Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 36) [2016] NSWSC 718 Hearing dates: 1-2 June 2016, 6 June 2016 Date of orders: 06 June 2016 Decision date: 06 June 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) Pursuant to s 53B(b) of the Jury Act 1977 (NSW), Juror 00393293 is discharged. (2) Pursuant to s 53C(1) of the Jury Act 1977 (NSW), the trial is to continue with a reduced number (14) jurors. Catchwords: CRIMINAL LAW – application for discharge of individual juror – juror's acquaintance with important witness – whether reasonable apprehension of bias – where connection raised by the witness – no contact for six years – where juror knows witness by nickname – immediate recognition of photograph – appropriate legal test – where juror denies influence – whether influence may be sub-conscious – where accused oppose discharge – whether directions capable of curing sub-conscious influence – fact that juror would have been excused if matter emerged at beginning of trial not relevant – "It was a different time" CRIMINAL LAW – procedure on application to discharge individual juror – separating juror from remaining members of the jury – Sheriff's investigation – power to examine juror – when appropriate to examine juror – investigations during trial not exhaustive CRIMINAL LAW – discretion to continue trial when individual juror discharged – two stage process – questions not to be conflated – statutory test Legislation Cited: Jury Act 1977 (NSW) Cases Cited: BG v R [2012] NSWCCA 139 CUR24 v DPP [2012] NSWCA 65 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 R v Bright [2000] NSWCCA 258 R v Finley [2016] NSWSC 327 R v Moore [2014] NSWSC 1955 R v Qaumi & Ors (No 10) [2015] NSWSC 21 R v Qaumi & Ors (No13) [2016] NSWSC 337 R v Qaumi & Ors (No 17) (Additional Jurors) [2016] NSWSC 338 R v Qaumi & Ors (No 21) [2016] NSWSC 402 R v Wood [2008] NSWSC 817 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71 Webb v The Queen (1994) 181 CLR 41 Wu v The Queen [1999] HCA 52; 199 CLR 99 Category: Procedural and other rulings Parties: Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal Representation: Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal) File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939 Publication restriction: No publication until the conclusion of the trial. Judgment 1. An incident arose part way through the thirty eighth day of the jury trial in the present proceedings. The nature of the allegations and evidence in the trial proper has been summarised in a number of earlier judgments. I will not repeat those summaries. As a result of the incident, the learned Crown Prosecutor made an application under s 53B(b) of the Jury Act 1977 (NSW) that an individual juror be discharged. Each of the five accused men opposed the discharge of the juror. The incident was explored in argument and by way of an investigation under s 73A of the Jury Act on Wednesday 1 June, Thursday 2 June and Monday 6 June 2016. For unrelated reasons, the Court did not sit on Friday 3 June 2016. 2. In short, material came to the attention of the Crown that one of the jurors may have some acquaintance with one or more of the witnesses [1] who are soon to give evidence in the trial. The incident raised sensitive issues surrounding the procedures to be adopted in these circumstances, the content and application of the test for apprehended bias under s 53B(b) and the nature of the discretion provided by that section. 3. On 6 June 2016 I decided to discharge the juror. I also decided pursuant to s 53C(1) that the trial is to continue with a reduced number of jurors. These are my reasons for those decisions. The Evidence 1. Senior Counsel for Farhad Qaumi brought the matter to my attention by inviting the Crown Prosecutor to provide me with two Investigator's Notes that had just been served on defence counsel. This occurred shortly after lunch on Wednesday 1 June 2016. [2] The documents were marked for identification. [3] After the legal representatives were given an opportunity to consult with their clients, a third Investigator's Note was marked for identification. [4] The three Investigators' Notes were subsequently marked as a single exhibit on the voir dire. [5] 2. The first Investigator's Note was prepared by Detective Senior Constable Veness: "On Wednesday 1st June 2016, Detective Senior Constable VENESS and Detective Inspector LAIDLAW attended a Correctional Facility and spoke with Witness I. During this conversation, Witness I raised concerns about his obligations, if any, if he were to personally know one of the jurors in the trial. Witness I was advised that if he knew any of the jurors he would have to disclose that to the police and the court. Witness I asked if this would cause a mistrial if he knew one of the jurors. Police pressed Witness I as to why he had those concerns and he indicated that he had heard it from an inmate at the gaol that he may know one of the jurors. Witness I was informed that there are fifteen jurors and it may not necessarily cause a mistrial but it was something that needed to be addressed. Witness I stated that before he disclosed any further information to police he wanted to speak with his solicitor Chadi IRANI. Police stated that it was so important that he attend to this issue as a matter of urgency. Witness I advised police that he would have Chadi IRANI make contact with Detective Inspector Glen BROWNE today. Witness I advised police that the juror was female and Greek in appearance. Following the visit with Witness I Detective Senior Constable VENESS and Detective Inspector LAIDLAW met with Witness J. During the conversation with Witness J he raised the same issue as Witness I. Witness J stated he had concerns that he knew one of the jurors in the Brothers for Life trial. Witness J stated he came to learn this from his friend John. Police know John to be John (name redacted) and approved him as a visitor for Witness J. Witness J stated that he told John that he would be giving evidence shortly for the trial. John informed Witness J that a girl known to them was doing jury duty on a six month trial. John informed Witness J that this female had published this on social media, Facebook. Witness J advised police of the first name of the female and also the first letter of her surname. Witness J also stated the female was Greek in appearance. Witness J asked police what he should do if he recognizes any jurors when he gives his evidence. It was explained to Witness J that if he knew any of the jurors the Judge would need to be informed immediately. Police indicated that if that were the case he would need to raise this in court not in the presence of the jury. Witness J indicated that he was friends with a group of people including this female. He last saw this female four (4) to five (5) years ago at a friend's birthday party. Witness J further advised that he believes that this female may also be known to Witness I and Witness G and based this on the fact that this female has a best friend who is Persian." 