Juries Act 2003, s 40.

Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41; R v Czajkowski [2002] NSWCCA 530, 137 A Crim R 111, I B F v Tasmania [2022] TASCCA 11 applied.

Judgment Number: [2023] TASSC 20

1. Cedric and Noelene Jordan are jointly charged with the murder of Shane Barker. The trial commenced on 17 April 2023 and the jury was empanelled. On 8 May 2023 both accused applied for an order pursuant to the Juries Act 2003, s 40(a), that one of the jurors be discharged, without discharging the whole jury. The application was made on the basis that there were reasonable grounds to suspect that the juror may not be able to consider the case impartially. On 9 May 2023 I refused the application and said I would later give reasons. These are those reasons.
2. Mr Barker was killed in Campbell Town during the evening of 2 August 2009. The prosecution case is that Mr Barker was shot in the driveway of his home with a .22 rifle and that one of the four shots which struck his torso caused the fatal wound. The strong inference is that he was shot by someone who intended to kill him. The principal issue in the trial is not whether Mr Barker was murdered, but the identity of the perpetrator or perpetrators. The prosecution alleges that one of the accused actually committed the murder by firing the fatal shot and the other was present with a common intention to commit that crime.
3. The case against the accused is circumstantial. The jury will be directed that they cannot find an accused guilty unless the circumstances established by the evidence are inconsistent with any reasonable hypothesis other than his or her guilt. That is, the jury must exclude beyond reasonable doubt, as an inference that is reasonably open, the hypothesis that a person or persons other than the accused killed Mr Barker. The accused are the parents of Mr Barker's former wife. Part of the prosecution case is that the accused were motivated by antagonism towards Mr Barker arising from his conduct following the breakdown of his marriage to their daughter, their belief that he was sexually abusing their granddaughter, and their daughter's inability to obtain redress through the police, the child protection authorities or the Family Court.
4. Because a verdict of guilt for a charge of murder must be unanimous, two reserve jurors were empanelled. Proceedings were conducted in the absence of the jury until the prosecution opening was given on Friday, 21 April. The Court did not sit on Monday, 24 April and 25 April was a public holiday. The defence replies were given on Wednesday, 26 April 2023 after which the evidence commenced. On Thursday, 4 May 2023 a note from the foreman of the jury raised, as one of a number of issues, the matter which gives rise to this ruling. By then there had been about seven days of evidence. The note drew attention to the fact that one member of the jury, who happened to be the foreman, and one of the two female reserve jurors were currently in a relationship as a couple. I will refer to the foreman as juror M and the reserve juror as juror F. Both accused applied for an order that juror F be discharged. Initially the application was that both jurors be discharged, but that application was not pursued. There was no application that the whole jury be discharged.
5. The application for discharge in this case was made in reliance on subs (a) of s 40 although subs (d) enables discharge of a juror for any other reason. Counsel for the accused did not assert actual or apprehended bias, but contended that the case falls within the "different but related category of juror irregularity". The power to discharge a juror is discretionary. In exercising that discretion I took into account, and balanced, all of the matters referred to in these reasons. The law to be applied was stated by Mason CJ and McHugh J in Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41 at 53:

"... the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."

1. The test stated in Webb was affirmed in Smith v The State of Western Australia [2014] HCA 3; 250 CLR 473 at [55]. Counsel for Mr Jordan referred to the decision of the Court of Criminal Appeal in this State in Farrell v R [1996] TASSC 58. In that case Cox CJ said, at [15]:

"... Even in cases where bias is not alleged, it seems to me to be appropriate that the test laid down in Webb's case should be followed, namely, would the irregularity, notwithstanding any warning of the judge, give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or the jury has not or will not discharge their task either impartially or fairly to the accused."

1. The same approach was applied in IBF v Tasmania [2022] TASCCA 11 by Blow CJ at [2] and by Martin AJ at [26]-[27] and [58]. In IBF Martin AJ explained by reference to the decision of the Victorian Court of Appeal in R v Goodall [2007] VSCA 63; 15 VR 673 at [18] that a reasonable apprehension that a juror is biased "is one of the circumstances that constitutes a high degree of need" to discharge the juror. In IBF the Court also adopted the wording used by the Court of Criminal Appeal in New South Wales in R v Czajkowski; R v Shepherd [2002] NSWCCA 530, 137 A Crim R 111, refining the statements in Webb, that the question is whether "the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding." In considering whether a reasonable apprehension of a lack of impartiality exists it is necessary to consider the likely effect of directions to the jury: Mehta v The State of Western Australia [2023] WASCA 24.
2. Although the law to be applied is settled, its application depends on the circumstances of a particular case. Examples of how the law might be applied are found in the authorities to which I was referred. In Webb, the trial judge dismissed an application for discharge of the whole jury made on the basis that a juror, at the courthouse on the day of the judge's summing up, gave a bunch of flowers to a person with a request that they be conveyed to the mother of the victim of a violent murder. The majority of the High Court dismissed the appeal and concluded that a fair minded juror would not apprehend a lack of impartiality and that the trial judge had correctly directed that the trial proceed. In Farrell some members of the jury conducted an unauthorised private view of a scene relevant to a crime and made an independent enquiry of the Weather Bureau about the time of sunset on a particular day. An application to the trial judge for discharge of the jury was refused. The majority of the Court of Criminal Appeal concluded that, in the circumstances of that case, no miscarriage of justice had been demonstrated. In Mehta, the accused was charged with a sexual offence against an adult female. On the third day of the trial a juror gave the trial judge a note indicating that another juror had disclosed that she had been sexually assaulted as a young teenager. The author of the note expressed concern that the judgment of the juror who had made the disclosure as well as other members of the jury may be clouded as a result. The juror who had made the disclosure had expressed no concern about her own ability to be impartial and was not questioned about it. An application to discharge the juror was refused. Rather, the trial judge gave the jury repeated reminders of the duty to be bring an impartial mind to the evidence and to decide the case without prejudice or sympathy. An appeal against the ruling was dismissed. The Western Australian Court of Appeal determined that experience of sexual assault was not a matter of itself which gave rise to an apprehension of bias.
3. Conversely, there are cases in which discharge of a juror or jury was found to be required. In Czajkowski the accused were charged with a drug crime. After the evidence and addresses, but before the summing up, the trial judge was given a note that "some of the jurors are slightly bias [sic] against drugs and have already made there [sic] minds up on day one." The appeal against the refusal to discharge the jury succeeded because, in that case, the appeal court concluded that it was a clear case of apprehended bias and prejudgment. A similar conclusion was reached in IBF. In that case the trial judge was given a note during the course of the jury's deliberations which suggested that one or more members of the jury were biased. The trial judge did not address or investigate the note. The appeal court directed an investigation. The information provided to the court persuaded it that, as stated by the Chief Justice, the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding.
4. In the course of hearing the application in this case both jurors were separately questioned. After consulting with counsel about the subject matter of questions, the questions were asked by me. As to the nature of their relationship and how it was brought to the Court's attention their answers were substantially the same. They both said that their relationship had been going for about three and a half years. They did not live together and were not married. The note was written at the request of another juror who noticed a gesture suggesting intimacy exchanged between them when they were together in public during an adjournment. The subject was raised amongst the jury. The fact of the relationship became apparent and the jury discussed it. According to juror F the note was written because the jury "did not want to cause issues down the track" and "and they weren't sure whether or not it was an issue."
5. Juror F is a female aged 60. She is in full time employment as an expert technical officer with a telecommunications company. She has three adult children from a previous relationship, the youngest of whom still lives with her. When questioned about her ability to be impartial and to act according to her individual conscience she made clear that she was a person of independent mind and able to perform her duty as a juror free of influence from others, including juror M.
6. Juror M is aged 58. He is also in full time employment with a large business. He has two adult children from a previous relationship. Like juror F, juror M stated that his ability to be impartial and to act according to his individual conscience was not, and would not be, affected by his relationship with juror F. He corroborated juror F's independence of mind.
7. The substance of the submission made by counsel for Mr Jordan is that the jurors, if they remain on the jury together, would be less inclined to independently consider and robustly debate contentious evidence between themselves, already knowing the thought processes and opinions of the other and the preparedness or otherwise of the other to change his or her mind. Put another way, what is contended is that the judgment of each juror may, by reason of the relationship, be unacceptably influenced by the views of the other rather than by an independent assessment of the evidence. Counsel for Mrs Jordan argued also that knowledge of the relationship may affect other jurors in that they may perceive the two jurors as less likely to experience or express differing opinions as between themselves. That was especially so, it was contended, in a case requiring impartial assessment of evidence of family breakdown and interpersonal relationships as a central circumstance in the prosecution case.
8. I was not directed to any case in which a form of relationship between jurors has been the subject of an application to discharge one of the jurors, successful or otherwise, or in which a miscarriage of justice has been the contended result. As senior counsel for the prosecution correctly points out, there is nothing in the legislation which precludes the continuation of the parties to a relationship together on a jury. The circumstances permitting discharge of a juror are stated in s 40. For persons chosen at random from the community, relationships and associations of many different kinds may exist between jurors: a romantic relationship (which may even be formed during the course of a trial), close friendship, professional association or co-employment. Whether the ability of a juror to exercise independent and impartial judgment is unacceptably compromised is to be assessed in each case. In every jury the views of individual jurors may be influenced by the views of other jurors as the trial progresses and during the collective process of deliberation. What is to be considered here is whether the existence of a relationship of this type between jurors may unacceptably compromise the fair and proper jury process.
9. I concluded that there was no reason that either juror, the reserve juror in particular, should be discharged. I found both jurors, when questioned, to be articulate and intelligent. By that time I had also had the opportunity to make my own observations of them during the trial. There was no plausible basis to conclude that the answers to the questions put to them were anything other than true. At the commencement of the trial they each swore an oath or gave an affirmation to "faithfully and impartially try the issues between the Crown and [Mr and Mrs Jordan] and give a true verdict according to the evidence." Each juror must be "faithful to the dictates of his or her conscience based on examination and analysis of the evidence": R v Thompson [2010] EWCA Crim 1623; [2011] 1 WLR 200. After hearing from juror M and juror F I was left in no doubt that both are attentive and diligent jurors, perfectly capable of understanding their duty and any relevant judicial directions. After this ruling was announced in the absence of the jury, the jury was informed that I had concluded that there was no irregularity and that the trial would continue without change to the constitution of the jury. Every member of the jury was then collectively reminded of their oath or affirmation, the duty they each had to comply with it and their obligation to act in accordance with their individual conscience when deliberating. That direction will be repeated at the conclusion of the trial.
10. In Smith v State of Western Australia [2014] HCA 3; 250 CLR 473, the High Court addressed the situation in which, after discharge of a jury at the conclusion of a trial, an anonymous note was found in the jury room which claimed that a fellow juror had physically coerced the writer to change his or her mind on the verdict. The Criminal Code (WA), s 123, made it a crime for any person to attempt by threat or intimidation to influence a juror. The Court of Criminal Appeal found no miscarriage of justice, but the High Court concluded that the note was capable of creating a reasonable suspicion that criminal conduct influenced the vote of a juror contrary to s 123. The Court returned the matter to the Court of Appeal to assess whether an inquiry should be conducted to resolve doubt about the meaning of the note.
11. The legislative equivalent in Tasmania is s 63 of the Juries Act, breach of which is punishable by fine not exceeding 500 penalty units or a term of imprisonment not exceeding 5 years, or both. That section is entitled "Influencing or threatening jurors" and provides:

