R v Alex & Ors (Trial Ruling No 6)

1. [1]

   On Thursday 6 June 2024, the 73rd day of the trial before me of George Alex and others, I made an order discharging a juror pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW). I ordered the discharge of an additional juror in the exercise of my discretion pursuant to s 53B(b) and (d) of the Act. Immediately before those orders took effect there were 14 jurors and the trial had reached the commencement of the Crown’s closing address. But for the individual discharges, the trial would have continued with 14 to the completion of the summing up, at which time a ballot would have been conducted to select a verdict jury of 12 in accordance with s 55G of the Jury Act. Under ss 22 and 53C I determined that the trial should continue with a jury constituted by the 12 who remained following the orders for individual discharge. The following are my reasons for the orders made.

2. [2]

   At 9:25 am on Wednesday, 5 June 2024 (Day 72) I was informed by the Sheriff, Ms Tracey Hall, by phone that she had been contacted by the Australian Federal Police (AFP) concerning a member of the jury, Juror G. Ms Hall informed me that in the course of an investigation unrelated to the trial or to the individual’s jury service, a search warrant had been executed at his residence earlier that morning and his mobile phone had been examined. The examination had revealed that in April 2024, approximately two months into this trial, Juror G had made internet searches relating to one of the accused and relating to at least one other person whose name is connected with evidence in the Crown case.

3. [3]

   Pursuant to s 73A of the Jury Act, I requested Ms Hall to undertake a Sheriff’s investigation of the matter and to report to me on the outcome. That request was conveyed in my initial phone conversation with Ms Hall at 9:25 am on 5 June 2024 and confirmed in an email from my Associate sent at 9:55 am. The email included the following (with numbers added for ease of reference):

4. [4]

   In accordance with pars 1 and 2 of that request, at 10:03 am Ms Hall sent to me by SMS text message screenshots of Juror G’s mobile phone, showing his search history. The history revealed that he had accessed the internet at three sites at which information relevant to the trial could be located. My staff in chambers downloaded the material at those sites and printed hard copies. At 10:41 am Ms Hall sent by email further screenshots from Juror G’s phone showing that he had accessed further content relevant to the trial at another five sites. My staff prepared hard copies of that content also.

5. [5]

   The content at the sites that were shown by the screen shots to have been searched by Juror G may be described as follows:

   1. (1)

      A report dated 22 July 2020 in Neos Kosmos, an online newsletter catering to the Australian-Greek community, under the headline “George Alex and son among 12 crime syndicate suspects arrested in police raids”. The report recounted the arrest of George and Arthur Alex on 20 July 2020 and identified the charges in terms broadly consistent with those now on the indictment. It stated that police had also arrested Caitlin Hall who was described as “the wife of convicted drug dealer Michael Ibrahim”. Reference was made to George Alex’s evidence before the building industry Royal Commission in 2014 and to allegations made in that context that he had used companies that were “collapsed because of debt”, with their assets being moved to other newly created entities to avoid payment of debts, including taxes. The report made reference to AFP action to restrain bank accounts and other assets in connection with the arrests.

   2. (2)

      A report dated 8 August 2020 in The Greek Herald under the headline “George Alex slapped with $2 million bail as construction boss walks free from prison”. The report stated that George Alex had been arrested “over a $17 million tax fraud syndicate” and had been granted bail “over mental health issues”. It stated that bail conditions included effective house arrest and that the magistrate who granted bail had been informed of a prior conviction for “sending death threats to his former lover Anna Lee”.

   3. (3)

      A series of search results relating to Caitlin Hall, that had been generated in response to the search terms “catlin [sic] hall tax fraud trail [sic]”. The results included links to articles referring to Caitlin Hall as the wife of Michael Ibrahim.

   4. (4)

      Search results generated in response to the search terms “athina alex”.

   5. (5)

      Search results generated in response to the search terms “george alex”.

   6. (6)

      Search results generated in response to the search terms “george alex earlwood”. The accused George Alex resides in the Sydney suburb of Earlwood.

   7. (7)

      Search results generated in response to the search terms “nectaria alex wife of george alex”.

   8. (8)

      An article published on the Sydney Morning Herald website updated on 1 July 2015 under the title “Wife of underworld figure George Alex knew nothing of alleged payments to union”. The article concerned evidence given by Nectaria Alex to the building industry Royal Commission in 2015. The article stated that Ms Alex was questioned about text messages from George Alex’s phone to her phone, conveying instructions for sums of money to be paid to individuals. The article made reference to allegations advanced before the Royal Commissioner that labour hire companies associated with George Alex made regular payments to a union official. It also referred to evidence from George Alex that the text messages could have been sent by his former business partner Joe Antoun who “was murdered in late 2013”.

6. [6]

   Hard copies of what could be found on the internet at the sites visited by Juror G and hard copies of his search results were included within a bundle of documents marked for identification 67 and placed with the Court file. My associate’s email to the Sheriff of 9:55 am on 5 June 2024 was also incorporated in MFI 67. A full copy of that material was provided to all counsel when I reconvened the trial at approximately 11:00 am on 5 June to inform the parties of the information I had received and to advise them that the Sheriff had been requested to investigate. The proceedings were stood down until 2:00 pm.

