CRIMINAL LAW - Juries - Medical evidence that juror was under severe stress which had been brought about by deliberations - Juror discharged
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CRIMINAL LAW - Juries - Medical evidence that juror was under severe stress which had been brought about by deliberations - Juror discharged
Judgment (6 paragraphs)
[1]
Judgment
On 13 August 2019 I made orders in these proceedings:
1. discharging juror 2334050; and
2. discharging the remaining members of the jury.
This judgment sets out my reasons for making those orders.
[2]
FACTUAL BACKGROUND
The accused has pleaded not guilty to an indictment alleging that he committed an act or acts in preparation for, or planning, a terrorist act or acts. The trial with the present jury commenced on 15 July 2019. An individual member of the jury was previously discharged for reasons which are set out in an earlier judgment. [1] The remaining jury of 11 commenced deliberations on the morning of Friday 9 August 2019 before being allowed to disperse shortly before lunchtime on that day.
Shortly before the conclusion of the proceedings on Monday 12 August 2019, I received a note from the jury [2] in the following terms:
Could you please advise the time frame - honestly we have to reach a unanimous verdict?
Considering one of our juror's (sic) goes overseas on Saturday.
If we fail to reach an (sic) unanimous verdict will we be dismissed? Or do you have the authority to call for a majority verdict?
The reference to a member of the jury departing for overseas was a reference to the fact that on 29 July 2019 I received a note from that member [3] which stated (inter alia):
I am going overseas on the 18th August. Can you provide assurance that the trial will be completed before this date?
Having discussed the matter with the Crown and counsel for the accused, and with their express agreement, I informed the member of the jury on that occasion [4] that I was not able to give any assurance that the trial would conclude at any particular time, but that there were steps that could be taken to address the foreshadowed situation if it eventuated. I impressed upon the member of the jury that she should not be concerned about the matter, and I also indicated that I expected deliberations would commence on Monday, 12 August. As events transpired, deliberations commenced prior to that.
Having indicated to counsel that I would consider the jury's note further overnight, I formulated a draft direction to be given at the commencement of the proceedings on Tuesday 13 August. The proposed direction was in the following terms:
Because your note covers a number of matters, I am going to deal with them one at a time.
Firstly, there is no time frame within which you are required to reach a verdict. You are under no time constraints at all. You should clearly understand that you are under no pressure to return a verdict by a certain time. You must take such time as you need to carry out your task.
Secondly, as I directed you in my final summing up, your verdict, whether it be guilty or not guilty, must be unanimous. It must be a verdict upon which all 11 of you are agreed. That is not to say that you have to agree upon the reasons for your individual decision. You might individually rely on different parts of the evidence in order to come to the same conclusion. You might each place different emphasis on different parts of the evidence so as to reach the same end point, but it is important that you clearly understand that regardless of what route each of you might take in order to get to that end point, the verdict in each case must be the decision of all of you unanimously before it becomes your verdict. It follows that I am not able to accept a verdict of a majority of you. This is due to legal considerations which it is not necessary for me to explain further.
Thirdly, you must bear in mind what I said to you in my final summing up, namely that whilst the method you adopt to carry out your deliberations is a matter for you, you should each be prepared to engage in an exchange of views in the jury room. Each of you is expected to express your own view about things and at the same time, each of you is expected to listen to others when they express their views. Each of you should feel free to criticise or to make observations about the views of others and at the same time, each of you must be prepared to listen with an open mind to other people's views if they make comments about your views or if they criticise your views. You should also bear in mind that your first view about a matter may not necessarily be your final view. You should be prepared to change your view about a matter if you are honestly persuaded, having listened to the views of others, that for whatever reason, your first view may not be well-founded. Finally, you should bear in mind the direction that I gave you in my final summing-up, namely that you are all equals in the jury room, and that applies to your foreperson as well.
