The accused in this matter has pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. The jury in the trial were empanelled on Wednesday 12 February last and following the Crown's opening, evidence commenced on Thursday 13 February. I was unable to sit in the trial due to a commitment in another matter on Friday 14 February, and accordingly, the evidence resumed today. I record those matters simply for the purpose of pointing out that the trial is at an early stage. We are effectively in the second day of evidence.
The Crown commenced proceedings this morning by completing the evidence of a surveillance officer. Having interposed a lay witness, the Crown then resumed the surveillance up to the morning tea adjournment. Following the resumption of proceedings after that adjournment, and immediately before the jury were to return to court, the Crown said the following:
"Before we start with the jury, your Honour, it has been brought to my attention that during the morning session at least one of the jurors seemed to have a difficulty staying awake." [1]
When I remarked that I had not noticed the matter to which the Crown had referred, the Crown continued:
"I am not sure yet that your Honour needs to say something. I thought I should at least put on the record in this morning's session the juror in the top row furthest away from your Honour had his eyes closed for at least part of the surveillance evidence. It might be to avoid the same issues that we had during the trial last time." [2]
The Crown's reference to those issues is a reference to a not dissimilar situation which occurred in the accused's previous trial, the circumstances of which are canvassed in a previous judgment: [3]
R v WE [2020] NSWSC 92 | Case summary | Zoe
When I asked Mr Finnane QC, who appears for the accused, whether he had noticed the matters to which the Crown had drawn my attention, he replied:
"I didn't, but my instructing solicitor did, your Honour, and she noticed it occurred on Friday as well." [4]
Mr Finnane's reference to what had occurred "on Friday" was obviously a reference to what his instructing solicitor had apparently seen when the Court last sat on Thursday of last week.
The matter was left on the basis that if any further similar behaviour was noticed, it was to be put on the record at the luncheon adjournment. At that point the jury came back into court and the evidence continued.
At about 12.40pm, after the Court had been hearing evidence for approximately 45 minutes, the Crown indicated that he wished to raise a matter in the absence of the jury. The jury having left court, the Crown said:
"The issue is this: It relates to the juror, top row, furthest away from your Honour about whom I have already made some submissions. Since we have resumed after the morning tea adjournment, my learned junior and those instructing me have noticed that the problem is continuing. A number of times have been noted where that juror's eyes have been closed and, for the occasions where that juror's eyes were open, they don't particularly appear to be paying attention to the evidence, with eyes looking around the courtroom." [5]
At that point I observed:
"I must say, for my part, I noticed that there was one point, at least, what might be described as 'an absence of engagement' on the part of the member of the jury in question, in the sense that whilst the other 11 members of the jury were looking attentively at the exhibit, or one of the exhibits, as you were taking the witness to it in their folders, that particular juror was not doing so, and I'm just noticing that he appears to have left his folder behind in the jury box now. That may be of no significance, but I did notice that there appeared to be an unwillingness or a reluctance to engage." [6]
The Crown then continued:
"In relation to times, your Honour, I have been handed a note that says that the juror's eyes were closed at 12.22, 12.26, 12.33, 12.34, 12.35; and then at 12.36, although his eyes were open, they weren't looking at anything, apart from staring at random places around, inside of the courtroom." [7]
At that point I was informed by my Associate that the court officer had informed her that she had been told that the remaining jurors were "having issues" with the member of the jury in question. I observed that if that was the case, then it was a matter that ought to have been reported to me and not to anybody else, in accordance with the direction that I had given the jury on day one of the trial. Subsequent inquiries established that this information had been conveyed to the court officer by the foreperson of the jury as the jury were entering court after the morning tea adjournment. In those circumstances, the court officer had advised me of what had occurred at the earliest possible opportunity which had been available to her.
