Supreme Court New South Wales Medium Neutral Citation: R v Khan (No 4) [2019] NSWSC 42 Hearing dates: 5 February 2019 Date of orders: 05 February 2019 Decision date: 05 February 2019 Jurisdiction: Common Law Before: Bellew J Decision: See [16] Catchwords: CRIMINAL LAW – Jury – Discharge of jury – Evidence of jurors being approached outside court – Interests of justice warranting discharge of jury Legislation Cited: Evidence Act 1995 (NSW) Jury Act 1977 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Ihsas Khan (Accused) Representation: Counsel: C Davenport SC and K Curry (Crown) T Anderson (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. Prior to the trial of the accused commencing this morning, the Sheriff informed me that he had received information from a third party that after the jury had departed yesterday afternoon, a member of the public had approached one of them ("Juror W") in the vicinity of the intersection of King Street and Elizabeth Street. The person who reported this asserted that the member of the public had said to that juror words to the effect: "You have a big decision to make. Good luck." 1. I was further informed that when the members of the jury arrived at Court this morning, Juror W did not report any such approach to the Court Officer. However, he did ask the Officer whether or not the Court was open to the public. When he was told that it was, he said something to the effect that there did "not appear to be much media interest in the trial", except for coverage on Channel Seven and Channel Nine. Juror W then asked the Officer: "When we give our decision, will the Court be full?" 1. The Officer responded to the effect that that was not a question that she was in a position to answer. 2. The person said to have been responsible for the approach to Juror W was not identified, either by name or by description. 3. Having discussed the matter with counsel, the collective view was that it was appropriate for me to exercise the power conferred by s 55D of the Jury Act 1977 (NSW) ("the Act") and question Juror W about what was said to have occurred. Having been brought into Court and sworn, Juror W gave the following evidence: "Q. As you left the courtroom yesterday afternoon, did any member of the public approach you and say anything about this trial? A. No, that didn't happen. I spoke to Matt who was standing near me, one of the other jurors, and he initially didn't hear me, and then he turned around and said 'goodbye'. And there was a couple in front who may have thought I was speaking to them but I was not speaking to them and I don't know them. Q. And you were not approached by any member of the public about this trial? A. No." 1. In circumstances where Juror W unequivocally denied that any approach had occurred, it was agreed that the matter could not be taken any further. However, at the request of counsel for the accused, and with the consent of the Crown, I reminded the jury of the direction that I had given on the very first day of the trial that if any person approached any of them in any way, I was to be informed. 2. The Crown case then continued up until the morning tea adjournment. I was then given a note from the foreperson of this jury ("Juror X"). That note, which became MFI 20, was in the following terms: "Your Honour, on the day I was empanelled, on the train on my way home, I was approached by the same lady that Juror W was yesterday afternoon. I'm sorry I did not bring it to your attention as I thought nothing of it as nothing was said at all about the case or anything else for that matter. Kind regards, Juror X." 1. It will be apparent that the reference in MFI 20 to Juror X having been approached "by the same lady that Juror W was yesterday afternoon" is diametrically opposed to the sworn evidence of Juror W that no such approach had ever occurred. 2. It was again the collective view of the parties that I should question Juror X. His evidence included the following: "Q. I want to ask you a couple of questions about what you have told me in that note, sir. Firstly, you have written in the note that on the day on which you were empanelled you were approached by a person who you have referred to as a lady, is that correct? A. Yeah, that's correct. Q. Whereabouts were you when you were approached? A. I was on a train basically at Kogarah station, I was just getting off - about to get off that train. Q. When you say you were approached, could you tell me in as much detail as you can, and speak slowly if you would, what actually happened? A. Yeah, I was about to alight off the train at Kogarah station when a train had just pulled on a platform and the doors about to open. I was going down the stairs, there was the double carriage - double carriage, you know, double - and this lady, who I don't know who she was, looked at me strangely and I didn't think much of it at the time and when we got out - when I got out of the train she got out first, I just followed, and then she said to me - can't remember exact words, but she recognised me as being part of the jury, as a juror. Q. Just let me stop you there. A. Yep. Q. Doing the best you can-- A. Yep. Q. --and I understand you may not remember the exact words-- A. Yep. Q. --but doing the best you can, what did she say to you? When you say that she recognised you as being a member of the jury, did she say something to you? A. Nothing much more than that she was present at the Court