R v Khan (No 4)

Prior to the trial of the accused commencing this morning, the Sheriff informed me that he had received information from a third party that after the jury had departed yesterday afternoon, a member of the public had approached one of them (“Juror W”) in the vicinity of the intersection of King Street and Elizabeth Street. The person who reported this asserted that the member of the public had said to that juror words to the effect:

I was further informed that when the members of the jury arrived at Court this morning, Juror W did not report any such approach to the Court Officer. However, he did ask the Officer whether or not the Court was open to the public. When he was told that it was, he said something to the effect that there did “not appear to be much media interest in the trial”, except for coverage on Channel Seven and Channel Nine. Juror W then asked the Officer:

The Officer responded to the effect that that was not a question that she was in a position to answer.

The person said to have been responsible for the approach to Juror W was not identified, either by name or by description.

Having discussed the matter with counsel, the collective view was that it was appropriate for me to exercise the power conferred by s 55D of the Jury Act 1977 (NSW) (“the Act”) and question Juror W about what was said to have occurred. Having been brought into Court and sworn, Juror W gave the following evidence:

In circumstances where Juror W unequivocally denied that any approach had occurred, it was agreed that the matter could not be taken any further. However, at the request of counsel for the accused, and with the consent of the Crown, I reminded the jury of the direction that I had given on the very first day of the trial that if any person approached any of them in any way, I was to be informed.

The Crown case then continued up until the morning tea adjournment. I was then given a note from the foreperson of this jury ("Juror X"). That note, which became MFI 20, was in the following terms:

It will be apparent that the reference in MFI 20 to Juror X having been approached "by the same lady that Juror W was yesterday afternoon" is diametrically opposed to the sworn evidence of Juror W that no such approach had ever occurred.

It was again the collective view of the parties that I should question Juror X. His evidence included the following:

The questioning of Juror X then turned to that part of his note in which he made reference to an approach by a member of the public to Juror W. He was asked:

When asked whether or not he had had a discussion with Juror W about Juror W being approached by somebody, Juror X said he had not. However, when asked whether he had been party to any wider discussion in the jury room about that issue, he said:

In one sense the evidence before the Court poses more questions than it answers. However, there is certainly evidence of at least one, and possibly two, members of the jury having been approached by a member of the public on separate days after they had left court. What is also of concern, having regard to the contents of MFI 20 and the oral evidence of Juror X, is that there is prima facie evidence that the testimony of Juror W may not have been truthful.

Section 53B(d) of the Act confers a power on the Court to discharge a single member of a jury. Section 53C confers a power to the discharge the entire jury if it is considered that (inter alia) to continue would give rise to the risk of a substantial miscarriage of justice. It was the initial position of counsel for the accused that the jury should be discharged. The Crown supported that course. Having made that application, counsel for the accused then indicated that he had been instructed to withdraw it. It should be noted that in making the application in the first instance, counsel was at pains to point out that the accused was reluctant to take that course. Whilst I am mindful of the fact that the application to discharge the jury was effectively withdrawn, I am obviously not bound by that in terms of the conclusion that I reach. I am also mindful of the fact that there are mental illness issues in this case.

In the circumstances, I consider that Juror W should be discharged. Having come to that view, having heard the evidence of Juror X, and mindful of the right of all parties to a fair trial, I have come to the conclusion that the interests of justice can only be properly served by the entire jury being discharged. To do otherwise would give rise to the risk of a substantial miscarriage of justice.

In light of the evidence before the Court to which I have referred, I propose to forward a copy of this judgment to the Sheriff of New South Wales, along with a copy of MFI20 and transcript of the entirety of the evidence of Juror W and Juror X. All of the matters that I have raised, including the evidence of Juror W, should be investigated either by the Sheriff or by the New South Wales Police.