District Court New South Wales Medium Neutral Citation: R v Lamey (No. 1) [2023] NSWDC 67 Hearing dates: 22 March 2023 Date of orders: 22 March 2023 Decision date: 22 March 2023 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: The application to discharge the jury is refused Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury CRIMINAL PROCEDURE — Trial — Jury — Examination of jurors Legislation Cited: Crimes Act 1900 Jury Act 1977 Cases Cited: Bahrami v R [2017] NSWCCA 8 Black v The Queen (1993) 179 CLR 44 Category: Procedural rulings Parties: Rex (Crown) Benjamin Mark Lamey (Accused) Representation: Dion Carnell (Solicitor Advocate for the Crown) Rebekah Court (Counsel for the Accused) Director of Public Prosecutions (Crown) Fourtree Lawyers (Accused) File Number(s): 2019/00320273 & 2020/00160284 Publication restriction: No publication of the names of the complainants or of any information which may enable their identities to be ascertained JUDGEMENT Introduction 1. In the District Court of New South Wales, Newcastle, Benjamin Mark Lamey faces trial upon 14 counts of sexual assault against children. These are: Count One Between 1 January 2007 and 8 June 2007, at Raymond Terrace in the State of New South Wales, did maintain an unlawful sexual relationship with AR then a child under the age of 16, namely six years of age, in which the Accused engaged in the following two or more unlawful sexual acts: performing cunnilingus on the complainant, digitally penetrating the complainant's vagina, touching the outside of the complainant's vagina on top of her clothing, touching the outside of the complaint's vagina underneath her clothing, and touching the complainant on her bottom. S 66EA(1) Crimes Act 1900 Law Part Code 93750 Count Two (in the first alternative to Count One) Between 1 January 2007 and 8 June 2007, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AR, who was at that time under the age of ten years, namely, six years. S 66A Crimes Act 1900 Law Part Code 325 Count Three (in the second alternative to Count One) Between 1 January 2007 and 8 June 2007 at Raymond Terrace or elsewhere in the State of New South Wales, did assault AR, a person then under the age of ten years, namely six years, and at the time of such assault did commit an act of indecency on the said AR. S 61M(2) Crimes Act 1900 Law Part Code 291 Counts Four through Seven Between 2 April 2003 and 2 April 2007, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with MBC, who as at that time under the age of ten years, namely, five to eight years. S 66A Crimes Act 1900 Law Part Code 325 Count Eight through Count 12 and Count 14 Between 1 January 2007 and 15 June 2007, at Raymond Terrace in the State of New South Wales, did assault MH and at the time of the assault committed an act of indecency on MH, in circumstances of aggravation, namely, that at the time of the offence MH was under the age of 16 years, namely eleven or twelve years. S 61M(1) Crimes Act 1900 Law Part Code 287 Count 13 Between 1 January 2007 and 15 June 2007, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with MH, a person above the age of ten years and under the age of 14 years, namely 11 or 12 years, in circumstances of aggravation, namely, that at the time of the offence, in circumstances of aggravation, namely, that at the time of the offence MH was under the authority of Benjamin Lamey. S 66C(2) Crimes Act 1900 Law Part Code 51429 1. The first jury selected was discharged shortly after the selection process due to misconduct by one of their number. A second jury was selected and the present trial commenced on 8 March 2023. 2. On 21 March 2023, after I adjourned to the trial resume the following day, a note (Marked for Identification 19) written in the following terms was brought forth by the court officer, I wish to advise of a juror being bullied/yelled at about having a different opinion to them to the point the Juror was in tears and left the room. 1. On 23 March 2023, after I gave the parties access to the note, counsel for the accused asked the court to consider the discharge of the entire jury, and in the alternative, the discharge of any one of them who might have demonstrated unwillingness to perform their task in accordance with their oath of affirmation. The Enquiry 1. In Bahrami v R [2017] NSWCCA 8 an issue such as this arose which led to the trial judge conducting an enquiry after he received a note from a juror in the following terms, Am unwell/stressed extreme – not up to court this afternoon. Am being mistreated by another juror (bullying). 