R (Cth) v Cooper

The Evidence

1. The Crown's application falls to be determined on the basis of "evidence before the court", there being no statements from the juror: s 53B(b). There is a preliminary question as to whether the observations of the court can be regarded as "evidence" but, in common with Hamill J (as discussed by him in R v Qaumi & Ors (No 56) [2016] NSWSC 1130 at [30]-[37]) I consider that I can have regard to my own observations of what has taken place in the courtroom during the trial in determining the application. The accused accepts that such is the case.
2. The Crown's application is supported by an affidavit from the solicitor with the carriage of the matter for the Commonwealth Director of Public Prosecutions, Ms Detheridge, affirmed on 28 August 2019. The affidavit was read on the application without objection; the deponent was not required for cross-examination. What follows is drawn from it.
3. Ms Detheridge has been present in the courtroom for almost the whole of the trial proceedings against the accused. She deposes that she, in common with other of the lawyers involved with the prosecution of the accused, observed the accused engaging with the jury when its members were entering or leaving the courtroom. This engagement involved him making eye contact with individual jurors, smiling at and nodding to individual jurors, and mouthing greetings to them, such as "hello" and "good morning".
4. The matter was raised with counsel for the accused, but the accused continued to engage the jury members in this way.
5. Some jurors were seen to respond to the accused's overtures, reciprocating them. One juror in particular was noted to regularly engage in a form of wordless communication with the accused, from the second week of the trial onwards. She was seen to smile at and nod to the accused, to make and maintain eye contact with him in a fixed way and for a prolonged period, and to communicate with him, albeit wordlessly. She has been seen to regularly seek out such contact with him, particularly after collecting her papers on leaving the jury box and the courtroom.
6. The juror's conduct has been likened by Ms Detheridge to that of two people sharing a private joke.
7. My observations, whilst more limited than those of Ms Detheridge, are consistent with them. I too have seen the accused seeking to engage with members of the jury by nodding and smiling towards individuals in the jury box, and appearing to engage in wordless exchanges with the particular juror referred to by Ms Detheridge. I have observed the juror, in a very marked manner on the afternoon of 27 August 2019 in particular, to seek out the accused's attention, and appear to share some silent, seemingly humorous, communication with him.
8. I do not understand the accused to take any issue with the fact of the juror's conduct. It is what can be drawn from it that is in issue.

The Submissions

1. Queen's Counsel for the Crown submitted that the conduct of the particular juror goes well beyond that which might be explained or accepted as a courtesy, or a simple response to conduct from the accused. The juror's engagement with the accused is very marked and has continued since the second week of the trial. It cannot be dismissed as fleeting, or isolated, but represents a persistent and quite bizarre course of conduct which the fair minded lay observer might reasonably consider is such as to influence the juror in the determination of the ultimate issue to be decided, the question of whether the accused is guilty of the offences charged.
2. The Crown pointed to daily conduct on the part of the juror in seeking out contact with the accused and no-one else in the courtroom, in a preferential way, indicative of an attitude of warmth towards him. The juror's conduct is such as to give rise to an apprehension of bias.
3. Pointing to the exceptional nature of the Crown's application, Counsel for the accused highlighted the difficulty in drawing any conclusions from what had been observed of the interaction between the accused and the juror, in circumstances where the interpretation of human conduct is fraught with danger. Whilst no issue was taken with the factual matters set out in Ms Detheridge's affidavit, ascribing a particular meaning to the observed conduct is not straightforward.
4. Mr Randle relied upon three decisions of Hamill J, R v Qaumi & Ors (No 36) [2016] NSWSC 718; R v Qaumi & Ors (No 41) [2016] NSWSC 857; and R v Qaumi & Ors (No 56), pointing to the second of those decisions as particularly analogous to the present situation. In R v Qaumi & Ors (No 41) the Crown sought to have a single juror discharged after observations had been made of the juror over a number of weeks regularly looking towards and smiling at one or more of the accused. Hamill J refused the application, giving a carefully reasoned decision in which his Honour set out and discussed the relevant law.
5. It was submitted for the accused that the decision in R v Qaumi & Ors (No 41) was particularly instructive, and provided a useful comparator to the present application, suggesting that it should be rejected. In R v Qaumi & Ors (No 41) observations had been made of the juror's conduct over many weeks; the period of time is much less in the present case. The conduct of the juror in R v Qaumi & Ors (No 41) had an element of furtiveness to it that is completely lacking in the present instance. Finally, unlike the trial before Hamill J, the accused in the present matter is being tried alone, and the Crown's application is unsupported by a co-accused, as it was in R v Qaumi & Ors (No 41).
6. The accused argues that, even if the juror has demonstrated favour towards him, it cannot be supposed that directions to be given to the jury to decide the case solely on the basis of the evidence, setting aside all sympathy or prejudice, would not be obeyed. There is no basis to conclude that the juror has disobeyed any direction to the jury, or that she would do so in considering the verdicts to be returned.

