The Queen v GH

Crown: Office of the Director of Public Prosecutions

The Queen v GH (No 3) [2018] NTSC 25

[1] The accused has applied for the discharge of the jury pursuant to s 371 or s 373 of the Criminal Code (NT).

[2] By indictment dated 13 April 2017 the accused is charged with historical sex offences against his two stepdaughters when they were in their early teens. Those offences include gross indecency, unlawful sexual intercourse, exposure to an indecent act, exposure to an indecent book, maintaining an unlawful sexual relationship, and indecent dealing.

[3] The basis of the application is that following an adjournment on the morning of the third day of the trial one of the jurors sent a message to me in the following terms:

Could I please have a short private conversation with you in regards to my own history of sexual abuse?

I believe I can be impartial & unbiased but the jury would like me to get your clearance on the matter.

[4] The note was marked for identification and copies provided to counsel. This application was subsequently made.

[5] Section 371 of the Criminal Code has no application to these circumstances. Section 373 of the Criminal Code is in the following terms:

1. Incapacity of Juror

(i) the juror is not indifferent as between the Crown and the accused person; or

(ii) by reason of any matter of urgency or importance a juror should be discharged from further attendance,

(d) discharge the juror and direct that the trial shall proceed with the remaining jurors.

(2) In any such case the presence of the remaining jurors, not being fewer than 10, shall have the same effect as if all the jurors had continued present.

[6] There is no suggestion of actual bias in this case. The relevant test is whether there is a reasonable apprehension of bias on the part of the juror and, if so, whether that bias has contaminated the other members of the jury. In Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41, Mason CJ and McHugh said at 52-3 that the test:

... allows a margin for error in evaluating the facts as elicited. It concentrates not on whether there is a danger of bias as an objective fact, but whether a fair-minded and informed person might apprehend or suspect that bias existed. ... In criminal trials in particular, the jury's function is of great public importance. It is certainly no less important than that of the judge sitting alone in a civil trial, a commissioner determining an industrial dispute or a member of a statutory tribunal inquiring into conduct in an industry which it supervises. The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias. It is true that, unlike the judge and persons exercising quasi-judicial functions, the juror is subject to the directions of a third party - the trial judge. In considering whether a reasonable apprehension of bias exists, it is therefore necessary to consider the likely effect of the judge's directions (if any) as well as the irregularity in question. ...

It follows that 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.

[7] That observation is reflected in the comment made by Gleeson CJ and Gummow J, in a different context, in Gilbert v The Queen (2000) 201 CLR 414 at 420:

The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.

[8] In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ said at 344-5 (footnotes omitted):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver ... or necessity ... , a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

[9] Here, the accused points to the juror's disclosure of a history of sexual abuse as the matter which might lead that juror to decide the matter other than on its legal and factual merits. The second step is to discern whether there is any logical connection between that matter and the asserted apprehension.

[10] A similar situation was considered by the Victorian Court of Appeal in R v Goodall [2007] VSCA 63; (2007) 169 A Crim R 440. In that matter the charge was of maintaining a sexual relationship with a child under the age of 16 years. During the course of the prosecutor's closing address, the trial judge observed that one of the jurors had become distraught. A note from the jury foreman was subsequently handed to the trial judge indicating that the juror in question had been the victim of abuse, but felt able to continue. The accused made application for the discharge of the jury on the basis of an apprehension of bias on the part of the particular juror, and on the basis that juror's history and reaction had affected the ability of the remaining jurors to bring an impartial mind to bear on the case. The trial judge discharged the particular juror, but not the balance of the jury. That determination was made following an indication from the foreman representing the remaining jurors that they were confident they could return a true verdict according to the evidence.

[11] The jury ultimately returned a verdict of guilty and an application for leave to appeal was lodged. That application was ultimately dismissed. In the course of reasons for the dismissal, Redlich JA (with whom Buchanan AP and Neave JA agreed), made the following observation at [17]:

A trial judge's discretionary power to discharge the juror and proceed with 11 jury members derives from s 43 of the Juries Act 2000 (Vic). The test which should inform the exercise of the discretion was stated in R v Boland [[1974] VR 849 at 866]:

The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident 'a high degree of need for such discharge', that high degree being 'such as in the wider sense of the word might be denoted by necessity'.