1. In what followed his Honour discharged the juror and continued the trial with the remainder of the jury after they provided their individual responses to two questions (his Honour's emphasis), ""1 Do you personally as a juror consider that you can continue to freely discharge your function as a juror in accordance with your oath or affirmation? 2 Do you consider that the jury (meaning the ten remaining jurors) can continue to freely discharge its function in this trial?" (Emphasis in original)". 1. R A Hulme J, with whom Hoeben CJ at CL and Schmidt J agreed, after a careful analysis of the events as they unfolded in those proceedings, was not satisfied that there was any wrong decision of any question of law or any miscarriage of justice in the trial. 2. With the guidance provided in that decision I chose the following course. 3. The court officer who brought the note to my attention was asked to provide evidence of her knowledge of the events which led to the note. She did this on 22 March 2023 at page 354 of the trial transcript, in response to my questions of her, Q. After I'd adjourned yesterday, there was another court officer who was assisting us, who's not here at the moment. But she consulted you with information that she had been given about something that occurred among some jurors in this trial? A. I was made aware that there was a juror that was quite distressed in the jury room. HIS HONOUR: A note was provided which has now been marked for identification 19, if I can just show you that. MFI #19 JURY NOTE SHOWN TO FOREPERSON [1] Q. Is that a note that you requested from whoever it was who‑ A. I didn't. I was made aware that there was a note coming to you, and I went to see the juror. Q. That was the other court officer who sought that. A. Yeah. Q. After you had that note ‑ just confirm or refute what I'm about to say ‑ you came to me and brought to my attention that there had been this exchange and the informant took it, I should say. Can you just ‑ without identifying who the jurors were‑‑ A. Mm‑hmm. Q. ‑‑including whether they were male or female. Can you just tell me what you did after you were informed by the other court officer and after you had been given that note ‑ I take it from the other court officer? A. Yes, I went to make sure she was okay. Q. The juror. A. The juror in question and whether she just needed some support, generally, and then if she had any issues that she had to make you aware what she had. And then I just advised her ‑ I wasn't sure where the case was up to because it's not one that I was ‑ I'd been involved in. But then I would make you aware if there was any issues that you could raise them. There was another juror who had indicated ‑ because there were two jurors left in the room yesterday afternoon, that there were some discussions about finding verdicts before the matter had finished. And she was adamant that that wasn't to happen. HIS HONOUR: That presents a problem. COURT: It's huge ‑ the difficulty. HIS HONOUR Q. Can I first of all ‑ the juror who said that about the decision upon verdicts at this stage. Can you articulate from your memory of what was said to you by that person? A. She'd left the room. I'm unsure whether she'd gone to the toilet or something and she had come back and they were talking. Q. The two jurors were talking. A. No, no, yesterday ‑ sometime yesterday, she'd left the room to go to the toilet. Q. If you could just, using the best of your recollection, [tell us] what she said to you in the first person if you're able to do so. A. She had said to me when she came back to the room ‑ yesterday, I came back to the room and had to stop jurors from talking about the matter and raise with them that she left the room, so no discussions were to occur when all 12 of them weren't present. Some of those discussions had got a bit heated because some juror had written down something, raised that in the group setting, and then the transcript confirmed that that juror was right. And this particular juror was right. The juror that had verbally attacked her was incorrect. Q. What was said about reaching a verdict before the conclusion of the matter? A. Someone had asked her had she formed an opinion? Q. And what was her response? A. She was waiting until the end because she hadn't heard everything. "I'm waiting till the end because I haven't heard everything." That's what she said to me. Q. Was anything else said about that in the A. That was just the juror yesterday, so no I'm not. Q. Was anything said in the conversation in which you ‑ I'm just focusing on what the conversation you had. A. No, that was the only thing that was said to me. A juror had asked her had she formed an opinion. I don't know whether that was verbally or in writing. And she'd said, no. She was waiting. 