Supreme Court New South Wales Medium Neutral Citation: R v Azari (No 9) [2018] NSWSC 1678 Hearing dates: 17 and 18 October 2018 Decision date: 18 October 2018 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: (1) The accused's application to discharge the jury under s 53C(1)(a) of the Jury Act 1977 (NSW) is dismissed. (2) In accordance with ss 53C(1)(b) and 22(a)(i) of the Jury Act 1977 (NSW), the trial is to continue with a jury of 11. Catchwords: CRIMINAL LAW – application to discharge jury – where Crown witness communicated that he recognised a juror – where the name given by the witness matched the name of the juror – where the juror was examined and denied knowing the witness - where the juror was discharged under s 53B(b) of the Jury Act 1977 (NSW) on the basis of reasonable apprehension of bias – whether the remaining jury members should be discharged under s 53C(1)(a) of the Jury Act – whether continuing with the jury poses a substantial miscarriage of justice Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Evidence Act 1995 (NSW), s 184 Jury Act 1977 (NSW), ss 22, 53A, 53B, 53C, Pt 7A Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Hoang v R [2018] NSWCCA 166 Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7 Khazaal v The Queen (2011) 265 FLR 276; [2011] NSWCCA 129 Miller v The Queen (2015) 252 A Crim R 486; [2015] NSWCCA 206 R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110 R v Qaumi (No 36) [2016] NSWSC 718 Category: Procedural and other rulings Parties: Regina (Crown) Omarjan Azari (Accused) Representation: Counsel: L Crowley with B Power (Crown) B Hughes SC with M Curry (Accused) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ryan & Payten Criminal Specialists (Accused) File Number(s): 2014/274649 Publication restriction: This is a redacted version of the judgment in order to comply with the orders made on 11 October 2018 pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW): R v Azari (No 8) NSWSC 1647 judgment (revised from ex tempore) 1. HER HONOUR: On 11 October 2018, a jury was empanelled and the trial commenced against Omarjan Azari on one count that he did an act in planning or preparation of a terrorist act or acts. The Crown case is that the accused participated in a telephone conversation with Mohammad Ali Baryalei at about 9:00pm on 15 September 2014. Mr Baryalei was at that time associated with Islamic State and presumed to be in Syria. 2. The Crown case is that during the telephone conversation a plot to commence terrorist acts in Australia was discussed. It is alleged that the accused agreed to what was suggested to him by Mr Baryalei. The accused's case is that he did not have the requisite intention at the time, that is, that he did not intend to plan or prepare for a terrorist act or acts. The Crown case comprises recordings of telephone intercepts and surveillance device material as well as photographs and other documentary evidence. The accused has also made a number of formal admissions pursuant to s 184 of the Evidence Act 1995 (NSW). 3. A significant witness in the Crown case is a man known for the purpose of these proceedings as Ahmed Hussain. Mr Hussain has pleaded guilty in relation to a separate terrorism-related offence and is currently in custody. It has been foreshadowed that there will be a significant attack on his credibility in this trial. 4. Before the jury was empanelled on 11 October 2018, the Crown Prosecutor read out a list of names of persons who would either be called as witnesses or whose names might be mentioned in the evidence and also provided a list of those names in written form to the jury. Mr Hussain's real name was included in that list. Immediately afterwards, the jury panel was told that there was a suppression order in relation to his name. Those pieces of paper were returned after the jury panel left court. When the jury was empanelled it was explained to them that, although Mr Hussain's real name will be disclosed in all of the documents which will become exhibits in the trial, he will be referred to by the name Ahmed Hussain throughout the proceedings. 5. The trial proceeded on Thursday and Friday of that week and Monday and Tuesday of this week. A number of documents were tendered during that time which included references to Mr Hussain's real name. At approximately midday on Wednesday, 17 October 2018, Mr Hussain commenced giving his evidence. At 1:00pm, Court adjourned for the luncheon break. When Court resumed at 2:00pm, the Crown Prosecutor indicated the following in relation to Mr Hussain: "He's reported, your Honour, that he thinks he might know someone on the jury and it's the person who's the young female juror second in the front row. He said that when he was giving his evidence and looked over at one stage he had a flicker of recognition that that might be someone he knows..." At the moment, your Honour, we've indicated we would raise it with your Honour. He knows the name of the person, at least her first name, and some other details about the person that he thinks that it is. What might be appropriate, your Honour, is that if that could be perhaps written down and communicated through your Honour, through the Sheriffs, to make an inquiry so that we can find out if is it or not." 1. The brief description provided by the Crown Prosecutor was sufficient for me to identify the particular juror. On the application of Mr Hughes that juror was separated from the rest of the jury whilst further investigations were made. As foreshadowed, the Crown Prosecutor requested that Mr Hussain write down on a piece of paper the name of the juror and any other identifying information. Neither counsel saw that note - it was provided to me by the Court officer. The note provided only the first name of the juror and other identifying material as to her high school, area of residence and ethnicity. The first name of the juror was an unusual one and not a female name I was previously familiar with. 2. The note was marked as MFI 5. I provided MFI 5 to the Court officer and requested that the Sheriff investigate whether there was anyone on the jury with that first name. Shortly afterwards, the document MFI 5 was returned to me by the Court officer with the full name of a juror on it who had the same first name as that in the note written by Mr Hussain in MFI 5. I then requested that the Court officer compare the name on the note with the juror number of the female juror who had been separated from the rest of the jury. It was subsequently confirmed that the juror who had been separated was the juror with the first name provided in MFI 5. 