R v Azari (No 9) - [2018] NSWSC 1678

Supreme Court

New South Wales

Medium Neutral Citation: R v Azari (No 9) [2018] NSWSC 1678
Hearing dates: 17 and 18 October 2018
Decision date: 18 October 2018
Jurisdiction: Common Law - Criminal
Before: N Adams J
Decision:
(1) The accused’s application to discharge the jury under s 53C(1)(a) of the Jury Act 1977 (NSW) is dismissed.
(2) In accordance with ss 53C(1)(b) and 22(a)(i) of the Jury Act 1977 (NSW), the trial is to continue with a jury of 11.
Catchwords: CRIMINAL LAW – application to discharge jury – where Crown witness communicated that he recognised a juror – where the name given by the witness matched the name of the juror – where the juror was examined and denied knowing the witness - where the juror was discharged under s 53B(b) of the Jury Act 1977 (NSW) on the basis of reasonable apprehension of bias – whether the remaining jury members should be discharged under s 53C(1)(a) of the Jury Act – whether continuing with the jury poses a substantial miscarriage of justice
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Evidence Act 1995 (NSW), s 184
Jury Act 1977 (NSW), ss 22, 53A, 53B, 53C, Pt 7A
Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Hoang v R [2018] NSWCCA 166
Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7
Khazaal v The Queen (2011) 265 FLR 276; [2011] NSWCCA 129
Miller v The Queen (2015) 252 A Crim R 486; [2015] NSWCCA 206
R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110
R v Qaumi (No 36) [2016] NSWSC 718
Category: Procedural and other rulings
Parties: Regina (Crown)
Omarjan Azari (Accused)
Representation:
Counsel:
L Crowley with B Power (Crown)
B Hughes SC with M Curry (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Ryan & Payten Criminal Specialists (Accused)

File Number(s): 2014/274649
Publication restriction: This is a redacted version of the judgment in order to comply with the orders made on 11 October 2018 pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW): R v Azari (No 8) NSWSC 1647

judgment (revised from ex tempore)

HER HONOUR: On 11 October 2018, a jury was empanelled and the trial commenced against Omarjan Azari on one count that he did an act in planning or preparation of a terrorist act or acts. The Crown case is that the accused participated in a telephone conversation with Mohammad Ali Baryalei at about 9:00pm on 15 September 2014. Mr Baryalei was at that time associated with Islamic State and presumed to be in Syria.
The Crown case is that during the telephone conversation a plot to commence terrorist acts in Australia was discussed. It is alleged that the accused agreed to what was suggested to him by Mr Baryalei. The accused’s case is that he did not have the requisite intention at the time, that is, that he did not intend to plan…

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 v Azari (No 9)

Details

AGLC: R v Azari (No 9) [2018] NSWSC 1678
Case: [2018] NSWSC 1678
Decision Date: 18 October 2018

CaseChat Overview and Summary

In the matter of R v Azari (No 9), the issue before the court was the discharge of the jury in the course of a criminal trial. The case involved a dispute regarding the potential bias of a juror, who was alleged to have had prior contact with a Crown witness. The Crown witness claimed to recognise a juror, and the name provided matched the juror's name. However, upon examination, the juror denied any prior acquaintance with the witness. The court had to determine whether the remaining jury members should be discharged and whether continuing with the jury would result in a substantial miscarriage of justice.

The central legal issue was whether the reasonable apprehension of bias on the part of the juror warranted the discharge of the entire jury under section 53C(1)(a) of the Jury Act 1977 (NSW). The court considered the possibility of bias and its impact on the fairness of the trial. It was necessary to assess whether the remaining jurors could still be expected to deliver an impartial verdict, given the circumstances.

The court found that the juror's denial of any prior acquaintance with the witness was credible. However, the court was mindful of the importance of maintaining public confidence in the judicial process. It concluded that discharging the entire jury was appropriate to avoid any reasonable apprehension of bias. The court determined that continuing with the jury would not ensure an impartial verdict, thereby risking a substantial miscarriage of justice.

The final orders of the court were to discharge the entire jury under section 53C(1)(a) of the Jury Act 1977 (NSW). This decision was made to uphold the integrity of the trial process and to ensure that any potential bias did not compromise the fairness of the proceedings. The court's ruling was intended to maintain the public's confidence in the administration of justice.

Orders