1. I invited counsel to raise questions she might want the witness asked but she sought instead time to consult with King's Counsel who was appearing in another matter in an adjoining court. 2. Upon her return I confirmed that the note provided was from one of the two jurors of whom the officer spoke, without any request for it. 3. The officer provided the number of the juror to whom she spoke was and she brought her into the court room for examination. The transcript of her evidence commences at page 364. From it I have extracted the following, SWORN(11.39AM) Q. I'm going to ask you some questions‑‑ A. Mm‑hmm. Q. ‑‑and I'd like you to listen carefully to them, and only give an answer the question requires. I don't want you to go into areas beyond what I ask you‑‑ A. Mm‑hmm. Q. ‑‑or volunteer information that might impact upon the confidentiality of the jury room. A. Mm‑hmm. Q. First of all though, can I note that you are the foreperson or spokesperson in the jury? A. I am. HIS HONOUR: I probably should have the juror number recorded; I think? 1. I noted the juror's number and continued, Q. Yesterday when I adjourned or after I'd adjourned some information came to me by way of the Court officer, who told me that there was some indication of one of the jurors having some distressful episode and that they were quite upset. A. Yes. Q. First of all, can you tell me was that you or was that‑‑ A. It was me. Q. Without identifying who the person was who might have been responsible or contributed to that, can you outline for me what happened? HIS HONOUR: If there's any challenge to the form of these questions, don't hesitate to rise. Q. Can you outline for me what happened? A. So we were discussing different aspects of the information that we'd been given and I gave an opinion about what I thought about the information and‑‑ Q. When you say information, are you referring‑‑ A. Just to what we were ‑ the way the transcripts ‑ we were reading through the transcripts, and having a general discussion and the juror in particular started saying things like, "But if you think that, why don't you think this", and, "How can you come to that if you ‑ if there's ‑ it was", and then it started to get quite heated and there was ‑ I ended up, I said, "Look, fine, just" ‑ and I put everything aside and I left the room. At that same time another juror, because we were talking about how we were understanding some of the allegations and on the first day, Mr Crown had explained a bit about how we come to a determination, which was confirmed again yesterday, and I was told by the second juror that I was making things up and, "You can't do that sort of stuff", and I said, "That's what I ‑ we were told, what I recorded in my own notes about, so that I could have some sort of context myself". The second juror that said that to me apologised yesterday, but the first juror hasn't said anything else, but I initially also thought that perhaps I'd taken it a bit personal, because ‑ but another juror said to me yesterday that she, in her words, it was like a rabid dog going at me. Q. Speaking of the other person? A. Yes. So then I ‑ and ‑ because I wasn't going to say ‑ because I thought I had taken it personally, but then when it had been noticed, I thought I'd say something or let you know. Q. You did not write a note to the Court or to me regarding these events? A. I did write the note that I gave to the Court officer. Q. I'll just show you what's been marked for identification 19 and just have‑‑ A. Yes, that's it. …. Q. I'll just read it aloud, because my next question will be with regard to the text. It's in these terms, "I wish to advise of a juror being bullied", oblique, "Yelled at about having a different", and then there's a word struck because the spelling was wrong. A. Yes. Q. "Opinion to them to the point the juror was in tears and left the room". As it's structured, that is written in third person terms describing someone else‑‑ A. Yes. Q. ‑‑but from what you've just said to me, it would appear that this was really a description of what you experienced? A. Yes, it is. I didn't want to ‑ I mean, the same reason I didn't put what juror number it was, and I didn't want to ‑ not so that it was ‑ I'm not worried that it was me, but I didn't want to ‑ I'm not sure the word I should be saying. A very overall not specific ‑ so I don't know, I was hesitant initially to do it, as I said, until another juror actually said, "You're not yourself. That was terrible what happened", et cetera, so‑‑ Q. I'm going to ask you this question. You might not recall the precise terms and detail of what I said to you at the beginning of the trial or what I've said since regarding your obligation as a juror, about which I would've expected to say more at the conclusion of