New South Wales District Court CITATION: R v James Duncan Smith [2009] NSWDC 110 JUDGMENT DATE: 30 April 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: The juror is discharged. The jury is discharged. CATCHWORDS: CRIMINAL LAW - application to discharge juror with occupation of "overseas lawyer/judge" - eligibility to serve on jury - reasonable apprehension that juror may be biased - application to discharge jury LEGISLATION CITED: Judicial Officers' Act 1986 Jury Act 1977 s 6(b) s 53B R v Bright (2000) 114 A Crim R 466 CASES CITED: R v Czajkowski and Shepherd [2002] NSWCCA 530 Luland v The Queen [2007] NSWCCA 64 PARTIES: R James Duncan Smith FILE NUMBER(S): 2007/11356 COUNSEL: Mr J Gibson (NSWDPP) Mr G Porter JUDGMENT 1 A jury was empanelled yesterday to try Mr Smith on the nine charges of child sexual assault contained in the indictment. A court officer properly drew to my attention that a routine form completed by one of the jurors referred to that juror's occupation as "OVERSEAS LAWYER/JUDGE". The court officer has also drawn to my attention that on the database of current juror details for that juror kept by the Office of the Sheriff, the occupation is described as "LAWYER." 2 I drew to the attention of counsel in this trial that information. It has prompted an application by Mr Porter, who appears for Mr Smith, to discharge that juror. He argues that if that application is successful then I should, in addition, discharge the other eleven jurors and not proceed with a jury of eleven. 3 His application is made under s53B of the Jury Act 1977 and this judgment concerns the reasons why I accept his submission. Mr Porter primarily relies on s53B (b) which provides that a court may discharge a juror if relevantly it appears to the court that the juror may not be able to give impartial consideration to the case because of "any reasonable apprehension of bias." 4 Further information was provided to counsel to the effect that the juror in question comes from Bangladesh. 5 I should add here that a preliminary issue arose as to whether that juror, because of the juror's stated occupation, was in fact not qualified to serve as a juror because the juror was ineligible under s6(b) of the Jury Act and Schedule 2. Schedule 2 refers to a "judicial officer (within the meaning of the Judicial Officers' Act 1986)", to "an Australian lawyer (whether or not an Australian legal practitioner)" and to "any person who has been a judicial officer within the meaning of the Judicial Officers' Act". 6 I am satisfied that the juror is not judicial officer or former judicial officer because on the face of the information we have, the juror was from overseas and the Judicial Officers' Act of New South Wales would not be applicable to that juror. 7 I am also satisfied that the juror is not an Australian lawyer. That term is defined in the definition section - namely s4 - of Legal Profession Act 2004 and s5 of that Act. Those provisions plus the definition of "corresponding law" as contrasted to the definition of "corresponding foreign law" satisfies me that a person who describes themselves as an overseas lawyer is not an Australian lawyer. 8 Returning to the consideration of s53B, Mr Porter argues that there is a reasonable apprehension that the juror might be biased. He argues this in several steps. His research indicates that Bangladesh is a country which has retained the death penalty and that the death penalty is applicable in that country for offences such as the offences being tried in this case. Mr Porter can find no reference to a jury system. The inference which he says is available, and I accept that it is, is that a judicial officer in Bangladesh may well try cases such as this, and if the trial results in a conviction, may impose the death penalty. 9 We do not know of course whether the juror in question was such a judge who tried such cases, but I accept from Mr Porter's argument that we must assume that that is the case. 10 Mr Gibson who appears as Crown Prosecutor argues that what I have set out so far is not a sufficient basis for concluding that there is any reasonable apprehension of bias on the part of the juror. He argues, correctly I think, that there is no logical connection so far which would suggest that a person acting as a judge in Bangladesh in the circumstances which I have described might be regarded as biased. 11 However, there are a number of other considerations. The first is that none of us knows, and time has not permitted us to find out, whether the legal system in Bangladesh is such that the burden of proof is on the prosecution and that a person cannot be convicted unless the tribunal is satisfied beyond reasonable doubt of their guilt. I think it is likely that that is the case because the Bangladeshi legal system is based from, my own knowledge, on the British system, like ours, but I cannot confidently conclude that that is the case. 12 An additional factor relates to the evidence in this very case. The Crown Prosecutor proposes to call tendency evidence. He opened to the jury yesterday describing the nature of that evidence. It will be evidence from another female child. The complainant in this trial is a female child. The Crown will call evidence from another female child who will say that she was sexually assaulted by Mr Smith in similar circumstances. The circumstances are such that the Crown will argue that they demonstrate a tendency on Mr Smith's part to have a sexual interest in young girls and to perform sexual acts with them in his own home and to risk the danger of discovery. They also display a tendency, so the Crown will argue, to perform those sexual acts in a particular area of the victim's body. 13 The difficulty which that proposed evidence raises, so far as this juror is concerned, is said to be this by Mr Porter. Because of that juror's assumed legal knowledge, the juror may reason that the tendency evidence would not be led unless it had been led in a trial in which Mr Smith was prosecuted and convicted. That reasoning would be correct I am informed. I am told that the person who will give the tendency evidence gave evidence in another trial against Mr Smith and the result of the trial was a conviction and Mr Smith served a custodial sentence after that conviction. The tendency evidence will not include any reference to it leading to a conviction nor will it be part of the Crown case that Mr Smith has a record, which includes a previous conviction for an offence such as this. 14 Mr Gibson argues that that factor is not relevant to my consideration under s53B(b) on the question of reasonable apprehension of bias but could be relevant, he fairly acknowledges, to clause (d) in that it may be a "reason affecting the juror's ability to perform the functions of a juror." 