 2. Four jurors, seated in the traditional jury box, looked towards the sisters "on a number of occasions". 1. The accused gave evidence that he heard the sisters laughing "at regular intervals during the playing of the ERISP". He deposed that he observed: 1. Three jurors situated in the traditional jury box looked in the direction of the sisters during the playing of the ERISP when the sisters laughed. 2. Two jurors situated in the jury box situated within the public gallery, behind counsel for the accused, looked in the direction of the sisters during the playing of the ERISP when the sisters laughed. 1. During Mr Sahinovic's observations of the laughter of the sisters, he passed handwritten notes, with respect to the same, to counsel for the accused. Counsel for the accused acknowledged receipt of the notes by nodding his head. 2. Whilst Mr Sahinovic considered the behaviour "highly prejudicial", he deposed that he did not want to further highlight the conduct of the sisters. As such, he decided against "approaching the sisters, looking at them, or signalling them". During the course of oral submissions, counsel for the accused confirmed that he "joined in" with the observations of his instructing solicitor. Mr Sahinovic deposed that his position "was further complicat[ed] given the proximity of the jurors to where counsel and I were seated". 3. At 2.59pm, the ERISP reached conclusion. Prior to retiring for the day, the jury were provided with copies of the transcript of the ERISP and given directions. The Court adjourned at 3.05pm. 4. Following the adjournment of proceedings, Mr Sahinovic attempted to locate the sisters to discuss the incident with them. He could not locate either sister outside the King Street Court Complex. However, he received a reply to his earlier text messages (extracted above) and engaged in brief exchange of messaged at 3:08pm. That exchange is extracted below: Valntin: I'm so sorry I didn't mean to Mr Sahinovic: That was a disaster The jury saw you guys repeatedly laughing throughout the interview 1. Counsel for the accused, together with Mr Sahinovic, went to the cells to discuss the matter with the accused. During that discussion, the accused confirmed he heard the laugher and made observations of the jury. Mr Sahinovic recorded that the accused said: "That's why I told them not to come" and was observed to be crying.
7. During the course of submissions on the application, the Crown submitted that he heard no laughter and made no observations of the jurors situated in the jury box within the public gallery behind him. The observations of the Crown were limited to those jurors directly within his line of sight, namely, those within the traditional jury box. He did not observe expressions of "disgust".
8. Whilst the Crown did not share in the observations made by either Mr Sahinovic or the accused, he noted two observations made by the instructing solicitor, Mr Peter Clayton, during the playing of the ERISP.
9. It was conceded by the Crown that Mr Clayton noticed the sisters within the courtroom and had heard the laughter. In total, Mr Clayton had heard laughter twice during the playing of the ERISP. The first time was when mention was made during the ERISP of "an Assyrian father, to do with a motorcycle". The second time was in relation to the matters to which Mr Sahinovic set out in para 8 of his affidavit. Further, the Crown submitted: "Mr Clayton's observation was that the look on her face [being a reference to a juror] was certainly one of disapproval, if not disgust".
10. It was also conceded by the Crown that, as with the legal representatives of the accused, no steps were taken by the Crown with respect to the circumstances at the time of its occurrence or immediately afterwards before the jury retired on the seventh day of the trial.
11. I observed two persons sitting in the public gallery in the position identified in the evidence during the course of proceedings on the seventh day of the trial, although their relationship to the accused was then unknown. I did not observe the behaviour referred to in the evidence of Mr Sahinovic and the accused. The Court did, however, observe the jury during the playing of the ERISP. They were, as they had been throughout the trial, attentive to the evidence.
12. Nonetheless, I accept the evidence given by Mr Sahinovic and the accused, which was uncontested and, in some respects, corroborated. The Court's attention was directed to a screen on the opposite side of the courtroom to the accused and the sisters (which permitted observations of the jury as well as the screen) and the ERISP was played somewhat loudly (most likely due to poor quality of some aspects of the ERISP). And, of course, no issues were raised by counsel (in the absence of the jury) that would have alerted the Court to the difficulties.
13. That consideration does not, however, detract from my observations of the jury as generally attentive and compliant to directions throughout the trial, but permits of the acceptance of the evidence that some members of the jury observed, during the playing of the ERISP, the sisters engaged intermittently in the conduct in question and then responded in the manner identified in the evidence.
