Supreme Court New South Wales Medium Neutral Citation: R v Khan (No 1) [2018] NSWSC 577 Hearing dates: 2 May 2018 Date of orders: 02 May 2018 Decision date: 02 May 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [20] Catchwords: PRACTICE AND PROCEDURE – Juries – Discretionary discharge of juror – Whether entire jury should be discharged Legislation Cited: Jury Act 1977 (NSW). Category: Procedural and other rulings Parties: Regina (Crown) Ihsas Khan (Accused) Representation: Counsel: P W Neil SC and A N Williams (Crown) M Ierace SC (Accused) Solicitors: Director of Public Prosecutions (Cth) (Crown) Legal Aid (NSW) (Accused) File Number(s): 2016/272232 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. Earlier today I made an order discharging the jury empanelled in this trial. I indicated at the time of making that order I would give reasons at a later time. Those reasons now follow. 2. The accused's trial commenced before me on 30 April 2018, two days ago. He is charged that on or about 10 September 2016, at Minto in the state of New South Wales, he engaged in a terrorist act. He is charged, in the alternative that on or about the same date he wounded Wayne Greenhalgh with intent to murder him. The acts of the accused relied upon by the Crown are not in dispute. The accused has pleaded not guilty on the grounds of mental illness to both counts. 3. In the course of the proceedings on 1 May 2018, Mr Greenhalgh gave evidence of the accused's attack, which is undisputed. At the conclusion of his evidence, the accused said (from the dock and unprompted): "Mr Greenhalgh, I am so sorry for what I did to you. Can I please speak to you?" 1. I directed Mr Greenhalgh to leave the court without speaking with the accused, who then said: "I'm sorry, sir, please, I am so sorry. You're not the guy I thought you were." 1. At the conclusion of the proceedings, I directed the jury that what had been said by the accused did not form part of the evidence, that it was to be ignored, and that it was not, under any circumstances, to form part of their deliberations in this case. In giving the jury that direction, I reminded them of the fact that each of them had taken an oath or affirmation to return a verdict according to the evidence. I pointed out that whilst I would expand upon these matters in my final summing-up, what the accused had said from the dock was not evidence. 2. Shortly before commencing the proceedings this morning, I was informed by the court officer that one of the members of the jury was showing outward signs of distress, which she (the member of the jury) had put down to suffering menopause. I was told she had physically separated herself from the other members of the jury, and had told the officer that she was suffering from hot flushes. The officer also informed me that the member of the jury in question was in tears. 3. I asked the officer to have the member of the jury briefly set out in writing her state of health, with a view to determining whether or not she was capable of continuing to serve on the jury. The officer informed me that she had in fact asked the member of the jury to do that very thing and that such request had been refused. 4. I then directed the officer to request the member of the jury to put those matters in writing in order that I could properly evaluate them. In response I received a typewritten letter from the member of the jury dated 2 May 2018. The clear inference to be drawn from that correspondence is that it was prepared by her prior to arrival at court today. It was marked MFI7 and is in the following terms: "Your Honour, Yesterday, following the testimony of the witness Wayne Greenhalg (sic), the defendant made a statement to Mr Greenhalg, which was also heard by several members of the jury panel. At the time, and as a member of the jury panel, I recorded what was said - a decision that was made on the spur of the moment, and in hindsight, was perhaps a bad decision, but nevertheless, I did write it down. As a means of perspective, whilst walking around the jury room and in the midst of an informal discussion, it did arise that I had written down what the defendant had said, and was asked by the other jurors to read it out to them - which I did. This was an informal discussion and I also had the sense I was repeating something to them they had already heard. Sometime later, whilst we were seated at the table, I was asked by one of the jurors to repeat what I had written. This was in front of several other jurors at the table - including the elected foreperson. I immediately responded with "You do know it is inadmissible evidence" or similar (also audible to the other jurors), he nodded, and I then repeated to him what the defendant had said. Some time after that, the Foreperson went into the court on her own and returned and was subsequently congratulated for doing what she had just done (by [the court officer]), in front of all the jurors. At the time, I was under the impression that she was just delivering a message to the court regarding another matter we had all discussed. When we returned to court, and it was vehemently stressed to the jury by Your Honour, that we were to ignore the statement of the witness following Mr Greenhalg's testimony earlier in the day, I immediately felt that I – and fellow