In light of these events, it was agreed that I should speak directly with the foreperson and ask for a note setting out in full a number of matters. The foreperson was then brought into court a short time afterwards, at which time I said the following:
"You will recall on the first day, and I should just say this, I'm not asking you and I don't want you to comment about anything I am about to say, what I am about to say will simply culminate in a request of you which I will ask you to attend to over the luncheon adjournment, if you would. You will recall on the first day of the trial I made reference to the fact that it was important that any issues that arose in the trial were drawn to my attention and that it was particularly important that if anybody had any questions that they wanted to raise regarding any aspect of the trial, that those questions be directed to me and only to me. I have been advised that a reference has been made to the court officer that some of the members of the jury are, as it has been put to me, 'having issues with another member of the jury'. My understanding is that that information was conveyed, at least in part, by yourself. That is obviously a matter of considerable concern to me and it is something about which I need some further information. So what I am going to ask you to do, please, is to retire to the jury room and I would ask you to write out in a note, firstly, the essence of what the court officer was told and, secondly, in as full detail as you can, I would ask you to set out what these issues are and, once that note has been provided to me and I have had an opportunity to discuss it with counsel, I will decide what we can do about it." [8]
Subsequently, I was provided with a note by the foreperson [9] in the following terms:
"Apparently some concern has been mentioned of a member dozing during the court sitting. I have been assured this is not the case. I mentioned this to the court officer if this was a matter to be mentioned to his Honour, and are we able to use the whiteboard?"
That note was provided to both the Crown and Mr Finnane. Having been given the opportunity to obtain instructions, it was the Crown's application that I should discharge the member of the jury who has been identified as juror C, number 2 from panel 745. The Crown submitted that s 53A of the Jury Act 1977 (NSW) ("the Act") was clearly engaged and that in all of the circumstances, the discharge of the member of the jury in question was mandatory. It was the Crown's submission that if that course were taken, I should, in the separate exercise of the discretion conferred by s 53C of the Act, make an order that the trial continue with a jury of 11. It was the Crown's submission in that respect that there was no risk that a substantial miscarriage of justice would arise by doing so.
Mr Finnane QC, on behalf of the accused, opposed the application for a discharge of the member of the jury. He submitted that in circumstances where the trial was at an early stage, the appropriate course was to direct the jury, in the strongest possible terms, of the need to pay attention to the evidence as it was given.
Mr Finnane submitted that there was no reason to think that a direction in those terms would not be followed and that the matter could then be monitored over the next short while. He submitted that in the event that there was no change in the behaviour of the member of the jury, the matter could be revisited at that point.
In the event that I came to the conclusion that the individual member of the jury should be discharged, Mr Finnane's position was that I should discharge the entire jury. He submitted in that respect that the trial was at an early stage and that his client was, in effect, entitled to be tried by a jury of 12 persons. He also submitted that it was a "big step" to discharge a member of a jury.
Although not making a substantive submission in this respect, Mr Finnane also raised the issue of whether I had power, in a case involving the prosecution of an offence against the Commonwealth, to continue with a jury of 11 persons in light of the provisions of s 80 of the Commonwealth of Australia Constitution Act 1901 ("the Constitution").
I turn firstly to the provisions of s 53A of the Act pursuant to which the Crown's application was brought, and which are in the following terms:
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.
It is important to bear in mind that s 53A is not phrased in terms of a discretion. The section mandates the discharge of an individual juror if, amongst other things, that juror has engaged in misconduct in relation to the trial. I should point out that s 53B of the Act confers a discretion on the Court to discharge an individual juror, but that is not the basis on which the Crown brought its application.
"Misconduct" is defined in s 53A(2) as the following:
(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.
In that latter respect, it was the Crown's position that the conduct of the member of the jury in this case was conduct falling within s 53A(2)(b), namely, conduct giving rise to the risk of a substantial miscarriage of justice.
In R v Rogerson & R v McNamara (No. 27) [10] I was faced with a not dissimilar set of circumstances to those which currently prevail. On that occasion, I made the following observations: [11]
[10] The definition of the word 'misconduct' as it appears in section 53A of the Act is a wide one. In particular, section 53A(2)(b) makes it clear that misconduct includes: Any conduct falling short of conduct constituting an offence which, in the opinion of the Court, gives rise to the risk of a substantial miscarriage of justice.
[11] The inability of a member of a jury to stay awake and listen to the evidence as it is being given and the propensity of that inability to give rise to the risk of a substantial miscarriage of justice needs no further comment.
[12] Fundamental to the right of the an accused person and, indeed, the Crown, to a fair trial is the proposition that all members of the jury should be alert, attentive and in a position to follow and comprehend the evidence as it is being given. It is impossible for a juror to discharge that function if he or she is asleep. Any further observation in relation to that would be superfluous.
It seems to me that those observations are directly apposite to the present case. In my view, the conduct which has been drawn to my attention constitutes misconduct within the meaning of s 53A(1)(c) of the Act and, in those circumstances, the section mandates that the member of the jury be discharged. I should also say that even if this were a question of the exercise of my discretion under s 53B of the Act, I would have come to the same conclusion in the exercise of that discretion, having regard to the provisions of section 53B(d).