Fourthly, I am aware from a previous note that one of you is due to travel overseas on Saturday. I can understand the importance of that commitment to the member of the jury concerned. However, it would be quite wrong if any one of you allowed that to have any bearing upon your task. In particular, it would be quite wrong for any one of you to compromise your verdict just because one of your members has that commitment. I would also point out that today is only Tuesday. We are a long way from reaching the point where that commitment becomes an issue at all. If we do reach that point, the powers that I have can deal with it appropriately, but because the exercise of those powers involves legal considerations, I don't propose to elaborate any further. In the meantime, you must concentrate on the task at hand, and you must not allow something which hasn't even arisen, and which may not arise at all, to have any bearing whatsoever upon that task.
Fifthly, in the event that you reach the point where you find yourselves unable to come to a unanimous verdict, you should indicate that to me in a note. I will then consider what course I should take, having regard to the powers that I have to address that particular situation.
The terms of the proposed direction were generally in accordance with what I had foreshadowed to counsel when the note was received and discussed.
Shortly prior to the commencement of the proceedings on 13 August 2019, I was handed two documents by the Sheriff. The first [5] was a medical certificate under the hand of Dr Elaine Cheung, General Practitioner, certifying that on 12 August 2019 she had examined a member of the jury to whom I shall refer as juror 2334050. Dr Cheung expressed the following opinion:
…[Juror 2334050] is suffering from severe stress due to the deliberations of the court case for which she is participating in as a juror. It is in her best interest to withdraw from jury duty immediately.
The second document was a handwritten note provided by the foreperson of the jury [6] which was in the following terms:
Dear your Honour,
I was advised by my Court Officer to write you this note about an altercation that took place in the jury room yesterday morning.
I was writing Crown's 18 points of conduct on the board and another juror said to me:
"Why don't you sit down and let another person do the writing."
I offered the board marker to her and she said:
"I don't need to, I'm not the one who likes to hear the sound of my own voice".
I then sat down in my chair and muttered 'bitch' under my breath. I reacted. The juror didn't like that I called her a name but she was unprovoked and I reacted, which I apologise for.
The juror then proceeded to tell me:
'(You) should hear what everyone says about (you) when (you're) on the balcony'.
I felt embarrassed and victimised. I responded with:
'I don't care what people think about me as when this is over I will never see any of you again.'
The juror then pointed her finger at me and screwed her face up and said:
'Your (sic) just a big gay that likes to take it up the ass.'
I was mortified on (sic) front of all the other jurors. I responded with:
'Well you have really shown your true colours, now everyone here knows your (sic) homophobic.'
That was the end of the altercation.
I would like to add that I do not want to be dismissed from the jury because of this but I felt you should know, as it was very upsetting.
At this point, two matters should be noted about the contents of MFI 51 and MFI 52.
Firstly, the altercation reported by the foreperson in MFI 52 was said to have occurred "yesterday morning", i.e. on the morning of 12 August 2019. The jury had deliberated for only a short time on the previous sitting day (Friday 9 August) before being allowed to disperse. It follows that the altercation took place at a very early stage of the jury's deliberations.
Secondly, and although it was not recorded in MFI 52, there was an inference that the other member of the jury referred to was juror 2334050 who was the subject of the medical certificate. [7] That was later confirmed by the foreperson to be the case. [8]
Having made the Crown and counsel for the accused aware of the contents of MFI 51 and MFI 52, I adjourned for the purposes of giving each of them an opportunity to consider the matters raised and obtain instructions.
Upon resumption, the Crown submitted that I should:
1. discharge juror 2334050;
2. enquire of the foreperson as to whether, in his opinion, the jury would be able to deliberate effectively and harmoniously if allowed to continue; and
3. having regard to the foreperson's response, give further consideration to whether the balance of the jury should be discharged.
Counsel for the accused did not take issue with the exercise of my discretion to discharge juror 2334050. However, he submitted that I should then discharge the entire jury, and argued strongly against taking the intermediate step of interrogating the foreperson in the terms suggested by the Crown.
