HER HONOUR: An issue has arisen this morning on what is the 17th day of the trial proceedings against the accused, Darren Mohr, on a charge of conspiracy to import a commercial quantity of a border controlled drug. The issue concerns the conduct of a juror and whether or not some conduct of the juror which has been observed by a Court Officer is such as to give rise to a reasonable apprehension of bias, such that the juror should be discharged.
The information that came to the Court from the Court Officer was to the effect that one juror had made inquiries of the Court Officer concerning the accused. Those inquiries were, firstly, as to his method or means of transport to and from court each day and, secondly, as to whether at the conclusion of the trial proceedings, the juror would be able to make contact with and meet up with the accused.
There was some further information, although of much lesser significance, to the effect that the juror's conduct in the confines of the jury's smoking area was unusual and such as perhaps to give rise to some concern as to his understanding of the seriousness of his task. That consisted of some information that the juror, during smoking breaks, lies at full length on the ground in an external although gated laneway, and stares at the sky.
I raised the information this morning with Counsel and discussed with Counsel the procedure that the Court ought to adopt. Specifically, as to whether the information was such that the juror should be discharged; and, whether a preliminary inquiry should be made, examining the juror pursuant to s 55D(a) of the Jury Act 1977 (NSW), as to whether he had engaged in any conduct that could constitute a contravention of s 68C of that Act, in that the juror had made inquiries about making contact with the accused. I took the view that those inquiries could fall within the ambit of s 68C and, accordingly, decided to examine the juror on his oath.
The juror was brought into court in the absence of his fellow jurors. He sought to take an affirmation and did so, although, as the Crown observed in submission, during the course of making his affirmation, the juror laughed, in a way that could be indicative of extreme nervousness, or which could be indicative of an inability to understand the seriousness of the proceedings.
He was questioned on his affirmation by the Court. The information that had come to the Court was put to him, firstly, as to his questions about the accused's arrival at court. He conceded he had made those inquiries, but said that the inquiry was "meant as a joke". He was next asked about whether he had made some inquiries about meeting and speaking with the accused at the conclusion of the trial proceedings. His answer was:
"That was like, oh, you know, have a beer with him, something like that, that was also a joke, that wasn't meant, like I wouldn't meet someone during a court case".
He was asked "What about after a court case, would you be interested after a court case?" His answer was:
"Not really, I would just mind my own business. It was a joke".
The juror was reminded of the instruction to all jurors as to the need to be completely impartial and unbiased in these proceedings and was asked as to whether he still had an open mind at a stage when there remained evidence left to be heard. He said he did and when asked whether he had concluded any view, he responded:
"I have an open mind to everything that is going to be said in the courtroom".
The question then arises with all of that information in the Court's possession as to what ought to be done.
It is the Crown's submission that the juror should be discharged. The Crown submits that the juror's demeanour, the way in which he made his affirmation, his appearance and overall conduct was such as to not give great confidence in the veracity of his evidence. His evidence itself was equivocal in some respects, in that, for example, he answered as to whether he would be interested in contacting the accused after the end of the proceedings, "Not really, I would just mind my own business". The Crown submits that the information the Court received from the Court Officer and the evidence of the juror is sufficient to lead to an apprehension that the juror in fact has a concluded view.
It is, of course, not necessary for the Court to so find for a reasonable apprehension of bias to arise. It is the Crown's submission that that reasonable apprehension of bias does arise, whether the juror's evidence is accepted without question or whether there is a question mark over it. The Crown submits there is a question mark over the evidence.
The Crown also points to the potential difficulty in the juror being returned to the jury in circumstances where he has been isolated and questioned under oath, giving rise to possible problems with the jury as a whole.
Mr Brady of Senior Counsel for the accused submits there is no basis upon which to conclude that the juror may be biased. Mr Brady says that those matters related to the juror's demeanour are not sufficient on the brief observation that the Court has made of his evidence to do so. To suggest that he should not be believed on his affirmation is a dramatic step; rather, having given his evidence on affirmation and confirmed that he retains an open mind on affirmation, that should be accepted and the juror should be permitted to continue. The Court is reminded that it is a serious step to discharge a juror and to proceed with less than 12, and that that step ought not be taken in circumstances where a juror's sworn testimony is that he has an open mind.
I accept that it is a serious step to discharge a juror. The High Court confirmed in Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 that it is the optimal position that a jury of 12 will hear and determine criminal charges against an accused person. See also s 19 of the Jury Act. That is to be the position at all times, unless something of significance makes it impossible for that to occur: s 22 Jury Act. In my view, today's events do constitute something which is sufficient to make it impossible for that to occur.
I don't suggest that the juror lied on his affirmation, but it is not necessary to reach that conclusion to conclude that there is a reasonable apprehension of bias. It seems to me that for the juror to make the inquiries at the outset gives rise to an apprehension of bias.
Those sorts of inquiries made in a way which plainly were not sufficient to suggest that the juror obviously made them in jest is, of itself, enough to give rise to that apprehension. Most jurors I think would be well aware of the solemnity of their function and the solemnity of their role, and to joke about meeting an accused person in the presence of other jurors and in the presence of court staff, suggests either that the juror has no real understanding of his function and its importance and solemnity, and would joke about it, or that the juror was interested in the accused at a level beyond that which a juror ought to have.
The juror's evidence, I must say, didn't greatly assuage my concerns. I think it is likely that he was very anxious and very nervous, as one would expect and fully understand; and for many people, nervousness or anxiety can manifest in giggling. The juror here was giggling when taking his affirmation and demonstrated a degree of amusement and some irritation, I thought, in being questioned about his comments. I don't necessarily disbelieve his evidence and I would not conclude that he has lied on his solemn promise, but nor was I particularly satisfied that he was being entirely truthful.
I think the combination of the information that the Court received and the juror's presentation here today is sufficient, despite his sworn denial of partiality, for a reasonable person, sitting at the back of the court, knowing all of the facts and with a reasonable understanding of the nature of the proceedings, to remain concerned that the juror was not wholly impartial as he is required to be.
I may be doing the juror a disservice in reaching that conclusion, but I think it is preferable to err on the side of doing a juror a disservice than to err on the side of allowing a juror to continue who has given at least some troubling indications of partiality.
Accordingly, I propose to discharge the juror. Section 53B(b) provides a power to the Court for a juror to be discharged if that juror may not be able to give impartial consideration to the case because of a reasonable apprehension of bias or conflict of interest on the part of the juror. It seems to me that that provision is enlivened.
If it is not, if I am wrong about that, then s 53B(d) is enlivened. That section provides a very broad discretion to the Court to discharge a juror if, for any reason not referred to in 53B(a)-(c), it appears that the juror's ability to perform his functions has been affected. The apparent levity with which the juror views these proceedings, together with the suggestion of partiality, would be sufficient to enliven that provision.
I propose to discharge the juror.
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Amendments
07 November 2024 - Typographical amendment to coversheet.
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Decision last updated: 07 November 2024