The Law

1. There was no issue between the parties as to the law which is to be applied to the facts in determining the Crown's application. Given that, and since this decision is given with some haste to avoid any further delay to the trial, I do not propose to set it out or analyse it at length.
2. Section 53B of the Jury Act provides for the discharge of a juror in certain circumstances. The relevant provision is s 53B(b): 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if: (a) […] or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) 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 (c) […] or (d) […].
3. The application is based upon a contention that there is a basis for "a reasonable apprehension of bias".
4. Where apprehended bias is raised, the question is whether a fair-minded lay observer might reasonably apprehend that the decision maker (in this instance, the juror) might not bring an impartial or unprejudiced mind to the issues to be determined: Johnson v Johnson (2000) 201 CLR 488 at 492. The test is concerned with what might reasonably be perceived; not with what is: Webb v The Queen (1994) 181 CLR 41, at 52.
5. The relevant lay observer is taken to be a reasonable and fair-minded individual who, although without legal training or experience, is not wholly ignorant of legal matters, and is informed of the basic issues relevant to a fair assessment of all of the circumstances. "The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. […] Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious:" Johnson v Johnson (2000) 201 CLR 488 at 508. [Footnotes omitted.]
6. It is not a question of whether the decision maker will decide the issue to be determined adversely to a party, but rather that the issue will be decided other than impartially and without prejudice: Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352; R v Masters (1992) 26 NSWLR 450 at 471.
7. It has been held that the courts must apply realistic criteria in considering whether a reasonable apprehension of bias has been made out.
8. The test for apprehended bias is to be applied in two steps: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8].
9. It is important that the question of bias or apprehended bias is determined objectively, by the application of legal principle to established fact.
10. I am conscious that, in a criminal trial, it has long been regarded as optimal for a jury of 12 to determine the question of an accused person's guilt, albeit that s 22 of the Jury Act clearly envisages a trial proceeding with fewer jurors than that number.

