R v WE (No.8)

1. [1]

   On 13 August 2019 I made orders in these proceedings:

2. [2]

   This judgment sets out my reasons for making those orders.

FACTUAL BACKGROUND

1. [3]

   The accused has pleaded not guilty to an indictment alleging that he committed an act or acts in preparation for, or planning, a terrorist act or acts. The trial with the present jury commenced on 15 July 2019. An individual member of the jury was previously discharged for reasons which are set out in an earlier judgment. [1] The remaining jury of 11 commenced deliberations on the morning of Friday 9 August 2019 before being allowed to disperse shortly before lunchtime on that day.

2. [4]

   Shortly before the conclusion of the proceedings on Monday 12 August 2019, I received a note from the jury [2] in the following terms:

3. [5]

   The reference to a member of the jury departing for overseas was a reference to the fact that on 29 July 2019 I received a note from that member [3] which stated (inter alia):

4. [6]

   Having discussed the matter with the Crown and counsel for the accused, and with their express agreement, I informed the member of the jury on that occasion [4] that I was not able to give any assurance that the trial would conclude at any particular time, but that there were steps that could be taken to address the foreshadowed situation if it eventuated. I impressed upon the member of the jury that she should not be concerned about the matter, and I also indicated that I expected deliberations would commence on Monday, 12 August. As events transpired, deliberations commenced prior to that.

5. [7]

   Having indicated to counsel that I would consider the jury’s note further overnight, I formulated a draft direction to be given at the commencement of the proceedings on Tuesday 13 August. The proposed direction was in the following terms:

6. [8]

   The terms of the proposed direction were generally in accordance with what I had foreshadowed to counsel when the note was received and discussed.

7. [9]

   Shortly prior to the commencement of the proceedings on 13 August 2019, I was handed two documents by the Sheriff. The first [5] was a medical certificate under the hand of Dr Elaine Cheung, General Practitioner, certifying that on 12 August 2019 she had examined a member of the jury to whom I shall refer as juror 2334050. Dr Cheung expressed the following opinion:

8. [10]

   The second document was a handwritten note provided by the foreperson of the jury [6] which was in the following terms:

9. [11]

   At this point, two matters should be noted about the contents of MFI 51 and MFI 52.

10. [12]

    Firstly, the altercation reported by the foreperson in MFI 52 was said to have occurred “yesterday morning”, i.e. on the morning of 12 August 2019. The jury had deliberated for only a short time on the previous sitting day (Friday 9 August) before being allowed to disperse. It follows that the altercation took place at a very early stage of the jury’s deliberations.

11. [13]

    Secondly, and although it was not recorded in MFI 52, there was an inference that the other member of the jury referred to was juror 2334050 who was the subject of the medical certificate. [7] That was later confirmed by the foreperson to be the case. [8]

12. [14]

    Having made the Crown and counsel for the accused aware of the contents of MFI 51 and MFI 52, I adjourned for the purposes of giving each of them an opportunity to consider the matters raised and obtain instructions.

13. [15]

    Upon resumption, the Crown submitted that I should:

14. [16]

    Counsel for the accused did not take issue with the exercise of my discretion to discharge juror 2334050. However, he submitted that I should then discharge the entire jury, and argued strongly against taking the intermediate step of interrogating the foreperson in the terms suggested by the Crown.

THE DISCHARGE OF THE INDIVIDUAL MEMBER OF THE JURY

1. [17]

   Section 53A of the Jury Act 1977 (NSW) (“the Act”) is in the following terms:

2. [18]

   Given the terms of the medical certificate I was not able to come to a conclusion that juror 2334050 had “engaged in” any conduct which amounted to misconduct. However, s 53B of the Act is in the following terms:

3. [19]

   In the circumstances, I came to the view (accepting the contents of MFI 51 at face value) that the test in s 53B(a) had been met. Neither the Crown nor counsel for the accused argued to the contrary. The contents of MFI 51 also satisfied me that the ability of juror 2334050 to perform her functions had been affected to the point where she should not continue to act in that capacity. Accordingly, the test is s 53B(d) was also met.