14. Three factual conclusions may be reached out of that evidence: 1. That the sisters engaged in the conduct complained of, earlier defined as "the laughter", at various stages throughout the playing of the ERISP. The laugher, whilst not a sustained occurrence, occurred at regular intervals throughout the playing of the ERISP and became particularly noticeable from or around 2.13pm. 2. It may be inferred that the jury had affirmative knowledge that the two women observed to be laughing throughout the playing of the ERISP were the sisters of the accused. That conclusion is supported by the combined effect of the following: 1. The elder sister of the accused, Valntin, had previously attended upon the courtroom on multiple occasions prior to the seventh day of the trial. That fact was conceded by the Crown. On each occasion, she sat in the same place in the public gallery, closest to the dock. That regularity suggests a familial connection. 2. On 8 September 2020, as earlier mentioned, Valntin was accompanied at various stages throughout the day by her younger sister, mother and father. All four persons sat in close proximity across two rows (that separation, it may be noted, appears to be a result of the obvious limited nature of the seating). Their positioning suggests a familial connection to each other and, once again, to the accused. 3. On 8 September 2020, a video featuring the accused's father, Laith Mushi, providing consent to search the premises at 83 Tallowood Crescent was tended through Detective Senior Constable Stirton and marked Ex 11. It was conceded by the Crown that the father was sitting during the seventh day of the trial with the sisters in the public gallery where they were situated during the playing of the ERISP. Whilst I note his appearance, owing to the subsequent removal of facial hair, had changed since the filming of the video, in my view, that superficial change would not create a barrier to his identification as to the father of the accused, particularly when considered in light of the combined effect of each of the preceding factors herein listed. 4. During the ERISP, the accused referred to the members of his family. In addition to his parents, he identified his siblings as consisting of an elder sister, Valntin; younger sister, Valy; and younger brother, Carlos. 5. On 1 September 2020, during the opening address of counsel for the accused, it was submitted: It is not in dispute that as at 11 January 2019 Fredon Botrus lived with his father, Laith, mother Jennifer, and two younger siblings, brother Carlos, and sister Valentin, and the family lived at 83 Tallowood Crescent, Bossley Park. 1. My observations were that at least one of the sisters had some familial resemblance to the accused.
15. At least six members of the jury were observed to have noticed the laughter of the sisters. The reactions consisted of briefly turning their gaze to the direction of the sisters. At least two jurors seated within the traditional jury box and one juror within the jury box situated in the public gallery were observed to have had a simultaneous reaction in the form of a brief change in facial expression. I accept the facial expression may be described as conveying "disapproval" and/or "disgust" in response to laughter by two persons within the courtroom during the course of a murder trial. Nonetheless, my observations of the jury were that they were attentive and engaged in the viewing of the ERISP and did not appear distracted by the circumstances described in the evidence of the parties.

DECISION AND DIRECTION TO THE JURY

1. As mentioned, on 9 September 2020, following a consideration of the relevant principles and arguments of the parities, the Court formed the view that, in all of the circumstances of this particular case, the jury should not be discharged and that appropriate directions be given to the jury immediately. Counsel for the accused maintained his application for a discharge but did not dispute the force of the direction foreshadowed by the Court.
2. The Court gave the following direction: Members of the jury, I remind you that you are obliged by the oaths and affirmations that you took at the commencement of this trial to return a true verdict according to the evidence. You were advised that a fundamental obligation of the jury was to act in accordance with that oath or affirmation and to reach your verdict only upon the evidence. You must perform your role as a juror based only upon the evidence that you hear in this courtroom such as through witnesses or recordings, such as the ERISP, and directions of law given by me, such as the present one, and not anything that may occur or has occurred in the courtroom, other than submissions by counsel, or outside of it. You may have heard or seen the reactions of some persons in the courtroom during the playing of the ERISP. Any observations of that kind must be put out of your mind as it forms no part of the evidence in the trial of the accused. It would be unfair to the accused if, in reaching your verdict, you were to take it into account any observations of such reactions in your deliberations as they are not evidence.

SUBMISSIONS OF THE PARTIES

1. Counsel for the accused advanced the following submissions in support of the application: 1. As to the absence of immediate response taken by counsel for the accused at the time of the conduct, reliance was placed upon the novelty of the occurrence and the desire to not highlight the conduct of the sisters. The conduct was described as "entirely unexpected" and occurring within a "dynamic situation". In such circumstances, the view was formed that do have done anything about it at the time would have drawn attention to it. Notwithstanding that submission, it was conceded by counsel for the accused that, in retrospect, he should have raised the issue at an earlier time. 2. As to the available inferences for the jury, counsel for the accused contended that the jury would draw the following inferences: 1. that to his family and to him these proceedings are a joke; 2. that neither his family nor he are taking this trial for murder seriously; 3. that the accused comes from a family that does not value life, be it the deceased's or his own; 4. that the accused comes from a place of high dysfunction, which, in the jury's eyes, might provide an explanation for an unprovoked and brazen daylight murder. It could only be a place of dysfunction where a 21-year-old sister and a 16-year-old sister, seated metres away from the accused, are laughing while a record of interview is being played at his trial for murder; 5. that the accused is a delinquent; and 6. that lies were told by the accused and the laughter of his siblings reflects incredulity by those who are meant to know him the best. 1. In light of the available inferences, it was contended that the conduct of the sisters had "irredeemably" prejudiced the accused. 1. Inferences (a)-(e), it was submitted, would support a conclusion that the accused "comes from a place of dysfunction, and if you come from a place of dysfunction maybe you're the type of person who will commit an unprovoked and brazen daylight murder". 2. Inference (f), it was contended, significantly undermines the defence case. 1. As to the alternative approach sought by the Crown, namely, the provision of direction, it was contended that such an approach would be inappropriate on two bases: 1. First, counsel for the accused relied upon his characterisation of the prejudice to the accused as irredeemable. That submission is supported by the particular circumstances in which the prejudice arose, namely, the laughter by his sisters during the playing of the ERISP. Further, as it was an occurrence beyond the control of the accused, it was contended it was "prejudicial in a deeply unfair way". In the result, it was contended it could not be cured by direction. 2. Second, relying upon his arguments vis-à-vis prejudice to the accused and the novelty of the occurrence, counsel for the accused contended that any direction would merely highlight the problem.
2. In the course of submissions counsel for the accused also characterised the conduct of the sisters as "contemptuous" of this Court. Notwithstanding my lack of observation of the conduct, in light of the evidence before me, I am prepared to accept that characterisation as appropriate. The age of the sisters does not excuse their decision to cause disruption, whether mild, infrequent or otherwise, or even absentminded as to the context at which they found themselves.
3. The Crown advanced the following submissions in opposition to the application: 1. Whilst the Crown accepted that the situation as outlined in the uncontested evidence before the Court was "unusual" and capable of producing some prejudice, it was contended that such prejudice may be cured with a direction. 2. The Crown identified the pivotal inference upon which the accused's case vis-à-vis prejudice rests as that the two persons laughing were, in fact, the sisters of the accused. The Crown contended that the presence of the elder sister throughout the trial does not lend itself to "the inescapable inference" that she was, in fact, related to the accused. I have earlier dealt with this matter, finding the inference was available to the jury. 3. The Crown proposed the following direction: Members of the jury, you may have observed some members of the public gallery laughing at certain points during the playing of the accused's record of interview with the police. You're to put that conduct out of your minds. It plays no part in your deliberations. You should confine yourselves to the evidence and only the evidence in the trial.

LEGAL PRINCIPLES

1. A summary of the relevant principles that guide the exercise of a trial judge's discretion whether to discharge a jury were set out in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"). In the joint judgment of Toohey, Gaudron, Gummow and Kirby JJ, their Honours observed (at 440-441): … No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon 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. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
2. The New South Wales Court of Criminal Appeal has repeatedly applied the authority of Crofts: Wilson v R [2019] NSWCCA 38 ("Wilson") at [171]-[172]; Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 ("Hamide") at [112]-[115]; Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206 ("Miller") at [126] (see also, R v Ahola (No 6) [2013] NSWSC 703 ("Ahola") at [11]-[12]).
3. In Hamide, Bell P provided further guidance as to the discretion afforded a trial judge. His Honour observed: [114] This passage [of Crofts at 440-441] concisely states the principles that guide the exercise of a trial judge's discretion whether to discharge a jury. Those principles are settled, though it should be emphasised that they are only guiding principles; there is "no rigid rule" prescribing how the discretion should be exercised. In Miller, Beazley P, Fullerton and Hamill JJ summarised the principles as follows (at 510-11 [126]): "(1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440. (2) In deciding an application to discharge the jury, key considerations include: (a) the fairness of the trial: Crofts at 440; (b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441; (c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; (d) the stage at which the mishap occurs: Crofts at 440; Maric at 635 [ALJR]; (e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635; (f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635. (3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635. … (5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind: '… that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript': Crofts at 440-441." [115] Additionally, in Ahola, Button J said at [17] that, on his review of the relevant decisions of the High Court and the New South Wales Court of Criminal Appeal, trial judges are neither required nor encouraged "to take an overly sensitive approach to the accidental receipt of prejudicial material", as in "many circumstances a direction is an appropriate remedy, not the discharge of the whole jury". This statement was cited with apparent approval by Beazley P (with whom R A Hulme J and R S Hulme AJ agreed on this point) in Younan at 129 [39].
4. His Honour also provided a summary of the various terms used by the courts to describe "the kinds of events in trials that give rise to a miscarriage" (at [97]-[100]). Bell P further observed (at [101]): [101] Not every irregularity will be prejudicial, and not every prejudicial piece of evidence will be irregular. There is prejudice, and there is unfair prejudice: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 325 [91]. Prejudicial evidence will have the quality of unfairness where there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL.
5. In Ahola, Button J rejected an application to discharge the jury. His Honour was not satisfied that in all the circumstances there was "a high degree of necessity" (at [29]). As to the discretion of the trial judge, Button J observed (at [18]): [18] … A trial judge should take into account a number of factors including but not limited to the extent of the prejudice to the accused; the ability to ameliorate that prejudice to any degree by direction, comment or other step; and the stage that the proceedings have reached. As I have said, the ultimate question is whether a high degree of necessity for the discharge of the jury has been established in all of the circumstances.
6. Both parties advanced submissions with respect to the Court of Criminal Appeal of New South Wales judgment in Wilson. In Wilson, the applicant contended, inter alia, the trial miscarried because the trial judge failed to discharge the jury after a prejudicial event thereby causing a miscarriage of justice. The prejudicial event consisted of two separate outbursts by a co-accused, Mr David Wilson, the brother of the applicant, during the course of the trial.
7. The first incident occurred on 16 June 2011 ("the first outburst"). On that occasion, in the presence of the jury, the Mr David Wilson made a series of statements suggesting he had not been provided with the opportunity to "see my evidence". The applicant made an application to discharge the jury. It was contended that the remarks by Mr David Wilson may have "aggravated… a justifiable discontent in the jury room" and there was a danger of prejudice to the applicant. A similar application was advanced by Mr Xavier. The trial judge refused the application. It was held that whilst the incident sought to invoke sympathy for the co-accused, it did not prejudice the case of the applicant (or the second-co-accused, Mr Xavier). The trial judge directed the jury to ignore the outburst and, with respect to the applicant and Mr Xavier, "[that] no responsibility in any way for the outburst and nothing that was said can be in any way used in respect of them".
8. The second incident occurred on 19 July 2011 ("the second outburst"). During the course of taking evidence, the co-accused said: Your Honour, I wish to plead guilty to the charge of pseudoephedrine and my brother and Jose Xavier… are guilty as charged. They fabricated evidence against me, okay. … Evidence gone missing, which proves I am innocent of this charge.
9. Counsel for the applicant made an application to discharge the jury. It was contended that the prejudice that arose from the second outburst could not be overcome by direction. A similar application was advanced by Mr Xavier. The trial judge refused to discharge the jury, finding it could be overcome by direction to jury. A direction was given consistent with the principles in Bartle, which included the following: "Now [what] you heard obviously, just before you left, [was] an emotional outburst from [the co-accused]… it is imperative that you pay absolutely no regard to any statement made by him in respect of either his co-accused".
10. The Court of Criminal Appeal affirmed the decision of the trial judge. In reaching that conclusion, reference was to the authority of R v Bartle [2003] NSWCCA 329 at [82] and The Queen v Gleenon (1992) 173 CLR 592 at 614-615. The Court observed "reliance may be placed on the integrity and sense of duty of jurors who may be expected to accept and obey directions given to them by the trial judge" (Wilson at [176]). The Court also observed that "the trial judge was well placed to assess the significance of the outburst in the context of the trial" and "an appropriately strong direction was given to the jury" (Wilson at [178]).
11. Counsel for the accused contended that the factual scenario dealt with in Wilson "can easily be distinguished" from the present application. It was submitted: [W]hat occurred in Wilson … was the kind of mischief that the accused brought on himself, and the accused brought on the co-offenders, the co-accused at the time. This is a very different situation. As I've said earlier, if your Honour wants to criticise me for it I will wear that, but the nub of my submission is, this has happened through no fault of this young man, and he shouldn't be prejudiced in his trial for what is the most serious offence in the criminal calendar.
12. If by that submission, counsel for the accused sought to suggest that the circumstances in Wilson may be generally distinguished from the current proceedings as to the circumstances of the prejudicial events, that submission is erroneous as the factual substratum has many similar elements and the relevant principles discussed in this judgment are applicable in the present case.
13. The submission advanced by counsel for the accused appears to hinge upon the fact the applicant's brother in Wilson was a co-accused and the jury in that case may have inferred the accused "brought the mischief on himself" but that contention ignores three significant relevant similarities: 1. First, the source of the prejudicial event in both matters was a direct family member: the two siblings of the accused and one sibling of the applicant, respectively. 2. Secondly, the jury in both matters were either aware or it may be inferred were aware of the familial connection to the accused and the applicant. 3. I do not consider it may be concluded that the circumstances in Wilson were such that a jury may consider that the second outburst was the kind of mischief the applicant brought on himself. Both in Wilson and in this matter the accused were the subject of prejudicial acts by family members which were out of their immediate control, although the accused in this case had, by his legal representatives, the opportunity to significantly reduce any prejudice (an opportunity that did not exist for the second outburst in Wilson). Neither accused played any role in the occurrences. Nor can fault be attributed to them.
14. Thus, there were similar factual circumstances applying in both cases: an outburst by a close family member, the relevant outburst occurred during a late stage of the trial in Court, and the outburst was not caused or instigated by the accused. There is, however, distinction in the two matters, but not one favouring the accused's submissions as to a relevant distinction (or the discharge application), namely, the circumstances giving rise to prejudice suffered by the applicant in Wilson was arguably more acute and the circumstances more serious than the present matter.
15. By pointing to the existence of factual distinctions, counsel for the accused did not cavil with the statement of principle in Wilson on this application. In any event, the Crown, correctly in my view, relied upon Wilson as an authority regarding the review of a discretionary decision of the trial judge to not discharge the jury. I have previously outlined the statements of principle arising out of the judgment of Wilson relevant in the present context
16. The factual background to the conviction appeal in R v Attallah [2005] NSWCCA 277 ("Attallah") is analogous to the present application. During the course of the trial of Mr Attalah, the Crown prosecutor expressed concern that the applicant's family were creating a disturbance in the courtroom. It was confirmed that some noises had been coming from the back of the courtroom and had attracted the jury's attention. The trial judge said that she had not noticed anything. On the following day the jury sent the trial judge a note, which was in the following terms (Attallah at [70]): Your Honour, we of the jury would like to draw to your attention an issue that has been occurring for some time now. Family members of the defendant are consistently interacting with the assisting solicitors for Mr Stewart by making comments and passing notes from the public gallery. Question, is this the normal courtroom practice? This was very apparent and disturbing yesterday 16 April 2003. A young lady, who we gather is the daughter of the defendant Mr Attallah, was making derogatory comments which were heard by a number of jurors as the witness Vanessa was walking in and out of the courtroom. May we ask from you that members from the public gallery are refrained from this behaviour as it is quite difficult to concentrate and remain focused on the proceedings with this going on. Thank you for your assistance in this matter. Kind regards the jury.
