R v Qaumi & Ors

Misconduct

1. I accept the submission of Senior Counsel for Farhad Qaumi that the definition of "misconduct" in s 53A and the secondary materials to which he has referred suggests that, before a juror is subject to mandatory discharge under s 53A, there must be misconduct of a relatively serious kind.
2. Ordinarily, the fact that a juror smiles in the course of a trial, even in the direction of an accused person or at an alleged victim sitting in the back of the court, would not give rise to a finding of misconduct for the purpose of this section. Similarly, if a juror was seen to react adversely to an accused upon heard the evidence of a complainant, such a reaction would not ordinarily result in a finding of misconduct (or for that matter give rise to a reasonable apprehension of bias).
3. However, in the present case, the smiling is both continual and specifically directed to three of the accused. It is of some significance that one of the accused men (Mr Kalal) supports the application in circumstances where he is conducting a defence of duress in which he says that he was threatened by two of the three accused brothers to whom the juror's attention is directed. In those circumstances, there is a respectable argument that the conduct "gives rise to the risk of a substantial miscarriage of justice".
4. The term "substantial miscarriage of justice" is one that is very familiar to criminal appellate lawyers because it forms part of the common form "proviso" in, for example, the Criminal Appeal Act 1912 (NSW). The term has been subject to considerable jurisprudence in the context of appeals against conviction: see, for example, the catalogue of cases in my dissenting judgment in RP v R [2015] NSWCCA 215 at [151]-[154]. [11] While that jurisprudence is not directly relevant to the interpretation of the definition of misconduct in s 53A, it is significant that one of the applicants for a discharge of the juror is the accused, Mohammad Kalal. If it were found that the juror's interaction with the Qaumi brothers was such as to diminish Mr Kalal's prospects of receiving a fair trial and having his defence of duress considered seriously by the particular juror, there is a strong argument that there is a "risk" that it would give rise to a substantial miscarriage of justice.
5. Furthermore, this is not an instance of an occasional or isolated smile that can readily be explained in some other way. Some of the conduct appeared to be furtive and, on occasion when the juror realised that I was observing her, the conduct ceased. These things could lead to an inference that the juror believed or realised that her conduct was inappropriate.
6. In the course of the previous application the learned Crown Prosecutor accepted the fact that if a juror was seen to be scowling at the accused it would not give rise to a legitimate application by an accused person to have that juror discharged. Similarly, as I pointed out in R v Qaumi & Ors (No 41), the High Court held in Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41 that direction could cure an irregularity even where a juror gave a relative of a homicide victim flowers during the course of a murder trial.
7. Because I have determined that the juror should be discharged under the provisions of s 53B, it is strictly unnecessary to determine whether the juror's conduct rises to the level of "misconduct". It is also the case that the juror has not been examined and has not had the opportunity to explain herself. As I said to the juror when she was formally discharged, her "interaction [with the accused] may well be perfectly innocent". [12] In those circumstances, I do not propose to make a formal finding of misconduct.
8. However, because of the persistent and furtive nature of the conduct, which went on for at least two months, and because of the unenviable position in which it placed the accused Mohammed Kalal, I was inclined to take the view that the conduct overall constituted misconduct as that expression is defined in s 53A of the Jury Act. If that finding was made formally, the discharge of the juror would be mandatory.