3. The transcript of yesterday's proceedings will record that there was detailed discussion with counsel as to the way to proceed next. Mr Hughes relied on the decision of Hamill J in R v Qaumi (No 36) [2016] NSWSC 718 and submitted that the juror should be discharged without any questioning of her. It was accepted, as Hamill J noted in that case, that the wording of s 53B(b) of the Jury Act 1977 (NSW) is such that the Court has power to question the particular juror. 4. Although I accepted that there was sufficient material already to discharge the juror without any questioning of her, the potential difficulty with that course was the second question as to whether the trial should proceed with eleven jurors. Counsel then agreed that the next course was to ask questions of the juror of a limited nature. The juror was then brought into Court and sat in the witness box. She provided her juror number and I asked her the following questions: "HER HONOUR: Remember at the beginning of the trial when I was asking persons whether they knew anyone connected with the trial, it's come to the attention of the Court that you may have some association with the trial. What I'm going to ask you is this; you know the last witness that's given evidence, who's still in the witness box? JUROR: Yes. HER HONOUR: Known by Ahmed Hussain, have you ever seen that witness before? JUROR: No your Honour. HER HONOUR: I know this question is going to sound unusual because you've just said that you don't know him; but have you discussed that witness, not his evidence he's given but him or any possible prior association you might've had of him, with the other jurors? JUROR: No. HER HONOUR: And that was before you were asked to be separated? JUROR: Yeah." 1. I then asked counsel whether there were any other questions to be asked and both counsel indicated that there were not. 2. Following her evidence I formally discharged the juror under s 53B(b) of the Jury Act. That section relevantly provides: "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…" 1. As the transcript of yesterday's proceedings records, I was not satisfied at that time that there was any actual bias on the part of the juror, rather, she was discharged on the basis of apprehension of bias; that is, the accused was aware that the witness Mr Hussain knew the juror even if the juror did not recall that fact. Moreover, as Mr Hughes noted, even if the juror did not currently remember the witness, there would always be the risk that she may later come to recognise him as his evidence continued. Having seen the juror answer the questions, I was not satisfied that she was being untruthful in that regard. Both the Crown Prosecutor and Mr Hughes agreed that the juror had to be discharged on the basis of apprehension of bias. Counsel agreed that there was no need to ask her any further questions for the purpose of discharging her. 2. I was satisfied that the fact that the witness had provided the first name of the juror, which was consistent with the juror's name, was sufficient to conclude that the witness remembered the juror and the accused is aware of that fact. Although the juror did not remember him, the coincidence of the witness identifying her by her somewhat unusual first name is such that I have no basis to conclude that the witness is not telling the truth. 3. By reference to the statutory language of s 53B(b) of the Jury Act, I was satisfied there is a reasonable apprehension of bias based on the assertions made by the witness, even though I was not satisfied of any actual bias. Accordingly, at approximately 3:10pm yesterday, I discharged the juror and sent the rest of the jury home. Mr Hughes sought and was granted an adjournment in order to obtain instructions from the accused as to whether the trial should proceed with a jury of eleven. 4. Section 53C(1) of the Jury Act relevantly provides that, if a Court discharges a juror in the course of a trial, the Court must: "(a) discharge the jury if the Court is of the opinion that to continue the trial 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 s 22, order that the trial continue with a reduced number of jurors." 1. Section 22 of the Jury Act relevantly provides that when, in the course of a trial, a member or the jury is discharged under Pt 7A of the Jury Act, the jury shall be considered as remaining, for all the purposes of that trial, properly constituted if, in the case of criminal proceedings, the number of its members is not reduced below 10 and if the Court orders that the trial continue with a reduced number of jurors under Pt 7A. 2. In circumstances where I have discharged a juror, I am required under s 53C of the Jury Act to make an order as to whether to discharge the jury or proceed with a jury of eleven. I am required to discharge the jury if I am of the opinion that continuing the trial with eleven jurors would give rise to the risk of a substantial miscarriage of justice. It is only if I am not of that opinion that I would order the trial continue with eleven jurors. The words "substantial miscarriage of justice" are not defined in the Jury Act. I have recently considered what these words mean in their particular statutory context in the Jury Act at [127]-[132] of the decision of Hoang v R [2018] NSWCCA 166 ("Hoang"). As I noted in that decision, there has been very little judicial consideration of what this phrase means in the context of the Jury Act as opposed to s 6(1) of the Criminal Appeal Act 1912 (NSW). There has been considerable judicial consideration of what this phrase means in the context of the Criminal Appeal Act, most recently in the decision of the High Court in Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7. 3. As I noted at [129] of Hoang, the test for a potential substantial miscarriage of justice in s 53A(2)(b) of the Jury Act and also in s 53C(1)(a) of the Jury Act is to be assessed prior to the verdict rather than retrospectively at the time of an appeal. In addition to that contextual difference there is another: in s 53C(1)(a) the question is whether there will be a risk of a substantial miscarriage of justice, whereas in s 6(1) of the Criminal Appeal Act, the question is whether the Court is satisfied that no substantial miscarriage of justice has actually occurred. 