[12] In Ashley v The Queen [2016] NTCCA 2, the Northern Territory Court of Criminal Appeal considered whether there was any inconsistency between that test of "a high degree of need" and the subsequent decision of the High Court in Webb. Southwood J (with whom Riley CJ and Kelly J concurred) concluded that there was not, and referred in that respect to the following passage from the decision of the Victorian Court of Appeal in Holt and Merriman v The Queen (1996) 87 A Crim R 82 at 86:

It was suggested in the course of argument on this ground that Webb's case may cast doubt on the correctness of the statement by the Full Court in R v Boland [1974] VicRp 100; [1974] VR 849 at 866 that there must be "a high degree of need" before a jury is discharged on account of an incident that may adversely affect the fairness of the trial. As their Honours explained on the same page that means that discharge must be necessary in the wider sense of the word. Webb's case stands for the proposition that it is necessary to discharge a juror, or a jury as a whole, if a fair-minded observer might entertain a reasonable apprehension concerning his or its impartiality. To my mind there is no inconsistency between the two cases, nor is it surprising that such an apprehension should be regarded as satisfying the test of necessity in the sense explained by the Full Court, for ex hypothesi justice would no longer be seen to be done.

[13] It may be accepted that a reasonable apprehension that a juror is biased may be characterised as a circumstance giving rise to a high degree of need.

[14] In Goodall, Redlich JA went on to make the following observations at [24], [28]-[31] (footnotes omitted):

Any notion of actual bias may be put to one side. The record reveals only that the juror became upset and that this was caused, at least in part, by his own experience as a victim of abuse. There was no factual basis upon which to suggest that the discharged juror was actually prejudiced against the accused, nor was any suggested. The question is whether a reasonable apprehension of bias arises because a juror is a victim of the same or a similar crime to that upon which the accused is being tried. Putting to one side what might have been the trial judge's reasons for discharging the juror, this Court must now assess for itself whether a reasonable apprehension of bias existed with respect to that juror and, if so, whether the remainder of the jury were also tainted by that apprehension of bias and should have been discharged.

In my view, the possibility, speculative as it is, that the juror reasoned with the other jurors as counsel hypothesised would not provide grounds for the discharge of the juror or the balance of the jury. There would be nothing impermissible or inappropriate about such a reasoning process had it taken place. Juries are routinely told to evaluate evidence, particularly viva voce evidence, against the background of their own life experience. The prosecutor's invitation to the jury to use their own knowledge and common sense, quoted above, is one which is extended to juries, in similar terms, every day. The value of consultation is enhanced not merely by the presence of more than one mind, but also by the presence of more than one vantage point. The experience of a member of the jury, shared with other members of the jury, may be accepted or rejected by them as something which may or may not assist their deliberations. The special virtue of the institution of the jury is the collective deliberation process of a fair cross-section of the larger community with the capacity to temper the dangers of irrational, unfair or ignorant reasoning.

Counsel argued that the juror's use of his own personal experience of abuse in evaluating the evidence would have been illegitimate because it was a matter extraneous to the trial which could not have been subject to any scrutiny by the parties. I do not accept that submission. This was not a case of an experiment conducted by a juror becoming a form of new evidence, or of the jury inadavertently receiving information which was not part of the evidence at trial. Rather, what is raised in this case is the possibility, albeit a speculative one, of a juror evaluating existing evidence by reference to a particular experience they have had. In my view this is something the juror would have been entitled to do.

The process of jury selection that is followed in most common law jurisdictions and the integrity of the jury system rest upon the rationale that a juror's life experiences or the use that a juror may make of such experience in evaluating the evidence does not give rise to a reasonable apprehension of bias in that juror. As a general rule it is assumed that jurors, who have had an experience such as the present juror, are able to give effect to their obligation to act impartially so that a reasonable apprehension of bias does not arise.

Potential jurors who have had such an experience do not need to be excused from the jury panel from which the jury is to be selected. Infrequently, as the cases reveal, something may occur in the trial process which leads to the conclusion that a juror's or potential juror's ability to decide a case impartially is compromised or that there is a reasonable apprehension that this is so. The trial judge has the discretion to excuse a person from the jury panel if satisfied that "the person will be unable to consider the case impartially" or "is unable to serve for any other reason". The practice of informing the jury panel of the nature of the crime charged before taking excuses provides adequate opportunity for any potential juror to seek to be excused if he or she considers that they will be unable to be impartial for any reason. Once empanelled, the trial judge may discharge jurors who fall into this category.

I do not accept the premise, which underlies much of the applicant's argument, that a fair-minded observer would form a reasonable suspicion that a juror was not able to act impartially on the basis that the juror had been the victim of a crime of the kind with which the accused stood charged.

