R v WE (No.6) [2019] NSWSC 930

Supreme Court New South Wales

Medium Neutral Citation: R v WE (No.6) [2019] NSWSC 930 Hearing dates: 22 July 2019 Date of orders: 22 July 2019 Decision date: 22 July 2019 Jurisdiction: Common Law Before: Bellew J Decision: See [37] Catchwords: CRIMINAL LAW – Practice and Procedure – Juries – Member of the jury failing to follow the evidence – Where member of the jury fell asleep following an absence due to illness – Risk of substantial miscarriage of justice – Juror discharged – Whether trial should continue with jury of 11 persons – Ordered that the trial continue Legislation Cited: Jury Act 1977 (NSW) Cases Cited: Phan v R [2018] NSWCCA 225 R v Rogerson and R v McNamara (No. 27) [2016] NSWSC 152 R v WE (No. 3) [2019] NSWSC 881 R v Wu (1998) 103 A Crim R 416 Wu v R [1999] HCA 52; (1999) 199 CLR 99 Category: Procedural and other rulings Parties: Regina – Crown WE – Accused Representation: Counsel: P McGuire SC and B Anniwell – Crown J Trevallion and N Bennett – Accused

Solicitors: Director of Public Prosecutions (Cth) – Crown Alexanders Lawyers – Accused File Number(s): 2016/305103 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. The accused in this matter is charged with doing acts in preparation for, or planning, a terrorist act or acts. The Crown case is that he committed that offence jointly with a person to whom I shall refer to as "HG". The trial is now in its fifth day. The evidence of the tenth witness called by the Crown was completed earlier this morning. 2. An application has been made by the Crown that I make orders: 1. discharging an individual member of the jury; and 2. continuing the trial with a jury of eleven. 1. Counsel for the accused has opposed the making of the first of those orders. In the event that I come to the conclusion that such an order is appropriate, counsel for the accused has opposed the continuation of the trial with a jury of eleven and has submitted that I should, in that event, order that the entire jury be discharged. 2. The circumstances in which these issues have arisen are as follows. 3. Shortly before the luncheon adjournment on 18 July last, my attention was drawn, by both the Court Officer and members of my staff, to the conduct of a particular member of the jury. At the time, I said the following: [1] "I place on record that the court officer and my staff have made observations of what appears to have been some interaction between the accused and one of the members of the jury, the interaction being constituted by what might be generally regarded as smirking and laughing. I will say no more about it at this stage." 1. Counsel for the accused, having been given the opportunity to obtain instructions in relation to the matter that I had raised, said: [2] "I can say this, your Honour, that my instructions are that there was a point, just at the end of that last witness' evidence before we adjourned, that the accused did smile at something that the witness had said but I'm instructed that he did not attempt to engage with anyone in the jury." 1. When I asked counsel if he had instructions as to whether the accused had observed any interaction (or attempted interaction) on the part of any member(s) of the jury towards him, counsel responded: [3] "Only that he (the accused) did not perceive any action by any of the - he noticed that some of the jurors were smiling as well but he did not perceive that as an attempt by the jurors or one member of the jury to interact with him." 1. The Crown submitted that I should view the CCTV footage taken from inside the Court before taking any further step in relation to the matter. The Crown's position stemmed, at least in part, from the fact that a previous jury in this trial was discharged in circumstances not entirely dissimilar to those which had been reported to me on this occasion. [4] 2. On the following morning, 19 July, I was informed by the Sheriff that the member of the jury in question had phoned to indicate that she was unwell and could not attend Court. A letter from the Sheriff's Office [5] documented the fact of the phone call and stated: "The juror will attend the doctor's today to obtain a medical certificate." 1. I asked the Sheriff to inform the member of the jury that a medical certificate would be required and should be obtained as soon as possible. I was later informed that the member of the jury had told the Sheriff that she would attend a doctor immediately for that purpose. A short time after that I was provided with a medical certificate [6] under the hand of Dr Quoc Dung Lam, certifying that the member of the jury had been examined on 18 July 2019. That, of course, was the previous day, a fact not entirely consistent with what the member of the jury had told the Sheriff about obtaining the certificate. Dr Lam certified that the member of the jury had a "medical condition" and would be "unfit for work". Later that day my Associate was informed that the member of the jury had called the Sheriff to indicate that she would be fit to resume her duties on Monday 22 July which was the next sitting day. 2. The CCTV footage [7] from 18 July was then made available. Two angles were provided, the first of which was taken from the back of the Court looking towards the jury box, and the second of which was taken from the front of the Court looking towards the dock. When the first footage was shown, I observed the member of the jury in question openly laughing at the evidence, consistent with what had been reported to me. It also appeared to me from the second footage that the accused was behaving, at least at one point, in a not dissimilar way, although whether there was any correlation (in terms of time) between his behaviour and that of the member of the jury was not completely clear. 3. Having viewed the footage, neither the Crown nor counsel for the accused asked that any action be taken. However, they agreed that it would be prudent to remind the jury, upon the resumption of the trial today, of the need to listen carefully to, and concentrate on, the evidence as it was given. I reminded the jury of those matters at the commencement of today's proceedings at about 10.05am. The evidence then continued. 4. A short time later, I commenced to make a number of observations of the member of the jury in question. She was, more often than not, asleep. There were several occasions on which her head "dropped" (for want of a better term) as she drifted off to sleep, only to suddenly wake herself up. I observed her closely over a 45 minute period from 10.05am to 10.50am. She was asleep for the greater part of that time. It should be noted that both the senior and junior Crown Prosecutor made observations to the same effect, as did the Court Officer and members of my staff. Counsel for the accused and his junior did not, although it must be said that the configuration of the courtroom is such that they were not in a position to do so. At the conclusion of the evidence of the first witness who had been called this morning, the Crown informed me of his observations and those of his junior. The Crown then made the application to which I have previously referred. 