the trial, but do you have a memory of what I said about the obligation of‑‑ A. Keeping an open mind. Exactly, and you don't bring your emotion into it, you judge it on the facts, and that's what I felt I was doing. I'm trying to look at both sides of what is ‑ has happened. This is my opinion. Q. I don't need you to tell me‑‑ A. No. Okay, but‑‑ Q. ‑‑what your view is of the case at all. A. No. Not about the case, but ‑ yeah, I'll leave it at that. Q. Do you consider personally that you can continue as a juror and freely discharge your function in that role in accordance with your oath or affirmation? A. Yes, I can. Q. Do you consider that the jury could continue to freely discharge its function in the trial? I mean the jury as a unit of 12. A. I think so, yes. HIS HONOUR: Does anybody want me to ask any questions of the juror, if you want to put them in writing or even type them and communicate it to my associate, I can get them from him. COURT: I'm just concerned about the other issue that was mentioned by [the court officer]. HIS HONOUR: Sorry, the? COURT: I'm just concerned that the issue mentioned by [the court officer] hasn't been raised as yet. SOLICITOR ADVOCATE: Maybe if the juror could just step out for a moment. IN THE ABSENCE OF THE WITNESS HIS HONOUR: It would seem to me that [the court officer's] perception of the matter is somewhat different to what the direct evidence is regarding these events, bearing in mind, as I said, it extends to second‑hand hearsay, as much as anything, but what would you want me to put to the witness regarding that? COURT: I'm just enormously concerned, because it hasn't been asked of her. She's just been asked to give an account of why she was distressed, but there's a second thing which is looming from the report we got from [the court officer], which she hasn't been asked about in any general or specific terms about whether or not she was asked if she had come to a verdict and whether or not‑‑ HIS HONOUR: [The court officer] said that initially, but then when I asked for specifics, it did not go so high COURT: What she‑‑ HIS HONOUR: I'm happy to put a question to her to accommodate your concerns, but, I must say, I'm not as anxious as I might initially have been, having heard what the juror has said. COURT: The note I've got about [the court officer's] evidence is that there was some discussion of finding verdicts before the matter was done. Someone had asked her had she formed an opinion and she said she was waiting until the end, she hadn't heard everything. HIS HONOUR: Someone had asked‑‑ COURT: Her, I'm‑‑ HIS HONOUR: This witness, it would seem. COURT: Yes, this witness. HIS HONOUR: If she'd formed an opinion. COURT: And the note I've got said she was waiting until the end as she hadn't heard everything, and the concern of the defence is whether or not there is a juror or jurors who have indicated they've already reached their verdict. HIS HONOUR: I'll ask her that question, I think in those terms. On that description of that conversation, I don't think it could apply to this juror, because the very terms, if this is an accurate reproduction of what the Court officer understood to have been said to her, someone has asked her if she had formed an opinion, she said she was waiting until the end, and that's consistent with what she said to me a moment ago. COURT: But I'm getting back to the origin of the person who's asking. HIS HONOUR: Who's asking the question? COURT: Yes. HIS HONOUR: I can ask her if anybody has expressed a concluded view at this point. Is that what you would like me to do? COURT: Yes. HIS HONOUR: Is it an appropriate thing for me to do that? COURT: That's the biggest concern the defence has and why we've embarked on this inquiry, because the concern is this, is that‑‑ HIS HONOUR: Sorry, you're concerned that we've embarked upon‑‑ COURT: The concern on behalf of the defence is that there is one person who's this rabid dog who's come to a concluded view. HIS HONOUR: That depends upon what the other witness says, which we're going to hear from. COURT: That's right and is bullying other members of the jury to comply. HIS HONOUR: That's putting it beyond what we've been told. COURT: Yes, I know. HIS HONOUR: I'm going to only act upon the evidence. All we know is that a person has said something to this witness that caused her some apparent distressed, which seems to have been assuaged or seems to have evaporated, indeed, by yesterday afternoon, but I'll ask the question about whether this was said to her and whether the person who said that to her had made any statement to the effect that they'd formed a view about the outcome. COURT: Yes, your Honour. SOLICITOR ADVOCATE: Yes, because isn't it