7. [7]

   At 12:10 pm Superintendent Matthew York of the Sheriff’s Office reported to me by phone upon the outcome of his preliminary interview with Juror G, who was up to that time at his residence attended by AFP officers. They were continuing their unrelated investigation. The substance of Supt York’s report concerning the interview was as follows:

8. [8]

   The information in Point 1 above necessitated that Juror G should be individually discharged. Point 2 required that the Sheriff’s investigation continue with respect to the conduct of the other 13 jurors.

9. [9]

   Point 3 was of no consequence because the solicitor concerned had informed counsel instructed by him about his high school acquaintance with Juror A immediately upon recognising him after the jury had been selected. Counsel advised, in open court but in the absence of the jury, that there had been no contact between the two, in person, by phone, through social media or by any other means, during the past 10 years: T 19-20. Neither the Crown nor any other party raised objection to Juror A continuing to serve on the jury. Accordingly, I saw no risk of any perception of partiality and Juror A remained.

10. [10]

    Point 4 required that the Sheriff’s investigation continue with respect to the conduct of Juror A and to ascertain whether any other juror had heard of any inducement having been offered.

11. [11]

    Point 5 is a matter for investigation by NSW Police, if the information is passed on to them and if they see fit. It is of no relevance to any orders I might make under the Jury Act, other than that it is some indication of a degree of closeness between Jurors G and A in their association outside court hours.

12. [12]

    Point 6 required further investigation to enable the Sheriff to ascertain whether jurors’ remuneration entitlements were being abused but that question was not material to my decision.

13. [13]

    I requested that Supt York interview the remaining jurors concerning Juror G’s allegations about them. Superintendent York attended Darlinghurst Court No 2 after 2:00 pm on 5 June and over approximately 2½ hours he spoke with each juror individually, requiring those whose interviews had concluded to wait in a room separate from those yet to be interviewed.

14. [14]

    At 5:00pm Supt York attended my chambers and reported to me orally on what he had been told in the interviews. In the following paragraphs, numbered in accordance with the subjects raised by Juror G as set out at [7] above, I summarise Supt York’s oral report, with the addition of some information available to me from the course of proceedings and some reference to my own assessments:

15. [15]

    While Supt York was arranging with court officers to commence his juror interviews, my Associate received an email from a solicitor at the office of the Commonwealth Director of Public Prosecutions (CDPP) attaching a typed note from an AFP officer who was involved in the unrelated investigation of Juror G. The note included the following regarding a conversation between the officer and the juror at his residence, prior to the attendance there of Supt York:

16. [16]

    Those statements concerned the same subject as points 2 and 4 of what Juror G told Supt York some little time later on the same day, except that Juror G did not repeat to Supt York anything about having “a target on [his] back” or about six jurors having been “approached”. Superintendent York reported to me late on the afternoon of 5 June 2024 that during his interview with Juror G at his residence he had pressed the juror for detail of his alleged conversation with Juror A about an “incentive”, to which Juror G gave vague and contradictory answers. Juror G had ultimately asserted to Supt York that A told him, “Name your price”. In their subsequent interviews with the Superintendent all jurors, including A, denied any knowledge of an attempt to induce any of them.

17. [17]

    Copies of the AFP officer’s note referred to above were provided by the CDPP to all defence representatives by email shortly after 10:00 am on 6 June 2024.

Relevant sections of the Jury Act 1977

1. [18]

   Relevant extracts of the sections of the Jury Act applicable to the situation described above are as follows:

Discharge of Jurors G and A

1. [19]

   Juror G’s admitted searching on the internet was a clear breach of s 68C(1) for which s 53A(1)(c) mandated the order I made on 6 June 2024 that he be discharged. As reported to me orally on 5 June 2024, the Sheriff’s investigation did not establish that Juror A had misconducted himself within the meaning of s 53A(1)(c). Juror G’s allegation that A spoke of a financial incentive for a not guilty verdict is not credible. It is inherently improbable that A would have spoken on such a subject without specific details, as to which Juror G has not said that any were mentioned. Juror A denied having said anything of a bribe, or inducement and none of the other jurors had heard any talk of such a thing. An attempt to interfere with the jury’s decision could not be meaningfully advanced unless it was broached with other jurors. If broached, it would involve obvious and very serious impropriety. It is not reasonably possible that such a matter would have come to the attention of multiple members of the jury and yet not one of them would acknowledge it when asked about the subject in the course of the formal interviews conducted by the Sheriff’s investigator.

2. [20]

   Although Juror A did not inform Supt York of the content of Juror G’s internet searches, a significant apprehension that he may have been told by G about that content arises from the extent of A’s out of court contact and communication with G. They socialised to a degree and exchanged one-to-one messages. Further, the lack of complete frankness shown by Juror A in deleting his phone messages prior to being interviewed by Supt York gives rise to reservation about statements from him concerning the extent of what Juror G may have told him. Juror G’s allegation that A spoke of an incentive for a not guilty verdict is not credible and is denied by A but it might support a perception that he could be inclined to dispel suspicion about himself by favouring the Crown. Juror A’s communications with respect to illicit drug dealing with his fellow juror, G, have been exposed as a result of Juror G coming under attention. That would likely cause A discomfort in continuing to sit in judgment on the accused and would adversely affect his ability to concentrate on the task and perform his functions as a juror. For those reasons I made the order for his discharge on 6 June 2024.