4. Giving the words "risk of substantial miscarriage of justice" their ordinary meaning in the context of the Jury Act, and in particular s 53C, I propose to approach the question of potential discharge on the question of whether what has occurred could affect the outcome of the trial in any way. 5. Mr Hughes' submission is that the jury should be discharged under s 53C(1)(a). He relied upon a long line of authority including Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts") and referred to the decision of Hall J in Khazaal v The Queen (2011) 265 FLR 276; [2011] NSWCCA 129 and the decision in Miller v The Queen (2015) 252 A Crim R 486; [2015] NSWCCA 206. The principles stated in those cases are well established. Those cases pertain to circumstances where prejudicial material has inadvertently come before the jury that may impact on the trial. The decision of the High Court in Crofts has stated that the question of discharge is one for the discretion of the trial judge and it turns on the question of necessity. 6. I recently considered those relevant authorities last year in the decision of R v R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110 at [25]–[33]. Although the principles stated in those cases have some application to this matter and can be incorporated into a consideration under s 53C(1) of the Act, the statutory question for me to determine is whether there is a risk that the continuation of the trial with eleven jurors would give rise to a substantial miscarriage of justice. 7. Mr Hughes also submitted that, although I had found that the relevant juror was telling the truth, she had not been cross-examined and her credit had not been challenged. He noted that it could not be excluded that she had in fact said something to the rest of the jurors. He submitted that the offence for which Mr Azari is on trial is a serious one, carrying life imprisonment, and in those circumstances the accused was concerned and felt that he did not wish the trial to proceed with a jury that may have been influenced by the discharged juror. 8. He also submitted that the accused is aware that if the whole jury was discharged he would spend a further period of time in custody awaiting a new trial. Despite this, he had instructed Mr Hughes that he favours a fair trial over a speedy trial or a trial that could be held in the near future. Mr Hughes conceded, however, that he could not put those submissions any higher than he had. 9. The Crown Prosecutor submitted that the trial should proceed with a jury of 11, that any concern about the discharged juror's communication with the other members of the jury was speculative, that the juror had indicated that she had not discussed it with anyone else and that, in those circumstances, it was appropriate to proceed with a reduced number of untainted jurors. 10. I have had regard to those submissions and the matters that I have already outlined. I am not satisfied that proceeding with the trial of eleven would give rise of a substantial miscarriage of justice. As stated above, despite the fact that she was not cross-examined, I did accept the juror's evidence that she did not recognise the witness to be a genuine answer at that time. It seems to me that there are a number of explanations for the witness not being able to recall Mr Hussain. It is important to note that he did not immediately recognise her either and nor was he able to recall her surname. He has been in custody and there have been significant publication restrictions on his sentencing proceedings, his identity and the fact that he is giving evidence in this trial. It thus would not have been possible for them to have run into each other for a number of years. It may also be the case that she left a more lasting impression on him that he did on her. 11. In circumstances where I am not satisfied that the juror was lying when she stated that she did not recognise the witness, it is difficult to see how any prior knowledge of the witness could have contaminated the jury deliberations in any way. If she does not remember Mr Hussain then it follows that she was not in a position to say anything about him to the rest of the jury without any previous knowledge of him. It is relevant on this issue to note that the witness is only at the beginning of his evidence and it is anticipated he will be cross-examined at length. 12. The juror was separated from the jury at 2:00pm. I have had regard to the principles in the cases referred to by Mr Hughes and, as I have already indicated, they are well established principles. I have had regard to the stage of the proceedings of the trial but also to the importance of the particular witness. 13. Although I have noted that the accused may hold some concern about the trial, as Mr Hughes conceded, that is not the relevant statutory test. It was raised by the Crown Prosecutor during his submissions that it is highly unlikely, given the strong directions that were given to the jury, both in oral and written form, at the beginning of the trial about their obligation to disclose any material that has come into the jury room other than the evidence, that all eleven jurors would have ignored such a direction. I do not consider that to be an appropriate matter to have regard to when making my decision as it seems too speculative. However, as I indicated to Mr Hughes, it may well be a matter he wishes to explain to the accused to make him feel more at ease moving forward with the trial. 14. Having had regard to the submissions of counsel and the terms of s 53C of the Jury Act, I am of the opinion that there is no substantial risk of miscarriage as a result of the discharge of the juror and the basis for that discharge. orders 1. In consideration of the above, I make the following orders: 1. The accused's application to discharge the jury under s 53C(1)(a) of the Jury Act 1977 (NSW) is dismissed. 2. In accordance with ss 53C(1)(b) and 22(a)(i) of the Jury Act 1977 (NSW), the trial is to continue with a jury of 11. ********** 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: 29 November 2018