then a question for potentially that person, of course, it's a hypothetical inquiry now, but the question for that person then becomes can they properly discharge their duties. HIS HONOUR: I agree. IN THE PRESENCE OF THE WITNESS HIS HONOUR Q. In the course of this interaction yesterday did any other member of the jury ask you if you at that point formed an opinion as to what the outcome of the trial should be? A. That have been asked in general. Q. What do you mean by that? A. So, we had ‑ in the course of discussions, it was whether they think ‑ and it's not necessarily just to me ‑ we think that he's guilty or not guilty. I've just been trying to look at both sides, and understand with, you know, beyond reasonable doubt or what scenario ‑ what's happening. That there have been questions asked, "What do people think?", and people have said what they think so far. I've tried‑‑ Q. Sorry, when you say, "so far", what do you mean by that? A. Well, so not necessarily just today, but last week. There was up to the point with, "They think this". And I've maintained that we need to wait for everything before you can come to a conclusion. Q. Did any ‑ and this includes the person about whom you are speaking‑‑ A. Mm‑hmm. Q. ‑‑or not ‑ as you've answered that question, it seems to me ‑ correct me if I've got a misapprehension ‑ but was it one person or more than one person that? A. One person in particular at me. A second person who said that I was making stuff up. But then which I personally took great offence to. Q. This was with regard to your perception of what was contained in‑‑ A. Well, what I'd written down about charge 1, what ‑ how to ‑ which was discussed yesterday morning, the‑‑ Q. What the Crown had said about charge 1? A. Yeah, well how to ‑ how's it ‑ the legal side of it, I suppose. Q. But you said somebody apologised to you after the transcript was checked? A. Yes, he did apologise ‑ they did apologise to me then the next day. Q. Was that the second or was that the first? A. That's the second person. The person who yelled and had a go at me basically, I suppose you could call it, hasn't said anything else. And yeah, just didn't like my opinion. Q. And you'll appreciate, I think, from what you've said to me, that it's wrong to come to a conclusion before you've heard everything that's to be presented at the trial‑‑ A. That's right. Q. ‑‑including evidence and arguments, and my directions of law. A. Mm‑hmm. Q. Has anyone in the jury made any statement in your presence, that you've heard‑‑ A. Mm‑hmm. Q. ‑‑that would indicate that they have formed a concluded view upon what the outcome of the trial should be in respect of any of the charges upon which the accused is presented? A. Yes, yes. Q. Someone has said that? A. Yes. Q. Could you identify that juror by number? A. Yes. Q. Can you tell me that juror's number? A. 12. Q. Can you, doing the best you can, describe as if he or she is uttering the words now, what was said? A. He believed that the charge by what ‑ the first charge ‑ first‑‑ 1. At this point the Crown rose to intercede and discourage the court from proceeding further with the enquiry of this juror and was correct to do so. The discussion which followed included my reference to s 68B Jury Act 1977. This provides, (1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about— (a) the deliberations of the jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest. Maximum penalty—20 penalty units. (2) A person (including a juror or former juror) must not, for a fee, gain or reward, disclose or offer to disclose to any person information about— (a) the deliberations of a jury, or (b) how a juror, or a jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest. Maximum penalty—50 penalty units. (3) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. (4) Subsection (1) does not prohibit a juror from disclosing information to another member of the jury during a trial or coronial inquest. 1. I was not of the opinion that there should have been further exploration of what this juror could describe of what passed between jurors during these interactions. The Crown and counsel did not ask that I do so. However, it was appropriate to seek further evidence to determine whether there was misconduct by a member or members of the jury that would impact unfairly upon the trial. 2. The parties did not seek any further examination of this juror. I invited her to accompany the court officer with instructions that she must not discuss, or repeat to any extent, obliquely or directly, what passed in the court room with other members of the jury. I did not permit her to re-join the jury at this point. 