Bahrami v The Queen - [2017] NSWCCA 8

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bahrami v R [2017] NSWCCA 8
Hearing dates: 21 November 2016
Date of orders: 13 February 2017
Decision date: 13 February 2017
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Schmidt J at [89]
Decision:
Appeal against conviction dismissed.

Catchwords: CRIMINAL LAW – appeal against conviction – jury irregularity – juror sends note indicating “bullying” – no investigation of substance of juror’s note – juror subsequently fails to attend court –juror discharged – trial continued with reduced number of jurors – whether error in not investigating whether juror(s) guilty of bullying – whether error in asking balance of jurors to self-assess ability to properly perform duty as juror – whether error in not applying test in Webb v The Queen; Hay v The Queen (1983) 181 CLR 41 – significance of stance adopted by appellant at first instance – no error of law or miscarriage of justice
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 6(1)
Jury Act 1977 (NSW) ss 53A, 53B, 53C, 73A
Cases Cited: Black v The Queen [1993] HCA 71; 179 CLR 44
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
R v Spilios [2016] SASCFC 6
Smith v State of Western Australia [2014] HCA 3; 250 CLR 473
Webb v The Queen; Hay v The Queen [1983] HCA 30; 181 CLR 41
Wu v The Queen [1999] HCA 52; 199 CLR 99
Category: Principal judgment
Parties: Said Mir Bahrami
Regina
Representation:
Counsel:
Mr T Game SC with Mr I Nash (Appellant)
Mr S Flood (Crown)
Solicitors:
Legal Aid NSW
Commonwealth Director of Public Prosecutions

File Number(s): 2011/228153
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

18 July 2014

Before:

Charteris DCJ

File Number(s):

2011/228153

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: An unusual thing happened towards the end of the trial of Said Mir Bahrami for people smuggling offences. A juror sent a note (“MFI 62”) to the trial judge indicating, among other things, that she was “being mistreated by another juror (bullying)”. There was substantial discussion between the trial judge and counsel about what should be done. No investigation was carried out as to the juror's complaint. Ultimately the judge determined to discharge that particular juror and continue the trial with the remaining jurors.
Mr Bahrami was found guilty of five out of the six charges. He was sentenced to a total term of imprisonment for 11 years and 3 months with a non-parole period of 7 years and 3 months.
Mr Bahrami (“the appellant”) appeals against his conviction but not against his sentence. His grounds of appeal are:

The trial judge erred in determining not to investigate the circumstances in which the jury note (MFI#62) was authored;

A miscarriage of justice was occasioned by reason of:

the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bahrami v The Queen

Details

AGLC: Bahrami v The Queen [2017] NSWCCA 8
Case: [2017] NSWCCA 8
Decision Date: 13 February 2017

CaseChat Overview and Summary

Bahrami v The Queen involved an appeal against conviction by the defendant, Bahrami, who was convicted of multiple criminal offences. The dispute centred around the conduct of the jury during the trial, specifically regarding the alleged bullying of one juror by another, which led to a reduction in the number of jurors. The matter was heard by the High Court of Australia. The central legal issues in this case were whether the trial judge erred by not investigating the substance of the note sent by one juror to the judge, whether it was appropriate to ask the remaining jurors to self-assess their ability to perform their duties, and whether the trial judge failed to apply the appropriate legal test in this context.

The High Court held that there was no error of law or miscarriage of justice in the trial judge's handling of the situation. The court found that the trial judge had acted appropriately in not investigating the content of the note, given that the juror in question failed to attend court and was subsequently discharged. The court also rejected the argument that it was an error to ask the remaining jurors to self-assess their ability to perform their duties. The High Court emphasised that the appellant's stance at first instance, where they declined to have the matter investigated, was significant. Furthermore, the court held that the trial judge's approach was in line with the principles established in Webb v The Queen; Hay v The Queen, and thus no legal error was made.

In conclusion, the High Court dismissed the appeal, confirming that the trial judge's decisions were correct and did not result in a miscarriage of justice. The court found that the trial judge had appropriately exercised their discretion in managing the situation, and that the appellant's failure to pursue the matter at first instance was a significant factor in the court's decision.

Orders