here and obviously that's how she recognised me. And that was it. I said, 'I don't remember seeing you there as part of the jury', says, 'Oh no, I wasn't, I wasn't part of the jury'. I got the impression that she was implying that she was called up for - to be part of the jury, I'm not hundred per cent sure. Q. But she didn't say that? A. No, no. Q. And was that the extent of your conversation with her? A. Yes, yes, it was. Q. Did she say anything to you at all about the trial? A. No. Q. Or any aspect of the trial? A. No, no." 1. The questioning of Juror X then turned to that part of his note in which he made reference to an approach by a member of the public to Juror W. He was asked: "Q. Do I take it from that that you have had some discussions this morning with another member of the jury about that member of the jury being approached by a lady? A. Not exactly discussion with that member of the jury. It all started with this morning when that juror was called - I think by you, is that right? Q. Yes, called into Court, yes. A. And one of the other jurors said that a lady which fits the description of the one that I was talking about in the first place was - spoke to this juror. And that's when it clicked with me and I said - I mentioned that again to the rest of the jurors that it seems like that's correct, I was approached by that person, you know, the very first day so that's how you got this note. Q. Just so that I can understand it, when the other member of the jury was brought into Court earlier today, a member of the jury made reference to you to that other member of the jury being approached by someone? A. Yes, that's right, yes. Q. Have you had any discussion with the member of the jury who was brought into Court-- A. No. Q. --about him being approached by anyone? A. What kind of discussion do you mean? Q. Any discussion at all? Has it been mentioned between, firstly, the two of you about that other juror being approached by a person? A. It has been mentioned; that's how it came to my attention. Q. Has it been mentioned by him or by someone else or by both? A. By both. Both, yes. Q. Doing the best you can, what has that other juror said to you about being approached by a member of the public? A. Are you talking about the third party now or-- Q. No, I am just talking about the other juror who you said you had had a discussion with? A. Well, the one I had discussion with was mostly the juror that brought to my attention about the person that approached the--" 1. When asked whether or not he had had a discussion with Juror W about Juror W being approached by somebody, Juror X said he had not. However, when asked whether he had been party to any wider discussion in the jury room about that issue, he said: "A. Well, it's just mentioned generally that he was approached. It wasn't just said to me. It was - yeah. Q. And was that said in his absence by someone else in the jury room, or was he there when it was said? A. No, he was there. Q. Did he say anything when it was said? A. No, not apart from the fact that he didn't know who it was and didn't hear anything. That's basically what he said, cause he's got a problem with his hearing." 1. In one sense the evidence before the Court poses more questions than it answers. However, there is certainly evidence of at least one, and possibly two, members of the jury having been approached by a member of the public on separate days after they had left court. What is also of concern, having regard to the contents of MFI 20 and the oral evidence of Juror X, is that there is prima facie evidence that the testimony of Juror W may not have been truthful. 2. Section 53B(d) of the Act confers a power on the Court to discharge a single member of a jury. Section 53C confers a power to the discharge the entire jury if it is considered that (inter alia) to continue would give rise to the risk of a substantial miscarriage of justice. It was the initial position of counsel for the accused that the jury should be discharged. The Crown supported that course. Having made that application, counsel for the accused then indicated that he had been instructed to withdraw it. It should be noted that in making the application in the first instance, counsel was at pains to point out that the accused was reluctant to take that course. Whilst I am mindful of the fact that the application to discharge the jury was effectively withdrawn, I am obviously not bound by that in terms of the conclusion that I reach. I am also mindful of the fact that there are mental illness issues in this case. 3. In the circumstances, I consider that Juror W should be discharged. Having come to that view, having heard the evidence of Juror X, and mindful of the right of all parties to a fair trial, I have come to the conclusion that the interests of justice can only be properly served by the entire jury being discharged. To do otherwise would give rise to the risk of a substantial miscarriage of justice. 4. In light of the evidence before the Court to which I have referred, I propose to forward a copy of this judgment to the Sheriff of New South Wales, along with a copy of MFI20 and transcript of the entirety of the evidence of Juror W and Juror X. All of the matters that I have raised, including the evidence of Juror W, should be investigated either by the Sheriff or by the New South Wales Police. ********** 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: 10 May 2019