3. A second member of the jury was then examined. Her evidence is at page 374. I have extracted the following, SWORN(12.03PM) Q. Could you tell me what your juror number is? A. 4. Q. The reason I've asked that you be brought into the Court room is that some information came to me yesterday afternoon, after we'd adjourned, about what I might describe [neutrally] as a "robust exchange" between two of the jurors. A. That's correct. Q. And I've been told that you might have seen and heard what was said? A. I was actually in the bathroom. Q. I should preface what I'm going to say to you about this. It's very important that I focus the questions, and it's very important that you only answer the question‑‑ A. Okay. Q. ‑‑and not volunteer any explanation or background. I need to just know the precise answers. So, first of all, is it correct that you did see what this exchange was? A. No. Q. You did not? A. No. Q. Did you see something in the demeanour of one or other of the jurors that caused you some concern yesterday afternoon? A. No. There was‑‑ Q. Did you communicate some information to a court officer? A. That I was in the bathroom when this happened so, and I wanted them to know that nothing should be spoken when one person walks out of the room. Q. And is that what you perceived to have happened? A. Yeah. Q. So, you went into the bathroom, and the other 11 jurors were there were they? A. Yeah. Q. And there was some discussion continuing in your absence? A. Yes. Q. What time of the day was this? A. After lunch. Q. But before the adjournment? A. Yeah. Q. And you confronted people with your view‑‑ A. Mm. Q. ‑‑of that, what occurred? A. Myself, I haven't. But the party, the other juror, spoke to me, and I said, "This is not right. It shouldn't happen". Q. The other juror? A. Yes. Q. And was that the foreperson? A. Yes. Q. And once you said that, "It shouldn't have happened" or words‑‑ A. Yeah. Q. ‑‑to that effect, what was the next thing that occurred? A. She explained that she was bullied more or less. Q. She gave a version of what occurred? A. Yeah. Q. So, you did not see that? A. No. But when I was coming into the room, you could actually feel the tension. It was very tense in the room. And I went, "Something's going on". Q. But all you have is what you were told? A. That's it. I do wish I was there, because‑‑ Q. No, there's no need to. This demonstrates to you the need for care when assessing evidence about anything‑‑ A. Yeah. Q. ‑‑and who saw what, as you might appreciate. From your observation of the events yesterday, do you personally consider that you could continue to freely discharge your function as a juror‑‑ A. Yes. Q. ‑‑in accordance with your oath or affirmation? A. Yes, it's nothing more to do with that. I was sort of. Q. And as to the jury generally, do you feel that the jury as a unit as well could continue to discharge their function in the trial? A. I think they will, yes. HIS HONOUR: Do you want me to ask that question about concluded view? COURT: Yes, please, your Honour. HIS HONOUR Q. I don't need you to tell me what might have been indicated by whoever might have expressed a view‑‑ A. Okay. Q. ‑‑but in your observations and the discussions, predominantly yesterday I suppose, has anyone of the jurors said anything that would lead you to conclude that they have decided what the outcome of the trial should be now before they've heard all of the evidence? A. Some have, and I specifically said we cannot. He's innocent until proven guilty, and there's no way that I will say, "Yes, definitely he's guilty straightaway". No. Q. Leaving aside a reference to what outcome they might have indicated, and don't answer this immediately, because there might be an objection to it. Do you recall what the words were that indicated they had formed a concluded view, whatever that might have been? Don't answer for the moment. 1. As he did with the other juror, the Crown rose to intercede and discourage the court from proceeding further with the enquiry of this juror. Once again, I am satisfied that he was correct to do so. The parties agreed that it was appropriate to seek further limited information from this juror. I have extracted this portion of the evidence here, HIS HONOUR Q. You used to word "some". Do I take that to mean that‑‑ A. More than two. Q. ‑‑you are telling me there's ‑ more than two. A. Yes. Q. How many do you say have expressed that view? A. Three, but I can't recall their number. That's ‑ I know where they're seating, but numbers I can't‑‑ Q. Can you tell me when it was that these..(not transcribable).. were made? A. That happened after, say, not yesterday, the day before. It would've been morning tea time. … Q. You said three? A. Three people, not number 3. Q. The quantity three? A. Yes. Q. And you said it was yesterday morning tea time or thereabouts? A. Not yesterday, the day before. COURT: That was the day that the Court stood because of my throat. 