Citation: R v Bechalany [2021] NSWSC 1262
Court: Supreme Court of NSW
Date: 10 September 2021
Judge(s): R A Hulme J
Background
The applicant was convicted by jury of murder following a trial before Hidden AJ in October and November 2018. After the trial, it came to light that a juror had sent an email to the Commonwealth Attorney General and the National Security Committee containing claims about mind control and surveillance by intelligence agencies. The email prompted a welfare check by NSW Police and raised questions about the juror's mental state during the trial.
It also emerged that the same juror had been charged with driving under the influence of a drug in August 2018 and was awaiting finalisation of that charge throughout the trial. The charge was finalised after the verdict, resulting in a fine and disqualification. Under clause 4(2)(b) of Schedule 1 of the Jury Act 1977 (NSW), a person awaiting trial or sentence is ineligible for jury service.
The applicant sought a further investigation by the Sheriff under section 73A of the Jury Act to determine whether the juror was mentally fit to serve during the trial, and whether the verdict may have been affected by improper conduct.
Legal Issues
- Whether the circumstances fell within section 73A of the Jury Act, which requires a basis to suspect the verdict was affected by "improper conduct" by a juror
- Whether a juror's mental state, as distinct from conduct, can constitute "improper conduct" for the purposes of section 73A
- Whether the juror's ineligibility due to pending criminal proceedings was relevant to the section 73A application
Decision
Issue 1: Whether mental state constitutes "improper conduct" under section 73A
Hulme J identified the central difficulty with the application: section 73A is directed at improper conduct by a juror, not at a juror's mental state. His Honour found there was no specific conduct of the juror in question that fell within the provision (at [24]). The email was sent after the trial and the verdict, and the evidence before the Court pointed to a question about mental health rather than to any act or omission during the trial that could be characterised as improper conduct (at [24], [29]).
Issue 2: Mental illness and jury eligibility
His Honour noted that mental illness does not appear in Schedules 1 or 2 of the Jury Act as a ground of exclusion from jury service (at [25]). The court also observed that mental illness does not automatically produce incapacity to participate in jury service, and that the outcome may depend on the particular condition and whether it is managed (at [26]). No evidence before the Court established that this juror's capacity to function as a juror was impaired during the trial. The Court Officer observed nothing unusual, and no concerns were raised by fellow jurors (at [15]).
Issue 3: Ineligibility due to pending proceedings
Hulme J acknowledged that the juror appeared to have been ineligible under clause 4(2)(b) of Schedule 1 of the Jury Act because criminal proceedings against the juror were pending at the time of the trial (at [27]). The juror had failed to disclose this despite multiple opportunities to do so (at [17]). However, the court noted that this ineligibility issue was one the applicant could pursue through any appeal, rather than through a section 73A investigation (at [28]).
Issue 4: Adequacy of prior investigation and the application overall
The court expressed some concern that the prior investigation ordered by Hidden AJ did not include interviews with the juror or fellow jurors (at [22]). Nonetheless, the application was refused because the circumstances did not engage section 73A: the question of the juror's mental state did not constitute improper conduct as required by the provision (at [29]-[30]).
Orders Made
- Application for investigation into conduct of juror refused
Key Takeaways
- Section 73A of the Jury Act 1977 (NSW) authorises a Sheriff's investigation only where there is reason to suspect the verdict was affected by "improper conduct" by a juror; a juror's mental state, without more, does not satisfy that threshold (at [24], [29]).
- Mental illness does not appear in the exclusionary or exemption schedules of the Jury Act, and the Supreme Court confirmed that having a mental illness does not automatically render a person incapable of jury service (at [25]-[26]).
- A juror who has a charge pending in the Local Court at the time of empanelment is ineligible for jury service under clause 4(2)(b) of Schedule 1 of the Jury Act, even where the charge ultimately results in only a fine and disqualification (at [16]).
- Failure by an ineligible juror to disclose pending proceedings, despite being given multiple formal opportunities to do so, is a matter that may be raised on appeal rather than through a section 73A investigation (at [28]).
- Refusing the further investigation, the court noted that an absence of any observed irregularity by the Court Officer and an absence of complaints from fellow jurors were relevant factors in assessing the application (at [21]).
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 6, 68, 73A, Sch 1, cl 4(2)(b), Sch 2
Cases
- Agelakis v R [2019] NSWCCA 71