17. The decision of the trial judge to not discharge the jury was upheld on appeal. James J observed, with the agreement of Buddin and Rothman JJ, that none of the incidents gave rise to a miscarriage of justice. In reaching that decision he observed (at [86]-[90]): [86] A trial judge has a wide discretion in deciding whether a jury should be discharged and a jury should be discharged, only if there is a real need for such a step to be taken. [87] In the present trial all of the three outbursts by the appellant, on which counsel for the appellant relied, occurred during a long cross-examination of the appellant, which, with interruptions, extended over five hearing days. This Court was not directed to any other occasion during the cross-examination in which the appellant lost his composure. [88] It is relevant to take into account the length of the trial and the stage in the trial at which the outbursts occurred. The cross-examination of the appellant commenced on the forty-third day of the trial and the trial continued thereafter for almost another month. [89] The conduct sought to be relied on as requiring a discharge of the jury was conduct by the appellant himself and, for obvious reasons, a trial judge should be cautious about discharging a jury and thereby terminating a criminal trial, because of conduct engaged in by the accused in the courtroom. [90] It was open to the trial judge to consider that any directions given by her specifically referring to the appellant's conduct would only draw further attention to the appellant's conduct.
18. His Honour also joined with the observations of the trial judge, inferred from the above note and her Honour's direction to the jury, that the jury were "conscientiously endeavouring to perform their function and objected to what was happening because it tended to distract them from concentrating on the evidence" (at [76]).

CONSIDERATION

1. There can be little doubt, and the Crown does not dispute it, that the accused would suffer prejudice as a result of the conduct of the sisters described in the evidence. It does not follow, however, that the characterisation of the prejudice advanced by the accused may be wholly accepted and, in particular, the jury would draw the inferences relied upon by counsel for the accused.
2. A significant part of the prejudice, relied upon by the accused, was that the jury will necessarily and irremediably form various impressions, based upon the conduct of the sisters during the ERISP, about the accused's family. The foundation for that proposition was never made entirely clear in the submissions advanced on the application, but it appeared to be suggested that the jury would necessarily infer from the conduct of the sisters that the whole of the family, to employ the characterisation used by counsel for the accused, treated these proceedings as a joke, did not take this trial for murder seriously, do not value life, and were highly dysfunctional (as a family unit) and, would, therefore conclude that the accused came from a place of dysfunction and was "the type of person who w[ould] commit an unprovoked and brazen daylight murder". By extension, it was submitted that by the conduct of the sisters the jury may draw an inference that the accused is a delinquent.
3. The difficulty with those contentions is that they seek to extrapolate from a series of occurrences, that occurred intermittently on the seventh day of the trial during the course of the ERISP, by the sisters, broad propositions largely devoid of any context other than the fact of the laugher during the ERISP under the observation of some members of the jury. The consideration of the present application needs to be approached on the basis of what the jury had observed, not only during the playing of the ERISP, but during the course of the proceedings including on the seventh day of the trial, either by dint of the fact of what had been shown to them in evidence or what it may be reasonably inferred had been observed by them (particularly given concessions by the parties). When approached in that way, the global propositions as to prejudice by the accused require a closer attention.
4. The inferences which counsel for the accused contended the jury would have drawn from the sisters' conduct with respect to the accused's family and in consequence himself, are questionable in a number of respects for the following reasons: 1. The sisters were aged 16 and 21, respectively. Beyond the knowledge of their existence, as a result of the defence opening address as well as the ERISP itself, no further information was provided to the jury about the sisters. The sisters had been observed, earlier that day, seated with their parents, as family. Neither the sisters nor the parents caused any similar disruption in the proceedings prior to the playing of the ERISP. It might also be noted that the laughter only occurred in the absence of the parents. 2. The parents' conduct during the course of the proceedings, in my view, may be described as atypical of members of the public seated in the public gallery in court proceedings. They observed the proceedings silently and the manner in which they entered and exited the courtroom, throughout the proceedings, reflected a conscious understanding of basic courtroom etiquette. Further, the facial expression of Mr Mushi when in the courtroom was sombre and his countenance reflected an appreciation for seriousness of the trial. Equally, the accused was not observed to be laughing during the playing of the ERISP or the course of the trial. 3. Unlike the sisters, as mentioned above, the jury had observed Mr Mushi by another means in the trial; on the day the ERISP was played, Mr Mushi was featured at the start of video footage marked Ex 11. In that brief appearance, I observed the father of the accused to be entirely cooperative with the police, providing assistance by freely answering questions as well as providing consent for the police to search the premises as part of their investigation. Neither his conduct on the video footage nor his conduct in the courtroom displayed any behaviour that may be considered reflective of an unreasonable or dysfunctional family. 4. It might be added, the conduct of the accused throughout the trial, up to that point, may be described as appropriate and conscious of the seriousness of the charge he faces and the fact that he was in the charge of the jury. The accused was not a source of distraction nor did he exhibit any behaviour consistent with that of the sisters. 5. The observations of the conduct of the sisters during the ERISP, does not detract from any observations of reasonable conduct on the part of the parents or the accused throughout the trial. The presence of the parents, particularly when seated as a family earlier on the morning of the seventh day, projected a clear visual of support for the accused.