1. The second Investigator's Note was prepared by Detective Inspector Laidlaw: "As per the request from the Crown Prosecutor, Mr. McKay in the current trial at the Supreme Court. On the morning of 1 June 2016, in company with Detective Senior Constable Kellie VENESS, I attended the Special Purpose Centre, Long Bay Corrections Complex in order to speak with several inmates associated with both Strike Force ROXANA (HAMZY & AJAJ) and KIRKLAND (ANTOUN). We spoke with Witness I whereupon he raised an issue associated with the possibility that there was a juror sitting at the present trial at the Supreme Court, Sydney, in that if that person was someone known to either the accused or witnesses, if a mistrial would occur. When asked about his knowledge of this juror, he advised that is was another inmate within the SPC that may have such knowledge and not him specifically. I advised that there were fifteen jurors due to the length of the trial, so that may be likelihood that if this juror is known to those persons, they may be removed and the trial continue, but would have to assessed by the presiding Justice. He stated that this juror was a female and he believed to be of Greek decent. When asked if he could disclose further information about this juror, Witness I stated that he did not wish to speak any further about this matter until he had conferred with his legal representative, Chadi IRANI, Solicitor. He was advised that after such consultation, to contact the OIC, Det. Insp. Glen BROWNE to advise on the outcome of this conference as to whether he wishes to speak to police further about this matter. Immediately after this visitation, we spoke with Witness J, during which he raised that issue concerning his knowledge of a female juror, that may be sitting in judgment at the current trial. He advised that he had a visit from a friend, 'John' who stated that a female who was known to both of them was sitting at a lengthy trial, 6 months duration, and they both assumed that it was the current trial relating to the Brothers For Life matters. John had stated that he heard about via social media, Facebook. Witness J advised that he knew of a female of Greek nationality from several years ago, that used to 'hang around' with them when he was into hotting up motor vehicles. He provided her first name and also the first initial of her surname. He stated that he had not seen this female for probably five years, the last being at a friend's party. We advised that upon his attendance at Court, that should he recognise her (to which he stated that he could) he should immediately advise the Crown Prosecutor, who will then undertake certain action. To which he stated he would." 1. The final Investigator's Note was prepared by Detective Sergeant Whiting: "I am the officer in charge of a deliberately lit fire that occurred in 2008. The trial is listed for hearing and as a result I have served a substantial amount of witness subpoena's for this matter. On Tuesday 24 May 2016, I sent via Toll Express, who are the mail contractors for the New South Wales Police Force, a subpoena for a key witness in my matter. I obtained the address from the Police COPS / RMS System, after I had made several failed attempts to contact the witness on the numbers I had been given during the investigation phase. On Friday 27 May 2016 I received a call from this witness, who advised me that the subpoena was received. The witness also told me, 'I am currently on jury duty, I am in week 8 of a 33 week trial at the Downing Centre', adding that the Court Officer had been notified of the subpoena. Having given the situation some thought, and having some knowledge of current trials being heard, later that afternoon, I made the decision and called the OIC D/lnspector Glen BROWNE to advise him of the possible situation unfolding as I believe the character of my witness is not one of sound character. I did not disclose my witnesses name. During my investigation, I believe my witness may have been complicit in the fraud matter and of concealing the offence on behalf of the accused in my matter. On Tuesday 31 May 2016, I met with The Crown in my matter, Mr Jeff TUNKS, during that conference he asked me why this witness had not been charged, I advised him that I was waiting on The Crown determination now the matter had been referred from the Glebe Coroners Court. I also advise him that this witness was now a juror on a large trial that was currently sitting. On Wednesday 1 June 2016, I received a call from D/lnspector BROWNE who asked me to attend Court 3.2 to identify and confirm that my witness was part of the jury. Given my matter is almost 8 years old and I have had little face to face interaction with this witness, I viewed a photo of the witness from the ERISP interview from 2008 and went to Court 3.2. I was able to identify this witness as part of the jury. I left Court and contacted D/lnspector BROWNE and updated him with the outcome." 1. The third note appeared to concern a different, unrelated issue and its content was bereft of appropriate factual detail, as opposed to the unsubstantiated, subjective views of its author and hearsay statements attributed to a named prosecutor. However, the Crown Prosecutor indicated that police believed that the three notes may relate to a single juror. There was general consensus among counsel that more information was required before the parties could formulate their positions. I was conscious of the sensitivity of the issues and the requirements of the Jury Act. In Wu v The Queen [1999] HCA 52; 199 CLR 99, Callinan J said at [103]: "It is appropriate that a trial judge, confronted with a situation in which he or she has to make a decision about a reduction in the number of jurors not do so hastily, without as full an inquiry as is practicable and reasonable, and without making explicit orders as s 22 requires, as to the reduction in number and the continuation of the trial with the reduced number. Adherence to such a procedure (which the Act demands) has the effect not only of ensuring an unambiguous record of what has taken place but also of focussing the trial judge's attention upon the necessity to weigh up whether a juror's or jurors' absence should require the trial to be aborted or whether it should continue with the reduced number." 1. Section 73A(1) of the Jury Act provides: "If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation." 1. Prior to the empanelment procedure, the panel that had been summoned for the trial were provided with the names of all of the witnesses and exhorted to indicate whether they may have any knowledge of the matter or witnesses that could potentially impact on their ability to fairly try the case. The list of witnesses was read out and also provided in multiple hard copies to the panel. On the third day of the trial proper, the jury sent a note indicating that one member of the jury had become aware that "one of the prison officers is someone they know": R v Qaumi & Ors (No 21) [2016] NSWSC 402. The juror was separated from the balance of the jury and examined briefly. Ultimately, an application to discharge the individual juror was withdrawn. However, the incident meant that the jury as a whole was aware of the sensitivity surrounding any personal knowledge of the participants in the trial. 2. That history, along with the contents of the first two of the Investigator's Notes, led me to conclude that it was appropriate to request an investigation under s 73A. Accordingly, I made the following orders: "Pursuant to s 73A of the Jury Act 1977, I am satisfied that there is reason to suspect that a verdict of the jury in the current trial may be affected because of improper conduct by a member of the jury and, accordingly, pursuant to that section, I direct the Sheriff to conduct an inquiry into the matters raised by the three investigators' notes, namely MFI 96, an investigator's note of Detective Senior Constable Kellie Veness dated 1 June 2016; MFI 97, an investigator's note of Detective Inspector David Laidlaw dated 1 June 2016; and, MFI 98, an undated investigator's note of Detective Sergeant Kylie Whiting. In the immediate term, the inquiry is to ascertain as a matter of urgency, (1) Whether any member of the current jury of fifteen sitting in the trial of R v Qaumi and Others fits a description by name and second initial of the person referred to in MFI 96 and 97. (2) Whether the juror or witness referred to in MFI 98 is the same juror referred to in MFI 96 and 97. (3) If yes in either case, the jury identification number of the juror or jurors referred to in MFIs 96, 97 and 98. (4) The nature of the publications on social media referred to by the person referred to as "John" in MFI 96. To facilitate this inquiry, the Sheriff is to be provided with copies of MFIs 96, 97 and 98 and should liaise with the authors of those documents. The Sheriff is to report back to me as soon as possible and as soon as any of the above information is ascertained." 