R v Holmes [2020] NSWSC 103

Supreme Court New South Wales

Medium Neutral Citation: R v Holmes [2020] NSWSC 103 Hearing dates: 3, 4, 5 February 2020 Date of orders: 05 February 2020 Decision date: 05 February 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) That the juror known to Ms Holmes is disqualified from service on the jury and should be discharged. I will not discharge her separately given what I have decided about the whole jury.

(2) The whole jury should be discharged for the reasons I have expressed. Catchwords: CRIMINAL PROCEDURE – application to discharge jury – juror connected to accused's mother – apprehended bias and apparent impairment of impartiality – application of the test in Ebner v Official Trustee in Bankruptcy as adapted to jury – interest of justice – whether whole jury infected by apprehension of bias – whole jury discharged. Cases Cited: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Category: Procedural rulings Parties: Regina (Crown) S. Holmes (Accused) Representation: Counsel: L Carr SC (Crown) P Krisenthal (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) J.A. Solicitors (Accused) File Number(s): 2018/200129

Judgment 1. HIS HONOUR Mr Holmes is standing trial for the murder of his long-time friend Mr Hadden. The events giving rise to the charge of murder occurred on 14 January 2018 here in Newcastle, on the Foreshore near the Newcastle Wharf. 2. Both men had been drinking, perhaps heavily, during the afternoon and as can happen in those circumstances, and on what I have been told about the case anyway, appeared to fall into an altercation about nothing much in particular. 3. They were then on licensed premises. The security at the hotel followed, what was put to the jury by the Crown, I think accurately, as standard operating procedure in such premises and released them separately with an interval of time between their respective releases. However, as can happen in these situations, the two men met up not far from the pub. 4. The circumstances of the altercation were such that it is said that the evidence will establish, and we have not got that far yet, that the accused got the better of the deceased in that altercation, although no blows were exchanged. In any event, no doubt, there was a degree of heat, I will say, on the part of each of them during that event. The evidence may establish, from the opening of counsel for both sides that when they met up on the waterfront, a short distance from the hotel, the deceased approached the accused and said to him something like, "If you ever do that again, I will kill...", he was then pointing his finger at the accused and before he could finish the sentence, the accused immediately struck him on or about his face with force, causing him to fall over backwards and hit his head on the concrete pathway.It is also said the evidence will establish that the accused continued to assault the deceased when he was prone. The accused then walked away before returning and assaulting him again. He was arrested by police nearby. 5. Although there are always many issues and in every trial, perhaps involving degrees of emphasis and matters of detail in relation to primary fact, the real and substantial issue in this case is whether, at the time he struck the fatal blow, the accused had the requisite intention to constitute the crime of murder of actually intending to inflict grievous bodily harm upon the deceased. 6. The jury was empanelled yesterday and I gave them my opening direction. 7. At the request of counsel, for reasons I need not elaborate on in this judgment, I then sent the jury home and adjourned the trial until this morning. At 10 o'clock, the jury had the benefit of the opening address of the learned crown prosecutor and the statement of issues from Mr Krisenthal of counsel for the accused. We then started to take some non-contentious evidence from the officer-in-charge of the investigation, before taking the usual adjournment just before 11.30. 8. During that adjournment I am informed, and it is agreed between the parties, the mother of the accused, who is present in court today but was not here yesterday, informed Mr Krisenthal that one of the ladies on the jury was known to her socially in as much as they both attend the same line-dancing class or activity twice each week for the last 2 years. I do not understand it to be said that they have become close friends; nor is it said that they have developed any particular animosity between each other. However, when that information was disclosed the Crown, and it is not really opposed by Mr Krisenthal, applied for me to discharge the juror concerned, and I will deal with that issue before dealing with any other issue. 9. IThe ground for disqualification of that juror is, of course, apprehended bias. During the course of the argument, I discussed with counsel the decision of the High Court in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, where Gleeson CJ and McHugh, Gummow and Hayne JJ discussed the concept of apprehended bias, as it applies to judges and jurors. There is no question here of any actual bias on the part of the juror concerned. Their Honours said at [6]: "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle." 1. In paragraph 7 their Honours made abundantly clear that the very same principle applies to the position of a juror when a question about the apprehension of bias arises. At [8] their Honour said this: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty….Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or a juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or a juror) has an 'interest' in litigation, or an, interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from the impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." (My emphasis.) 