Supreme Court New South Wales Medium Neutral Citation: R v Bushell; R v Tozer (No 14) [2023] NSWSC 1450 Hearing dates: 26-28, 31 July, 1-4, 7-10, 14, 16 August 2023 Decision date: 16 August 2023 Jurisdiction: Common Law Before: Rothman J Decision: The matter to be dealt with at a later time dependent upon instructions obtained by the Crown and observations made by the trial Judge. Catchwords: CRIMINAL PROCEDURE – trial – jury – discharge of individual juror – application – reasonable apprehension of bias – non-verbal communication between juror and an accused – capacity of judicial officer to rely on own observations – insufficient evidence currently – application adjourned Legislation Cited: Jury Act 1977 (NSW), s 53B Category: Procedural rulings Parties: Rex (Crown) Daniel Michael Bushell (Accused) John Jamie Tozer (Accused) Representation: Counsel: G Wright SC/J Sfinas (Crown) (Applicant) R Pontello SC (Accused Bushell) A Djemal (Accused Tozer) Solicitors: Director of Public Prosecutions (NSW) (Crown) (Applicant) Jamieson Criminal Law (Accused Bushell) Fahmy Lawyers (Accused Tozer) File Number(s): 2018/229735; 2018/230025 ex tempore JUDGMENT 1. HIS HONOUR: That which is before the Court is a difficult situation because, on the one hand, we have an allegation of an interaction between an accused and a member of the jury which goes beyond the formalities of smiling or greeting. There is nothing wrong, and there is everything right, with an accused returning a smile that is evidenced by or provided by a juror and it would be impolite and I would have thought inconsistent with the interests of the accused, for an accused not to return a smile and, therefore, I do not see any issue with that. 2. The question is not one which is suggestive of any misconduct by either one of the accused. The observations that were made of the juror, in my view, go beyond an informal greeting or exchange of looks. That is an observation made only in respect to the juror and not in relation to any accused. 3. The Court here is dealing with a reasonable apprehension of bias by an independent on-looker that is properly informed. The difficulty with a situation such as this is, firstly, how one proves that it is beyond a mere informal exchange and how one draws that conclusion. In so doing, it seems to me that the observations of the judge is evidence from which the judge can discern whether the threshold has been passed for the purpose of s 53B of the Jury Act 1977 (NSW). 4. The observations were made over a number of days. They were first drawn to my attention by one of my staff members and I made some observations myself. I chose not to raise it with the parties. However, the matter was raised by the Crown and I say quite properly and understandably. 5. It is not absolutely clear what was observed by the Crown, or on behalf of the Crown, and in some senses much is dependent upon the detail of the evidence. I certainly have material, which is quite detailed, of observations that were made by my staff member. 6. I think the best approach is this. The Crown has said if evidence is needed the Crown needs to obtain instructions. It seems to me those instructions should be sought and obtained. If there is more or as much detail in those instructions as was observed by my staff, then I will deal with the matter on that basis as everyone will have access to those instructions. Otherwise, I will continue to observe the juror and if there continues to be some problem we will deal with it at a later time in the trial. ********** 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: 27 November 2023