5. Turning to the prejudice facing the accused, in my view, it may be properly found to arise in two ways.
6. First, the jury might infer that by the conduct of the sisters the accused is making light of the proceedings or not appreciating the gravity of the charge being faced by the accused. Second, the jury might infer that by the conduct of the sisters the accused is demonstratively telling lies, with their laughter and its timing affirming the existence of such lies.
7. As to the first aspect of prejudice, any prejudice must be measured against the countervailing factors discussed above and the inconsistency with the behaviour of the accused in the presence of the jury throughout the trial. Over the course of the trial, the accused displayed a neutral countenance as he silently observed the case put by the Crown against him and allowed Mr Pararajasingham to advocate on his behalf. My observations are that at various stages of the evidence he was taking notes. During the course of the evidence on the seventh day, which included a significant amount of video footage featuring the accused, he appeared, in my view, equally composed as he viewed the evidence put to the jury.
8. Based on my observations of the accused in the presence of the jury, the accused appeared to be attentive and his demeanour was consistent with someone treating the proceedings seriously. The jury were positioned within the courtroom to observe the accused in the dock on each day of the trial and, in my view, in light of the observations of the accused available to them over the course of seven days at the time of the ERISP, they would not be quick to come to a contrary conclusion, particularly in the light of appropriate directions to confining their attention (and deliberations) to the evidence.
9. As to the second aspect of prejudice, counsel for the accused contended that the timing of laughter reflected incredulity by the sisters as to lies told by the accused. It was submitted that such an inference significantly undermined the defence case.
10. Prior to the playing of the ERISP, the jury were aware that the accused told lies to the police on 11 January 2019. The existence of such lies was highlighted by counsel for the accused in his opening address. He stated: It is not in dispute that when spoken to by police on 11 January 2019, this then 18 year old male told some lies to police and he sought to distance himself from that motorbike and the circumstances in which it was found. In due course you will need to consider for yourselves, drawing on your knowledge of the world and ordinary human experience as to why he may have said such things, what factors may driven him to tell lies.
11. Whilst counsel for the accused contended that reasonable explanations existed for such lies, which at that stage were yet to be put to the jury, it is unclear how an inference that the sisters disbelieved the statements of the accused, with respect to conceded lies, may irredeemably or unfairly prejudice the accused in that respect. It was accepted the accused lied. Even if the laughter of the sisters was interpreted as a sign of disbelief in the truth of their brother's account to the police, the jury were already alerted to the fact they would hear lies by the accused, in particular lies relating to his knowledge of "[the] motorbike and the circumstances in which it was found". Each of the particular instances of laughter identified at para 8 of Mr Sahinovic's affidavit corresponded to an admitted lie with respect to the motorbike. In the result, I do not accept that the timing of the laughter resulted in irredeemable prejudice to the accused that was beyond the remedy of a direction.