5. I turn firstly to a number of provisions of the Jury Act 1997 (NSW) ("the Act") which impact upon the present application. The first is s 22 which is in the following terms: 22 Continuation of trial or inquest on death or discharge of juror Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below 10, (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months, (b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8, or (c) in the case of a coronial inquest, the number of its members is not reduced below 4,and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A. 1. Section 53A is in the following terms: 53A Mandatory discharge of individual juror (1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest: (a) it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or (b) the juror has become excluded from jury service, or (c) the juror has engaged in misconduct in relation to the trial or coronial inquest. (2) In this section: "misconduct" , in relation to a trial or coronial inquest, means: (a) conduct that constitutes an offence against this Act, or Note : For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror. (b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest. 1. Section 53B is in the following terms: 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if: (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (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 (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 1. Section 53C is in the following terms: 53C Discretion to continue trial or coronial inquest or discharge whole jury (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. (2) A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912 . (3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order. 1. The Crown's application was that I should exercise the discretion in s 53B to discharge the individual member of the jury in question. However, I suggested in argument that s 53A of the Act appeared to have a role to play, given the definition of the word "misconduct". In R v Rogerson; R v McNamara [8] , in circumstances similar to the present, I exercised the power conferred by s 53A to discharge an individual member of the jury. In doing so made the following observations: [9] "The inability of a member of a jury to stay awake and listen to the evidence as it is being given, and the propensity of that inability to give rise to the risk of a substantial miscarriage of justice, needs no further comment. Fundamental to the right of an accused person, and, indeed, the Crown, to a fair trial, is the proposition that all members of the jury should be alert, attentive and in a position to follow and comprehend the evidence as it is being given. It is impossible for a juror to discharge those functions if he or she is asleep. Any further observation in relation to that would be superfluous." 1. In my view, for substantially the same reasons, the conduct of the member of the jury in this trial is such as to give rise to a risk of a substantial miscarriage of justice. It therefore constitutes misconduct under s 53A(2) of the Act. In those circumstances, s 53A(1)(c) of the Act mandates that I make an order discharging her. Counsel for the accused accepted that if I came to the view that there was misconduct as defined in s 53A(2), an order discharging the member of the jury was mandatory. I propose to make that order. 2. However, in circumstances where submissions were also directed to the discretionary power in s 53C of the Act, it is appropriate that I canvass those matters as well. 3. R v Wu [10] Abadee J observed that an accused should not be lightly deprived of the right to be tried by a jury of twelve persons, and that the discharge of an individual juror deprives an accused of the voice of that juror in the consideration of the verdict. In the circumstances of that case, the Court dismissed an appeal against conviction and a subsequent appeal against that decision was dismissed by a majority of the High Court. [11] Gleeson CJ and Hayne J observed [12] that in circumstances such as the present, two decisions are to be made. The first is whether the individual juror should be discharged. The second is whether the trial should continue with fewer jurors, or whether the whole jury should be discharged. Their Honours said: "The decision to discharge a juror and the decision to proceed with a jury of less than twelve 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." 1. McHugh J observed: [13] "The usual reason for exercising the power under section 22 is that the trial has proceeded for some time and that it would cause significant expense to begin again with a new jury. No doubt the circumstances of individual trials will throw up other valid reasons and there may be countervailing reasons. It may be a case dealing with matters upon which the opinion of the community is deeply divided. In such a case, despite the time that the trial has already taken, the proper exercise of the discretion may require that the accused be re-tried before a jury of twelve. Or the case may be one where the community has strong feelings against the crime in question and the risk of prejudice against the accused may be strong. In such a case depriving the accused of the chance to obtain the vote of the twelfth juror may be a step that should not be taken." 1. Kirby J (who dissented from the majority) observed: [14] "Involved in that decision are considerations quite separate from a decision to discharge an individual juror. For example, a different decision on such a question might be made at the very early stage of a long trial from that which would be appropriate at a later stage. A different decision might be made where, having regard to the circumstances of the discharge, an apprehension could arise that the entire jury could have been contaminated or their verdict cast into doubt by the events occasioning the discharge. A different decision might follow from an earlier discharge of other jurors and the complexity or fine balance of the evidence." 1. The observations of McHugh and Kirby JJ highlight the obvious, namely that the circumstances in which the discretionary power to discharge an individual juror may be enlivened are many and varied. 