[15] With respect, I agree with the conclusion that a fair-minded observer could not conclude that the juror was unable or unwilling to bring an unbiased and impartial mind to bear on the assessment of the evidence simply because that juror has previously experienced sexual abuse. It would appear that the House of Lords has adopted a similar view. In R v Abdroikov; R v Green; R v Williamson [2007] UKHL 37, Lord Bingham of Cornhill (in the majority) made the following observations at [32]-[33]:

But then, being fair-minded and informed, the observer will think a little more about the matter. He will reflect that, up and down the land, day in day out, we take risks when we hand the critical decisions on guilt or innocence to juries. We take the risk that, consciously or subconsciously, men on juries may be unduly sympathetic to a man charged with rape who claims that he and the woman just got carried away by their physical urges. We take the risk that, consciously or subconsciously, a juror who has herself been the victim of sexual abuse may tend to side with the woman who claims that she was sexually assaulted by the defendant. We take the risk that, consciously or subconsciously, a gay juror may tend to believe the gay man who says that he was assaulted by the defendant in a homophobic attack. We take the risk that, consciously or subconsciously, a homophobic juror may just reject the gay man's evidence. We take the risk that, consciously or subconsciously, a juror who is an undergraduate may sympathise with a victim who is an undergraduate at the same university. We take the risk that, consciously or subconsciously, a black juror may tend to believe the evidence of a black witness as opposed to the account given by an Asian defendant. We take the risk that, consciously or subconsciously, a juror who was convicted of drug dealing and was sentenced to four years in prison in the early 1990s may sympathise with a defendant accused of supplying drugs. Having reflected on these and similar situations, the observer will realise that, in effect, Parliament has now added two to the long list of situations where there is indeed a risk, where it is indeed possible, that, consciously or subconsciously, a juror may be partial. But he will also realise that Parliament must have considered that in these two situations, like so many others, the risk is manageable within the system of jury trial as we know it.

It would, after all, be wrong to pretend that in these various situations there is not a real, as opposed to a fanciful, possibility that the jurors in question may be biased. For instance, there is plainly a real possibility, in the sense of it being something that could well happen, that a homophobic juror may just reject the gay man's evidence. But the law regards that risk as being manageable and, so, acceptable. The law caters for the risk. It takes steps to minimise it by making jurors take an oath or affirm that they will "faithfully try the defendant and give a true verdict according to the evidence". It makes them sit and listen to the evidence in a solemn setting. It requires the judge to give them a direction that they must assess the evidence impartially.

[16] Leaving aside the particular statutory framework operating in the United Kingdom, similar considerations apply in the Australian context. Against that background, counsel for the accused is at pains to say that the application for the discharge of the jury is not predicated on any conclusion that the juror's previous experience might give rise to an apprehension of bias in the relevant sense. Rather, counsel for the accused bases the application on the assertion that the content of the note gives rise to an inference that some other members of the jury might have that apprehension. There is a degree of circularity in that submission. As the formulation in Ebner makes plain, the first step is to identify the matter which might lead that juror to decide the matter other than on its legal and factual merits. That can only be the history of sexual abuse. The second step is to discern whether there is any logical connection between that matter and the asserted apprehension. For reasons that follow, pointing to the jury's note does not establish the requisite connection.

[17] Prior to the jury being empanelled, the members of the jury panel were instructed that it was important that they were able to approach the matter with a completely unbiased and impartial mind. They were instructed that if there was any reason why they felt they could not sit on the trial and bring an open and unbiased mind to the matter they should come forward and explain the position. Although sometimes in cases involving charges of sexual abuse a panel member who has been subject to sexual abuse will come forward and seek to be excused on that basis, there is no obligation on a panel member to bring an experience of that sort to the attention of the Court unless he or she is of the view that it makes them incapable of discharging the duty. There was no dereliction of duty on the part of this particular juror in that respect. Nor is the accused properly considered to have been deprived of the "right" of challenge by reason of the fact that prior to empanelment the juror did not seek to be excused or explain the position in confidence to the trial judge.

[18] After the jury had been empanelled, its members were instructed further in relation to the presumption of innocence, the need to determine the matter solely on the basis of evidence adduced during the course of the trial, and the need to approach the assessment of that evidence with a purely objective, impartial and open mind.

[19] Against that background, the juror's note expresses an ability and willingness to bring an impartial and unbiased mind to the matter, and to return a true verdict according to the evidence. The note is balanced and rational. There is no reason to doubt that subjective assessment of her own state of mind. In addition, there has been no display before me of emotional upset or distress on the part of that juror, or any other juror, during the course of the trial to date. The note does not on its face disclose that the other jurors harbour any concern of actual bias or inability on the part of the particular juror to bring an impartial and unbiased mind to the task.

