R v Kanbut

Between about 20 November 2004 and 15 May 2005 at Sydney and elsewhere in the State of New South Wales, Runghapha Kanbut intentionally exercised over a slave, namely V P, a power attaching to the right of ownership, namely the power to use.

Contrary to section 270,3(1)(a) of the Criminal Code (Cth) (Law part code: 71042)

Count Three

Between about 20 November 2004 and 15 May 2005 at Sydney and elsewhere in the State of New South Wales, Runghapha Kanbut dealt with money or other property that was, and that she believed to be, proceeds of crime and at the time of dealing the value of the money or other property was $10,000.00 or more.

Contrary to section 400,6(1) of the Criminal Code (Cth) (Law part code: 50458)

Count Four

Between about 22 March 2005 and 15 July 2005 at Sydney and elsewhere in the State of New South Wales, Runghapha Kanbut intentionally possessed a slave, namely R B.

Contrary to section 270,3(1)(a) of the Criminal Code (Cth) (Law part code: 71041)

Count Five

Between about 22 March 2005 and 15 July 2005 at Sydney and elsewhere in the State of New South Wales, Runghapha Kanbut intentionally exercised over a slave, namely R B, a power attaching to the right of ownership, namely the power to use.

Contrary to section 270,3(1)(a) of the Criminal Code (Cth) (Law part code: 71042)

Count Six

Between about 22 March 2005 and 15 July 2005 at Sydney and elsewhere in the State of New South Wales, Runghapha Kanbut dealt with money or other property that was, and that she believed to be, proceeds of crime and at the time of dealing the value of the money or other property was $10,000.00 or more.

Contrary to section 400,6(1) of the Criminal Code (Cth) (Law part code: 50458)

2. The complainants are identified by initial letter in keeping with the order proscribing publication of their identities.

Juror Conduct

3. During the trial there were two episodes of conduct by two jurors that led to the discharge of each.

The First Incident

4. The first incident was on Wednesday 19 March 2025 when Sheriff’s officers performing security checks detected that a juror entered the complex carrying a knife, the explanation for which that it was to cut up fruit.

5. An image of the knife is here provided. The blade folded into the handle where it could be locked into position and then it would be worn attached to a belt using the bracket depicted attached to the handle.

6. Following the protocol in place the New South Wales Police were notified to attend and further investigate and thereafter pending their arrival the matter was brought to the attention of the court.

7. Counsel were informed of the incident and asked to consider their position. After taking instructions the Crown asked that the juror be discharged from further service in the trial and invited attention to s 53B(1), s 53C, and s 22, Jury Act 1977 (NSW). The accused’s counsel did not expressly oppose the application, but as I understood it he had no instructions that would permit him to join in or consent to it.

8. I ordered that the juror be discharged for the misconduct which might be inferred from his custody of the knife in the circumstances. Although what action might be taken by police called in response to these events was unknown, potentially at least investigation of three offences might follow.

9. Section 11B, Summary Offences Act 19**88 (NSW) provides,

(1) A person shall not, without reasonable excuse (proof of which lies on the person), have in his or her custody an offensive implement in a public place or a school.

Maximum penalty—50 penalty units or imprisonment for 2 years.

10. Section 8(1)(b*) Court Security Act* 2005 (NSW) provides,

(1) A person must not, without reasonable excuse, be in possession of a restricted item while in court premises.

Maximum penalty—

(a) in the case of a restricted item that is a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 or a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996—100 penalty units or imprisonment for 2 years (or both), or

(b) in the case of a knife that is not a prohibited weapon within the meaning of the Weapons Prohibition Act 1998—20 penalty units or imprisonment for 2 years (or both).

11. Section 93IB, Crimes Act 1900 (NSW) provides,

(1) A person must not have in the person’s custody a knife in a public place or a school.

Maximum penalty—40 penalty units or imprisonment for 4 years, or both.

(2) It is a defence to an offence under subsection (1) if the accused person proves the person had a reasonable excuse.

(3) A reasonable excuse includes the person having the knife in the person’s custody—

(a) because it is reasonably necessary for—

(i) the lawful pursuit of the person’s occupation, education or training, or

(ii) the preparation or consumption of food or drink, or

(iii) participation in a lawful entertainment, recreation or sport, or

(iv) the exhibition of knives for retail or other trade purposes, or

(v) an organised exhibition by knife collectors, or

(vi) the wearing of an official uniform, or

(vii) genuine religious purposes, or

(b) because it is reasonably necessary during travel to or from or incidental to an activity referred to in paragraph (a), or

(c) in circumstances prescribed by the regulations.