[3]
THE DISCHARGE OF THE INDIVIDUAL MEMBER OF THE JURY
Section 53A of the Jury Act 1977 (NSW) ("the Act") is in the following terms:
53A Mandatory discharge of individual juror
(1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest:
(a) it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or
(b) the juror has become excluded from jury service, or
(c) the juror has engaged in misconduct in relation to the trial or coronial inquest.
(2) In this section:
"misconduct" , in relation to a trial or coronial inquest, means:
(a) conduct that constitutes an offence against this Act, or
Note : For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.
(b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.
Given the terms of the medical certificate I was not able to come to a conclusion that juror 2334050 had "engaged in" any conduct which amounted to misconduct. However, s 53B of the Act is in the following terms:
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.
Note : Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.
In the circumstances, I came to the view (accepting the contents of MFI 51 at face value) that the test in s 53B(a) had been met. Neither the Crown nor counsel for the accused argued to the contrary. The contents of MFI 51 also satisfied me that the ability of juror 2334050 to perform her functions had been affected to the point where she should not continue to act in that capacity. Accordingly, the test is s 53B(d) was also met.
It was in these circumstances that I made an order discharging juror 2334050.
[4]
THE DISCHARGE OF THE JURY
Bearing in mind the Crown's suggested course, an issue then arose as to my power to question the foreperson of the jury in the terms which had been suggested. Although the Act confers a power to question members of the jury in specific circumstances, [9] such circumstances did not encompass those which had arisen in the present case. The Act confers no general power in that regard.
In R v Moore [10] Garling J considered, but did not resolve, the question whether, on the proper interpretation of the Act, the Court retains a common law or inherent power to question a member of the jury. His Honour concluded that if such a power did exist, it was in the nature of a discretionary power vested in the trial judge. [11] On the facts before him (which were different to those before me) his Honour concluded [12] that even if he did have such a power, he would not exercise it. In R v Qaumi and ors (No 36) [13] Hamill J (having referred to Moore) also alluded to, but again did not resolve, the issue. [14]
In Mulvihill v R [15] the Court of Criminal Appeal [16] observed: [17]
Section 55D of the Jury Act 1977 (NSW) empowers a trial judge to examine a juror on oath as to whether they have seen or heard prejudicial material that was broadcast or published during the trial and been influenced by it. Section 55DA of the Jury Act empowers a trial judge to examine a juror on oath as to whether they have engaged in conduct that contravened s 68C. Section 68C prohibits a juror from making their own inquiries about the accused or any matter relevant to the trial. The possibility that a juror received information from the Detective about the trial in the circumstances now alleged did not fall within either of these provisions. Otherwise, the Jury Act does not confer any express power on a trial judge to examine a juror either on oath or otherwise concerning other matters which might warrant their mandatory or discretionary discharge as a juror under s 53A or s 53B respectively. Nevertheless, that a trial judge can at least make inquiries of an individual juror on such topics in the absence of the rest of the jury appears to have been assumed (Najibi v R [2016] VSCA 177 at [162]; BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139 at [87]). The authority to do so was not identified in those cases but it would be appear to be an incident to the powers conferred by s 53A and s 53B, although whether a trial judge can require a juror to answer questions on oath on such topics is a different matter that need not be decided.
In Elomar v R [18] the trial Judge had questioned the members of the jury (as a group) following an allegation that four of them had been followed when they departed the Court on the previous day. Specifically, the trial judge asked the members of the jury for an assurance that notwithstanding those events, each was able to discharge his or her task impartially. The jury, through the foreperson, responded unanimously that they would be able to do so. The decision of the trial judge to proceed in this way formed one of the grounds of appeal, although the ground did not raise, as an issue, the power of the trial judge to question the jury as he had done. However, the Court of Criminal Appeal did observe: [19]
There followed some discussion about what course should next be taken, his Honour favouring a course of directly asking the jury if they felt able to discharge their task as jurors impartially. He met opposition to this proposal, and ultimately took a slightly different course. He rejected a proposal that he examine the jurors individually, pursuant to s 55D of the Jury Act 1977 (NSW). (It may be noted, in passing, that s 55D does not authorise such a course in relation to an incident of the kind here in question. Section 55D authorises examination of a juror (or jurors) in order to determine whether he or she has "read, seen or heard prejudicial material published or broadcast during the trial".)
