Supreme Court New South Wales Medium Neutral Citation: R v Karimi; R v Khoury; R v Mir (No. 2) [2013] NSWSC 199 Hearing dates: 13 March 2013 Decision date: 13 March 2013 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Juror discharged. Balance of jury discharged. Catchwords: CRIMINAL LAW - criminal jury trial - member of jury a friend of solicitor for accused - solicitor absent from courtroom when jury empanelled - Court informed of association soon after empanelment - whether juror should be discharged - whether balance of jury should be discharged - s.53B(b) Jury Act 1977 - discretionary considerations - juror and balance of jury discharged Legislation Cited: Jury Act 1977 Cases Cited: Webb v The Queen [1994] HCA 30; 181 CLR 41 R v Pearson [2000] NSWCCA 149; 114 A Crim R 80 Texts Cited: --- Category: Procedural and other rulings Parties: Mohammad Jawad Karimi (Accused) John Khoury (Accused) Mahdi Mir (Accused) Regina (Crown) Representation: Counsel: Mr E Wasilenia (Karimi) Mr A Radojev; Mr M Juhasz (Khoury) Mr DN Stewart (Mir) Mr K McKay (Crown) Solicitors: Crimlaw (NSW) Pty Limited (Karimi) Macquarie Lawyers Burwood (Khoury) Shiranica Danieli Lawyers (Mir) Director of Public Prosecutions (NSW) (Crown) File Number(s): 2010/223311; 2010/324901 (Karimi) 2010/323677 (Khoury) 29010/244495 (Mir) Publication restriction: --- Judgment (ON APPLICATION FOR DISCHARGE OF JUROR AND BALANCE OF JURy) 1JOHNSON J: A jury has been empanelled today for the purpose of the trial of the three Accused, John Khoury, Mohammed Jawad Karimi and Mahdi Mir, upon a number of charges, including murder. 2The empanelment process was exhaustive, and occupied the better part of the morning. A jury was empanelled soon after noon, and I commenced my introductory comments to them, after a customary adjournment. 3Shortly before 1.00 pm, it was drawn to my Associate's attention by Mr Radojev, counsel for Mr Khoury, that his instructing solicitor, Elias Tabchouri, recognised a member of the jury. 4The Court has been informed that Mr Tabchouri was not present in Court, during the processes whereby the jury was empanelled. The nature of the association between Mr Tabchouri and the juror was indicated to the Court by Mr Radojev before the lunch break. The Court was informed that Mr Tabchouri and the juror had served on a church committee together and had some association in that respect. 5Immediately before adjourning for lunch, the Court was informed by one of the Court officers that the juror had commented that he recognised a legal practitioner in Court. 6The present trial has barely commenced. The jury has been empanelled. I am still in the process of making introductory comments to the jury. The Crown has not commenced any opening address. 7The trial has an eight-week estimate. 8Section 53B(b) Jury Act 1977 provides that the Court may, in the course of any trial, discharge a juror if it appears to the Court, from the juror's own statements or from evidence before the Court, that the juror may not be able to give impartial consideration to the case because of (relevantly) the juror's familiarity with the legal representatives in the trial or any reasonable apprehension of bias or conflict of interest on the part of the juror. 9The section, although somewhat awkwardly expressed, appears to involve the reasonable apprehension of bias test as laid down by the High Court of Australia in Webb v The Queen [1994] HCA 30; 181 CLR 41. 10What the provision does indicate is that the appearance to the Court of these matters should emerge from the juror's own statements or from evidence before the Court. Because of that statutory formula, I formed the view that the juror in question should give evidence on this issue. The juror was called and gave evidence in open Court, although in the absence of the remaining 11 members of the jury. 11The juror gave what I considered to be frank and direct evidence of his knowledge and association and, indeed, friendship with Mr Tabchouri through a church committee and occasional contact in that context. The juror expressed the view that he would be able to give impartial consideration to the issues in the case. He did indicate, at one point, that there may be the potential for some awkwardness because of future contact with Mr Tabchouri, no doubt in the context of possible verdicts that may be returned. 12Mr Wasilenia, counsel for the Accused Karimi, has sought that the juror be discharged and that, thereafter, the balance of the jury be discharged, given that the trial has barely commenced. He has submitted that there is a concern with respect to the impartiality of the juror's deliberations or, at least, any appearance of that in the circumstances. 13Mr Stewart, counsel for the Accused Mir, has joined in the application. He has emphasised, amongst other things, the appearance to the reasonable bystander if this two-month jury trial proceeds with a member of the jury being someone who could be described as a friend of a legal representative for one of the Accused. 14Mr Stewart developed further submissions in support of the discharge application. He also submitted that, if the juror was discharged, then the entire jury should be discharged. 