1. I have emphasised the words "interest in a party". The context in which that comment was made in Ebner was the consideration that the judge was shown to have shares in a company which was one of the parties to the litigation. However, one may have an interest in a party at an emotional or social level. Nobody would think, if I may put it this way, I hope not inappropriately, that it would be appropriate for an accused person's mother, brother or cousin to sit on the jury. There are obviously questions of degree involved in the network of human relationships that persons form in civil society. 2. Here, of course, the relationship between the accused and the juror in question is more remote than a close family or blood relationship. Even so, the social connection between the accused's mother and the juror is not insubstantial. It is frequent and has extended over a period of time. As counsel submitted to me, had we known of this relationship yesterday, one or other of them would have challenged this juror from serving on the jury or perhaps an application at that stage may have been made for me to disqualify her and, doubtless, at that time I would have acceded to the application without difficulty, given that there was a large panel from whom jurors could be drawn. 3. The High Court also made clear in [7] of the judgment in Ebner that the test concerns whether a juror might not bring an impartial mind to the resolution of the question. Their Honours emphasise that the question is one of possibility, real and not remote, not probability. I am not required by law to conjure with the actualities of the situation. 4. However, given that I must articulate the logical connection between the matter and the feared deviation from the true course of justice, I think it can be said that, if one assumes that although the juror did not make any connection between the accused and the person she perhaps knew as "Heather from dancing class", given that Ms Holmes has been here today and will be here for the rest of the trial to support her son, as is only natural, the penny is bound to drop at some stage, if it has not already dropped. One only has to work on the assumption that if she has friendly feelings towards Ms Holmes, likes her and admires her, then she might be of a view that no son of hers could possibly be guilty of the crime charged. That might be a view which she would express to other members of the jury; I interpolate, that could have happened already. If we conjure the other side of the equation, that she never liked Ms Holmes and always thought, and I hope this is not an inappropriate example, she caused trouble at line-dancing, then she might take an opposite view of the prospect of her son being guilty of the crime that is charged and might seek to influence the jury in that way. However it is posited, there is a risk, real and not remote, of prejudice infecting not only that juror's thinking about the matter but perhaps, if she has influence with her colleagues, the thinking of other jurors about the matter. 5. Notwithstanding, of course, the direction they have already been given to decide the case objectively and free from sympathy or prejudice. I stress that I am only concerned with the possibilities, not the actualities, and I stress that I am concerned with the appearance of justice being done. Although I have not found the case an easy one to decide, I am of the view that the juror continuing on this jury would cause apprehension amongst informed lay persons about the capacity of this jury to act impartially in bringing in its verdict in due course. 6. For those reasons, I am persuaded that it is my duty to discharge the juror from further service on this jury. 7. I then turn to the second question, which is whether the whole jury should be discharged and that the trial should recommence. I have already indicated that it is early days yet in this trial. It is not a long trial, or not expected to be at least. But even so I am influenced by the consideration that the constitutional tribunal for the determination of questions of guilt and innocence in serious criminal cases is expected to be twelve. There are statutory powers for a judge to order the continuation of a trial with slightly less than twelve, but it is natural that the parties, and particularly the accused, would wish to have the advantage of trial by twelve members of the community, rather than say eleven. I am also informed that other jury panels are available and that the case could restart on Monday, if not before. 8. It is always a most unfortunate outcome when a jury who has been charged with the determination of the accused's guilt and innocence must be discharged. However, the greater consideration is the interests of justice itself and it is my obligation to ensure that the trial is fair. I think that although fair trials are often had at the hands of juries of eleven or even in some circumstances ten, given that the case has just commenced, I am persuaded that the better part of discretion in this instance is to discharge the whole jury. 9. Let me return to my articulation of the possible deviation from the path of justice. It may be that during the morning tea, which has been extended by this argument, that the juror herself may have mentioned to her colleagues that she recognises Ms Holmes in the back of the Court and that she has put two and two together. It may be that the juror herself has already passed on to the other jurors what she thinks about Ms Holmes and the possibility of her son being guilty of this offence. I will say for the third time I am only concerned with possibilities, not with actualities, but the possibility then is that it may be now that the whole jury has, to some extent, been infected by the possibility that the juror has some prejudice, one way or another, in favour of or against the accused because of her connection with the accused's mother. 10. For those reasons, I am of the view that I should discharge the whole jury and I will return to the question when we recommence when I have attended to that matter. I order: 1. That the juror known to Ms Holmes is disqualified from service on the jury and should be discharged. I will not discharge her separately given what I have decided about the whole jury. 2. The whole jury should be discharged for the reasons I have expressed.