R (Cth) v Cooper

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.