Citation: Bahrami v R [2017] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 13 February 2017
Judges: Hoeben CJ at CL; R A Hulme J (principal judgment); Schmidt J
Background
The appellant was convicted of five people smuggling offences following a trial lasting approximately 23 jury days in the NSW District Court. He was sentenced to a total term of 11 years and 3 months imprisonment, with a non-parole period of 7 years and 3 months. He appealed against his conviction only.
Towards the end of the defence case, a juror sent the trial judge a handwritten note stating she was "unwell/stressed extreme" and was "being mistreated by another juror (bullying)." The note arrived just as cross-examination of the appellant was nearing its close. The juror subsequently indicated through a court officer that she was too upset to enter the courtroom.
The trial judge consulted counsel, decided not to investigate the substance of the complaint at that stage, and sent the jury home. The following day, defence counsel applied to discharge the entire jury. After considerable argument, the judge discharged only the juror who had sent the note, posed two questions to the remaining jurors asking each to self-assess their ability to perform their duty impartially, received satisfactory written responses, and proceeded to verdict. The appellant was convicted, and the appeal followed.
Legal Issues
- Whether the trial judge erred by not investigating the substance of the juror's bullying complaint before discharging her.
- Whether the judge should have questioned the juror who sent the note before she left court on the day the note was received.
- Whether the discharge of that juror was premature or otherwise erroneous.
- Whether the judge's comments to the remaining jurors before posing the two self-assessment questions were improper.
- Whether it was an error to rely on the jurors' own responses to those questions in deciding not to discharge the full jury.
- Whether the trial judge erred by not applying the test in Webb v The Queen; Hay v The Queen (1983) 181 CLR 41, which asks whether fair-minded persons might reasonably apprehend that jurors had prejudged the case.
Decision
R A Hulme J, with whom Hoeben CJ at CL and Schmidt J agreed, dismissed the appeal on all grounds. The court found no error of law and no miscarriage of justice in the way the trial judge managed the irregularity.
On the question of investigation, the court accepted that a trial judge must tread a delicate path when a juror complaint arises mid-trial. The judge's reluctance to interrogate individual jurors or probe the jury room reflected a well-established caution about going behind jury deliberations. One person's "bullying," the trial judge had observed, may be another person's frank and robust exchange. The court found this restrained approach was open to him and was not erroneous.
Regarding the self-assessment questions posed to the remaining jurors, the court noted that defence counsel had ultimately agreed the questions were appropriate after initially maintaining his objection. The jurors' written responses indicated each could continue to perform their duty impartially, and no counsel raised anything further after those responses were received. The court found no error in the judge relying on those responses.
On the Webb v The Queen; Hay v The Queen test, the court held that the trial judge's failure to refer expressly to that standard did not constitute error in the circumstances. No party had suggested that, despite the jurors' responses, a fair-minded observer would nonetheless suspect the remaining jurors had prejudged the case. The court observed that the stance taken by experienced defence counsel throughout the proceedings was a relevant consideration in assessing whether any miscarriage had occurred.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- A trial judge is not automatically required to investigate the substance of a mid-trial juror complaint about bullying before discharging the affected juror. The appropriate response depends on the particular circumstances, and courts retain an established caution about probing jury room conduct.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a judge may discharge only the juror who raised the complaint and continue with a reduced jury, provided the remaining jurors satisfy the court they can perform their duties impartially.
- Asking jurors to self-assess their own impartiality by written response is a permissible tool in managing a jury irregularity, particularly where experienced counsel agree the questions are appropriate.
- The Webb v The Queen; Hay v The Queen reasonable apprehension test did not need to be expressly articulated by the trial judge where no party suggested, on the facts, that fair-minded observers would suspect the remaining jurors had prejudged the case.
- The appellate court gave weight to the stance adopted by experienced trial counsel throughout the hearing of the irregularity, treating that stance as relevant to the assessment of whether any miscarriage of justice had occurred.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Jury Act 1977 (NSW), ss 53A, 53B, 53C, 73A
Cases
- Webb v The Queen; Hay v The Queen [1983] HCA 30; 181 CLR 41
- Smith v State of Western Australia [2014] HCA 3; 250 CLR 473
- Black v The Queen [1993] HCA 71; 179 CLR 44
- Wu v The Queen [1999] HCA 52; 199 CLR 99
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
- R v Spilios [2016] SASCFC 6