12. There remains one further issue of prejudice, relied upon by counsel of accused to which particular attention should be given, namely, that on the basis of the conduct of the sisters during the ERISP, the jury would infer that the accused comes from a family that does not value life, be it the deceased's or his own. The difficulty with that contention is as follows: 1. Starting with the sisters, the source of the laughter, there was no suggestion made by the parties that the laughter appeared to concern glee at the fact the deceased was murdered or that their brother was on trial for the same. The uncontested evidence is that the sisters laughed during the ERISP, in particular, at specific lies told by the accused. There is no reasonable basis, in the light of intermittent laughter from two young girls, for the jury to reach such a serious conclusion as to the overall moral stance of either the sisters, the family as a whole or, in particular, the accused. 2. Turning to the parents, they were not in courtroom at the time of the laugher, as such, it appears unlikely that the jury would join the parents to any inferences drawn vis-à-vis the sisters. 3. Finally, the suggestion that the jury would draw an inference that the accused does not value life, due to the conduct of the sisters, needs to be considered in the light of the circumstances of the trial. As at the time of the playing of the ERISP, the following was known to the jury: the accused was on trial for murder, a charge they witnessed him enter a plea of not guilty; the jury was directed "the accused is presumed to be innocent of any wrongdoing until a jury is satisfied beyond reasonable doubt that his guilt has been established according to law", by my opening remarks on the first day of the trial. The trial had progressed without any other incident of that kind. The occurrence of laughter by the sisters is not relevant to the state of mind of the accused.
13. Thus, the inference relied upon by the accused lacks a proper foundation.
14. Having identified the extent of the prejudice to the accused, I now turn to consider the seriousness of the occurrence, which must be understood within the context of the contested issues.
15. Prior to turning to that assessment, I return to a consideration of Wilson. In Wilson, the prejudicial event in the Court below concerned two outbursts by Mr David Wilson, a self-represented co-accused and brother to the applicant, a fellow co-accused, in the presence of the jury. The second outburst, which occurred a week before the jury retired to consider its verdict, was found to be prejudicial. The content of the outburst made it irrefutably serious in nature: Mr David Wilson specifically named the applicant, identified him as "my brother", announced that he wished to plead guilty and stated that the applicant and Mr Xavier were also guilty. Prior to rejecting the application to discharge the jury, as noted above, the trial judge reached his ruling with the assumption that all members of the jury had heard the second outburst.
16. Returning to the present application, the evidence does not support a conclusion that all members of the jury heard the laughter. As earlier mentioned, neither the Court nor the Crown observed the conduct during the playing of the ERISP. The laughter that occurred was intermittent. Whilst it resulted in momentary glances from the jury, based upon the uncontested evidence, the laughter was not characterised as a sustained outburst as it did not feature throughout the entire playing of the ERISP. In my view, the conduct of the sisters did not ultimately detract from the jury's capacity to listen and follow the evidence. Indeed, given the layout of the courtroom, not all jurors appear to have been made aware of the occurrence during the course of evidence. Further, given the limited, aberrant and intermittent nature of the occurrence, in my view, the circumstances of the incident would not be vividly etched in the mind of the jury. Also, any discussions had between the jury as to the same, in my view, any prejudice arising, in that respect, is amenable to direction.
17. For completeness, I note the incident occurred at a late stage of the proceedings.

CONCLUSION

1. There is an important principle which bears upon my determination of the current application. Such principle is that criminal trials necessarily proceed on the basis that a jury will follow and apply any direction given by a trial judge: see Wilson as above; The Queen v Glennon (1992) 173 CLR 592 at 603 and 614-615; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [27]-[29]; R v Munday (1984) 14 A Crim R 456 at 457-8; and Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31].
2. I consider that the directions made by the Court were sufficient to remedy any unfairness to the accused occasioned by the conduct of his sisters and, more generally, were sufficient to prevent any miscarriage of justice. My view in this respect does not vary if the jury inferences sought by counsel for the accused are accepted, or as I have analysed, should properly be viewed in a different light.
3. My observations of the jury throughout the trial, up to and including the playing of the ERISP, were that they were attentive, engaged, compliant and overall conscientiously endeavoured to perform their functions. Any reaction by the jury to the conduct of the sisters more widely reflects, in my view, an objection in being distracted in any way from their function. During the playing of the ERISP, they did not appear distracted although there must have been on the evidence momentary interruptions or distractions.
4. Finally, I note that, having heard the decision of the Court as to the discharge application, the parties had no objection to the form of the direction proposed by the Court.
5. I confirm the application to discharge the whole jury is dismissed.

Amendments 09 March 2021 - Publication restriction removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2021