Continuance of the trial with the remaining 12 jurors

1. [21]

   On 6 June 2024 I also ordered that the trial continue with the remaining 12 jurors. I was satisfied, in accordance with s 53C(1)(b) of the Jury Act, that no risk of a substantial miscarriage of justice arose from the reduction of numbers. Section 22 was not an impediment to continuing the trial, as there were still 12 jurors. In a case of jury irregularity, as occurred in this case with respect to Jurors G and A, there is more to consider in determining whether the trial should proceed than merely whether the reduction of numbers may of itself create a risk of miscarriage of justice.

2. [22]

   In Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 Mason CJ and McHugh J explained why, in cases of conduct by a juror that raises a question about possible bias, the test of “whether fair-minded people might reasonably apprehend or suspect that [the juror …] might prejudge the case” (“the reasonable apprehension test”, at [3]) is to be preferred over the test of whether the trial judge, or an appellate court, finds a reasonable likelihood or real danger of bias (“the test of reasonable likelihood or real danger”). As will be seen, the High Court’s subsequent decision in HCF v The Queen [2023] HCA 35 has established that the reasonable apprehension test is to be applied in all cases of jury irregularity, not just in cases where the possibility of bias arises.

3. [23]

   Mason CJ and McHugh J in Webb & Hay v The Queen referred to English decisions, including Reg v Spencer [1987] AC 128 and Reg v Gough [1993] AC 646, wherein the House of Lords rejected the test of whether a member of the public might hold a reasonable suspicion of the possibility of bias. Mason CJ and McHugh J noted that in Reg v Gough Lord Goff of Chievely:

4. [24]

   Mason CJ and McHugh J declined to follow the House of Lords’approach. Brennan, Deane and Toohey JJ, likewise, confirmed and applied the reasonable apprehension test, in accordance with earlier High Court authority, although Brennan and Deane JJ differed from the other judges as to the result on the relevant ground of appeal.

5. [25]

   The following extracts from the joint judgment of Mason CJ and McHugh J explain the Court’s reasons for supporting continued adoption of the reasonable apprehension test:

6. [26]

   The majority joint judgment of Gageler CJ, Gleeson and Jagot JJ in HCF v The Queen has established that the reasonable apprehension test, as affirmed in Webb & Hay v The Queen, must be applied in determining whether a risk of substantial miscarriage of justice should be recognised as arising from any form of juror irregularity, not limited to cases of possible bias. Edelman and Steward JJ addressed the issues in that appeal on a quite different legal basis but I am bound to apply the principles endorsed by the majority. The reasonable apprehension test is to be applied to the circumstances that came to light in this trial on 5 June 2024.

7. [27]

   The appeal in HCF v The Queen arose from disclosures made by one juror after verdicts had been returned, to the effect that another juror had exhibited bias against conviction from early in the trial and that during deliberations that same juror had undertaken internet research to ascertain sentence maxima for the offences charged and had discussed the results of his research with other jurors.

8. [28]

   Several passages in the judgment of Gageler CJ, Gleeson and Jagot JJ, recognise that application of the reasonable apprehension test by a trial judge, where a jury irregularity has emerged before verdict, may be affected by circumstances that would not be present in a case where an irregularity first arises for consideration on appeal, having not been discovered until after verdict. Their Honours adverted to the fact that in the former case the trial judge will usually have inquired into the facts of the irregularity and will have given additional directions to forestall any miscarriage of justice. In determining whether a fair-minded and informed observer might consider that the jury might not discharge their function as required, the fact that the trial judge has become aware of the circumstances and has given such a direction must be taken into account as part of the whole picture that would inform the hypothetical observer’s perception. That consideration was also adverted to in Webb & Hay v The Queen: see the latter parts of [11] and of [13], as well as [14], quoted above.

9. [29]

   In HCF v The Queen at [6], the majority discussed Webb & Hay v The Queen and Smith v Western Australia [2014] HCA 3; (2014) 250 CLR and concluded as follows:

10. [30]

    Their Honours explained the universal application of the test at [8], in the following terms:

11. [31]

    The words “or might not discharge” in the above quotations have been emphasised to draw attention to the fact that the “double might” test is to be applied in a situation such as that which arose in this trial on 6 June 2024, where a prospective assessment had to be made as to whether verdicts returned in this trial if it should continue would be flawed by the risk of miscarriage of justice owing to jury irregularity. At [11] the majority in HCF v The Queen rejected any distinction between possible juror bias and procedural irregularity as a basis for determining whether the reasonable apprehension test is to be used:

12. [32]

    The second half of that extract explains why the proviso to the common form criminal appeal provision in each of the Australian states has no field of operation if miscarriage of justice is shown according to the “reasonable apprehension test” in cases of jury irregularity. Gageler CJ, Gleeson and Jagot JJ made that clear at [7]:

13. [33]

    At [43] the majority considered the application of the “reasonable apprehension test” where a jury irregularity becomes known during the course of a trial. Their Honours made the point that I have mentioned at [28] above, concerning the need to take into account how the apprehension of a fair-minded informed member of the public would be affected by the circumstance of the trial judge giving a direction specifically designed to neutralise the irregularity. Their Honours said this:

14. [34]

    To similar effect at [45] the majority considered the question that I have had to determine in this trial – which had become merely hypothetical with respect to the appeal in HCF v The Queen – as follows:

15. [35]

    Their Honours noted the relevance of s 50 of the Jury Act 1995 (Qld) to the question whether a fair-minded and informed member of the public might reasonably apprehend that jurors might not discharge their legal function, in the following passage:

16. [36]