1. The jury was advised that an issue had arisen and were permitted to disperse for the day. [6] 2. The following morning the Sheriff's delegate [7] notified me that the Christian name and initial referred to in MFI 96 and 97 fitted the description of one of the members of the jury. Further the investigation confirmed that it was the same juror referred to in MFI 98. The juror's number was identified. As soon as that information was received, and before the Court assembled for the day, I directed the Court Officer to separate the individual juror from the remaining members of the jury. When Court assembled, the parties were advised of the development. Counsel agreed that separating the juror was appropriate and that it was necessary and appropriate to examine the juror on oath. [8] The prosecutor was able to provide photographs of the four witnesses who may have been known by the juror in case she did not know his name but recognised his image. 3. After consultations with the parties as to the questions that should be addressed to the juror, the juror was brought into court and examined: "JUROR 00393293 HIS HONOUR: Good morning, just come forward to the witness box, please. Q. I'm not sure if you remember it, but you were allocated a jury number at the beginning? A. Yep. Q. And it is 00393293? A. I think so, I don't know it off the top of my head. Q. That's okay, that is what I'm told it is. The reason we give you that number and all of the jurors a number is because you are entitled to be anonymous when you serve on a jury? A. Yep. Q. And nothing that is about to happen will undermine your right to be anonymous? A. Mmm. Q. I am shortly going to show you a piece of paper which I only I have seen [and] all of the people in the Court? [9] A. Yep. Q. That has what I think is your name on it? A. Okay. Q. And I am going to ask you to confirm that by answering yes or no? A. Okay. Q. Before we start that, I am going to ask the court officer to swear or affirm you because I am going to ask you some questions. A. Okay. SWORN( 10.55AM) Q. Just take a seat. Can I just show you that piece of paper, (shown). I will just get you to open that and you will see a name on it. Do you see the name? A. Yes, I do. Q. Is that your name? A. Yes, it is. Q. Thank you. If that piece of paper could be returned. What I will do is to place it in an envelope and we will mark it as a confidential document that can't be opened except by another Judge or on the order of another Judge or me. I just want to ask you a couple of questions about information that has come to my attention that suggests you might know or have met in the past some of the witnesses in the case? A. Yep. Q. First of all, do you know or have you ever met a person called Witness J? A. Not that I recall, no. Q. I'm just going to show you a photograph? A. Yep. Q. (Shown.) And just ask whether or not that is a person you may have met? A. Yes, I have seen him before. Q. If you can return that, please. (Document returned.) The next one is whether or not you know or whether you've ever met a person called Witness I? A. No. Q. And I'm just going to show you a photograph, (shown). A. No, never. Q. Never seen that person? A. No. Q. Just take a moment to look at it and imagine his appearance may have been different when you knew him. Could have had longer hair, could have had a beard? A. No. Q. Never seen that person? Thank you. The next one is a witness who has already given evidence and that is the witness I? A. No, I've never seen him before. Q. So you remember him giving evidence -- A. Yes, I do. Q. -- over a number of days? A. Yes. Q. You didn't know his name? A. No, no. Q. Never seen him before? A. Never seen him. Q. I'm just going to show you a photograph A. Yep. Q. -- anyway. (Shown.) Never seen that person -- A. Never seen him before. Q. -- judging from you're shaking your head? A. No, never. Q. Thank you, that could be returned. The last name I want to ask you about is, and the name is Witness K? A. The name doesn't ring a bell at all. Q. All right, I show you a photograph, (shown). A. Never seen him before. Q. Never seen that person before? A. Nah. Q. If that could be returned, thank you. (Document returned.) Just going back to the person who I've told you is called Witness J, which is the picture you -- A. Yep. Q. -- seem to recognise? A. Yes. Q. Can you tell me how you know that person? A. Just through other friends, acquaintances. Q. When was the last time you saw him, as best as you can estimate it? A. About six years ago. Q. In what circumstances did you know him? A. Just through friends of friends, going for drives. If I met up with friends, he was there. Q. Do you feel, from your knowledge of him, now that you've seen his picture, that that might influence you in your job as a juror? A. No, not at all. Q. Until I just started asking you these questions and showed you that photograph, had you any idea that you may have known any of the witnesses? A. No, cause I didn't know him by that name. Q. Do you remember what name you knew him by? A. I knew him as Witness J. Q. Witness J? A. Yep. Q. Have you heard the name Witness J mentioned in the evidence? A. Yes, I have. Q. When you heard the name, did you think to maybe raise with me the fact that you knew that name? A. I didn't know cause I didn't know that Witness J was his first name. I always thought Witness J was his first name. Q. All right, what I will get you to do now is go with the officer? A. Okay. Q. What we have done, just so you don't think there is something mysterious or terrible happening, once I found out this information, I had to separate you from the rest of the jury? A. No, that's fair enough. Q. Just before you go, have you talked to any of the other jurors about the fact that you knew someone called Witness J? A. No, no, I never brought it up. Q. I'm sorry, there is one more thing and that is, do you own and operate a Facebook account? A. Yes. Q. Is that a public account or is it private? A. Private. Q. The settings on Facebook allow friends to look at your posts. Does yours also allow friends of friends? A. No, just friends, whoever I have on Facebook can see whatever I have on there. Q. Have you, in the course of the last 8 weeks or so, become Facebook friends with any of the other jurors? A. Yes. Q. How many of them? A. Four. Three or four, yeah, four. Q. Have you posted anything on Facebook about the fact that you're serving on a jury? A. No, not that I can remember, no. Q. Have you said anything on Facebook about the trial? A. No. Q. Thank you. What I will do now is just ask you to go with the officer. We'll keep your separated from the jury at the moment? A. Okay, yep. HIS HONOUR: Thank you for coming in. [10] 1. The four photographs that were shown to the witness were marked as Exhibit VD XX. With the consent of the parties, the Court Officer was directed to advise the juror that she would remain separated for some time and to tell the remaining (14) members of the jury that the issue was taking some time to resolve and to please be patient. [11] 2. The Crown Prosecutor made an application for discharge of the individual juror. Senior Counsel for both Farhad and Mumtaz Qaumi indicated that they opposed the application and that they "wished to continue with a jury of 15, including the juror." Counsel for the remaining accused were provided with a transcript of the examination of the juror and given time to take instructions. When I returned to the bench the Crown Prosecutor confirmed that he made an application for discharge of the individual juror under s 53B on the basis that there was a "reasonable apprehension of bias". Each of the accused opposed that application. 