Because the issue which arose before me was required to be determined quickly, the opportunity to undertake lengthy research was necessarily limited. None of the authorities to which I referred are definitive, although the decisions in Mulvihill and Elomar tend to assume that a general power is available. The availability of such a power is consistent with the fact that the Act does not purport to cover the entirety of the circumstances in which the necessity to question of member of the jury might arise. Accordingly, I determined that I had the power to take the course that the Crown had suggested.
Further, on the evidence before me, an issue had arisen between the foreperson, and juror 2334050 who I had discharged. I therefore considered it appropriate to question the foreperson and seek his confirmation as to whether, in the circumstances, he considered it possible for the jury to continue their deliberations effectively and harmoniously.
Having reached these conclusions, the foreperson of the jury was brought into Court and sworn. The following then ensued: [20]
Q. Thank you Mr Foreperson, could I ask you to just have a seat please and perhaps face me, given that I'll be the one that's going to ask you a question. I want you to understand a couple of things before I ask you these questions. Before I ask you anything, could I simply have you confirm that you are the foreperson of the jury in the current trial of this accused?
A. I am.
Q. Mr Foreperson I want you to understand a couple of things. Firstly, I have received a handwritten note which I am going to ask you to confirm, was written by yourself which has been marked 52 for identification. I am going to show you what is now MFI #52. Could you just confirm that you are the author of that note?
A. Yes.
Q. I want you to understand obviously that I've received that note and I've considered its contents and I've discussed the contents with counsel. I want you to also understand that I have made an order this morning, for reasons independent of anything set out in your note, that another member of the jury be discharged. Do you understand that?
A. Yes.
Q: Do you know the identity of the person who's been discharged?
A. Yes.
Q: Is the person who has been discharged, the other person to whom you referred in your notes?
A. Yes.
Q: Yes?
A. Yes.
Q. In the light of all of those factors, I have simply one question for you at this stage and my question is this. Having regard to all of those factors and to what you disclosed to me in your note, are you confident that if the remaining members of the jury are allowed to continue their deliberations, that they can do so effectively and harmoniously?
A. Yes.
Q. Is the answer "yes"?
A. Yes.
HIS HONOUR: That is all I have for you at this stage, Mr Foreperson. Thank you very much for coming into court. You should simply return to the jury room.
Having received that response from the foreperson, I indicated to counsel that I considered it both prudent and necessary to put the same question to the remaining nine members of the jury, consistent with the course taken by the trial judge in Elomar. Neither the Crown nor counsel for the accused disagreed with that course. The entire jury were then brought into court and asked the following ensured: [21]
HIS HONOUR
Good afternoon, members of the jury. I'm sorry to have kept you waiting this morning but there have been a number of issues with which I have had to deal. I have not forgotten about the question that you asked yesterday afternoon. I've had to put that to one side for a short period but, subject to one thing that I want to raise with each of you as it were, I will be in a position to answer that question very shortly.
I am not going to go into any detail about the matters with which I have been dealing this morning, because it's not necessary. But, I have a single question for each of you, once I've asked the question I'm going to ask you to retire to the jury room and I'm going to ask you each to give me an individual response for the question that I'm asking.
the question that I am going to ask you is this, if you are allowed to continue your deliberations, do you think that you can do so harmoniously and effectively. I repeat the question, if you were permitted to continue your deliberations, do you think that you can do so harmoniously and effectively? I would like each of you please, to simply write me a short note. When I say a short note, it only needs to be one word, "Yes" or "No".