Reasonable apprehension of bias

1. Section 53B(b) provides for discretionary discharge of a juror when "it appears to the Court" that a juror may not be able to give impartial consideration to the case because of (amongst other things) a "reasonable apprehension of bias or conflict of interest or any similar reason". That power can only be invoked when the appearance arises "from the juror's own statements or from evidence before the court". As I have said, there is a dispute as to whether my own observations can be taken into account because (it is submitted) that my observations do not constitute evidence.
2. Accepting that submission for the purpose of the argument, the material in Detective Inspector Browne's statement shows that the conduct has been persistent over many weeks since the original application to discharge the juror was refused. The conduct to which he testified involves the juror staring for periods of time towards the Qaumi brothers apparently in an attempt to gain their attention. This is, as Detective Inspector Browne suggested, "unusual" behaviour. When it was put to him that his statement did not suggest whether the juror has "a partisan feeling one way or another either for or against the accused", he replied "A. I haven't suggested that, Mr Stratton, but I think the fact that ‑ in my mind at least, the fact that they are stares accompanied with smiles, as opposed to stares accompanied with snarls or something similar that I imagine ‑ to me it suggests that she would be perhaps in favour of the accused."
3. Based on the evidence previously before the Court, along with Detective Inspector Browne's additional statement and evidence, I concluded that a fair-minded observer of the proceedings might conclude that the juror might not bring an impartial mind to bear upon the issues before the court. As advised on 23 June 2016, I was unable to reach that positive conclusion for the reasons stated in the judgment. In particular, I was not then persuaded that the conduct would mean that the juror would not, when confronted with the reality of having to make the decision concerning the guilt of the accused, be able to put any feelings which are reflected in her conduct out of her mind. However, I have now reached the contrary view. In coming to that opinion, I am particularly conscious of the position of Mr Kalal. Detective Inspector Browne's evidence was that he has not seen the juror look in the direction of Mr Kalal or Mr Zarshoy. The reasonable apprehension of bias arises in circumstances where Mr Kalal will rely on threats allegedly emanating from the Qaumi brothers, where those threats are denied, and where the juror's smiling and staring appears (on the evidence) to be solely directed to the Qaumi brothers.
4. It is impossible for me to know whether the conclusions that I reached were influenced to some degree by my own observations and it would be disingenuous to suggest that I can be certain that my observations have not impacted on my decision. I am reminded of the words of North J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71: "A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder. Some judges, including myself, who have in recent years attended gender and race awareness programmes, have been struck by the unrecognised nature of the baggage which we carry on such issues. Decisions made upon assumptions or prejudgments concerning race or gender have been made by many well-meaning judges, unaware of the assumptions or preconceptions which, in fact, governed their decision-making."
5. Whatever subliminal influence my own observations may have had, I have attempted to put those observations to one side in considering the application.

Are my own observations "evidence before the Court" for the purpose of s 53B(b) of the Jury Act?