[20] Counsel for the accused says the inference properly drawn is that some members of the jury harbour an apprehension of that matter. While a subjective view to that effect, even if it did exist on the part of some jurors, would not necessarily be determinative of a reasonable apprehension, I do not consider that the terms of the note sustain the inference which the accused seeks to be drawn. The note suggests only that the jurors considered the matter was properly brought to the attention of the trial judge. It is perfectly understandable why a conscientious, cautious and diligent jury comprised of members without legal qualifications might ask the question whether a juror's history of sexual abuse in a case involving charges of sexual abuse should be brought to the attention of the trial judge. This is not a case in which it is apparent there is any disputation between the jurors concerning bias, prejudgement, premature conclusions or any other matter involving deliberations. Accordingly, there is no factual basis on which to suggest that the juror in question is actually prejudiced against the accused, that the other members of the jury harbour any concern in that respect, or that there has been some resultant contamination of the jury.

[21] Unlike the situation considered by the New South Wales Court of Criminal Appeal in The Queen v Czajkowski [2002] NSWCCA 530; (2002) 137 A Crim R 111, there is no message from the jury suggesting an actual bias on the part of certain jurors and a prejudgement of the issues. As Sheller JA observed in that case at [35]:

In my opinion, the trouble in this case is that the note indicated that by the time addresses concluded and before the summing-up some jurors or a juror had made up their minds or his mind on day one. That statement was made in the context of some of the jurors or a juror being "slightly bias [sic] against drugs". In my opinion, the appellants or a fair-minded and informed member of the public might entertain a reasonable apprehension that the jury would not discharge its task impartially ...

[22] Similarly, in Ashley the Northern Territory Court of Criminal Appeal was dealing with a note from a juror which provided relevantly:

Since day two, a most vocal trio of jurors have relentlessly speculated along the lines that the accused is guilty until there is convincing proof that he is innocent, including who else did it and why. They seem to misunderstand or don't understand, the content of the 'Outline' (if they have read it). One of them stridently argues, for instance, that 'obviously' he is guilty; otherwise he would not be arrested and charged. Some of us try to point to the principle of presumption of innocence until proven guilty based on the evidence presented in the court room only, and that we haven't heard all of the evidence yet. But I think it has to come from you to be taken seriously.

[23] Given the content of that note, it is unsurprising that the Court determined that a fair-minded and informed member of the public might entertain a reasonable apprehension that the three jurors would not discharge their task impartially and it was necessary to discharge the jury. That concern was heightened by the fact that by the second day of the trial the jury had not heard any evidence which implicated the accused in the murder of the deceased, and that the jury had been given oral directions by the judge concerning the importance of bringing an impartial mind to bear on the matter. Those features do not present in this case.

[24] Counsel for the accused relies on the case of I v Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420 at [16] in support of the proposition that the court can be in no position to determine the question of apprehended bias without further enquiry. The submission follows that such enquiry in this case would not resolve the difficulty. That case involved circumstances in which a juror alerted the trial judge to the fact that he knew one of the witnesses and "had a preconceived opinion". It is understandable why that matter raised "the spectre of possible bias", and why further enquiry was considered necessary by the Court of Appeal. The note in this case does not raise any such matter beyond the fact of the juror's history of sexual abuse.

[25] Similarly, and unlike the situation considered by the Northern Territory Court of Criminal Appeal in Cant v The Queen [2002] NTCCA 8; (2002) 12 NTLR 133, this is not a situation in which it is necessary to question the jury or the juror concerned to ascertain what extraneous materials have entered into the jury's deliberations. As in Goodall, nor is there any call for speculation that the juror concerned may have reasoned with other members of the jury in a manner that was impermissible and requiring discharge.

[26] This is not a case of juror misconduct in the sense of a juror saying or doing something to give rise to an apprehension of bias. This is not a case in which a juror has indicated an inability or unwillingness to obey the instructions of the trial judge. Nor is this a case in which impermissible material concerning the accused's criminal history, circumstances or character have made their way into the jury room.

[27] Having regard to those considerations, I am compelled to the conclusion that a fair-minded observer would not form a reasonable apprehension that the juror in question is not able to act impartially on the basis that the juror has been the victim of sexual abuse and the accused is facing charges for historical sex offences. Nor does the juror's note sustain an inference of partiality or contamination. The application for the discharge of the jury is dismissed. Although no application was made in these terms, I also do not consider there to be a "high degree of need" in the relevant sense for the discharge of this particular juror.