Consideration

1. In determining this application I accept the evidence of Ms Detheridge as to her observations and those of other prosecution lawyers in the courtroom, of the conduct of the particular juror. My own observations of the juror are consistent with that evidence, and no real issue has been taken with it by the accused.
2. The question is whether the silent exchanges seen by Ms Detheridge and others ought to be regarded as such as to give rise to a reasonable apprehension of bias by the juror.
3. I should make clear at the outset that the answer to that question cannot be found in a comparison between the facts that applied in R v Qaumi & Ors (No 41) and the present. Whilst that decision is of great assistance, not least in Hamill J's careful analysis of the law, it does not set some sort of factual standard by which other applications of a similar nature are to be judged. Any application for the discharge of a juror must be determined by reference to the facts of the particular case, and by applying the law to those facts.
4. Here, the conduct of the particular juror is, if not bizarre (as the Crown Prosecutor described it), highly unusual and of concern. Although it is reasonable to conclude that the accused invited or induced interaction with the jurors, the particular juror has continued to engage with the accused through constant and direct acknowledgement of him. I accept Mr Randle's submission that the interpretation of human behaviour is no exact science, but it is not necessary to reach any firm conclusion as to what the juror's conduct signifies; it is necessary only to consider what it might reasonably be perceived to signify, in the context of these proceedings.
5. That context includes the nature of the proceedings, the atmosphere of the courtroom, and the directions that have been given, and will be given, to the jury concerning its role and responsibilities.
6. The trial concerns very serious offences which, if proved to the requisite standard, might be expected to lead to a sentence of imprisonment. The jury members no doubt understand that, if only through the evidence already led as to the penalties imposed upon the two criminally involved witnesses for their roles in the conspiracies alleged against the accused, as well as other offences. It might be expected that this would be a sobering matter for the jury, pointing to the importance of the proceedings, to the accused, but also to the community, and highlighting the solemnity of the jury's task.
7. This is a trial for federal offences and, as such, there is no provision for a majority verdict to be taken in the event that a juror is unable to properly participate in the independent decision making process that jury deliberation involves.
8. The proceedings are being conducted in a standard courtroom (courtroom number 1 at Darlinghurst) where all of those involved are in reasonably close proximity. The jury box is adjacent to the area of the dock and the juror the subject of the application for discharge habitually sits in the front row and at the end of the jury box that is closest to the dock. The jurors have a clear view of the accused, of counsel, of witnesses, and of me. It is to be expected that, when a group of people sit each day in close proximity over a period of weeks, and in a position to observe each other, individuals may or will form opinions about the others in the room, including the accused. The fact that a juror may have formed an opinion about an accused is not of itself sufficient to disqualify the juror.
9. The jurors have already been given some directions of law that are of relevance.
10. During the process of empanelment the members of the jury panel were invited to seek to be excused from jury service if, for any reason, an individual felt that he or she may not be able to bring an independent and impartial mind to consideration of the issues to be determined.
11. After the jury had been struck, later on that first day of the trial, a direction was given in general terms to the jury to avoid contact with persons associated with the trial, even to the appearance of discourtesy. Although prefaced by a direction that jurors refrain from lingering in the vicinity of the Courthouse before or after sitting hours, the direction should have been sufficient for a juror of ordinary understanding to comprehend the prohibition on interaction with anyone connected with the trial, including the accused.
12. It was in these terms: […] it's important not only that you not know and not have any contact with people involved in the trial, but also that that be seen to be the case. In any criminal trial there will be witnesses waiting around the court complex to give their evidence, there will be police officers involved in the case, the lawyers will be wandering about getting coffees in the morning, that sort of thing, and it's very important that you don't come into contact with anyone. […] Should you pass me in the street, or my staff, or any of the lawyers, please don't acknowledge us. We won't think it's rude. That is you doing your duty as jurors. (T47:05 - 20).
13. Mr Randle pointed out that ordinary courtesies are observed to some extent in the courtroom, with the jurors welcomed each morning by me, and counsel also acknowledging the jury preceding opening addresses. He submitted that, having regard to that, it may be that the juror does not understand that the necessity of abstaining from greeting relevant individuals extends beyond the street, and into the courtroom.
14. I accept that a juror, unlike the lawyers with decades of criminal trial experience to inform understanding, may not have regarded a greeting in the courtroom as prohibited. However, I do not categorise the particular juror's conduct as akin to a greeting in passing. Her attention to the accused has been, in my conclusion, marked, and well beyond what could be regarded as a simple courtesy.
15. I regard the juror's failure to observe the direction to avoid contact with persons involved in the trial as a feature which is not without significance.
16. That failure may inform an assessment of the juror's capacity to observe directions which will be given, to determine the question of the accused's guilt of the charges only on the basis of evidence adduced in court, impartially and without sympathy or prejudice. Ordinarily, the court is entitled to proceed on the basis that jurors will follow the directions given to them by the trial judge; the juror's conduct to date gives rise to some reservations about that axiom.
17. However, I take into account my own observations of the particular juror more generally over the course of the trial. She appears to be a very physically expressive person, with a very expressive face. She is frequently the last person to leave the jury box on the departure of the jury from the courtroom, and often looks about her, gives a little laugh, and waves her hands as if to hurry herself along. She frequently gesticulates whilst in court, often to the elderly gentleman who sits beside her. It may be that this is her particular demeanour. If so, the weight to be given to her interaction with the accused may be reduced.
18. I bear firmly in mind the principle that justice must be both done, and be seen to be done. This principle is of such fundamental importance that even the appearance of departure from a standard of independence and impartiality is impermissible.

Conclusion

1. Not without considerable misgivings I have decided that the Crown's application should be declined, on the present evidence. Two features were of particular significance in reaching that decision. Firstly, I am mindful of Mr Randle's submission that given the absence of a specific direction as to contact with the accused, the reasonably minded lay observer, who is perhaps not as keenly attuned to the possibility of juror interference as are criminal lawyers, would not apprehend that the juror might be biased, by observing her conduct in court. Secondly, I am conscious of the expressiveness of the ordinary manner of the juror, and the reasonable possibility that her interactions with the accused evidence nothing more than her usual somewhat extravagant manner. I am not satisfied that the test for apprehended bias has been met.

The Future

1. Despite having refused the Crown's application, I regard this as a matter of significant concern, and propose to closely monitor the conduct of the particular juror over the coming days.
2. Although I am conscious of the legitimacy of the Crown's concern at the prospect of any direction forcing the juror to hide any preference she may feel, I have concluded that a direction must, nevertheless, be given.
3. If, following that direction, the juror continues in attempts to engage with the accused, it is open to the parties to revisit the subject.

Amendments 07 November 2024 - Typographical amendment to coversheet. 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: 07 November 2024