    The equivalent provision in the Jury Act 1977 (NSW) is s 72A, as follows:

The Crown’s submissions concerning orders for continuance of the trial

1. [37]

   On 6 June 2024 I recounted to all parties in closed court a summary of the oral reports I had received from Supt York, first at about 12:10 pm the preceding day and then after 5:00 pm in the afternoon, to the effect of what I have set out at [7], [14] and [16] above. Counsel for the Crown supported the discharge of Jurors G and A and an order for the trial to continue with the remaining 12. Crown counsel invited me to consider direct questioning of the remaining jurors. The provisions of the Jury act applicable to that procedure are as follows:

2. [38]

   With respect to s 55D, some of the matter that Juror G admitted having found through his internet searches would fairly be regarded as prejudicial and I considered it to have been published during the trial in the sense that it had been accessible on the internet while the trial had been running. Each relevant item is likely to have been posted considerably before the commencement of the trial. However, on 6 June 2024 following the report to me from Supt York the previous afternoon, I had no reason to believe that any of the remaining 12 jurors had read, seen or heard any of that material or any other prejudicial matter published or broadcast during the trial. There was no basis upon which I could question the jurors to challenge the answers they had given Supt York.

3. [39]

   With respect to s 55DA, rather than examine the remaining 12 jurors on oath I preferred to have them interviewed by Supt York as part of the Sheriff’s investigation that I had requested under s 73A. He is a trained and experienced investigator and he had spoken directly with Juror G, whose conduct and assertions were the basis for inquiring further amongst the jury. Superintendent York was the person best placed to advance the inquiries. The results of his interviews, as reported to me, did not disclose any prima facie basis for proceeding to a further stage of direct judicial questioning.

4. [40]

   From Supt York’s oral report of his investigation, provided to me on the afternoon of 5 June 2024, it did not appear that any juror other than G had made independent searches or inquiries that would attract mandatory discharge under s 53A. Apart from G and A, only one of the other 12 jurors had definitely been made aware that Juror G had searched the internet. That was Juror C. She had not been informed of the content found. On 6 June 2024, after informing the remaining 12 jurors that I had discharged Jurors G and A and of the reasons for having done so, for more abundant caution I reiterated emphatically my direction from earlier in the trial that they must decide the case on the evidence tendered in court and disregard anything that may have come to their notice otherwise. It was not necessary to question them further about communications from Juror G because any reasonable apprehension of risk of miscarriage of justice could be allayed by the repetition and reinforcement of that direction.

5. [41]

   With respect to Juror G’s claim that A had mentioned a financial incentive, again there was no foundation for questions to be put from the bench to challenge Juror A’s denial of this (in his interview with Supt York) or to challenge the statements of the remaining 12 jurors that they had not heard of an incentive or received any “approach”. Superintendent York perceived this allegation to have been advanced to him by Juror G in an unconvincing manner. I have referred above to the contradictions within what Juror G said to the AFP officer about this (speaking of both an incentive and a threat – “a target on your back”). I have referred the different terms of his allegation to Supt York (with no mention of six jurors having been approached) compared to what was said to the AFP officer. I have mentioned my own reasons for regarding as improbable that such a matter would be raised without specifics and that multiple other jurors would have heard of the matter, or been separately approached, yet denied it when given the opportunity to tell the Superintendent. It may be added that Juror G was an inherently unreliable source. He was caught with records on his phone of (a) searches undertaken in knowing breach of the Jury Act and (b) messages about a proposed illicit drug transaction with Juror A. His claims about other jurors, including A, are most readily and reasonably explained as an attempt to dilute his personal responsibility by spreading fault to others, without foundation. Juror G was shown objectively to be a false accuser in relation to the messaging group, whose communications Supt York examined and found to be innocuous.

Accused’s submissions that the whole jury be discharged to abort the trial

1. [42]

   In the event of discharge of an individual juror, s 53C of the Jury Act provides for either mandatory discharge of the whole jury if the court “is of the opinion that to continue the trial … with the remaining jurors would give rise to the risk of substantial miscarriage of justice” or mandatory continuance of the trial “with a reduced number of jurors”, “if of the opinion that there is no such risk”. The choice between those mandatory alternative courses of action turns upon the trial judge’s conclusion about risk of miscarriage of justice, rather than upon an assessment of how a fair-minded informed member of the public might perceive the possibility of such risk.

2. [43]

   Section 53C is primarily concerned with whether a risk of miscarriage of justice has arisen from the reduction of the number of jurors. The section is wide enough to permit the trial judge, in determining whether such risk is present, to consider the circumstances that may have led to the individual discharge and, hence, to the reduction. In my view the section does not exclude application of the reasonable apprehension test, which calls for assessment of whether a fair-minded informed member of the public might perceive risk rather than whether the trial judge actually perceives risk, where the circumstances may have involved a jury irregularity such as a manifestation of bias or an instance of misconduct. As earlier noted, where there remained 12 jurors following my orders for individual discharge of Jurors G and A, I was satisfied for the purposes of s 53C(1)(b) that the reduction from 14, of itself, did not give rise to any risk of a substantial miscarriage of justice.