3. The Crown acknowledged that the evidence did not establish misconduct but the parties agreed that further information was required in relation to the suggestion that the juror had posted material relevant to the trial on Facebook. I requested that the Sheriff continue the investigation into any Facebook posts and how the person "John" otherwise came to be aware of the possibility that the witness was known by the juror. Later in the day the Crown Prosecutor advised the Court that police had made further contact with the person John: 4. "I don't think they have had a chance to verify it further, other than he said he heard it third hand and didn't see it on Facebook as such, that she was a member of a jury." [12] 5. This is directly contrary to the first Investigator's Note ("John informed Witness J that this female [juror] had published this on social media") and inconsistent with the second ("John had stated that he heard about [it] via social media, Facebook"). It is a troubling that the Investigators' Notes that precipitated this inquiry suggested the juror made Facebook posts concerning her participation in the trial, a matter that may (depending on the nature of the posts) suggest misconduct on the juror's part whereas it now appears that this suggestion is erroneous. It is difficult to know what to make of that inconsistency. It serves to highlight the imperfect nature of inquiries that can be conducted in the course of the trial. It also demonstrates why the Jury Act casts the responsibility of investigating such matters with the Sheriff rather than with the police who are active participants in the trial. 6. At 3.45pm on Friday I received a further report from the Sheriff's delegate. It comprised notes of an interview with "John": 7. "Interview with 'John' 8. Name and contact provided by Inspector Brown 9. R-V- Quami & others 10. 12.40pm 11. Initial contact with John was 9.30am. I advised John that I would like to ask him about some recent events that had been documented and that his name had been given as a contacted. John advised that he had spoken to Detective Brown and he had provided him with some information. I advised John that I was the Jury Coordinator and therefore it was a matter involving a jury that I was required to document the conversation and I would be compiling written report. I then arranged to call John between 12:30-12:45 pm due to his work commitments. 12. Interview via phone: 13. John indicated that he was a friend of Witness J – he knew Witness J by 'Witness J' 14. John stated that he was aware that information had been provided that a friend of his and Witness J's may be on a jury – he stated that he was 'aware of this but it was not 100%'. 15. John stated that the person that was identified was an associate of his and he knew this person from friends of friends and that he knew the identified persons ex-boyfriend 16. John said that he had not seen this person in a while and it had been a few months. His relationship with this person was one that they would say hello to each other but did not 'hang out' together. The last time he saw her when he was out driving and said 'hi'. 17. John confirmed that he is a current friend of the person identified on Facebook and has been Facebook friends for approximately 1 year. 18. John stated that he has not seen any post or posts on Facebook referring to the trial from this person he also stated that he did not go out of his way to follow this person on Facebook. 19. John said he had heard from friends of friends that this person was on a trial, he said he was aware that Witness J was to give evidence and that it was not hard to work out that it may have been the same trial. 20. He again stated that there were no posts or any information posted on Facebook by the identified person. 21. I advised John as this is a current matter and a report was to be compiled that he was not to speak to any other parties about the conversation that had just taken place." 22. The contents of that note were brought to the attention of the parties on Monday 6 June 2016. It did not alter the position that each took to the application. The parties agreed that the interview with "John" tended to confirm parts of the juror's evidence. It was submitted that it supported the proposition that the contact between the juror and the witness was "fleeting". [13] 23. A further response from the Sheriff's delegate concerned an interview with the police officer who was the author of the third Investigator's Note (referred to in paragraph [7] above. The parties agreed that this evidence had no relevance to the issue now at hand. 24. The final piece of evidence was Exhibit VD 36. This was a letter from the Office of the Director of Public Prosecutions annexing a list of particulars of conduct on the part of some jurors and two of the accused. This was tendered by Farhad Qaumi in support of the proposition that "it suggests that the motivation [to discharge the individual juror] is not related to prior associations of the juror but just the way she is reacting in court." SUBMISSIONS 1. The parties made submissions on the question of whether I should exercise my discretion under s 53B to discharge the individual juror on the grounds of apprehended bias. The question of misconduct was put to one side while the Sheriff's investigation continued. 2. The Crown's position was that the precise nature of the relationship between the witness and the juror was not known. The Crown noted that the investigations that can properly and practically be undertaken in the course of a trial are not exhaustive and "there can never be certainty as to whether all the circumstances … surrounding the connection between this juror and the witness". The Crown accepted that I should decide the case on the evidence of the juror and did not seek to impeach her credibility. He submitted that it could not be known what influence that relationship might have on the juror once the witness entered the witness box and began to give evidence. The Crown emphasised the importance of the witness's evidence to the issues in the trial. He is expected to give very important evidence in relation to the events that occurred in preparation for the first shooting incident – that is, the Hamzy murder. Those events are subject to significant dispute as is demonstrated by the conduct of the trial to this point. The Crown anticipates that the evidence of the witness will be subject to substantial attack by the accused. Nobody on the defence side disputed that proposition. 3. On being challenged by counsel for the accused Zarshoy, the Crown Prosecutor acknowledged that he could not identify whether any bias would be favourable or adverse. In other words, it was not known whether the juror's personal knowledge of the witness would make her more or less likely to accept his evidence or be unable impartially to evaluate his evidence. However, it was submitted that this only served to emphasise that the impact of the connection between the witness and the juror could not be known. It was submitted that because the nature of the influence was not known, including to the juror herself, directions to the jury were not capable of overcoming the potential for prejudice. 4. The Court took me to a number of relevant cases including Webb v The Queen (1994) 181 CLR 41, R v Bright [2000] NSWCCA 258 and R v Moore [2014] NSWSC 1955. 5. Mr Stratton SC (for Farhad Qaumi) submitted (correctly) that the mere fact that a juror knows a witness is not a disqualifying factor. He observed that it is often the case in country trials that jurors know the witnesses. They are only excused if that knowledge may influence them in their role as a judge of the facts. On the other hand, Mr Stratton accepted that such a juror would generally be excused at the beginning of the trial if it was expected that the witness would give evidence as to controversial matters. He also accepted that, given the rigour with which the empanelment process was conducted in the present case – wherein any possible connection or concern expressed by the member of the jury pool resulted in the person being excused – it is likely that the juror would have been excused if the information now known had come to light at the outset. 6. Mr Stratton distinguished the cases of R v Finley [2016] NSWSC 327 and R v Moore. In each of those cases, individual jurors (and then the whole jury) were discharged. However, it was submitted that in each case the relationship between the juror and the witness (or participant in the trial) was "of a much higher nature". Further, in Finley at least, the discharge application was made jointly and came at a very early stage of the trial. Mr Stratton placed heavy reliance on the decision in Webb v The Queen where the majority of the High Court was satisfied that an incident in which a juror gave flowers to members of the deceased victim's family was capable of being cured by direction. 