(4) It is not a reasonable excuse for the person to have a knife in the person’s custody—

(a) for self-defence, or

(b) for the defence of another person.

12. I do not offer an opinion upon the likelihood of a successful prosecution for an offence contrary to these provisions, in response to which one might anticipate resort to s 93IB(3)(ii), Crimes Act 1900 at least in respect of a prosecution for an offence contrary to that provision, with the same reason given in response to a charge pursuant to the other provisions. Whether or not the explanation might have merit, the impact of an investigation of the decision to bring the knife to the court with the risk of a consequent police investigation and prosecution would I find have been a distraction of such significance for the juror, expected to focus upon the determination of whether the accused was guilty of the offences she faces, that it would substantially affect the juror’s ability to perform his function as a juror and accordingly he should not continue to act as such.

13. Section 53B(d) Jury Act 1977 provides,

The court … may, in the course of any trial …, discharge a juror if—

(d) it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror.

14. Section 53C of the Act provides,

(1) If,. the court … discharges a juror in the course of a trial …, the court … must—

(a) discharge the jury if the court … is of the opinion that to continue the trial … with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or

(b) if of the opinion that there is no such risk and subject to section 22, order that the trial … continue with a reduced number of jurors.

15. Section 22 of the Act provides,

Where in the course of any trial … any member of the jury … is discharged by the court … under Part 7A, the jury shall be considered as remaining for all the purposes of that tri .. properly constituted if—

(a) in the case of criminal proceedings, the number of its members—

(i) is not reduced below 10,

(ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or …

and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A.

16. Upon the application of these provisions I came to the view that for the reasons given above the juror should be discharged. Thereafter I examined the jury spokesperson after his affirmation. According to his evidence there was no adverse impact upon the remaining jurors from this event and by consent, absent the risk of a substantial miscarriage of justice, I ordered the trial to continue with the reduce number of jurors.

The Second Incident

17. On Monday, 24 March 2025 the judge’s Associate advised that on Saturday night, the 22 March 2025, when attending a social venue with a friend she was approached by a male member of the jury who addressed her and sought to engage her in conversation with some persistence. She responded in clear terms that they would not speak and thereupon left the venue. At my direction she provided a file note recording the interaction, signed, and dated. This was marked for identification in the trial. The event was brought to the attention of the counsel who jointly sought the discharge of the juror and continuation of the trial with the remaining jurors.

18. I examined the spokesperson after he gave his affirmation. He confirmed that the juror had disclosed what had occurred but there was no impact upon the remainder of the jury such that they could not continue to perform their role.

19. The juror’s conduct was in clear breach of the instructions given and the beginning of the trial in my opening remarks and subsequently not to be in contact with the court, the parties, their representatives, or witnesses, that they should not to linger in the vicinity of the court complex lest they be seen in contact with and suspected of interacting with any such individuals, not to discuss the trial in the absence of each other or with family or friends, and to maintain the confidentiality of the jury room and their deliberations.

20. The interaction reported did not extend to comments upon the trial or the evidence. The opportunity for that to occur was curtailed by the Associate’s response and her departure from the venue. However regardless of what the juror’s intention might have been and regardless of the extent to which he might have been tempted to speak of matters proscribed, that he persisted with his attempts to speak with the Associate I find put beyond question that he ought not be permitted to continue in this role.

21. I considered the aforementioned provisions when deciding the course to be taken in respect of these events.

22. The juror demonstrated a fundamental misunderstand of his role and the significance of the need to remain separate and apart from participants in the trial, and to maintain the confidentiality of the jury, such as to affect his ability to perform the functions of a juror and accordingly should be discharged. I ordered that he be discharged and not continue to act as a juror. I was satisfied that the trial should continue with the remainder of the jury, numbering ten. There was no risk of a substantial miscarriage of justice should the trial continue with the reduced number jurors. The parties did not argue to the contrary.

Conclusion

23. It is for these reasons that I ordered the two jurors be discharged and not continue to act as a juror in this trial.

**********