3. [44]

   In so far as s 53C required me as trial judge to form my own view whether a risk of miscarriage has arisen, I considered carefully whether, in light of the information reported to me orally by Supt York, there appeared to be any reasonable possibility that (a) other jurors may have been affected by Juror G’s misconduct and/or (b) other jurors may also have misconducted themselves and/or (c) other jurors may have been offered an inducement, or heard of an offer of inducement — and, as a result of any one or more of those things, there was any reasonable possibility that the remaining jurors might not decide the case according to the evidence they had received and the directions of law that they were to be given, including further directions to disregard any information acquired other than through the evidence given in court. I explain below my reasons for having concluded that there arose no material risk that a fair-minded informed member of the public might conclude that any juror might fail in the discharge of his or her duty. For those same reasons I, as trial judge, perceived no “risk of substantial miscarriage of justice”, particularly taking into account the specific additional directions that I proposed to give and have now given for the purpose of countering any such risk.

4. [45]

   Despite the accused’s counsel having cited HCF v The Queen as authority for the “double might” test, counsel’s further submissions on 6 June 2024 were predominantly couched in terms of whether I, as trial judge, should perceive a risk that the remaining 12 members of the jury might not perform their duty. I nevertheless treated the intent of the submissions as directed also to what I should conclude about how a fair-minded reasonable member of the public would assess the circumstances. In the words of Mason CJ and McHugh J quoted earlier in these reasons, “it is the court's view of the public's view, not the court's own view, which is determinative”.

Submission concerning failure of other jurors to report Juror G’ searches

1. [46]

   In opposition to an order for continuance of the trial, counsel made the following submission on 6 June 2024, after I had recounted the essentials of Supt York’s oral report:

2. [47]

   Contrary to counsel’s recollection I had not directed the jurors at any time prior to 6 June 2024 that it would be the duty of each to report upon any other juror’s contravention of s 68C of the Jury Act. Section 75C permits report by any individual juror of misconduct by any other but failure to report is not of itself misconduct according to the prescriptions of the Act. Against that background a fair-minded informed member of the public would not reasonably conclude that the failure of Juror C to advise me of Juror G’s internet searching activity was misconduct let alone that it was of such an order as to indicate a risk that she, or the jury as a whole, might not follow my directions, as earlier given and as would be reiterated in the summing up, and that they might not return verdicts according to the evidence and the law.

3. [48]

   I do not accept that Juror C’s failure to report known misconduct of Juror G constitutes “a lack of honesty”, particularly in the absence of a direction from me that they should report such an event. Even if I had given a direction to report on any other juror’s breach of s 68C, failure to do so would not in all circumstances be regarded by a hypothetical member of the public as wilful or defiant or as presaging disobedience to other, more central directions concerning the duty to decide the case according to the evidence and the law. Failure to report might be attributable to mere reticence about causing trouble for the juror who admitted breach, especially in circumstances such as the present where none of the remaining 12 jurors has said that the content derived by G from his internet searching was disseminated amongst them.

Submissions based on circumstances of Juror G’s improper searches

1. [49]

   Defence counsel submitted that Juror G may have made the improper internet searches on his phone when in company with other jurors. Counsel said that he had been observed in company with “at least two” other jurors at a nearby hotel after court hours, from time to time. From this it was said to follow that what he found on the internet may have become known to other jurors at the time when the searches were carried out. Counsel further submitted that because the remaining jurors’ phones had not been examined, there had not been eliminated the possibility that some of them may have made their own searches. Superintendent York did not seek to examine the phones of the remaining 12 jurors. He had no grounds for doing so as they all said they had not undertaken prohibited internet searches and Juror G’s claim to the contrary was, expressly, mere surmise on his part. Counsel sought to cast doubt upon the 12 jurors’ responses to Supt York, submitting that it was “unlikely [they] would admit to juror misconduct when questioned by the investigator” and “there is clearly a self-interest in denials in light of the nature of the investigation and what’s been suggested to them”.

2. [50]

   The burden of counsel’s submission was that lack of complete information, or of rigorous forensic testing of information, should lead to recognition of a risk that, notwithstanding their denials at interview, some of the remaining 12 jurors may have become aware of prejudicial information published on the internet, either by their own searches or by learning of what Juror G had found. But a jury is not to be discharged merely on a reasonable apprehension that one or more of them may have come into information extraneous to the evidence. That is only part of the matter. The question is whether a fair-minded reasonable member of the public might perceive a risk that “the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge”. Relevant to that ultimate question, one must consider the circumstances in which the remaining 12 jurors may have received extraneous information, if they did at all. If any of them received such information only because G foisted it upon them, this would not indicate an unwillingness or inability to disregard matters outside the evidence.

3. [51]

   Also, to repeat from the majority judgment in HCF v The Queen at [45]:

4. [52]

   This jury were expressly directed, from the first day of the trial, to disregard all extraneous information and to decide the case on the evidence adduced in court. If there should be perceived any residual risk that G may have passed on information to other jurors notwithstanding their denial that that occurred, the hypothetical person would bear in mind the specific reminder that I gave on 6 June 2024 after the remaining 12 jurors had been told of the discharge of G and A, that they must disregard extraneous information. The fair-minded informed member of the public would regard the directions as efficacious, as I do myself, absent any basis for judging the remaining jurors to be wilfully disobedient or incapable of putting aside any out-of-court information that may have come to them.