4. [20]

   It was in these circumstances that I made an order discharging juror 2334050.

THE DISCHARGE OF THE JURY

1. [21]

   Bearing in mind the Crown’s suggested course, an issue then arose as to my power to question the foreperson of the jury in the terms which had been suggested. Although the Act confers a power to question members of the jury in specific circumstances, [9] such circumstances did not encompass those which had arisen in the present case. The Act confers no general power in that regard.

2. [22]

   In R v Moore [10] Garling J considered, but did not resolve, the question whether, on the proper interpretation of the Act, the Court retains a common law or inherent power to question a member of the jury. His Honour concluded that if such a power did exist, it was in the nature of a discretionary power vested in the trial judge. [11] On the facts before him (which were different to those before me) his Honour concluded [12] that even if he did have such a power, he would not exercise it. In R v Qaumi and ors (No 36) [13] Hamill J (having referred to Moore) also alluded to, but again did not resolve, the issue. [14]

3. [23]

   In Mulvihill v R [15] the Court of Criminal Appeal [16] observed: [17]

4. [24]

   In Elomar v R [18] the trial Judge had questioned the members of the jury (as a group) following an allegation that four of them had been followed when they departed the Court on the previous day. Specifically, the trial judge asked the members of the jury for an assurance that notwithstanding those events, each was able to discharge his or her task impartially. The jury, through the foreperson, responded unanimously that they would be able to do so. The decision of the trial judge to proceed in this way formed one of the grounds of appeal, although the ground did not raise, as an issue, the power of the trial judge to question the jury as he had done. However, the Court of Criminal Appeal did observe: [19]

5. [25]

   Because the issue which arose before me was required to be determined quickly, the opportunity to undertake lengthy research was necessarily limited. None of the authorities to which I referred are definitive, although the decisions in Mulvihill and Elomar tend to assume that a general power is available. The availability of such a power is consistent with the fact that the Act does not purport to cover the entirety of the circumstances in which the necessity to question of member of the jury might arise. Accordingly, I determined that I had the power to take the course that the Crown had suggested.

6. [26]

   Further, on the evidence before me, an issue had arisen between the foreperson, and juror 2334050 who I had discharged. I therefore considered it appropriate to question the foreperson and seek his confirmation as to whether, in the circumstances, he considered it possible for the jury to continue their deliberations effectively and harmoniously.

7. [27]

   Having reached these conclusions, the foreperson of the jury was brought into Court and sworn. The following then ensued: [20]

8. [28]

   Having received that response from the foreperson, I indicated to counsel that I considered it both prudent and necessary to put the same question to the remaining nine members of the jury, consistent with the course taken by the trial judge in Elomar. Neither the Crown nor counsel for the accused disagreed with that course. The entire jury were then brought into court and asked the following ensured: [21]

9. [29]

   A short time later I received 10 individual notes from the members of the jury. [22] Nine of those notes responded affirmatively. The tenth did not.

10. [30]

    Section 53C of the Act is in the following terms:

11. [31]

    The discretion to discharge a jury under s 53C requires the exercise of a separate discretion to that which is exercised when discharging an individual member of the jury pursuant to s 53B. [23] In Phan v R [24] Price J (with whom Hoeben CJ at CL and Fullerton J agreed) observed: [25]

12. [32]

    In the course of my final summing-up, I directed the jury in (inter alia) the following terms: [26]

13. [33]

    It is important to emphasise that s 53C(1)(a) mandates the discharge of the jury if the Court is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. Whilst members of a jury, as a necessary part of their deliberations, may well express differing opinions, it is essential to the process that those deliberations remain harmonious, civil and conducive to attempting to reach a unanimous verdict. On the evidence before me, this had not been the case from an early stage of the jury’s deliberations in the present trial. The remaining members of the jury were not unanimous in terms of whether effective and harmonious deliberations could continue. The risk of a substantial miscarriage of justice in those circumstances will be self-evident.

14. [34]

    It was in these circumstances that I made an order discharging the remaining members of the jury.