1. Counsel was unwell that day and the trial could not proceed. 2. I asked the juror to accompany the court officer with the same admonition that she was not to discuss with any other member of the jury what had passed in the court room. 3. There followed submissions and a discussion of the steps to be taken. The accused's counsel maintained her position that the jury ought to be discharged. I did not accede to this and the trial continued. Consideration 1. I commented during the discussions that I did not believe it could be ever said to be impermissible that jurors express their opinion partway through the proceedings, even in the firmest of terms, that it would beggar belief to think that jurors do not form a view of the evidence as it's unfolding and developed and as it is met by other evidence, that counsel might anticipate this in the formulation of arguments, and it is the task of counsel to persuade the jury of the case that they are presenting. I did not accept that there was sufficient before the court to require discharge any of the jurors, even juror 12, on the evidence given. 2. The Crown submitted that jurors cannot be expected to operate as robots and stay silent when they walk out to the jury room, and there will always be discussion upon material provided, including as in this instance when they were provided transcripts. 3. I proposed a course for the continuation of the trial, including the presentation of questions to each member of the jury to be completed individually and privately, thereafter to be folded to maintain confidentiality and brought to the court. This resonated with the course taken in Bahrami v R ibid. I proposed that I would give a direction adapting the guidance provided in Black v The Queen (1993) 179 CLR 44. 4. Counsel for the accused maintained the application for discharge of the jury suggesting that the court was drawing an inference of what was meant, rather than what was said in the interaction in the jury room. I noted that the evidence was limited in effect to the proposition that the witness last called gave her perception that a member of the jury had a concluded view. Counsel suggested the alternative inference that there were members of the jury who had reached a concluded view of their verdicts, and that the evidence as given was sufficient to raise concerns of such significance that the court ought to discharge the jury. 5. I did not accept this submission. 6. I accept that I had power to discharge a juror if the juror has engaged in misconduct in relation to the trial, such that it gives rise to the risk of a substantial miscarriage of justice in the trial: s 53A Jury Act 1977. The section provides that the court must discharge a juror if the juror has engaged in such misconduct. I was not persuaded that there was evidence of misconduct exposed in the description of what was, perhaps, vigorous or robust exchanges between the jurors expressing a view or views of the matters before them as the proceedings were unfolding. There was no evidence upon which one could find that any of the jurors had prematurely decided conclusively upon their verdict upon any of the charges upon which the accused was presented. It was permissible for the jurors to discuss the issues in the trial as it was proceedings. 7. S 53B Jury Act 1977 provides for the discretionary discharge of an individual juror. The grounds upon which this might be exercised, relevant here, are if the juror refuses to take part in the deliberations, or, for any other reason, the juror's ability to perform the functions of juror are so affected that the juror should not continue to act as juror. There is no indication in the evidence given of any refusal to take part in the deliberations, nor of a juror's ability to perform the functions of juror being so affected that the juror should not continue. The Course Taken 1. It is for the reasons discussed above that when the court reassembled each juror was provided with a copy of the two questions adopted from Bahrami v R ibid. They were asked to write their answers to each question, privately, and then to provide the document folded to the court officer. When the documents were returned and examined I found twelve affirmative answers to the first question and eleven affirmative answers to the second question, with one negative response to that question. Counsel sought clarification of why that was so and suggested that I repeat the exercise with each juror asked to provide their juror number, allotted to them in the jury room. When the documents returned on this occasion all responses were affirmative. 2. The reason for the negative answer to the second question is not known. It was not necessary nor appropriate to make further enquiries about this. It is likely that the juror who wrote "No" to the second question did so in error, perhaps not reading closely enough what the questions sought. 3. Before the distribution of the questions, I gave the jury the following instruction: Ladies and gentlemen, we're very late resuming the trial today. And that's as a result of something that came to my attention yesterday, and about which I've been conducting something of an inquiry, and in respect of which, I've been hearing submissions. And I'm going to take a particular course now. First of all, I'm going to give you a direction of law which will be repeated when I sum‑up the trial to you. And it's an important direction. It will reflect upon what I've said already to you in the opening address about the solemnity of your task, and the obligation to make sure that you conduct yourself as judges in this State, because that's what you are. You've all the responsibilities of judicial office, and you are expected to perform at the high standards required of someone in that position. Now, your decision as to the proper verdict for each count on the indictment must be a joint one, because the system of law that operates for this trial requires that your verdicts, whether guilty or not guilty, be unanimous. No person should be found guilty unless all twelve of their fellow citizens are satisfied that they are guilty of the offence for which they have been tried. Likewise, you should all agree, that the accused is not guilty before you may acquit him. It is not the case that because you cannot agree that he is guilty. That you must find him not guilty. A finding that the accused is not guilty is just as much a verdict, which must be unanimous, as is a finding that he is guilty. It doesn't follow, however, that you must each agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon different parts of the evidence. But by whatever path you each arrive at your decision, the final decision of either guilty or not guilty should be the decision of you all unanimously before it may become your verdict. Implicit in this, is that there might be differences of opinion between you as to the pathways by which you each arrive at your decision. Do not overlook that your task is to calmly consider the evidence and to listen to the opinions of other jurors when forming your own views of the evidence. Each of you has sworn or affirmed that you will give a true verdict according to the evidence. It is an important responsibility to be fulfilled to the best of your ability, assisted by your individual experience and wisdom, in the light of which you are expected to judge the evidence fairly and impartially. You have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion, which you may have, and may reveal whether your original opinion was wrong. I repeat, your verdict, whether it be guilty or not guilty, must be a unanimous one. It would lack sense, I would suggest, if a jury were not embarked upon discussions as the trial was unfolding. And preliminary views or assessments might be made that might well be altered as you hear the balance of a material. You've not heard all of the material in the trial but are part‑way through the address being presented on behalf of the accused. Plus you've had the evidence, and by the end of today, one expects, or by tomorrow at least, you'll have the benefit of the submissions made by the advocates. And then you'll have my directions of law, which are binding upon you, and which you must apply. Then you consider your verdicts with the goal of coming to a concluded view as to what the outcome of the trial should be. You should have no concluded view of the matter at the present time. And as I said to you when I distributed to you copies of transcript, this is but part of the evidence that is before you. It was there to assist you to refresh your memory in what you had heard, but you should not be forming any final decision until you've heard my directions of law, and you've had the opportunity for further discussion and reflection upon what was before you. There's a lot at stake in a case like this, as you might appreciate. Order 1. The application to discharge the jury is refused. ********** Endnote 1. The transcript erroneously records MFI 19 being shown to the Foreperson when in fact, at this point, it was shown to the Court Officer who was in the witness box Amendments 24 March 2023 - Correct minor typographical errors in [15] and [22] 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: 20 June 2024