Citation: R v WE (No.3) [2019] NSWSC 881
Court: Supreme Court of New South Wales
Date: 11 July 2019
Judge: Bellew J
Background
The accused was on trial for an offence of doing an act or acts in preparation for, or planning, a terrorist act. The trial had an estimated duration of four weeks and was in its fourth day when a significant interruption arose.
At the commencement of proceedings on 11 July 2019, Bellew J received a written note from a juror. The note described an incident from the previous afternoon in which the accused had smiled and given a "thumbs up" signal to a member of the jury as they were leaving the courtroom. The juror asked whether such behaviour was "normal" and noted a hope that the incident would not affect the case.
Counsel for the accused, upon taking instructions, disclosed that the accused admitted to smiling at a juror but disputed the thumbs up gesture. Counsel acknowledged to the court that the conduct was inappropriate. An application was then made on behalf of the accused to discharge the jury, which the Crown did not oppose.
Legal Issues
- Whether the jury should be discharged following an unsolicited communication between the accused and a juror during the trial
- Whether an honest answer to the juror's question, namely whether the accused's behaviour was "normal", would risk prejudicing the accused's right to a fair trial
- Whether the fact that the accused brought about the situation through his own conduct affected the court's obligation to ensure a fair trial
Decision
Bellew J found that the only honest answer to the juror's question was that the accused's conduct was not normal. His Honour could not in good conscience answer the question in a way that suggested the behaviour was ordinary or unremarkable, as had initially been suggested by defence counsel. To do so would have been, in his Honour's words, disingenuous and misleading.
The court acknowledged that some might argue the accused should bear the consequences of his own conduct and that the trial should continue. However, Bellew J held that the obligation to ensure a fair trial remains with the trial judge regardless of how the difficulty arose. An honest answer to the juror's note carried a significant risk of the jury forming an adverse view of the accused, which could not be remedied while the same jury remained empanelled.
Although the joint position of the parties did not bind the court, Bellew J concluded that discharging the jury was the only available course in the circumstances. His Honour also indicated that, irrespective of the trial's ultimate outcome, the matter would be referred to the Registrar for consideration of contempt proceedings against the accused arising from his conduct.
The juror who wrote the note was commended by Bellew J for acting with complete propriety, consistent with the directions given to the jury at the outset of the trial to report anything that appeared irregular.
Orders Made
- The jury was discharged.
Key Takeaways
- A trial judge retains an overriding obligation to ensure the accused receives a fair trial, even where the circumstances threatening fairness arose from the accused's own conduct.
- Bellew J confirmed that the court cannot answer a juror's question in a misleading or disingenuous way, even where an honest answer creates prejudice to the accused.
- Where an honest answer to a juror's communication carries a significant risk of the jury forming an adverse view of the accused, discharge of the jury may be the only available course.
- The parties' joint agreement on an application does not bind the trial judge, though it may be a relevant consideration in the exercise of discretion.
- Conduct amounting to unsolicited communication between an accused and a juror mid-trial may give rise to contempt proceedings, separately from and irrespective of the outcome of the underlying criminal trial.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW)
Cases cited: None identified in the judgment.