Submission concerning Juror G’s position as foreman

1. [53]

   The jury did not select Juror G as their foreman until about 9 May 2024. That was after he had made his internet searches, during April. Naturally, it is not known by what process the selection was made, or how many of the jurors supported Juror G to be their foreman, or upon what criteria. Counsel submitted that the jury “elevated” and “rewarded” Juror G with knowledge of his contravention of s 68C. That submission is without foundation. His selection is equally consistent with almost all of the jurors having been unaware that Juror G had searched the internet, as they told Supt York. A fair-minded informed member of the public obviously could not know the process or discussions that preceded Juror G becoming foreman and could not reasonably infer from his selection that any juror endorsed his misconduct.

2. [54]

   The hypothetical fair-minded and informed member of the public, acting reasonably, would note the absence of positive information that the other 12 had relevantly misconducted themselves, the absence of any affirmative indication that they were resistant to judicial directions and the fact that the trial judge would give a further reinforcing direction to disregard any information, extraneous to the evidence tendered in court, of which they may have become aware by any means. With those matters taken into account, the hypothetical member of the public would not find any significance in the fact that the miscreant Juror G was chosen as foreman. That circumstance would provide no rational ground for an apprehension that the jury might not discharge their lawful duty.

Submission concerning a juror’s note about use of phones in court

1. [55]

   On 8 April 2024 (Day 34) the Court received a note from a juror expressing discomfort about an individual in the upper gallery using his mobile phone in court. The person concerned had held the phone up in a manner that caused the juror to think that he may have been taking photographs or filming. The person was directed from the bench not to do this: T 1995. Counsel sought to draw from this an inference that the juror who sent the note must have become aware of the internet content that Juror G had researched, some of which counsel described as portraying George Alex as a gangster.

2. [56]

   The inference is unfounded. From experience in other trials I am aware that jurors are conscious of their entitlement to anonymity and security. This is not the first occasion on which I have been asked by jurors to direct members of the public to desist from using their phones in court. The note from the juror on 8 April 2024 was understandable in circumstances where, up to that point, on more than one occasion people seated in the gallery had held up their phones to look at their screens in a manner that could have been interpreted as attempting to record an image.

3. [57]

   The incident concerning use of phones in court provides no basis for perceiving a heightened risk that jurors may have acquired knowledge of what Juror G found on the internet. In any event, for reasons given at [50] and [51] above, the possibility that jurors may have learned of matters extraneous to the evidence would not lead a fair-minded member of the public to perceive a risk that that the jurors in this case might fail to discharge their duty, especially when account is taken of subsequent repeated directions that they should not have regard to any such matters.

Conclusion on 6 June 2024

1. [58]

   It was my view on 6 June 2024 that a fair-minded informed member of the public, aware of all the circumstances recounted in this judgment, would not perceive a risk that the jury constituted by the 12 remaining members “might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge”. That conclusion was supported by the absence of evidence from which a fair-minded person could conclude that any of the remaining 12 jurors had in any respect disregarded directions given to them to date – at all, let alone wilfully or in a manner demonstrating incapacity to conform.

2. [59]

   I would add that the fair-minded informed observer would reasonably expect the jury to have no difficulty following my direction not to be influenced by material extraneous to the trial. The jury have been immersed, during the 64 days of evidence, in voluminous banking records, financial tracing analyses in chart form, emails and accounting records and transactional documents concerning the conduct of a labour hire business, oral evidence regarding that business and 110 hours of intercepted conversations. To my observation the jury have been alert and attentive throughout. This is a vast circumstantial case arising from an 18 month investigation. Apart from media reports of arrests (concerning which the jury have received evidence) and information regarding Caitlin Hall (who has been identified in the evidence only as a recipient of funds distributed by George Alex), the content found at the internet addresses searched by Juror G did not relate to events that are subject of the trial. It mostly concerned unrelated events pre-dating the charge period. There is no factual issue in the case upon which material of the nature that Juror G researched would likely be influential, even if any of the remaining jurors had learned of it. So far as any of that material is prejudicial in a more general sense, particularly with respect to the background and reputation of George Alex, there is no reason for me or a fair-minded observer to perceive a risk that the jury might not carry out the directions to decide the case only on the evidence, according to whether it does or does not prove the elements of the charges beyond reasonable doubt, and to dismiss from their minds all sentiments and prejudices.

3. [60]

   With respect to Juror G’s allegation about A’s mention of an inducement, I did not consider it to be necessary or useful to issue, out of more abundant caution, a specific, immediate direction that the jury should not allow themselves to be influenced by any offer or threat. To have done so would potentially have been counter-productive in circumstances where the remaining 12 jurors denied any knowledge of such a thing. When making the orders on 6 June I intended that in summing up the jury would be given the usual direction to arrive at their verdicts impartially by objective assessment of the evidence. A fair-minded informed member of the public would regard that usual direction as sufficient, in the absence of any credible evidence that jurors may have been exposed to a specific cause of possible bias.

Written material received after 6 June 2024

1. [61]

   On 13 June 2024 Supt York informed me that his written report of the results of the investigation carried out on 5 June 2024 would likely be available in the week commencing 17 June 2024. My reasons for having made the orders of 6 June 2024 were prepared to this point by the afternoon of 14 June. I refrained from delivering the reasons pending receipt of the Superintendent’s written report so that any additional relevant information therein could be taken into account.

