Citation: R v Gordon (No 7) [2017] NSWSC 195
Court: Supreme Court of New South Wales
Date: 3 March 2017
Judge: Campbell J
Background
The accused, an Aboriginal man, was on trial before a jury in a criminal matter. The deceased in the case had resided in an Aboriginal community. During the trial, a juror submitted a note to the judge reporting that, while leaving court the previous afternoon, a group of Aboriginal people near the courthouse entrance had made verbal comments described as "not pleasant." The juror noted the group had also begun appearing in the mornings.
Inquiries revealed the juror had left slightly ahead of their colleagues to attend an appointment and was therefore unaccompanied at the time. The comment perceived by the juror was of a personally denigrating nature and contained no reference to the case or to jury deliberations. The sheriff directed the juror not to discuss the incident with fellow jurors.
Defence counsel applied for the entire jury to be discharged on the ground that the juror, and potentially the broader panel, had been infected by an apprehension of bias.
Legal Issues
- Whether a fair-minded lay observer might reasonably apprehend that the juror, or the jury as a whole, might not bring an impartial mind to determining the accused's guilt or innocence
- Whether, even if such an apprehension could arise, further directions from the trial judge would suffice to address it
- Whether discharge of the entire jury was necessary in the circumstances
Decision
Campbell J adapted the apprehended bias test from the High Court's decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, which was originally formulated for judges, to apply it to jurors. The adapted test asks whether a fair-minded lay observer might reasonably apprehend that the juror or jury might not bring an impartial mind to resolving the question of guilt or innocence in accordance with the directions of law received.
His Honour found the note, read in context, indicated a juror bringing a matter to the court's attention rather than expressing prejudice toward the accused. While the juror may have felt some discomfort, there was nothing in the note to suggest the incident had distorted the juror's thinking about the case. A fair-minded observer, Campbell J reasoned, could only rationally apprehend bias if they could articulate how the incident would cause the juror to bring irrelevant considerations to bear on their verdict.
Campbell J emphasised that the trial system necessarily proceeds on the assumption that jurors follow judicial directions. Requiring compelling evidence before concluding a jury would depart from those directions, he noted that with eleven other jurors unaffected, there was no basis to suppose the panel as a whole had been compromised. On the contrary, other jurors would be likely to discourage any prejudicial reasoning if the matter were raised.
His Honour declined to discharge the jury but considered it appropriate to reassemble the court and reinforce the existing directions concerning the absolute need for impartial, dispassionate, and unprejudiced reasoning.
Orders Made
• Application for discharge of juror refused
• Court to reassemble to reinforce directions regarding impartial, dispassionate and unprejudiced reasoning
Key Takeaways
- The apprehended bias test from Ebner v Official Trustee in Bankruptcy, formulated for judges, can be adapted to assess whether a juror or jury should be discharged, asking whether a fair-minded lay observer might reasonably apprehend that the juror or jury might not bring an impartial mind to determining guilt or innocence.
- A fair-minded observer must be able to rationally articulate how an external incident would cause a juror to introduce irrelevant considerations into their reasoning before an apprehension of bias can be established.
- Refusing the discharge, the Supreme Court affirmed that the trial system is founded on the assumption that jurors comply with judicial directions, and compelling evidence is required to displace that assumption.
- Where circumstances fall short of warranting discharge, a reinforcing direction from the trial judge reminding jurors of their obligation to reason impartially, dispassionately, and without prejudice may be a sufficient response.
- The presence of eleven other unaffected jurors was a relevant factor, as the court reasoned the broader panel was capable of counteracting any inclination toward prejudicial reasoning by the affected juror.
Legislation and Cases Referenced
Cases:
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (High Court of Australia) (apprehended bias test for judges, adapted and applied to jurors)
Legislation:
- None cited in the judgment.