1. In any event, I was also persuaded that the proper interpretation of s 53B(b) and the phrase "evidence before the court" as it is used in that provision is capable of encompassing the observations made by the judicial officer upon whom the duty of making such decisions is cast. However, the terms and structure of the Jury Act mean that this is not a matter free of controversy. The fact is that - of all of the powers to discharge in ss 53A and 53 - only s 53B(b) requires statements from the juror or "evidence before the court".
2. Although the legal and factual circumstance are not analogous, the approach urged by the Crown gains some support from the observations concerning "autoptic proference" discussed in Evans v The Queen at [20]-[21]. Similarly I have considered the discussion of the ACT Court of Appeal in Bailiff v R, where the Court said: "Nothing in s 52 of the Evidence Act prohibits a court, in the course of an investigation or inquiry undertaken such as the one undertaken by the primary judge, from taking into account what the court observes about the behaviour of a party. It was recognised, in Evans v The Queen [2007] HCA; (2007) 82 ALJR 250 at [21], per Gummow and Hayne JJ, that a tribunal of fact in a personal injuries matter is entitled to make its own observations about the extent of a plaintiff's injuries on the appearance of the plaintiff."
3. I appreciate that the observations of the High Court in Evans v The Queen and those of the ACT Court of Appeal in Bailiff v R arose in completely different circumstances to those arising on the present application. However, the absurdity of the results to which the interpretation contended on behalf of Farhad Qaumi leads me to conclude that a judge who makes observations of the kind that I have made may take such observations into account as "evidence before the court".
4. The Judge confronted with such a situation should be, as I have been, particularly careful not to draw inferences upon their own observations unless those inferences are clear and rational inferences. The Judge should also be conscious of the fact that there is a possibility of their observations being affected by the background. By that last sentence, and in the context of the present case, I refer to the fact that the observations that I have made and noted were made following an earnest application on behalf of the prosecutor and Mr Kalal. Accordingly, I was attentive to the juror's conduct and I allowed for the possibility that the background may have had some influence on my perception of the juror's conduct.
5. I have also observed the conduct of the other jury members to see whether the juror's behaviour is significantly different to theirs. I have no doubt that it is. Reference was made in argument to one of the juror's glaring at the accused. I have observed the jury in question and have never observed such behaviour, although I have certainly observed that he looks at the dock from time to time. I have seen (and mentioned in one of the earlier arguments) that another member of the juror looked sternly at the dock earlier in the trial but I have not observed that conduct recently and the conduct was neither persistent nor furtive.
6. The point of raising these matters is this: if it were the case that a trial judge observed conduct on the part of a juror that clearly demonstrated bias against an accused person, and if nobody else in the courtroom observed the behaviour and there was no "evidence" from a witness or an exhibit such as CCTV footage, the trial judge would be powerless to remedy the potential injustice on the construction urged by counsel for the Qaumis. This absurd result that would arise from an interpretation of the provision that excluded the court's observation from the phrase "evidence before the court". The Judge would be prevented from exercising their discretionary power on the basis that their own observations could not constitute evidence. Such an interpretation would serve to defeat the purpose of the provision and has a true capacity to result in serious miscarriages of justice.
7. Further, it would have been possible to examine the juror and put to her my observations. The sole purpose of that process would have been to adduce evidence in accordance with my observations. Had the juror agreed that the she had engaged in the conduct that I observed, there would have been "evidence before the court". However, the juror would most likely have been embarrassed and there would have been a risk process of examining her would have created a problem for her to continue to serve. If the observations were denied by the juror, another basis for discharging the juror may have arisen (misconduct by not being true to the oath or affirmation). While contending that the Judge's observations were not evidence, Senior Counsel for Farhad Qaumi submitted that I should not call the juror to give evidence. [13]
8. My own observations in the present case would certainly provide support for the conclusion that I have otherwise reached under s 53B(b). However, as I have said, that conclusion was reached on the basis of material that was, without question, "evidence before the Court".

Section 53B(d) of the Jury Act

1. Based on the evidence and also my own observations, I am also satisfied that the provision in s 53B(d) is engaged. This provision refers to "any other reason" that may affect the juror's ability to perform the functions of a juror that leads to a conclusion that "it appears" that the juror should not continue to act as a juror. While the facts and circumstances might lead to some cross-over between the various paragraphs in s 53B, the use of the word "other" in the phrase "any other reason" suggests that the reason must be something separate from those matters specifically dealt with in paragraphs (a), (b) and (c). However, the paragraph is cast in deliberately broad terms. It may be that conduct that does not rise to the level of "apprehended bias" might be caught by the provision in sub-paragraph (d).
2. Contrary to the Crown's submissions, I am not satisfied that the juror disobeyed directions. The directions provided in 23 June 2016 [14] stressed the seriousness of the decisions that the jury would be called upon to make and referred to "relationships formed across the courtroom". However, I did not suggest that it was wrong to smile or to interact with the participants in the trial.
3. Nevertheless, her inappropriate reactions to some of the evidence and her apparent distraction by her repeated attempts to gain the attention of the accused give rise to concerns as to her ability to perform the functions of a juror. In contesting the proposition that there was a reasonable apprehension of bias, counsel for Jamil Qaumi said that "one can't exclude the possibility perhaps her level of maturity might not be such that she was able to appropriately deal with that material when confronted with it". As I said at the time that fact may give rise to questions under s 53B(d).
4. Senior Counsel for Farhad Qaumi submitted that the juror appeared to him to be attentive to the evidence. Counsel for Mr Zarshoy observed that she had a number of pens and that she passed tissues to other jurors. Precisely what one can make of those matters is difficult to know. My observation is that she is attentive to the evidence some of the time but not others and her repeated attempts to interact with the accused, her inappropriate responses to parts of the evidence and directions, suggests a level of distraction that may compromise her ability to perform the task of a juror.
5. It appeared to me that the juror's conduct may affect her ability to perform the functions of a juror and that she should not continue as a juror.