jurors – had been "thrown under the bus" by the elected foreperson, and that, along with other demonstrated behaviours by the elected Foreperson, that I have lost confidence in my ability to freely discuss relevant matters of opinion regarding this case – or anything for that matter – within the jury room. It is my recollection, that the job of the Foreperson, is to pass notes to the judge on our behalf - not, for example, announce to the jury panel 20 minutes before sitting that "OK, there's 20 minutes to go. If anyone needs to go to the bathroom, they had better do it now". Arising from yesterday's events - it is my strong belief that this person is a "game player" and is overstepping her role to the detriment of the jury panel. Yours sincerely" 1. The reference in that correspondence to the foreperson entering the court on her own stems from an issue which arose yesterday, in which I was informed that a member of the jury had thought that he had had some acquaintance with a witness. As a consequence of being so informed, I separately questioned both the foreperson and the member of the jury in question. Those matters are recorded at p 107 and following of the transcript. 2. There are a number of observations to be made concerning the communication received from the jury member. 3. Firstly, it contains no reference at all to the illness about which I was informed earlier today. I should say that prior to the jury being empanelled, I did stress to the jury panel in waiting that if any of them had any health concerns which they thought might impact upon their ability to carry out their functions as a juror, they should inform me accordingly. No person stepped forward. 4. Secondly, and apparently despite my direction, there has obviously been some discussion between the jury members concerning the accused's statements at the conclusion of Mr Greenhalgh's evidence yesterday. 5. Thirdly, it is apparent from the final two paragraphs of MFI1, that this particular member of the jury has, as she put it, "lost confidence in [her] ability to freely discuss relevant matters of opinion regarding this case within the jury room". In other words, she has come to the conclusion that she is unable to continue to carry out her functions as a juror. 6. Fourthly, the final two paragraphs of the correspondence give some indication that the foreperson may have been seeking to inappropriately exert what she sees as her authority over other jury members. Absent further inquiry, I can only take that matter at face value. It should be noted that in my introductory remarks to the jury after they were empanelled, I stressed that the role of the foreperson was essentially an administrative one. In particular, I stressed that in terms of discussions and deliberations, the foreperson of a jury has no greater power than any other member of the jury, and all members of a jury are equals in the jury room. 7. Senior counsel on behalf of the accused submitted that I should make an order discharging the entire jury. In discharge of the Crown's responsibility to assist the court, the Crown submitted that the issues which have arisen may be able to be satisfactorily resolved simply by discharging the member of the jury who had provided the communication. However, the Crown did not formally oppose the application. 8. For the reasons I have already given, the matters raised in the correspondence make it clear that that particular member of the jury finds herself in a position where she considers that she no longer has the ability to perform the essential functions of a juror. It goes without saying that any member of a jury must feel free to participate in discussions in the jury room. The member of the jury who provided the correspondence to me this morning has stated, in specific terms, that she has lost confidence in her ability to do that. For that reason, I came to the view that I should discharge that individual member of the jury pursuant to s 53B(d) of the Jury Act 1977 (NSW). 9. That then gave rise to the question whether the remaining members of the jury should be discharged, a matter which involves the exercise of a separate discretion. Relevant to the exercise of that discretion is the fact that the trial is in its early stages. The estimate of the trial given to the jury panel was one of three to four weeks. I remarked at the conclusion of the second day of the trial that the evidence appeared to be proceeding very quickly. It would not surprise if the trial is completed in substantially less than the estimate which was given, barring any unforeseen events. 10. I had serious concerns stemming primarily from the last two paragraphs of MFI 7. Those paragraphs contained some evidence of what might be described as a degree of disharmony amongst at least some jurors. Disharmony of that kind is obviously not conducive to the proper administration of justice. 11. Moreover, there is evidence that the jury have engaged in discussions about the accused's outbursts from the dock, in circumstances where they were told to ignore them. 12. It was for those reasons that I came to the view that the entirety of the jury should be discharged. ********** Amendments 25 May 2018 - Paragraph [16] word "memory" amended to read "member". 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: 25 May 2018