Supreme Court New South Wales Medium Neutral Citation: R v Gordon (No 7) [2017] NSWSC 195 Hearing dates: 9 – 28 February 2017; 1 – 3 March 2017 Date of orders: 03 March 2017 Decision date: 03 March 2017 Jurisdiction: Common Law Before: Campbell J Decision: Application for discharge of the jury on the basis of apprehended bias refused. Catchwords: CRIMINAL LAW – Application for discharge of the jury – Whether jury infected by the apprehension of bias – Where verbal comments were made outside the court house to a juror – Application of the test in Ebner v Official Trustee in Bankruptcy as adapted to a jury – Held that a further direction to the jury sufficed Legislation Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Regina (Crown); Donald Patrick Gordon (Accused) Representation: Counsel: B G Campbell (Crown); J P Watts (Accused) Solicitors: Director of Public Prosecutions (NSW) Aboriginal Legal Service (NSW/ACT) File Number(s): 2013/337128 Publication restriction: Nil EX TEMPORE JUDGMENT (REVISED) 1. Mr Watts of learned counsel for the accused has made an application for a discharge of the jury on the basis that they may be infected by an apprehension of bias. The circumstances in which the application has arisen are as follows. 2. This morning I was handed a note which has been marked "Jury Note 9" which is in the following terms: "Your Honour, yesterday afternoon at the back entrance to the police station when exiting there was a group of Aboriginal people sitting on the fence and one was making verbal comments. Not pleasant. They have started to come around in the mornings also. Just wanted to bring it to your attention – Jury Member." 1. I should record that Mr Gordon, the accused, is an Aboriginal person and that Mr Cotter, the deceased, resided in the Aboriginal community with his partner. 2. I caused inquiries to be made of the officer to whom the note was passed and I was informed that the juror who brought this matter to my attention had left slightly ahead of the juror's colleagues yesterday afternoon because that juror had an appointment to keep. Accordingly the juror left unaccompanied. I am also informed that the comment the juror perceived was of a personally denigrating type. There was no mention of the case or of the jury's deliberations. 3. Mr Watts submits that there is a real danger that the juror's perception of events would affect the juror's impartiality as a decision-maker in the case and that, although the sheriff conventionally directed the juror not to the discuss the matter with the juror's colleagues, that infection may spread throughout the jury room and that the whole jury should be discharged for apprehended bias. 4. Adapting the test applicable to judges as established by the High Court of Australia in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, I think the relevant test I have to apply might be expressed in the following terms: "A juror or jury is disqualified if a fair-minded lay observer might reasonably apprehend that the juror or jury might not bring an impartial mind to the resolution of the question of the guilt or innocence of the accused in accordance with the directions of law which the jury have received." 1. In applying this test I think it also significant to consider whether, if the events seemed capable of giving rise to such an apprehension, that apprehension might be assuaged by the provision of further directions from the trial judge. This would consist of a reminder of the direction given at the start, during and at the conclusion of the trial of the need to decide the case solely in accordance with the evidence and to decide it impartially, independently, dispassionately and without prejudice or sympathy for any person. 2. This direction, which is fundamental to the nature of the jury's duty, of course, is encapsulated in the oath or affirmation they each took upon empanelment and is by implication, if not expressly, re-emphasised in the admonition that judges give to juries on a daily basis at the conclusion of the day's proceedings as I have done. 3. The Crown oppose the application and the learned Crown Prosecutor submits that the tenor of the note considered in the context of the broader known circumstances to which I have referred consists of the juror doing no more than bringing a matter to my attention. There is nothing about the note which suggests that the circumstances have affected the juror's thinking about the case, although I acknowledge one could infer from the contents of the note that that juror feels some discomfort in relation to the circumstances relayed by the note. 4. What would a fair-minded observer make of this? In essence, a fair-minded lay observer might reasonably apprehend that the juror or jury might not bring an impartial mind to bear only if the fair-minded lay observer could rationally articulate how the matter might affect the juror's reasoning so that irrelevant matters would be brought to bear in the formulation of that juror's vote for the jury's verdict. 5. There is no reason to suppose, I think, that the juror would disobey the officer's direction not to discuss the matter with the juror's colleagues. I accept that prejudicial thinking could undermine a jury's verdict and would seriously affect the fairness of the trial. However, judges must work on the basis that jurors and juries listen to, accept and apply the directions of law that judges give them. This assumption is fundamental to the whole system of trial by jury. If the assumption were otherwise the integrity not just of a given trial but of the whole system of justice would be called into question. 6. It seems to me that one would need compelling evidence to conclude that this jury would not abide by the directions I have given them in relation to the absolute need for impartiality. Moreover as there are twelve of them it seems to me that there is no reason to suppose that the other eleven could possibly be affected by these events, and indeed were the matter raised in the jury room it seems to me that the other members of the jury would doubtless disabuse the juror concerned of any inclination to prejudicial reasoning processes. 7. I am not persuaded that the circumstances which have arisen give rise to an apprehension of bias. On the other hand given the circumstances I think it appropriate that I reassemble the Court to reinforce the directions I have already given in relation to the absolute need for continued impartial, dispassionate and unprejudiced reasoning. I refuse the application for discharge. ********* 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: 06 March 2017