15Mr Radojev did not join in the discharge application with respect to the individual juror, but submitted that, if that juror was discharged, the balance of the jury should be discharged as well. 16The Crown did not apply for discharge of the juror, although acknowledging the force of some of the matters which had been advanced in particular by Mr Stewart. 17As s.53B makes clear, the question for the Court is a discretionary one. The test contained in section 53B(b) of the Act is not one that is answered by the juror's response that he considers that he can be impartial. That is an important first step, but it is not decisive. 18This trial will extend for two months with, no doubt, demanding phases. An existing relationship between a juror and a legal representative of an accused person may potentially surface in the mind of the juror during the course of the trial, despite the best intention of the juror in question. 19It is regrettable, to say the least, that Mr Tabchouri was not in Court when the jury was empanelled. This problem could have been entirely avoided by his presence, which could have led to an application by the juror to be excused or the adoption of a course without any of the Accused or the Crown utilising a challenge. However, the Court must deal with the present state of affairs. 20The relationship between the juror and Mr Tabchouri cannot be characterised as a remote and passing association. It is one that clearly involved friendship and what the juror, as I have said, still characterises as friendship. 21An important aspect, in my view, is the public's perception that justice must not only be done, but must be seen to be done. The test is one of reasonable apprehension of bias, involving a reasonable bystander considering the state of affairs in question. It is an objective test: Webb v The Queen at 53; R v Pearson [2000] NSWCCA 149; 114 A Crim R 80 at 87 [31]-[32]. The reasonable apprehension of bias test is not answered by the juror saying, "I will be impartial", any more than it would be answered if a Judge said that alone. 22I have regard to the point that has been reached in the trial. I am satisfied that a proper basis has been demonstrated, from the juror's own statements or from evidence before the Court, warranting the discharge of the individual juror and I will make that order in due course. 23It is open to the Court to consider proceeding with this trial with a jury of 11. However, this is a trial with a two-month estimate that has barely started. Events may occur during the trial which impact upon the constitution of the jury. Further, as has been submitted, the community and the Accused are entitled to at least commence a trial with a jury of 12. Technically, that has happened in this case, but it is a bare technicality, given the point that has been reached. 24It seems to me that the appropriate course is to discharge the balance of the jury. That will mean that the trial will have to recommence. I will, in due course, fix the trial to commence next Monday. 25A subsidiary question which has arisen is whether the 11 remaining jurors may form part of the panel to be assembled next Monday. 26It has been submitted by Mr Wasilenia and Mr Stewart that that should not happen. The evidence of the individual juror is that he had revealed to the balance of the jury the fact that he knew a legal practitioner involved in the trial, and that there was some speculation as to what impact that may have on the future of that juror in the trial. That is what the evidence points to as being the extent of discussion so far. 27When the juror was stood down, after examination in Court, he was asked not to discuss with the balance of the jury what had happened in Court. I regard the juror as being an honest and reliable person who would comply with that request. 28Beyond that, the 11 members of the jury have heard no more about this trial than any panel or jury which may be empanelled next Monday - the Crown summary of the nature of the charges, the list of witnesses and some bare introductory comments from me. 29I am informed that the jury panel available for next Monday is in the order of 37 persons. Whether 37 persons attend, or whether some persons make application to the Sheriff to be excused between now and then, is a matter of conjecture. 30At this point, I am not persuaded that there is an impediment to the 11 remaining jurors being available as part of the panel next Monday. I will, as part of the process of discharging them, indicate that that may well be what occurs. With that in mind, I will request those persons to refrain from discussing the issues in the trial with any person between now and then. 31Whether any of those 11 persons happen to be called (in the sense of having their numbers called) next Monday, is a matter for the future. If they are, and if some further application is made, I will consider the matter at that time. 32However, I am not persuaded that an in principle decision should be made today that those 11 jurors should, effectively, be put to one side. [Orders made discharging the juror and then discharging the 11 remaining members of 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. Decision last updated: 04 October 2013