(a) influence any juror or potential juror by any means, other than the production of evidence and argument in open court; or

(b) injure or threaten to injure, or cause or threaten any detriment to, any other person on account of anything done by the person as a juror or for the purpose of influencing the person as a juror; or

(c) accept or agree to accept any benefit on account of anything done or to be done by the person as a juror or potential juror; or

(d) prevent, obstruct or dissuade another person from attending as a juror or potential juror."

1. There was no reason in this case to suspect that either juror might be, by reason of their relationship, influenced by the other to any material extent except, to use the words of s 63, "other than by the production of evidence and argument in open court". There was certainly no reason to consider that either of them might be subject, from the other, to the type of undue or improper influence contemplated by s 63 and considered in Smith. The expressions of impartiality given by the jurors themselves were to be subordinated to whether an impartial and informed observer may reasonably apprehend a lack of impartiality. However, in my assessment, this was not a case in which the parties or a fair minded member of the public, informed of all the relevant circumstances, could reasonably apprehend that juror M or juror F might not bring an impartial and unprejudiced mind to the resolution of the issues in the trial. There was no reason to conclude that either juror, appropriately reminded of his or her duty, had not or would not discharge his or her task either impartially or fairly to the accused. I was also satisfied that no fair minded observer with knowledge of all the relevant circumstances would apprehend that the continued presence of both jurors on the jury might compromise the impartiality or fairness of the jury as a whole or that the jury might be tainted, diverted from its proper task or in some way made incapable of bringing in a proper verdict according to law. Both the prosecution and the accused were, in the absence of the circumstances which permit the discharge of a juror, entitled to a trial before the jurors duly selected to try the issues between the accused and the Crown: R v Chung; R v Rechichi [2010] VSCA 39; 25 VR 221.
2. Although not determinative of the application, there were other considerations which tended against discharge of the reserve juror. The trial will be a relatively long one by Tasmanian standards with a total estimated hearing time exceeding two months. Because the accused are charged with murder the trial could not continue with a jury of less than 12 jurors. Discharge of juror F would not have immediately meant that the trial could not proceed, but it would have increased the risk that the trial may be compromised if it subsequently became necessary to discharge another juror or jurors through death, illness, other incapacity or irregularity. It was strongly in the interests of justice that any risk to the trial be minimised.