7. Mr Stratton noted that the discharge was a discretionary decision. He submitted that it was significant that, while we have the "luxury of 15 jurors", the trial still has a number of months to run. He said that the test for discharge was one of necessity and relied on the decision in R v Wood [2008] NSWSC 817 where it was said at [31]: "The exercise of a trial judge's discretion to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends upon the principle of necessity state in Winsor v R (1866) LR 1 QB 390. There must be evidence a 'high degree of need for such discharge … such as in the wider sense of the word might be denoted by necessity' per Erle CJ at 394." 1. When I asked whether it was not of concern to the accused men that an important prosecution witness may have some acquaintance with one of the jurors, Mr Stratton submitted: "The fact that the accused are united in opposing the application should give your Honour some comfort." [14] 1. After tendering Exhibit VD 36, Mr Stratton submitted: "Leaving aside what appears to be an element of creative writing, it seems to suggest that the Crown are attempting to well, the Crown or those instructing him, are attempting to eliminate from the jury anyone who reacts with empathy to the accused and it is not limited to the juror in question, but in fact to three of the 15 jurors." 1. Mr Young SC (for Mumtaz Qaumi) essentially adopted the submissions of Mr Stratton although he also raised concerns about the outstanding issue surrounding "this Facebook business". [15] 2. Ms Carroll (for Jamil Qaumi) adopted Mr Stratton's submissions but went on to emphasise that "there is no clear evidence that there was any kind of relationship between the two of them directly" and it was not clear whether the juror had even "had conversations with him directly". [16] Ms Carroll relied on the juror's clear and immediate statement that the contact that they had would not influence her and noted that the contact was around six years ago. Ms Carroll went on to submit that the unnecessary removal of this juror may create an "imbalance" in the jury where relationships have been formed over nine weeks and may even result in "resentment" in other members of the jury. She noted that all members of the jury appear to be "paying close attention". [17] 3. Ms Carroll conceded that the juror would probably have been excused if the matter had emerged prior to empanelment but noted that at that stage "we had just under 300 jurors" and thus "wouldn't take any risks". She said that we are now two months into the trial and should "try to hold on to as many of the 15 as we can". She told me about a recent case in which she appeared where a number of jurors were "lost" during the course of a lengthy deliberation. 4. Mr Driels (on behalf of Mr Zarshoy) raised concerns about what he described as the "compounding" of considerations under s 53A with those under s 53B. The former section is (relevantly) concerned with misconduct while the current application is based on a reasonable apprehension of bias. He said that the misconduct issue has been "floating around and it colours the consideration now, in a sense, of what the position is with regard to the discretionary discharge". This was a reference to something that happened earlier in the trial when (on 24 May 2016) the Crown raised a concern of some interaction between two of the accused and some members of the jury which had apparently been observed on 17, 18 and 20 May 2016. [18] As a result of that incident, I directed the Sheriff (or those in control of such matters) to maintain the CCTV footage that is captured by a number of in court cameras. [19] Since that time I have been told by the Sheriff's representatives that the footage has been maintained and that digital copies are being made. I have also been told that there is no camera that captures clearly the behaviour of the jury. No application has been made based on this alleged interaction between the jury and the accused. As I understand it, the point of Mr Driels submission is that I should not conflate the non-particularised suggestion of misconduct with the evidence concerning the present application. I accept that submission without reservation. 5. It was after Mr Driels had criticised the lack of particularity of the Crown's assertion of interaction between the jury and the accused that the Crown served the document that Mr Stratton tendered as Exhibit VD 36. Having read that, I confirm my acceptance of Mr Driels' submission that the issue (if there is one, noting that no application has been made in respect of it) is completely separate from issue with which I am here concerned. It is an irrelevancy. 6. Mr Driels went on to submit that the juror's evidence is clear that she will not be influenced by her personal contact with the witness. Mr Driels submitted that bias must be "one way or the other and for it to be reasonable, you have to know which way the bias is." He submitted that what happened during the empanelment process, and what may have happened at that stage if the connexion was then known, is irrelevant. It was "a different time. We had so many people, hundreds of them, to decide. There was still room to move." [20] He went on to observe that "time and effort invested into the juror" and "[she] should not just be tossed on the basis of 'I don't know what the bias is but there may be a bias.'" 7. Mr Clarke (on behalf of Mr Kalal) stressed the importance of the position of the parties and, in particular, urged me to take into account that his client "strongly resisted" the removal of the juror. He stressed that the evidence shows that "[the juror's] knowledge of this man is distant". They are no more than "friends of friends". He submitted that the Crown had "overstretched in terms of the test in this case" and that: "… the person sitting in the back of the Court listening to this, I would venture, would, if they were in possession of all the facts, be less troubled by this lady's ability to actually continue her duties, listening to what she's said, because that is the evidence, and knowing something about the case and the place in which this witness may or may not fit." [21] 1. In reply, the Crown Prosecutor stressed that the bias may be "subconscious" and that such a bias was difficult to direct against. He distinguished directions that might cure prejudice created by (for example) publicity where the nature of the publicity is known with a situation where "a person who has prior knowledge which no-one else knows about". THE MISCONDUCT ISSUE MUST BE DISREGARDED 1. As I said in summarising the submissions made on behalf of Mr Zarshoy, it is critical to disregard the hints and suggestions that the juror may have misconducted herself. 2. The material in the third Investigator's Note has no relevance to the issue here to be determined. While I accept the good intentions of Sgt Whiting, her belief that "the juror may have been complicit in the fraud" was not substantiated in any way. Nor was it pressed as a matter of relevance to the present application. Her conversation with the Crown Prosecutor is a complete irrelevancy, cannot be tested, and should not have been included in the material. Having said that, I accept that the Crown was simply attempting to provide me with all material that may have some bearing on the question of whether the juror should be discharged and that this occurred at a time when misconduct (by failing to disclose her knowledge of the witness or by posting information on Facebook) appeared to be a live issue. 