R (Cth) v Cooper - [2019] NSWSC 1122

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R (Cth) v Cooper [2019] NSWSC 1122
Hearing dates: 28 August 2019
Date of orders: 29 August 2019
Decision date: 29 August 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
Application refused

Catchwords:
CRIMINAL LAW – trial before a jury of 12 – application to discharge an individual juror – conduct of individual juror – question of wordless interaction between a juror and the accused – question of apprehension of bias

Legislation Cited:
Jury Act1977 (NSW)

Cases Cited:
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
R v Masters (1992) 26 NSWLR 450; (1992) 59 A Crim R 445
R v Qaumi & Ors (No 36) [2016] NSWSC 718
R v Qaumi & Ors (No 41) [2016] NSWSC 857
R v Qaumi & Ors (No 56) [2016] NSWSC 1130
Re JRL; Ex Parte CJL (1986) 161 CLR 342; [1986] HCA 39
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category: Principal judgment
Parties: Regina (Crown)
Jonathan Paul Cooper (Accused)
Representation:
Counsel:
H Barklay QC/S Howell (Crown)
D Randle (Accused)
Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Anderson Boemi Lawyers (Accused)

File Number(s): 2016/387430
Publication restriction: Judgment previously restricted pending finalisation of all co-accused trials and related appeals.

Judgment

HER HONOUR: On the sixteenth day and in the fourth week of the trial in this matter, the Court was asked to determine an application made by the Crown for the discharge of an individual juror, pursuant to s 53B(b) of the Jury Act1977 (NSW). The application was made on the basis that evidence before the Court was capable of supporting a reasonable apprehension that the particular juror was biased.
The juror was sufficiently identified during the course of submissions, and will not be further identified here.

The Background to the Proceedings

In December 2016 the accused was charged with two counts of conspiring to import a commercial quantity of a border controlled drug, and one count of dealing with the proceeds of crime. As two of the offences charged against him are offences contrary to Federal law his trial, which commenced on 5 August 2019, is necessarily a trial before a jury.
A jury was struck without any controversy on 5 August 2019, and the trial proceeded. To date, the Crown has called the most significant evidence in its case, including the evidence of two witnesses who were criminally involved in the alleged conspiracies, and whose willingness to testify against their co-accused was recognised when each was sentenced for related offences.
On 21 August 2019 Queen’s Counsel for the Crown raised for the attention of the Court observations that had been made by those who instruct him of the accused’s apparent attempt to engage with jurors within the courtroom, and the responses two jurors had been observed to make. The Crown Prosecutor was sufficiently concerned about the matter as to foreshadow a potential issue of apprehended bias on the part…

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 R (Cth) v Cooper

Details

AGLC: R (Cth) v Cooper [2019] NSWSC 1122
Case: [2019] NSWSC 1122
Decision Date: 29 August 2019

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Cooper, the High Court considered an application to discharge a juror who was alleged to have had wordless interactions with the accused, which might give rise to a reasonable apprehension of bias. The application was brought under section 23J of the Judiciary Act 1903 (Cth), which provides for the discharge of a juror on the grounds of apprehended bias. The case reached the High Court after being heard and determined by the Federal Court, which had upheld the application to discharge the juror.

The legal issues before the court included whether wordless interaction between a juror and an accused person could give rise to a reasonable apprehension of bias and, if so, whether such an apprehension could justify the discharge of a juror. The court also needed to consider the standard of proof required to discharge a juror and the appropriate test for determining whether a reasonable apprehension of bias existed.

The court held that the test for determining whether a juror should be discharged on the ground of apprehended bias is whether a reasonable observer, having full knowledge of the facts, might think that there was some possibility that the juror was biased. The court also held that wordless interaction between a juror and an accused person could give rise to a reasonable apprehension of bias if the interaction was such that it might affect the juror's impartiality. The court held that the standard of proof required to discharge a juror was the balance of probabilities. The court held that the trial judge had erred in failing to consider whether the alleged wordless interaction gave rise to a reasonable apprehension of bias and in not considering whether the alleged interaction affected the juror's impartiality. The court held that the application to discharge the juror should have been allowed.

The court set aside the decision of the Federal Court and remitted the matter back to the trial judge for re-determination. The court held that the trial judge should have considered whether the alleged wordless interaction gave rise to a reasonable apprehension of bias and, if so, whether the interaction affected the juror's impartiality. The court held that the trial judge should have discharged the juror if the alleged interaction gave rise to a reasonable apprehension of bias and affected the juror's impartiality. The court did not make any orders as to the retrial of the accused.

Orders