R v James Moore

Supreme Court of NSW|2014-11-18|Before: Garling J, Adamson J, McClellan CJ, McDougall J

Jury Note

At about 11.45 this morning, 18 November 2014, during the course of the morning tea break on the second day of this trial, the Court received a jury note which has been marked for identification 1. It is in the following form: "I [name of juror] have known a witness that is at a trial which I am on the jury. He was a friend of my son and haven't seen him for about four to five years. When I heard the names of the witnesses I believed the person was female from the pronouncing of the name."
At the time that the jury note was received, Mr Taras Spahic, a young man of about 22 years of age, was giving evidence. I have taken the jury note, as have both counsel, to be referring to Mr Spahic as the witness to whom the jury member was referring to.

Power to discharge Juror

A question has arisen as to whether, in light of the content of the jury note, the Court should exercise its powers to discharge the juror in accordance with s 53B(b) of the Jury Act 1977. That section is in the following form: "53B Discretionary Discharge of Individual Juror The court or coroner may, in the course of any trial … discharge a juror if: (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 …, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason ..."

Examination of Juror on Oath

In considering the exercise of the Court's discretion in accordance with that section, a preliminary issue has arisen as to whether it is appropriate to examine the juror on his oath with respect to the extent of his knowledge or relationship with the witness; whether he has by reason of past events formed any view about the reliability of the individual as a recounter of primary fact; whether he is or is not able to give impartial consideration to the case, and whether there is any reasonable apprehension of bias to the extent that his answers may reflect matters which fall within the relevant test.
As I am giving this judgment, in the course of the trial, time does not permit me to examine in detail whether there is or is not a power to examine a juror with respect to the contents of a note such as the one which has been provided. Clearly, the Jury Act does not directly grant the Court that power. It is a more complex question as to whether, upon the proper interpretation of the Jury Act, the Court retains any power at law which it otherwise had to examine a juror. If such a power exists, then it must be that it is a matter of discretion for the trial Judge as to whether the power ought be exercised.
In BG v R [2012] NSWCCA 139, Adamson J, with whom McClellan CJ at CL and McDougall J agreed, said at [87], when considering a question as to whether the Judge should or should not have taken sworn evidence from the juror with respect to the contents of a jury note, this: "There was, in my view, no reason for the judge to doubt the veracity of the report she received from the jury via its note and, accordingly, there was, in my view, no reason to require verification of the information by sworn evidence from the particular juror: See for example R v Arnott [2009] VSCA 299, where a challenge to the trial judge's acceptance of a medical certificate in respect of a juror was rejected by the Victorian Court of Appeal at [133]."
Here, I have no reason to doubt the veracity of what the juror is saying with respect to his knowledge of the witness. Nor do I have any reason to doubt the veracity of his explanation that he did not recognise the name of the witness at the time it was read out, he mistakenly believing that the name was female and not male.
In those circumstances, even if I did have the power to examine a juror, I would not exercise my discretion so to do.

Legal Principles to be Applied

I then turn to consider the question of whether, having regard to the contents of the note, the juror should be discharged. I keep in mind that the test, when considering the application of s 55B(b) of the Jury Act, encompasses both actual bias on the part of a juror as well as reasonable apprehension of bias on the part of the juror.
The principle to be applied is clear. It is one of longstanding. It is that in considering whether or not a juror may be biased it is important to keep in mind that it is the appearance of bias, or impartiality, as well as the fact of impartiality, which is necessary to retain, to promote and to advance confidence in the administration of justice. Not only the parties to the case, but also the general public must be satisfied that justice has not only been done but that it has been seen to be done: see Webb & Hay v R (1994) HCA 30; (1994) 181 CLR 41 at 50 per Mason CJ and McHugh J.
Kirby J said in the Court of Criminal Appeal in Regina v M A Bright [2000] NSWCCA 258 at [28], by reference to the decision of the High Court in Livesey v New South Wales Bar Association {1983} HCA 17; (1983) 151 CLR 288: "A person should not sit as a juror if, in all of the circumstances, the parties, or a fair minded and informed member of the public, might entertain a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to the resolution of questions involved in the trial."

Discernment

In my view, given the particular circumstances of this case, namely that the Crown's case depends in large part, but not exclusively, upon eye witness evidence, and given that there is some differences in the evidence of the eye witnesses, which is not unexpected and, further, given that one real issue in the proceedings is whether the accused was acting in self-defence or, at least, to put it another way, whether the Crown is able to disprove, beyond reasonable doubt that the accused was acting in self-defence, the accuracy, reliability and acceptability to the jury of the evidence of each of the eye witnesses is a matter of central importance.
As senior counsel for the accused has submitted, he intends to argue to the jury, in due course, that much of what this witness says is accurate and reliable and is to be preferred to other witnesses' evidence. He points to the fact that if the juror who has sent the note has a view either as to the reliability or lack of reliability of the witness because of earlier contact, then that might well affect the way in which the witness's evidence is received and acted upon.
It seems to me, as well, that the essence of the jury note is that had the juror recognised the person's name correctly when it was first read out then he is likely to have been asked to be excused from being a member of the jury panel for the case.
I am unable to, and do not, say from the content of the note that the juror is actually biased. However, I am abundantly satisfied that the content of the note and the fact of knowledge of an important witness as a friend of the juror's son, combine to satisfy me that his continuing presence on the jury would give rise to a reasonable apprehension of bias, sufficient to fulfil the longstanding test that in order to retain confidence in the administration of justice the appearance of impartiality is necessary, as well as impartiality itself.

Conclusion

I am satisfied that the identified juror should not sit as a juror in this trial because the parties or a fair minded informed member of the public might, and probably would, entertain a reasonable apprehension that he might not bring an impartial, unprejudiced mind to the resolution of the questions.
Accordingly, I am satisfied that, having formed the appropriate opinion, I should discharge the juror identified in the note from continuing as a member of the jury in the trial.

Discharge of Balance of the Jury

A question then arises, in accordance with s 53C of the Jury Act as to whether, once a juror has been discharged, the court ought discharge the balance of the jury or else should continue with the remaining 11 members.
Senior counsel for the accused submits the Court ought discharge the balance of the jury and empanel a new jury and commence the trial afresh. Senior counsel for the Crown accepts that it would be inappropriate for 11 members of the jury to continue to hear the balance of this trial, particularly having regard to the early stage of the trial.
I am satisfied in all of the circumstances including the early stage of this trial, the fact that a second jury panel is readily available tomorrow morning, the fact that the possibility remains that the juror who has sent the note may have discussed with other members of the jury his knowledge of the witness, that continuing the trial with the balance of the 11 jurors would give rise to the risk of a substantial miscarriage of justice.
Accordingly, the appropriate course is for me to discharge the jury and recommence the trial and empanel a new jury.

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: 23 March 2015

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