Material from Juror G’s phone: received 14 June 2024

1. [62]

   Late on the afternoon of 14 June 2024 the solicitor with conduct of the case at the office of the Commonwealth Director of Public Prosecutions (CDPP) sent to the solicitors for all accused, with a copy to my Associate, an email attaching the following:

2. [63]

   The CDPP solicitor’s letter containing the link to the video of Juror G’s search history, with its attachments, was forwarded to the Sheriff on Monday, 17 June 2024 for Supt York’s attention. The material from Juror G’s phone accords with Supt York’s oral report to me on the afternoon of 5 June 2024, based on his direct examination of the device. Notably, I found nothing improper in any of the 31 pages of communications between the jurors in the Facebook Messenger chat group. The innocent nature of those messages demonstrated that Juror G’s allegation to Supt York that the chat group was a vehicle for collusive claims of illness was false. As a participant in the chat group Juror G must have known his allegation to be false.

Sheriff’s written report received 18 June 2024

1. [64]

   Superintendent York’s written report dated 17 June 2024, countersigned by the Deputy Sheriff, was delivered to my chambers by email early on 18 June. It included as attachments the letter from the CDPP and the material downloaded from Juror G’s phone (items 1-5 listed at [62] above). Also attached were transcripts of Supt York’s interviews on 5 June 2024 with Jurors G, A and C. My staff prepared paginated copies of the report with the names of jurors obscured and with redaction of one brief passage in which Juror G described jury discussion of the case. A copy of the redacted report was provided to counsel for each party (MFI 75) under directions that no copies be made before conclusion of the trial and that access be restricted to counsel, until further order.

2. [65]

   The report and its attachments confirmed the information that I had received orally from Supt York on 5 June, as set out at [7], [14] and [16] above, upon which I based the decision to discharge Jurors G and A and to continue the trial with the remaining 12.

3. [66]

   On 24 June counsel for George Alex provided the Court with written submissions in support of an application to discharge the jury on the basis of the Sheriff’s report and the transcripts of the juror interviews. The Court was also provided with an affidavit of George Alex’s solicitor, Anushka Murugkar affirmed 24 June 2024. That affidavit set out a full account of what appeared to be Juror G’s internet search history, derived from the video recording referred to at [62](1) above. The Crown provided written submissions opposing the application for discharge. The application was heard on 25 June 2024. The submissions in support of discharge of the jury on this occasion were advanced by reference to s 53C of the Jury Act on the basis that, as the presiding judge, I should form “the opinion that to continue the trial … with the remaining jurors would give rise to the risk of a substantial miscarriage of justice”. However, I considered both the question whether the full Sheriff’s report, including transcripts of interviews with Jurors G, A and C, warranted formation of that opinion and also whether a fair-minded member of the public might consider that that the jury might not discharge their duty according to the evidence and the law.

4. [67]

   I found in the written report and transcripts no material difference from the evidence and information upon which I had made the order of 6 June 2024 for continuation. After hearing argument on 25 June 2024 I saw no reason to depart from the conclusion I had reached when making that order, namely, that there was no risk that the jury might not fulfil their duty and no reasonable possibility that a fair-minded member of the public might perceive such risk. I dismissed the further application and confirmed that the trial would proceed with the remaining 12 jurors. My reasons, with some reference to additional detail from the transcripts of the juror interviews, are given in the following paragraphs. Errors of expression and/or of transcribing are as they appear in the transcripts provided.

5. [68]

   At the time of hearing and determining the application, on 25 June 2024, the transcripts of interviews with 11 of the 14 jurors were outstanding. However, I was able to rely upon Supt York’s oral summary of those interviews, as provided on 5 June. The remaining transcripts were subsequently received on 27 June and 1 July 2024. The detail in them was in accordance with what I had earlier been told. The additional transcripts were distributed to counsel promptly after receipt, with juror names deleted.

6. [69]

   Juror G’s answers to Supt York at pp 61-63 and 66 of the report show that he had no basis for asserting that other jurors had carried out internet research about the trial. Viewed most favourably to Juror G, his claim in that respect might be said to have been speculative. My own conclusion is that it was made recklessly, without any genuine belief in the truth of what he said about other jurors’ conduct. I would expect a fair-minded member of the public reading the transcript to form the same view. Reading Juror G’s answers confirms me in the conclusion that such a hypothetical observer would not derive from his assertions any reason to doubt the 12 remaining jurors’ denials of misconduct with respect to independent searches.

Other jurors’ answers concerning knowledge of Juror G’s searches

1. [70]

   Juror A said he had not undertaken any internet research about the case himself. He said that Juror G’s only discussion with him about the results of G’s own research was “just … the case was connected somehow to … the bigger picture”. Juror A also gave the following answers::

2. [71]

   Juror C identified Juror G as the only member of the jury who had had spoken to her about research outside the courtroom. She gave these answers:

3. [72]

   The above extracts from the interviews appear to be all that is in any way relevant to the possibility that other jurors may have learned something of what Juror G found by his improper internet searches. The answers quoted provide no basis for a suspicion that Juror A was told anything of substance by Juror G. It would be of no consequence if Juror A did learn anything by that means because he has been discharged. Although Juror G spoke to Juror C about his internet searches her answers to the Superintendent indicate that she learned and retained nothing of substance from such conversations.

4. [73]

   Juror A told Supt York that he had “seen” both Jurors C and O speaking to G about his research but Juror O said there had been no discussion amongst other jurors about any internet research “that I can think of”. The answers given in the interviews do not support a reasonable possibility that any of the 12 jurors who remained after the removal of G and A may have acquired by this means information extraneous to the evidence in the trial that might cause a juror or the whole jury to fail in their duty to decide the case according to the evidence and the law.

