On Thursday 7 April 2016, a number of the accused made application under s 53B of the Jury Act 1977 (NSW) that an individual juror be discharged. After a series of inquiries, each of the accused withdrew that application. I decided that the juror should remain on the jury and the trial continued. These are my reasons for that decision.
On Monday 4 April 2016, following a pre-trial hearing that commenced in November 2015, a jury of 15 was empanelled to commence the trial of 5 men on a total of 24 counts. The estimated length of the trial is 4-6 months. The allegations include 5 separate shooting incidents - including one charge of murder - allegedly perpetrated by members of a group that the prosecution says is a criminal gang called the Brothers for Life, Blacktown Chapter. The process of empanelment was complicated by legitimate concerns raised by the accused as to the amount of publicity that the case has attracted and concerns that a lay jury may have difficulty bringing impartial consideration to the issues that arise in the trial.
The jury panel was provided with a witness list and other documents to ensure that they knew nothing about the case or the witnesses that might prevent them from bringing an impartial mind to bear on the issues. The jury was provided with more information than is customary to comply with s 38(7) of the Jury Act and the Prosecutor's remarks to the panel under that section was more extensive than is usually the case.
On three or four separate occasions I called on members of the panel to ask to be excused under s 38 either for personal reasons or because they felt that they may not be able to bring an impartial mind to bear on the issues. A number of members of the panel made such applications and were excused with no inquiry beyond a brief statement (either in writing or verbally to me) of their reason for seeking to be excused.
On Thursday 8 April 2016 at the short adjournment I received a note from the jury. The note (MFI 10) was in the following terms:
"One of the jurors has become aware that one of the prison officers is someone they know. They have not spoken in over 2 years so they are not close acquaintances. Thank you."
In some cases, such a note - by itself - would create a problem because it establishes that the juror might readily, and correctly, conclude that the accused is in custody. In some cases, the parties are careful to ensure that the jury is not aware that the accused is in custody. That fact is an irrelevancy and has some capacity to cause prejudice. This is not an issue in the present case for two reasons. First, the nature of the charges is such that it would come as no surprise to the jury that the accused have not been granted bail. Secondly, there will be evidence in the case that necessarily shows that the accused are (or were since being charged) in custody. This includes evidence of recordings (captured by surveillance device and telephone intercept) made when the accused were in custody. In fact, on the third day of the trial (the first day of evidence) Senior Counsel for Farhad Qaumi put to a police officer that she was mistaken in saying that she spoke to Farhad Qaumi on a particular date because the accused was in custody at that time [1] .
Initially, counsel for each accused indicated that no problem arose from the disclosure that the juror had some acquaintance with one of the Corrective Services Officers. However, shortly thereafter, counsel for Mr Zarshoy indicated that there may be an issue due to the nature of some of the officers in charge of transporting and guarding the accused in court. Counsel were allowed a period to contemplate their position and a short time later each of the accused indicated either that the juror should be discharged or that further inquiries should be made as to the extent of the acquaintance and whether the juror knew anything about the nature of the officer's job within the Department of Corrective Services.
The concerns of counsel were, potentially, well founded. The concern arose from the fact that a number of the officers are from a particular unit known (I think) as the Extreme High Security Transport Unit ("EHSTU"). These officers are specially trained and are engaged in cases where a determination has been made that a particular inmate represents a significant security risk. If the officer in question was from that unit, and the juror knew that, the juror might conclude that the accused were considered by authorities to be particularly dangerous prisoners. This had a potential to impact on the juror's capacity to judge the case impartially.
When issues such as this arise in a jury trial, the matter must be approached with significant caution and circumspection. For one thing, any inquiry that might intrude on the sanctity of discussions in the jury room must be avoided. For another, there is a risk that interrogating the juror may alert the juror to the kind of concern that is being expressed by counsel. In the present case, counsel was unable to agree on precisely what questions (if any) should be asked if the juror was to be examined.
The jury was released for an extended lunch hour while further discussions took place in its absence. The jury was directed not to discuss the matter that was subject of their note. [2]
The Crown Prosecutor suggested a possible first step that would enable us to know whether the officer in question was, in fact, a member of the particular unit. That was to ask the juror, through the Court officer to write down the name of the Corrective Services Officer on a note that would be confidential and only read by me. It was then proposed that I direct an inquiry to the senior officer in court as to whether that officer was in fact a member of the unit. I adopted this approach.
As it turned out, the officer was not from the EHSTU but the senior officer indicated (through the court officer in whispers) that it was "more complicated than that." In saying this, the officer showed significant astuteness and good judgment. All parties agreed that it was appropriate for me to consult with the senior officer in chambers and in confidence. It emerged, and was disclosed to the parties, that while the officer was not a member of the EHSTU, she was from a similarly qualified unit based in Goulburn known as the Security Operations Group. Some of the accused have been held at the gaol commonly known as the Goulburn Super Max prison. [3]
This information caused each of the accused to apply for a discharge of the juror. Senior Counsel for Farhad Qaumi expressed the concern that he was instructed that the particular officer had searched his client's cell. The learned Crown Prosecutor opposed the discharge of the juror on the basis that the statutory criteria allowing for discharge of an individual juror had not been established. Section 53B of the Jury Act is in the following terms:
"s 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) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, 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) a juror refuses to take part in the jury's deliberations, or
(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."
While sub-paragraph (d) is in very wide terms and goes beyond the matters covered by sub-paragraph (b), on the information then available it was not clear that the juror's ability to perform the functions of the jury was compromised. At that stage I determined to separate the juror from the balance of the jury and to examine her on oath or affirmation in the presence of the parties.
The juror gave the following evidence in answer to questions from the Bench:
"Q. I just have two questions one is whether or not you have any knowledge of the officer's job or position in the department?
A. No, I mean I understood that she was in the department but I've never spoken to her, I don't know to what level she is.
Q. Thank you. When you say you have never spoken to her?
A. In regards to the job.
Q. You just knew she was an employee of the Department?
A. Yes.
Q. Apart from telling your fellow jurors the fact of your knowledge and what was disclosed, have you had any further conversations with them about your relationship, if you like, or how you know this officer?
A. No, no, when we spoke originally about it I just said I knew her through my brother and that's all it's been." [4]
Senior Counsel for Farhad Qaumi immediately withdrew the application for the discharge of the jury. The remaining accused were given a short time to receive advice and provide instructions. The juror remained separated from the remaining 14 members of the jury for that short period.
Counsel for each of the remaining accused then withdrew the various applications for the individual juror to be discharged. Those applications were accordingly, and for the reasons I have briefly set out above, dismissed.
The juror returned to the jury room, the jury returned to the court and the trial proceeded. [5]
The incident demonstrated that the jury had paid very close attention to the procedure followed during the empanelment process and were fastidious in obeying directions that they disclose any knowledge of the witnesses or the events that might give rise to an appearance of partiality.
As I indicated after the incident was resolved, I was grateful to counsel for the flexibility and thoughtfulness of their submissions as the matter developed and for their assistance in determining the proper steps to ensure the integrity of the trial process.
[2]
Endnotes
Transcript (T) 120.
T 233.
T 250-251.
T 254-255
T 255-256
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Decision last updated: 30 November 2016