3. The third Sheriff's Delegate's report encompassed further statements by Sgt Whiting. They are utterly irrelevant and I have disregarded them. 4. The "Facebook business" (as described by Senior Counsel) must also be disregarded. As I have said, the original Investigator's Notes suggested that the juror had posted material on Facebook. However, the Crown has now advised that the person "John" has since denied seeing such posts in his conversations with police. Similarly, he told the Sheriff's Delegate that his knowledge of the matter came from "friends of friends" (that is actual friends, not virtual or Facebook friends). He said "there were no posts or any information on Facebook by the identified [juror]". [22] 5. Finally, the suggestion of some interaction between two of the accused and some members of the jury must play no part in my consideration of the present application. Until the tender of Exhibit VD 36, which was tendered to establish an improper purpose in making the application, there was no evidence of such conduct before me. I have not observed any interaction that I considered to be inappropriate or improper. Since the Crown first raised the matter, I have been alert to the issue and have attempted to observe both the dock and the jury box and have seen nothing untoward in the occasional and inevitable glances that pass between the accused and the jury. Prior to the Crown raising the matter my observations were more general and, based on my own observations, I cannot exclude the possibility of the kind of conduct described. When all is said and done, the suggestion of some "flirting" [23] across the court room is in no way relevant to a determination of the present application. I disregarded it. THE EVIDENCE AND FINDINGS OF FACT ON THE APPLICATION 1. As has been observed in argument and in some of the decided cases "the investigation of such incidents during the course of the trial is not exhaustive": Webb v The Queen at 52 (Mason CJ and McHugh J). Further, "seldom, if ever, is there a detailed cross-examination of the juror by counsel or the judge": Webb v The Queen at 52. Power to Examine the Juror 1. In R v Moore, Garling J considered, but did not resolve, the question of whether "it is appropriate to examine the juror on oath" and whether "upon the proper interpretation of the Jury Act, the court retains any power at law which it otherwise had to examine a juror": R v Moore at [4]-[6]. His Honour noted at [5] that "the Jury Act does not directly grant the that power" and referred to the decision in BG v R [2012] NSWCCA 139 where Adamson J at [87] considered that it was not appropriate to examine the juror. In those cases, the information upon which the application to discharge was based emanated from the jury itself. In each case "there was no reason to doubt the veracity of the report she received from the jury via its note": BG v R at [87]. 2. The situation that has arisen in this trial is different. The information came from the police who were made aware of the possible association between the juror and the witness by the witness who, in turn, was told about the possibility by "John". At the time the incident arose, it was not clear whether the juror in question was in fact a member of the present jury. There was a reference in the Investigator's Notes to a "six month trial" but this particular trial was not identified. Inquiries with both the District Court and Supreme Court suggested that this was the only trial that commenced with an estimate of six months but there were around four other current trials that had proceeded over several months. [24] Once the Sheriff's investigation removed any doubt that the person referred to by "John" was a member of this jury, the parties agreed that it was appropriate to examine her and were in general agreement as to the extent of that examination. 3. The Jury Act specifically permits an examination of a juror in certain circumstances: see, for example, ss 55D (examination concerning exposure to publicity), 55DA (examination concerning juror making private inquiries) and 56 (examination concerning jury's inability to agree). However, as Garling J noted, there is no express power to examine a juror in relation to matters that arise under s 53B (discretionary discharge of an individual juror). Section 53B(b) relevantly provides: "53B The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if: (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or…" 1. The words in parenthesis in that paragraph support the proposition that the Court retains a power to examine a juror. In circumstances such as the present, it would be impossible to exercise the discretion of the Court without that power. That is because this is not the usual case where the juror raised the fact that they know a witness or something about the case. The Juror's Evidence 1. I was satisfied that the juror answered the questions addressed to her truthfully. In making that finding, I am conscious of the fact that the juror was not cross-examined and that "a juror involved in an irregular incident may feel defensive about [her] role" and "may seek to put the best light on the matter": Webb v The Queen at 52. However, she did not present as defensive. On the critical question, she denied knowing the name of the witness but, when shown a photograph, responded without hesitation "Yes, I have seen him before." She explained that she knew him by his nickname ("Witness J"). "John" told the Sheriff's delegate that he knew the witness by that nickname. 2. The juror's evidence also receives support from other parts of John's statements to the Sheriff's delegate. In particular, the circumstance of the acquaintance is similar ("friends of friends"). His statement tends to confirm the juror's denials of posting information about the trial on Facebook. While the statement to the Sheriff's delegate is vague as to the timing of contact between the juror and the witness, Detective Veness's Investigator's Note records that Witness J "last saw [the juror] four (4) to five (5) years ago at a friend's birthday party." The juror's evidence was that she last saw the witness "about six years ago". Findings Relevant to Determination of the Issue 1. On the limited material available, my findings are these: 1. The evidence to be given by Witness J is important evidence in the trial and his credibility is likely to be subject to substantial attack by the defence. 2. Witness J is a cousin of Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi, three of the five accused on trial. 3. The juror and the witness are known to one another by socialising in the same circle of friends in the past. 4. They are best described, not as friends, but as "friends of friends" or past acquaintances. 5. The last contact between them occurred around four to six years ago. 6. There is no evidence of any recent contact between them. 7. The contact between them was sufficiently frequent that the witness instantly recognised a photograph of the witness. I reject the suggestion that their association can properly be described as "fleeting". 8. The juror did not know the real name of the witness and wrongly believed his first name was "Witness J". This suggests that their association was not a close friendship. Rather it is an association through mutual friends. 9. The juror believes that her capacity to judge the case impartially is not compromised by her knowledge of the witness. 10. There is no evidence that the juror misconducted herself by failing to disclose her association with Witness J at an earlier stage. She did not know of that association until she was shown the photograph at which time she immediately indicated that she knew him. THE LEGISLATION AND AUTHORITIES 1. Section 53B(b) provides a discretion to discharge an individual juror in certain defined circumstances. Relevantly, these include where the juror may not be able to give impartial consideration to the case because of the juror's familiarity with a witness or because of any reasonable apprehension of bias on the part of the juror. 2. In Webb v The Queen, Mason CJ and McHugh J said at 52: "[T]he reasonable apprehension test … allows a margin of 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 that bias existed." 1. Their Honours went on to explain that, "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". 