I'm going to ask you to retire to the jury room to do that. Once I have received your responses from the sheriff's officer, I will come back in and we'll take the matter from there.
A short time later I received 10 individual notes from the members of the jury. [22] Nine of those notes responded affirmatively. The tenth did not.
Section 53C of the Act is in the following terms:
Discretion to continue trial or coronial inquest or discharge whole jury
(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must:
(a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest 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 or coronial inquest continue with a reduced number of jurors.
(2) A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912 .
(3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order.
The discretion to discharge a jury under s 53C requires the exercise of a separate discretion to that which is exercised when discharging an individual member of the jury pursuant to s 53B. [23] In Phan v R [24] Price J (with whom Hoeben CJ at CL and Fullerton J agreed) observed: [25]
Section 53C(1)(a) of the Jury Act imposes an obligation on a trial judge who discharges a juror in the course of a trial, to discharge the jury if the judge 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. However, if the trial judge is of the opinion that there is no such risk, the trial judge is required to order the trial continue with a reduced number of jurors as long as the numbers do not fall below the statutory minimum in s 22 of the Jury Act. The opinion is to be formed on all of the material then available to the Court.
In the course of my final summing-up, I directed the jury in (inter alia) the following terms: [26]
……[y]ou are expected to engage in what might be described as an exchange of views in the jury room. Each of you is expected to express your own view about things and, at the same time, each of you is expected to listen to others while they express their views. Each of you should feel free to criticise or to make observations about the views of others. At some same time, each of you must be prepared to listen to other people's views with an open mind if they criticise your views or if they make comments about your views. You should also bear in mind, members of the jury, that your first view about a matter may not necessarily be your final view. You should be prepared to change your view or your views if you are honestly persuaded that, having listened to the views of others, your first view may not have been well-founded. The only other thing that I wanted to say to you about your deliberations, members of the jury, and it is important, is this: You are all equals in the jury room. No person's opinion is of any greater weight than any other person's opinion. Your foreperson plays a particular role, in terms of the conduct of the trial and delivering the verdict, but your foreperson's view is of no greater weight than anybody else's. So please bear in mind you are all equals in the jury room and, whilst your deliberations are a matter for you, you should ensure they incorporate that process of exchanging views that I have explained to you.
It is important to emphasise that s 53C(1)(a) mandates the discharge of 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. Whilst members of a jury, as a necessary part of their deliberations, may well express differing opinions, it is essential to the process that those deliberations remain harmonious, civil and conducive to attempting to reach a unanimous verdict. On the evidence before me, this had not been the case from an early stage of the jury's deliberations in the present trial. The remaining members of the jury were not unanimous in terms of whether effective and harmonious deliberations could continue. The risk of a substantial miscarriage of justice in those circumstances will be self-evident.
It was in these circumstances that I made an order discharging the remaining members of the jury.
[5]
Endnotes
R v WE (No 6) [2019] NSWSC 930.
MFI 50.
MFI 37.
Commencing at T554.13.
MFI 51.
MFI 52.
MFI 51.
T107.
See for example s 55D and s 55DA.
R v Moore [2014] NSWSC 1955.
At [5].
At [8].
[2016] NSWSC 718.
At [62].
[2016] NSWCCA 259.
Ward JA; Beech-Jones and Fagan JJ.
At [242].
[2014] NSWCCA 303; (2014) 316 ALR 206.
At [302].
Commencing at T107.5.
Commencing at T110.5.
MFI 53.
Wu v R [1999] HCA 52; (1999) 199 CLR 99 at [6] per Gleeson CJ and Hayne J and per Kirby J at [66].
[2018] NSWCCA 225.
At [122].
At T15.01-15.22.
[6]
Amendments
11 September 2019 - Amendment to date in [9].
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: 11 September 2019