2. As to the question of whether, in the event that a single juror is discharged, the remaining members of the jury should also be discharged, in Phan v R [15] Price J (with whom Hoeben CJ at CL and Fullerton J agreed) observed:16 "Section 53C(1)(a) of the Jury Act imposes an obligation on a trial judge who discharges a juror in the course of a trial to discharge the jury if the judge 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. However, if the trial judge is of the opinion that there is no such risk, the trial judge is required to order the trial continue with a reduced number of jurors, as long as the numbers do not fall below the statutory minimum in section 22 of the Jury Act. The opinion is to be formed on all of the material then available to the Court." 1. Counsel for the accused, in opposing the discretionary discharge of the member of the jury, submitted that the accused was entitled to be tried by a jury of twelve persons. He submitted that this was a trial of some complexity, and that the trial process would benefit from a jury of twelve. He further submitted that on the entirety of the material available to the Court, the only available conclusion was that the member of the jury had slept through only a small portion of the evidence this morning. Counsel generally relied on those same matters in support of a submission that in the event that I made an order discharging the individual member of the jury, the entirety of the jury should be discharged. He again emphasised the right of the accused to be tried by a jury of twelve, and submitted that the trial was at a relatively early stage. 2. The Crown submitted that when the conduct of the member of the jury was assessed overall, the only available conclusion was that she had displayed, at the very least, an inability (or an unwillingness) to pay attention to the evidence as it was being given. It was the Crown's submission that this was a necessarily fundamental part of the task of any member of a jury, and that it alone weighed heavily in favour of the discretion being exercised in favour of the order sought. 3. It was the Crown's submission that the trial should then continue with a jury of eleven. The Crown pointed out that this was, in effect, the third trial of the accused, the first trial having resulted in the jury not being able to reach a unanimous verdict in 2018, and the second having ended in the circumstances to which I earlier referred. [16] The Crown also pointed out that a significant number of witnesses had already given evidence in the trial, such that properly viewed, the trial was not at an early stage. The Crown submitted that in all of the circumstances I could not come to the conclusion that there was any risk that to continue with the trial with a jury of eleven would give rise to a risk of a substantial miscarriage of justice. 4. In considering the exercise of the discretion to discharge the individual member of the jury, it is necessary for the entirety of the material before the Court to be evaluated. However one might categorise it, the behaviour of the member of the jury that I observed on the CCTV footage last week was, at the very least, consistent with somebody who was not paying attention to the evidence as it was being given. I formed that same view this morning. It is not without significance that between those two days the member of the jury was absent due to a "medical condition" of an otherwise unknown nature, although curiously, the medical certificate provided to the Court predated the consultation at which that "condition" was diagnosed. 5. It is also not without significance that at the commencement of the proceedings this morning I reminded the jury of the need to be attentive, and to listen to the evidence. It was only moments later that the member of the jury in question behaved in way which was completely and fundamentally at odds with that reminder. In my view, quite apart from the provisions of s 53A, the test posed by s 53B(d) of the Act is met. In all of those circumstances, had s 53A not been engaged, I would have exercised my discretion to discharge the member of the jury in question. 6. Consistent with the authorities to which I have referred, a determination of whether the trial should now continue with a jury of 11 under s 53C of the Act requires separate consideration. As I have already indicated by reference to the judgment of Price J in Phan, I have an obligation to discharge the balance of the jury if I am of the opinion that to continue the trial would give rise to the risk of a substantial miscarriage of justice. Equally, if I am of the opinion that there is no such risk, I am required to order that the trial continue with a reduced number of jurors. 7. One of the matters emphasised by counsel for the accused was what he described as the right of an accused to be tried by a jury of twelve. That is, as Abadee J pointed out in Wu, necessarily a consideration that bears upon the exercise of the discretion. However, it is neither absolute nor determinative. 8. Counsel for the accused also submitted that the trial process generally, and the accused individually, would benefit from the input of twelve members of the jury. It is difficult to determine what meaningful input a juror could possibly have if he or she has not been listening to, and concentrating upon, the evidence. 9. It is also relevant to observe that this is the third trial of the accused. It is now day 5 of an estimated 20-day trial. A large number of witnesses have already given evidence. A fourth trial would necessarily incur expense of the nature to which McHugh J referred to in Wu and should be avoided, although again that is not determinative. 10. I have had regard to what was submitted by counsel for the accused to be the complexity of the trial. Having presided over the trial from start to finish on a previous occasion, I do not consider it to be factually complex at all. The majority of the factual matters which are relied upon by the Crown are not in dispute. The indictment contains a single count. The elements of that count, in my view, are not overly complex. They boil down to three, and they will be the subject of written directions to the jury in my final summing-up. Whilst I acknowledge the seriousness of the allegation made against the accused, I am not satisfied that the asserted complexity of the trial, be it factually or legally, weights in favour of the entire jury being discharged. 11. In all of the circumstances I have come to the view that there is no risk of a substantial miscarriage of justice in the event that the trial proceeds with eleven members of the jury. 12. Accordingly for those reasons, I make the following orders: 1. Juror number 2220527 is discharged. 2. The trial is to continue with eleven jurors.