In reaching that view, I regard it as a matter of some significance that the conduct which was reported to me was, according to what Mr Finnane told me earlier today, observed by his instructing solicitor as long ago as Thursday of last week. The Crown also drew my attention to the fact that, in the course of his opening address [12] he made an observation at one point that it was difficult listening to one person talk for so long and that he would "keep it lively so nobody falls asleep". As I understood it, the Crown informed me of that for the purpose of indicating to me that when he said that to the jury, he had made observations of this particular juror at that time conducting himself in the same way as he has done today.
I should also say that, leaving aside the fact that the discharge of the juror in these circumstances is mandatory, I do not accept that a proper way of dealing with the issue is to give a direction to the jury in the terms suggested by Mr Finnane. That is simply because it begs the obvious question, namely how does one deal with the fact that there have been instances from the very commencement of this trial, observed by both the Crown and by Mr Finnane's instructing solicitor, which lead to the conclusion that from a very early stage, the member of the jury in question has not been paying attention.
For all of these reasons, I propose to order that the member of the jury in question be discharged.
That then gives rise to a separate question concerning the ongoing conduct of the trial. In this respect, s 53C of the Act is in the following terms:
53 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.
In R v WE (No. 6) I made reference to the observations of Price J, with whom the Chief Judge at Common Law and Fullerton J agreed in Phan v R [13] where his Honour said the following:
"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 section 22 of the Jury Act. The opinion is to be formed on all of the material then available to the Court."
It is to be noted that the terms of s 53C make reference to a "risk" of a "substantial" miscarriage of justice. The material which is available to the Court to make a determination of whether or not there is such a risk is limited. However, there is nothing to suggest that any of the remaining 11 jurors suffer from the same difficulty as that suffered by the juror whom I propose to discharge. My own observations are that the remaining members of the jury are following the evidence closely and, in particular, are following the evidence by reference to the copies of documentary exhibits which have been provided to them.
I am also fortified by the fact that it is evident from the terms of MFI 9 that at least some of the remaining jurors saw fit to draw what they saw as being a matter of concern to the attention of their foreperson. That indicates to me that the remaining jurors are diligent and conscientious and will apply their minds to the task which they have been given.
In the circumstances, the information which is available to the Court, far from supporting a conclusion that there is a risk of a substantial miscarriage of justice if the trial continues, suggests something very much to the contrary. For all of those reasons, I am of the opinion that there is no risk of a substantial miscarriage of justice occurring if the trial continues with a reduced number of jurors.
As I have already noted, Mr Finnane raised the question of whether or not it was open to me to continue the trial with less than 12 jurors, in light of s 80 of the Constitution which is in the following terms:
80 Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
Although not specifically cited, I understood Mr Finnane had in mind authorities such as Cheatle v R [14] and Alqudsi v R [15] . In the limited time which has been available to me to consider the matter, I have come to the conclusion that there is nothing to prevent the trial from proceeding with a jury of 11. In this respect I have had regard, in particular, to the provisions of s 22 of the Act which are in the following terms:
22 Continuation of trial or inquest on death or discharge of juror
Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest 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
(iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months,
(b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8, or
(c) in the case of a coronial inquest, the number of its members is not reduced below 4,
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.
That section of the Act, along with those other sections to which I have referred, apply to the present proceedings by virtue of s 68(1) of the Judiciary Act 1903 (Cth) which is in the following terms:
68 Jurisdiction of State and Territory courts in criminal cases
(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such
trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
In my view, a combination of those provisions allows the trial to continue with a jury of 11.
Accordingly, I make the following orders:
1. Juror C, being juror 2 from panel 745, is discharged pursuant to s 53A of the Jury Act.
2. Pursuant to s 53C(1)(b) of the Jury Act, I order that the trial continue with a jury of 11.
[2]
Endnotes
T141.3 - T141.5.
T141.9 - T141.13.
R v WE (No 6) [2019] NSWSC 930.
T141.17 - T141.18.
T157.15 - T157.24.
T157.26 - T157.33.
T157.35 - T157.39.
T159.36 - T160.9.
MFI 9
[2016] NSWSC 152.
At [10]-[12].
T53.9 - T53.10.
[2018] NSWCCA 225 at [122].
(1993) 177 CLR 541; [1993] HCA 44.
(2016) 258 CLR 203; [2016] HCA 24.
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Decision last updated: 08 April 2020