Director of Public Prosecutions v O'Connell (No 3)
[2023] ACTSC 150
•30 May 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v O’Connell (No 3) |
Citation: | [2023] ACTSC 150 |
Hearing Date: | 30 May 2023 |
DecisionDate: | 30 May 2023 |
Reasons Date: | 15 June 2023 |
Before: | Baker J |
Decision: | (1) I formally discharge juror number 34 pursuant to s 8(1) of the Juries Act 1967 (ACT). (2) I make an order under s 8(2) of the Juries Act that the trial shall continue with the reduced number of jurors and the verdict of those jurors shall be a sufficient verdict. |
Catchwords: | CRIMINAL LAW – CRIMINAL PROCEDURE – discharge of juror – whether juror should not continue to act as a juror owing to any “other sufficient cause” – juror member’s delayed recognition of witness – finding there would be reasonable apprehension of bias if juror remained on panel – finding juror would not be able to give impartial consideration to evidence owing to acquaintanceship with witness – trial to continue with reduced number of jurors |
Legislation Cited: | Juries Act 1967 (ACT) s 8 |
Cases Cited: | R v Charbaji, Azam; Charbaji, Haysem; Jamieson Lexy May (No 4) [2016] NSWSC 1865 R v Sean (a pseudonym) (No 3) [2023] ACTSC 133 Wu v the Queen [1999] HCA 52; 199 CLR 99 |
Parties: | ACT Director of Public Prosecutions ( DPP) M O’Connell ( Accused) |
Representation: | Counsel M Smith ( DPP) J White SC ( Accused) |
| Solicitors ACT DPP ACT Legal Aid ( Accused) | |
File Number: | SCC 251 of 2022 |
BAKER J:
Introduction
The accused, Michael O’Connell, is charged with one count of murder. He pleaded not guilty to that count. A jury of twelve was empanelled on 30 May 2023.
On 31 May 2023, I received, via the ACT Sheriff, a Jury Note from a juror (“the Juror”) notifying me the of the Juror’s recognition of a witness in the proceedings.
The Jury Note indicated that the Juror used to work with a prosecution witness, Elizabeth Crump. Ms Crump is the mother of the deceased. Ms Crump’s recorded Pre-Trial Evidence had been played before the Court the previous day.
In the note, the Juror explained that they “interacted at work” with Ms Crump, but that they had not recognised Ms Crump’s name when the list of witnesses was read by the prosecutor at the commencement of the trial. The Juror stated that they did not believe that these interactions would have any impact on their judgment.
Both parties agreed that the circumstances were such as to require the discharge of the Juror.
I discharged the Juror, and ordered that the trial continue with the remaining 11 jurors. These are my reasons for making each of those orders.
Discharge of the juror
Section 8 of the Juries Act1967 (ACT) confers power on the Court to discharge a juror. Section 8(1) provides:
(1) If the judge is satisfied that, because of illness or other sufficient cause, a juror should not continue to act as a juror, the judge may order that the juror be excused from further attendance during the trial and during any further period that the judge specifies in the order.
In R v Sean (a pseudonym) (No 3) [2023] ACTSC 133 at [10], McCallum CJ made the following observations concerning the phrase “sufficient cause” in s 8 of the Juries Act:
Section 8 has been relevantly in the same terms since its inclusion in the Juries Ordinance 1967 (ACT), before self-government in the Territory. It has not been the subject of explication in any secondary material of the Legislative Assembly of the Australian Capital Territory (ACT). Nor is there any local authority that considers the scope of the expression “other sufficient cause”. That issue has not arisen in the small number of available decisions that have applied the section: R v Lam (No 2[2014] ACTSC 391; R v Eastman (unreported, Supreme Court of the Australian Capital Territory, Carruthers AJ, 10 November 1995).
Noting the Court’s duty to ensure an accused receives a fair trial, McCallum CJ held that there is a “broad discretion” to discharge a juror if “cause is shown to apprehend some threat to the fairness of the trial” (at [11]).
In the note, the Juror assures the Court that their previous interaction with the witness would not impact on their own judgment and in exercising their duties as a juror. I accept that the Juror would do their best to put aside their previous interaction with the witness in determining their verdict in this trial.
However, in considering whether a juror should be discharged, it is important to bear in mind that the parties to the case, and the general public, must be satisfied that justice “has not only been done but that it has been seen to be done”: Webb v the Queen [1994] HCA 30; 181 CLR 41 (Mason CJ and McHugh J) at 47.
I note that in circumstances similar to the present, Rothman J discharged a juror who had recognised a witness as a work colleague after the commencement of the trial: R v Charbaji, Azam; Charbaji, Haysem; Jamieson Lexy May (No 4) [2016] NSWSC 1865. As in the present case, Rothman J was not satisfied that the juror would not give impartial consideration to the case, however, his Honour considered that there was a reasonable apprehension of bias in relation to the juror: Charbaji, Azam; Charbaji, Haysem; Jamieson Lexy May (No 4) at [3].
Whether or not a prior work association with a witness will require discharge of a juror who has been sworn and commenced hearing a trial must be assessed in all of the circumstances of the trial. Relevant considerations may include the nature of the work relationship, the size of the workplace, the frequency and nature of any work interactions, and the importance and contentiousness of the witness’ evidence in the trial.
In the present case, Ms Crump’s evidence concerned conversations that Ms Crump had with the accused shortly after the incident (in person and by text message), in which he told Ms Crump that the deceased had sustained injuries as a result of falling down stairs at her home. It is common ground that this account was a lie. Ms Crump’s evidence was not challenged in cross-examination.
The note does not disclose the nature of the working relationship between the Juror and Ms Crump. Although there is no express power in the Juries Act to question a juror in considering an application for discharge, McCallum CJ held that such questioning is permissible in R v Sean (a pseudonym) (No 3) at [8].
In the present case, I determined that it was not necessary for the Juror to be questioned as to the nature of extent of their working relationship with the witness. Although Ms Crump’s evidence was not particularly contentious, Ms Crump is the mother of the deceased. The possibility of sympathy on behalf of the Juror towards a former work colleague gives rise to an apprehension of bias.
Accordingly, I was satisfied that the previous interaction between the Juror and the witness Elizabeth Crump is sufficient reason that the juror should be excused from attendance as a juror pursuant to s 14(1) of the Juries Act.
Continuation of the trial
Where a juror is discharged, s 8(2) of the Juries Act permits a trial to continue with remaining jurors. Section 8(2) provides as follows:
(2) Where, because of the death of a juror or of a juror being excused under subsection (1), the number of jurors is reduced to not less than 10, the trial shall, if the judge so orders and notwithstanding section 7, continue with the reduced number of jurors, and the verdict of those jurors shall be a sufficient verdict.
It is necessary for me to separately consider whether an order should be made pursuant to this subsection: Wu v the Queen [1999] HCA 52; 199 CLR 99 at [6] and [8].
The reasons for requiring the discharge of the Juror (namely, the perception of the possibility of sympathy on the part of that juror towards Ms Crump) does not give rise to an apprehension of bias on the part of the remaining jurors. Accordingly, I made an order under s 8(2) of the Juries Act that the trial shall continue with the reduced number of jurors and the verdict of those jurors shall be a sufficient verdict.
Orders
The orders of the Court were that:
(a)I formally discharge juror number 34 pursuant to s 8(1) of the Juries Act 1967 (ACT).
(b)I make an order under s 8(2) of the Juries Act that the trial shall continue with the reduced number of jurors and the verdict of those jurors shall be a sufficient verdict.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Ariella Bucci Date: 15 June 2023 |
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