2. The fact that a juror does not believe that they will be biased is not decisive. The test is an objective one based on the reactions of the hypothetical fair minded or reasonable observer. It is concerned with the appearance of justice. Subject to the qualifications that the jury can receive directions calculated to cure a potential problem, the test for apprehended bias is the same in the case of a jury as it is in the case of a judicial officers or administrative decision maker: see Webb v The Queen at [53]. 3. In Johnson v Johnson (2000) 201 CLR 488, the High Court, at [11] stated the the test for apprehended bias in a judicial officer as follows: "…whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." 1. This is sometimes called the "might/might" test. It is concerned with appearances and possibilities. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ explained at [7] that the principle that the tribunal be independent and impartial is so important that "even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined". 2. The test is satisfied if there is a "real and not remote" possibility that a judicial officer might not bring an impartial mind to the resolution of an issue: Ebner v Official Trustee in Bankruptcy at [7]. In Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507, Kirby J explained at [134] that the test looks to "how the decision, and the process of arriving at it, might appear to the persons affected and to the public, judged reasonably and objectively. 3. The application of the apprehended bias principle has two steps. First, the identification of the factors that might lead the tribunal to decide a case other than on its legal and factual merits. Secondly, an assessment of the reasonableness of the connection between the matter and the possibility of departure from impartial decision-making: Ebner v Official Trustee in Bankruptcy at [8]; CUR24 v DPP [2012] NSWCA 65 at [35]. 4. In considering the evidence of the juror that she does not believe that her knowledge of the witness will affect her impartiality, it is important to remember that the influence might be subtle and sub-conscious. This was explained in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71 where North J observed: 5. "A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder. Some judges, including myself, who have in recent years attended gender and race awareness programmes, have been struck by the unrecognised nature of the baggage which we carry on such issues. Decisions made upon assumptions or prejudgments concerning race or gender have been made by many well-meaning judges, unaware of the assumptions or preconceptions which, in fact, governed their decision-making." 6. The court should not too readily accede to an application to discharge an individual juror when it is opposed; particularly, I think, when it opposed by the accused. In Wu v The Queen, McHugh J said at [27]: 7. "For hundreds of years, the common law has insisted that no person be convicted of serious crime without the unanimous verdict of 12 jurors. If even one juror died or had to be discharged, the common law required the rest of the jury to be discharged. The trial had to recommence with a new jury of 12. In various jurisdictions, including New South Wales, the dictates of expense and convenience have introduced legislative change which now authorises the judge in a criminal trial, after the death or discharge of a juror, to make an order that permits a person to be convicted by a jury of less than 12." 8. In the present trial, an order was made to empanel a jury of fifteen pursuant to s 19 of the Jury Act: R v Qaumi & Ors (No 17) (Additional Jurors) [2016] NSWSC 338. I do not consider the fact that we have what was described in argument as "the luxury" of fifteen jurors to be relevant to the decision that I now have to make. Given the anticipated length of the trial, it would be far preferable to continue with fifteen jurors to reduce the risk that the number may ultimately fall below twelve. 9. Further, each of the accused is entitled to the group that was randomly selected at the outset unless a proper application of principle means that a juror must be discharged. As Kirby J (dissenting in the outcome) said in Wu v The Queen at [45]: 10. "The jury must be 'a body of persons representative of the wider community'. Obviously, to the extent that the historical and statutory number of twelve is reduced, there is an equivalent reduction of the degree to which the jury may reflect the diversity of the makeup of the community in Australia. Unlike the community of village England from which jurors were historically drawn in that country, the Australian community today is highly diverse in its composition. It reflects differences of age, gender, race, ethnicity, national origin, sexuality and other grounds, as well as in life's experiences and attitudes." 11. The same principles apply where a jury of fifteen is reduced as a result of the discretionary discharge of an individual juror. However, the existence of the discretion to discharge and the availability in appropriate cases to empanel a jury of fifteen, show that there are cases where the diversity of the originally selected jury may be altered by circumstances that arise in the course of the trial. Ultimately the question must be approached in accordance with the terms of the statute and the authorities that explain the apprehension of bias test. 12. I should address a couple of legal issues that arose in the course of submissions lest there be any ambiguity over the approach that I took to those matters. 13. First, as I acknowledged on the second day of argument, the thought process or assumptions behind some of my questions of counsel on one issue was erroneous. [25] I accept the submissions of various defence counsel that the fact that I would have excused the juror had the matter came to light in the course of the empanelment procedure is not a relevant consideration. I accept that the situation is now different – as Mr Driels put it "a different time. Different time." [26] But more importantly, the statutory function and discretion is different. During the pre-empanelment process, the power was to excuse a potential juror under s 38. Section 38(7) requires (or calls on) a jury "to apply to be excused if they consider that they are not able to give impartial consideration to the case". That involves a subjective assessment by the juror themselves. The discretion to discharge a juror under s 53B involves the application of an objective test based on the possible and reasonable reactions of a fair minded observer of the proceedings. There is little doubt, as counsel submitted, that the power to excuse at the beginning of the trial will more readily be exercised than the power to discharge a juror after they have been empanelled. 14. Insofar as this appears to be contrary to the approach taken by Garling J in R v Moore at [14], I consider that his Honour did not proceed on the basis that the matter was determinative. It is also clear from Garling J's judgment (see, for example, at [5]) that his Honour's judgment was delivered under the pressure of time in the course of a trial. [27] It appears that no submissions were directed to the issue in R v Moore. It appears to me to be an obiter, or even throw-away, remark. In any event, and with complete respect, I do not consider that it is appropriate to adopt the same reasoning. 15. Second, I do not accept the submission that it was incumbent on the Crown to identify whether the "bias" asserted was favourable or adverse to the witness (or to one or other of the parties). Apart from the fact that this involves an unduly narrow approach to the expression "apprehended bias", the section is cast in deliberately wider terms in that it closes with the words "or any similar reason". In a situation such as the present, a requirement for the decision maker to determine precisely how the juror might react is unworkable. 