Discretion

1. Section 53B provides that the court "may" discharge the juror if any of the matters referred to in paragraphs (a) - (d) arise. Accordingly, the Court has a discretion as to whether the juror should be discharged. However, given the nature of the matters in (a) to (d) it would be unusual if the Court came to those conclusions but did not discharge the juror.
2. Nevertheless, the section is discretionary and before discharging the juror a number of matters should be taken into account. In the present case, I have been particularly conscious of the importance that the selection of a jury in criminal proceedings must be random and that a judge should not lightly interfere with the randomness that is facilitated by the various ballots and procedures provided for by the Jury Act. It is also the case that there are still many weeks left in the trial and that the discharge of the juror would reduce the number of jurors down to thirteen. In R v Qaumi & Ors (No 36) at [62] I referred to the important observations of McHugh J in Wu v The Queen [1999] HCA 52; 199 CLR 99 concerning the historical significance of an accused person being tried by a jury of twelve. Kirby J in the same case referred at [45] to the importance of the jury representing a cross-section of the community.
3. These matters highlight the fact that a judge should not lightly exercise the discretion to discharge an individual juror. Even so, I was quite sure that the correct exercise of the discretion in the present case was to order that the juror be discharged.

Decision to Continue with a Reduced Number of Jurors

1. Section 53C(1)(a) of the Jury Act provides that the Court must discharge the entire jury if it is of the opinion that a continuing with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. If satisfied that there is "no such risk" the court must order that the trial is to continue with a reduced number of jurors.
2. I was satisfied that there is no such risk. There has been no indication from the jury that the juror's conduct has impacted on their consideration of the evidence. While there has been interaction with other jurors during the course of the evidence, there is nothing to suggest that the other jurors have been distracted from their task or have lost focus on the evidence. On the contrary, the jury as a whole has appeared to be very attentive, responding appropriately to the evidence and communicating with the court to seek clarification of legal directions, disclose relevant personal matters or to access parts of the transcript.
3. There has been no application for discharge of the whole jury based on the discharge of the individual juror although counsel for Mr Zarshoy raised some concerns. He said that there may be concerns: "…if you have one juror who appears to be either not listening to what has been asked of the jurors and explained to them and told to them, or is showing a potential bias, what that effect is upon the others whom she has clearly been relating to, mixing to, socialising with since over four months now, and whether or not it can be said if she is such a person who should not be on the jury now, whether there are others who are contaminated by whatever view she may have or not and whether or not the whole jury in that circumstance needs to go because it is so late in the trial. This has not happened a day or two in. Four months these 14 now have been together. They must know each, must have spoken to each other, must have said things, talked about things that are going on. So I say that. That is a worry as to where this goes to, where it leads to, if there is a dismissal of this particular juror alone." [15]
4. In view of the substantial experience and wisdom of counsel raising those concerns, I gave consideration to the matters that he raised. However, I was firmly of the view that that there was no risk that continuing with the remaining thirteen jurors might lead to a substantial miscarriage of justice.

Orders

1. It was for those reasons that I made the following orders: 1. The individual juror be discharged. 2. The trial is to continue with a reduced number of jurors (13).

Endnotes

1. T 3752.
2. T 5398.
3. T 5508.
4. T 5532-5533.
5. T 5601-5606.
6. T 5703-5707.
7. T 5724-5725, 5733-5735. See also T 5532, 5703.
8. The description of the jurors comes from the judgment in R v Qaumi & Ors (No 41). The "young juror" is "the juror" subject of the present application and the application made in June.
9. Ex VD RRR, T 5712-5715.
10. See R v Qaumi & Ors (No 41) at [32], [37] and [38].
11. Special leave has been granted but that is not relevant for present purposes: [2016] HCATrans 162.
12. T 5772.
13. T 5740.
14. T 3621-3623.
15. T 5755 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: 22 November 2016