AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 19 August 2019

R v Khayat (No 13)

[2019] NSWSC 1322

Public order & justice offences
CRIMINAL PROCEDURE TRIAL JURY APPLICATION BY ACCUSED FOR DISCHARGE UNDERMINED DIRECTIONS GIVEN APPLICATION CONSENTED TO BY CROWN

Citation: R v Khayat (No 13) [2019] NSWSC 1322
Court: Supreme Court of New South Wales
Date: 19 August 2019
Judge: Adamson J

Background

The accused stood trial on terrorist offence charges, with the allegations involving an intended bomb on a passenger airline and the planned release of poisonous gas in an enclosed space. On the sixth day of trial, a juror had expressed concern about an unfamiliar man sitting at the back of the courtroom. Rather than the matter being directed to the trial judge by formal jury note, it was resolved through informal exchanges between the court officer and the Crown's solicitor.

The Crown's solicitor told the court officer that the man was her partner and a Federal Agent. The court officer then returned to the juror and told her to discard the note she had been preparing, explaining the man was the Crown solicitor's partner. Later that day, the same juror approached the Crown's solicitor's partner outside the court complex and apologised for having misjudged him.

The Crown's solicitor disclosed these events by email to senior counsel for the accused on the evening of Friday 16 August 2019. When the matter came before Adamson J, the accused applied for the jury to be discharged. The Crown initially opposed the application but, following a luncheon adjournment, obtained instructions to consent to it.

  • Whether the informal resolution of the juror's concern, outside the formal jury note procedure directed by the judge, warranted discharge of the jury.
  • Whether the conduct of the court officer and the Crown's solicitor had undermined directions previously given to the jury, including the direction that the Crown holds no special position merely because it represents the community.
  • Whether any remedial direction from the judge could adequately address the risk of prejudice to the accused.

Decision

Adamson J found that discharge of the jury was both necessary and appropriate. The court identified two clear breaches of directions given at the time of empanelment: jurors had been told to direct any questions to the judge by written note rather than raising them through the court officer, and they had been directed not to communicate with anyone about matters relating to the trial. Both directions had been circumvented.

The court found a real risk that the juror who raised the concern, and potentially the broader jury, might now perceive the Crown as a protector of the jury. This perception was particularly significant given the nature of the charges, which involved allegations of planned attacks on public transport. Such an impression could lead the jury to view the Crown's evidence and submissions more favourably, to the prejudice of the accused.

Adamson J also found that any remedial direction would be inadequate. Giving further directions risked conveying to the jury that they had been prompted by the accused's insistence, which could generate sympathy for the Crown at the accused's expense. The court noted that the court officer's position had become untenable because her conduct had led at least one juror to breach the judge's directions, and the harm she caused could not be undone without discharging the whole jury.

The court also found that the conduct of the Crown's solicitor fell well short of what is required of legal practitioners. The Crown's solicitor ought not to have questioned the court officer about her remark, and ought not to have volunteered information arising from the juror's concern. While the court officer's initiation of that conversation was itself improper, the Crown's solicitor's response compounded the irregularity.

Orders Made

  • The jury was ordered to be discharged when it returned the following morning.

Key Takeaways

  • Adamson J confirmed that informal resolution of jury concerns outside the formal jury note procedure, even where apparently well-intentioned, can fatally compromise a trial.
  • Where such informal contact creates a real risk that the jury will perceive the prosecution as occupying a favoured or protective role, that prejudice may be incapable of remedy by direction alone.
  • The nature of the charges in a given trial is a relevant consideration: the court found that terrorist offence allegations involving public transport made the risk of prejudice from any Crown-as-protector impression particularly acute.
  • Legal practitioners have an obligation to assist the administration of justice; a Crown solicitor who volunteers information to a court officer in response to a juror's concern, rather than directing the matter to the judge, acts improperly regardless of intent.
  • Court officers must not disclose information to parties or intervene in jury communications, as such conduct undermines procedural fairness and the confidentiality of the jury room on which trial by jury depends.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment.