Citation: R v Crane & Ors (Trial Ruling No 12) [2022] NSWSC 1228
Court: Supreme Court of New South Wales
Date: 25 July 2022
Judge: Fagan J
Background
This ruling arose during a lengthy criminal trial involving seven accused. By the 28th day of trial, two jurors had already been discharged due to illness, and the proceedings had stretched beyond their original estimate into a ninth week.
During closing addresses, counsel for two of the accused applied on separate occasions under s 53B(b) of the Jury Act 1977 (NSW) for the discharge of a particular juror, referred to as Juror F. The applications were based on a series of observed physical behaviours said to give rise to a reasonable apprehension that Juror F was biased in favour of the Crown.
Fagan J published reasons to record both the observed conduct and the application of the legal test, noting that he had refused both applications.
Legal Issues
- Whether Juror F's observed conduct, including clapping at the end of the Crown's address, nodding during cross-examination, placing his hands over his ears during a defence address, and bending forward, gave rise to a reasonable apprehension of bias sufficient to warrant discharge under s 53B(b) of the Jury Act 1977 (NSW).
- Whether the correct legal test for apprehension of bias applicable to a judicial officer also applies to an individual juror.
Decision
The applicable legal test
The court confirmed that the test for discharging a juror on apprehension of bias under s 53B(b) is whether a fair-minded and informed lay observer might reasonably apprehend that the juror might not bring an impartial and unprejudiced mind to the resolution of the factual issues: Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]. The same test applies to jurors as to judicial officers (at [7]). The particular concern here was alleged pre-judgment, that is, a conclusion formed without proper assessment of the evidence (at [8]).
The clapping gesture
Fagan J found that Juror F's silent clapping at the conclusion of the Crown's lengthy, complex address was genuinely ambiguous. It could reflect appreciation of advocacy skill, a sense that arguments were clarifying, sardonic relief that a long address had ended, or, given the juror's apparent cultural background, a polite acknowledgement of the completion of the prosecutor's duties (at [16]-[17]). Even if it indicated that the juror found aspects of the Crown case persuasive at that point, the gesture could not reasonably signal a closed mind to the defence addresses that remained to be delivered or to the trial judge's summing up (at [19]-[20]). The court found the gesture fell well short of the test (at [20]).
Hands over ears and bending forward during a defence address
Both of these behaviours were brief and unobserved by the judge despite close attention. Given Juror F's constant restlessness throughout the trial, Fagan J found that a fair-minded lay observer could not regard these movements as a demonstrable refusal to hear defence arguments (at [22]).
Nodding during cross-examination and alleged sleeping
The court found that nodding during the Crown's cross-examination of a witness, even if indicating the juror found the questions telling, could not lead a fair-minded observer to apprehend that the juror might not decide the case on the evidence (at [23]). The court also rejected the claim that Juror F was sleeping repeatedly or every day. Based on its own sustained observations over 18 trial days, the court was satisfied that counsel's impression of repeated inattention was mistaken (at [24]).
Overall conclusion
Taken together, the matters raised by counsel fell far short of satisfying the apprehension of bias test. The application was refused (at [25]).
Orders Made
- Application to discharge Juror F under s 53B(b) of the Jury Act 1977 (NSW) for apprehended bias refused.
Key Takeaways
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The apprehension of bias test for jurors is the same as that for judicial officers: whether a fair-minded and informed lay observer might reasonably apprehend that the juror might not bring an impartial and unprejudiced mind to the resolution of the issues (at [7]).
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Ambiguous physical gestures by a juror, such as clapping, nodding, or briefly placing hands near the ears, will not satisfy the apprehension of bias test where there are multiple plausible, neutral interpretations of the conduct, particularly when those interpretations are consistent with a juror who is merely reacting to an interim stage of the evidence (at [16]-[20], [22]-[23]).
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A juror's apparent cultural background and unfamiliarity with Australian court proceedings are factors a fair-minded lay observer would take into account when interpreting ambiguous behaviour; such conduct does not automatically signal bias (at [16]-[17]).
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Inattentiveness, if established, would be a basis for admonishment or discharge on different grounds, but it does not of itself support a reasonable apprehension of bias engaging s 53B(b) of the Jury Act (at [24]).
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Where counsel's reported observations of juror conduct conflict with the trial judge's own sustained and close observation of that juror over many trial days, the court may prefer its own assessment of what the juror's conduct actually demonstrated (at [12], [24]).
Legislation and Cases Referenced
Legislation
- Jury Act 19 77 (NSW)
Cases
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- Johnson v Johnson (2000) 201 CLR 488
- Webb v The Queen (1994) 181 CLR 41