15 I am not convinced that it would affect the juror's "ability" to perform the juror's functions. I have not had the benefit of giving considered attention to the expression "ability" in that clause, but I expect that it is a reference to physical or mental ability in the sense of capacity. 16 However, I regard the factor of the tendency evidence as having an impact so far as the reasonable apprehension of bias is concerned. I have been assisted by Mr Porter referring me to the judgment of the Court of Criminal Appeal in R v Czajkowski and Shepherd [2002] NSWCCA 530. Sheller JA - with whom Wood CJ at CL and Sully J agreed - set out the relevant law regarding apprehended bias. At [19] Sheller JA said the following: "This court has held that the test 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.'" It was described in another case acknowledged by Sheller JA as "a test of possibility upon possibility" and his Honour observed that the "test will be at its most strict for a criminal trial." The test involves, as Mr Porter argued, a low threshold. 17 I consider as relevant the following factors (a) that one of the jurors was a judicial officer in Bangladesh; (b) that Bangladesh has a death penalty for offences such as this; (c) that it appears there is no jury system in Bangladesh (d) that we have no information about the burden and standard of proof in Bangladesh; and (e) that there is to be led in the prosecution case tendency evidence but no evidence of any previous conviction of Mr Smith. 18 That combination of factors lead me to conclude - in the terms used by David Kirby J in R v Bright (2000) 114 A Crim R 466 at [28] - that a "fair minded and informed member of the public, might entertain a reasonable apprehension that he or she might not bring an impartial unprejudiced mind to the resolution of questions involved in the trial." 19 Accordingly I propose to grant Mr Porter's application to discharge the juror in question. 20 Mr Porter makes a further application, now that I have granted his first application. His further application is that I should discharge the other eleven. Mr Gibson has helpfully referred me to a decision of the New South Wales Court of Criminal Appeal in Luland v The Queen [2007] NSWCCA 64. In a judgment in which Bell J, as her Honour then was, and Hoeben J agreed, Sully J set out factors which his Honour regarded as relevant in determining an application such as this. Included amongst the factors was that a trial judge "was required imperatively to take account of the fact that at common law a person accused of having committed any serious crime is entitled to trial by a jury of twelve of his peers and no less a number of them." That passage appears at [31]. Although the Jury Act permits trials of fewer than eleven, his Honour said that it "is always important to bear in mind that the section does not simply abrogate that fundamental common law entitlement." 21 Another factor which Sully J said is relevant is the factor of delay. This trial has a history of significant delays in the following sense. Briefly, the history is that this matter commenced as a trial on 28 July 2008. That trial did not proceed because of an appeal by the prosecution to the Court of Criminal Appeal. The matter was listed again to proceed on 9 February 2009. After several days of evidence the jury in that trial was discharged. It commenced again on 16 February 2009 but there was an anomaly so far as the selection of jurors from different panels was concerned. The trial started yet again before me on Monday of this week, 27 April 2009. Two problems arose after a day or so. One was that one of the jurors had come in on behalf of his wife who was in receipt of the summons. The second problem was that there appeared to be a somnolent juror within the jury. She had difficulty keeping her eyes open during my opening remarks and the Crown Prosecutor's opening. The trial which is the subject of this judgment commenced yesterday. This trial has, to use the words of Sully J in Luland's case an "unfortunate antecedent history." 22 Mr Smith has a right to be tried as expeditiously as might be justly practicable. On the other hand he has a right to an opportunity in that trial for his fate to be determined by twelve jurors. It is he, through his counsel, who emphasises that right. 23 There is a public interest in the trial going ahead and in the issue being determined. Insofar as that public interest obviously reflects the need for witnesses to be called, I note that the evidence of the complainant in this case is to be given by playing her evidence pre-recorded from one of the earlier trials and also in the form of an interview with the police. I do note that the person who will give the tendency evidence will also give it by a pre-recording but will also be required to come and give evidence. 24 Through his counsel Mr Smith appears to regard as important the factor of being tried by twelve persons. Regrettable as it is I think on balance that that consideration so early in this trial should weigh in favour of discharging the whole jury. I do that bearing in mind that it is now Thursday and that fresh panels can be assembled in this court this coming Monday for the trial to commence. 25 Therefore I propose to discharge the jury. ********** 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.