16. Third, I accept that part of the process (and legal test) involves considering whether the parties (as well as the fair minded observer) might consider that the juror would not be able to bring an impartial mind to the issue. However, in circumstances where the parties take opposing positions, it is difficult to see how the litigants' perceptions (at the time of the argument) could take precedence over that of the putative fair minded observer. Further, a party's perception may change over time. For example, if the juror in the present circumstances were to remain on the jury and the jury convicted, it may be that the accused would (in retrospect) wonder whether her personal acquaintanceship with the witness may have affected her capacity to judge his evidence impartially. It is important in the present case that each of the accused resists the application to discharge the jury as can be seen by the judgment of Kirby J in Wu v The Queen. However, the Crown is also a party and takes a contrary view. Ultimately, while the position taken by the parties at the hearing informs the content of the debate, the legal test involves a consideration of what the parties and the fair minded observer might objectively and reasonably apprehend. CONCLUSION 1. While I accept that the evidence of the connection between the juror and the witness does not suggest a close relationship, there is no doubt that they socialized together. At the very least they shared a number of mutual friends. The fact that she recognized him instantly upon seeing his photograph shows that their acquaintanceship was more than a fleeting one. 2. The passage of six years (on the juror's evidence) or four to five years (on the information provided to the police by the witness) reduces the risk that she might be influenced (consciously or sub-consciously) in assessing his evidence. On the other hand, her recognition of the photograph after that length of time demonstrates that at that stage the pair spent some time in one another's company. 3. It is necessary to take into account that the limited nature of the inquiry into the connection between the witness and the juror means that the information upon which the decision must be made is imperfect. 4. I have given considerable weight to the fact that the juror stated unambiguously that she did not believe that her knowledge of the witness would not influence her or compromise her capacity to perform her task. However, I accept that the juror may not know how (or whether) her past connection to the witness may influence her. The impact on her capacity to judge the case impartially may be sub-conscious. Her belief now may change when she sees the witness in the witness box or when she sees him cross-examined. The fact that her anonymity as a juror is compromised to the extent that the witness knows her may have some impact on the way she approaches her task. In saying those things, I am not suggesting an actual bias. Rather, I am considering what a fair minded observer might apprehend. 5. The importance of the evidence, the relationship between the witness and the accused, and the fact that the evidence will be subject to a substantial credibility attack are significant factors. 6. The fair-minded observer would understand all of these things. They would also understand that the juror would be directed that she must disregard any knowledge that she has of the witness, any past association with him and should assess his evidence only on the evidence adduced in court and the legal directions that are provided in the course of the trial and in the summing up. 7. To adopt the two steps referred to in Ebner v Official Trustee in Bankruptcy, [28] I identified the above factors as matters that might lead the juror to assess the evidence of the witness and the issues in the trial other than on their legal and factual merits. Having identified those factors, I assessed the reasonableness of the connection between those factors and the possibility of a departure from impartial decision maker. 8. I have concluded that a fair minded observer might reasonably apprehend that the juror might not bring an impartial and unprejudiced mind to the resolution of the questions that the jury is required to decide. The observer might reach that conclusion in spite of the directions that the juror will receive and in the understanding that jurors generally are capable of disregarding prejudicial material and dutifully follow directions. 9. For those reasons, I am satisfied that there is a reasonable apprehension of bias on the part of the juror. In the exercise of the discretion under s 53B(b) of the Jury Act I will make an order discharging Juror 00393293. SECTION 53C: DISCRETION TO CONTINUE TRIAL OR DISCHARGE THE WHOLE JURY 1. Section 53C of the Jury Act provides: "(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must: (a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors." 1. In Wu v The Queen, Gleeson CJ and Hayne J said: "6. The decision to discharge a juror and the decision to proceed with a jury of less than 12 are distinct steps and often will be affected by different considerations. The conduct of, or circumstances affecting, a single juror may require that juror's discharge. That conduct or those circumstances may not affect the other members of the jury or suggest that they cannot perform their task satisfactorily. … 8. It is plainly desirable that a judge exercising the power to discharge a juror and the power to proceed with a jury of less than 12 members does so in unmistakable terms. Ordinarily that will be done by the trial judge making two separate orders: an order discharging the juror and an order that the trial proceed before the jury constituted by the remaining jurors." 1. McHugh J said: "28. But no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors." 1. Kirby J (dissenting in the outcome) also made it clear at [67] that the question of whether the trial should continue must receive separate consideration. 2. There is nothing in the evidence that suggests that any of the remaining jurors may have been influenced by the individual juror's knowledge of the witness. Accepting the evidence of the juror, it is unlikely (or impossible) that the matter was discussed with the other jurors. This is because she did not realise the connection until she was shown the photograph in the course of her examination on the voir dire. While she acknowledged that she had become "Facebook friends" with three or four of her fellow jurors, she denied having posted anything to do with the trial. As the matters stands, there is no evidence that she did. 3. For those reasons, I am of the opinion that there is no risk that continuing with the trial would give rise to a substantial miscarriage of justice. 4. Accordingly, I will order under s 53C of the Jury Act that the trial continue with a jury of 14. ORDERS 1. I make the following orders: 1. Pursuant to s 53B(b) of the Jury Act 1977 (NSW) Juror 00393293 is discharged. 2. Pursuant to s 53C(1) of the Jury Act 1977 (NSW) the trial is to continue with a reduced number (14) jurors. ********** Endnotes 1. The names and identities of a number of witnesses have been supressed: see R v Qaumi & Ors (No 10) [2015] NSWSC 211 and R v Qaumi & Ors (No 13) [2016] NSWSC 337. Accordingly, I will refer to them by the letters that each was allocated in earlier judgments. 2. T 2575. 3. MFI 96 & 97. 4. T 2581; MFI 98. 5. T 2606; Ex VD WW. 6. T 2580. 7. See s 74 of the Jury Act. 8. T 2589-2590. 9. In spite of the way that this exchange is recorded in the original transcript, it was clear to the juror that only I had seen the piece of paper. The parties subsequently agreed that the word "and" should be replaced by "out of". 10. T 2598-2603. 11. T 2607. 12. T 2629. 13. T 2656-2657. 14. T 2634. 15. T 2635. 16. T 2638. 17. T 2638. 18. T 2036-2040. 19. T 2039-2040. 20. T 2641. 21. T 2642. 22. Exhibit VD YY 23. This is how the behaviour was at one stage described by the learned Crown Prosecutor although I take that to be based on the observations and subjective opinions of others. 24. T 2581. 25. T 2657. 26. T 2641. 27. As, indeed, is this judgment. 28. See paragraph [60] above. 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: 23 November 2016