5. [74]

   From the transcripts of the interviews I perceive, and I would expect a fair-minded member of the public to perceive, negligible risk that any of the remaining jurors acquired from Juror G any substantive internet-derived information that those jurors would have to put out of mind, pursuant to the directions they have received, in deciding upon their verdicts.

Answers by Jurors G and A concerning inducement

1. [75]

   The upshot of Juror G’s claims to Supt York about a financial inducement to affect the jury’s verdicts, recorded at pp 58-59 and 65 of the report, is that Juror G said he was not aware of “anyone else besides [Juror A]” involved in the supposed offer. For his part, Juror A denied that he initiated any discussion of an incentive with Juror G but said, in effect, that Juror G discussed with him the subject of jury tampering in terms that were not specific to any alleged actual attempt to influence. Juror A did not take this seriously. He gave the following general answers concerning G’s conduct and presentation:

2. [76]

   Taken as a whole the answers given by Jurors G and A leave open the possibility that they may have discussed between themselves the subject of financial inducement for favourable verdicts. Their answers to Supt York’s questions provide no basis for recognising even a possibility that any person outside the jury had actually offered such an inducement or that any juror other than themselves had discussed the idea, or had been aware of it being discussed, even in the abstract, by Jurors G and A.

3. [77]

   On this subject Supt York summarised the responses of the remaining 12 jurors as follows:

Submissions on behalf of George Alex re the Sheriff’s written report

1. [78]

   Mr Agius SC submitted that the juror interviews were conducted in a sequence that was not optimal for testing answers that conflicted with assertions by Juror A. Juror O said that he did not speak with G about the latter’s internet searches. Juror C made no mention of Juror O having spoken to G about that subject. Juror A was interviewed last and asserted that he had seen Juror G speaking with Jurors O and C, together, about that subject. Jurors O and C were not reinterviewed to respond A’s assertion.

2. [79]

   A further criticism was that each juror was first warned by Supt York that he or she need not answer questions but that any answers given might be used in evidence. Then each juror was asked whether he or she had been directed by the trial judge not to make independent enquiries – to which the answer was yes – before being asked whether the juror had breached the directions. It was submitted that this sequence may have induced jurors to deny such activity, out of embarrassment at the least, even though they may in fact have undertaken independent enquiries on the internet.

3. [80]

   The limitations upon thorough investigation into possible communications between the jurors in this trial, following upon the misconduct of one of them, are obvious. The difficulty of ascertaining all the facts with complete confidence in such a situation was remarked upon by Mason CJ and McHugh J in Webb & Hay v The Queen at [12] and by the majority in HCF v The Queen at [43] and [45]. Those passages are quoted above. That very consideration has contributed to the High Court’s adoption of the reasonable apprehension test in preference to the test of reasonable likelihood or real danger.

4. [81]

   However, the submissions on behalf of George Alex, as summarised above, are again formulated as if the risk that, should it be present, might require discharge of the whole jury is the risk that Juror G may have passed on some of his internet findings. As stated at [50]-[52] above, the question whether the judge or a fair-minded member of the public would perceive that risk is only a preliminary to the question whether there might, further, be perceived a risk that jurors in receipt of such information might not discharge their duties according to law. That ultimate question inherent in the reasonable apprehension test must be answered with due regard for (a) the circumstances in which the remaining 12 jurors might have received extraneous information – involuntarily, through Juror G, without deliberate disregard of directions on their own part – and (b) the capacity of supplementary directions to keep the jury to their oaths and affirmations. Taking into account those matters, the reasonable apprehension test is not satisfied here and so far as the existence of the risk is a matter for the trial judge under s 53C(1), I find that there is no risk

5. [82]

   It was further submitted on behalf of George Alex that some of the material Juror G had examined was so highly prejudicial to him that if any of the remaining jurors had become aware of it, through Juror G, they would find it impossible to disregard and would inevitably be influenced adversely in arriving at their verdict. I do not accept that submission. There is nothing particular about this jury or the circumstances in which they will continue to try this case that would contradict the fundamental presumption of the trial, that jurors will obey the directions of the presiding judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] (McHugh J).

6. [83]

   A further submission was made as follows:

7. [84]

   The fact that these questions were asked by Supt York must be taken together with the lack of credibility of Juror G, who asserted that there had been talk of an “incentive”, Juror A’s contradiction of Juror G and the denial by each of the remaining 12 jurors that there had been any approach to influence them. It can be accepted with confidence that there was no such approach to any of the remaining 12. They therefore know that this has not occurred with respect to themselves and they have been informed of the reasons for discharge of Jurors G and A, which did not include anything to do with jury tampering by those two. There is no reason for me or a fair-minded member of the public to apprehend that the jury might be prejudiced against George Alex and might not discharge their duty according to the evidence and the law by reason of the Sheriff’s enquiries on this subject.

Conclusion on 25 June 2024

1. [85]

   Taking into account the Sheriff’s written report and the answers given to Supt York by each of the remaining 12 jurors, I am further assured that, with the discharge of Jurors G and A and with the further directions that I have given to those remaining, no fair-minded informed member of the public would perceive any risk that the jurors who continue to serve might fail to discharge their duty. I am satisfied for my own part that there is no such risk. Nothing that has come to light since 6 June 2024 would justify revocation of the order made that day for continuance of the trial. It was on the basis of these conclusions that I dismissed the discharge application that was argued on 25 June 2024.