R v Bechalany - [2021] NSWSC 1262

Supreme Court

New South Wales

Medium Neutral Citation: R v Bechalany [2021] NSWSC 1262
Hearing dates: 10 September 2021
Decision date: 10 September 2021
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Application for investigation into conduct of juror refused

Catchwords:
CRIME – application for request to Sheriff to investigate whether jury verdict affected because of improper conduct by jury member – Jury Act 1977 (NSW), s 73A – juror sent emails to Commonwealth Attorney General and National Security Committee – email headed ‘Torture and inhumane from intelligence Agencies’ – mental state not improper conduct – application dismissed

Legislation Cited:
Jury Act 1977 (NSW), ss 6, 68, 73A, Sch 1, cl 4(2)(b), Sch 2

Cases Cited:
Agelakis v R [2019] NSWCCA 71

Category: Principal judgment
Parties: Regina
Robert Jack Bechalany
Representation: Solicitor for Public Prosecutions
Mr M Chahine, One Group Legal Pty Limited

File Number(s): 2015/111895

Judgment

HIS HONOUR: This is an application for a request to be made to the Sheriff to investigate, and report to the Court the outcome of the investigation, the possibility of improper conduct by a member of a jury which may have affected the verdict of the jury in the applicant's trial. The application is based upon s 73A of the Jury Act 1977 (NSW).
The applicant was found guilty by a jury at a trial before Hidden AJ between 24 October and 12 November 2018 of a charge that he murdered Luke Browning at St Clair on 14 April 2015.
The evidence upon which the application is based is within an affidavit of Mr Bechalany’s solicitor, Mr Mohammad Chahine of 18 August 2021.
According to a letter written by Mr Chahine to the Registrar of the Court of Criminal Appeal dated 5 June 2020, which in turn referred to a report by the Sheriff dated 9 February 2019, a juror sent an email to the Commonwealth Attorney General and to the National Security Committee with a heading: "Torture and inhumane from intelligence agencies". The email apparently requested that the National Security Committee investigate the "cover abuse and torture with remote voice to skull, electromagnetic mind control frequency technologies and Gang Stalking used by Intelligence Agencies."
The email is said to set out various purported beliefs, including that the author:

“(1)   had been ‘first attacked by such technologies in November 2015’ when he or she was studying. A Gang Stalking campaign had also been launched against him or her.
(2)   had learnt of the technologies that are being secretly used or covered up by intelligence agencies in the world and Australia to control and harass the populace.
(3)   was ‘a victim of such torture and recently it has been so unbearable as they are threatening to kill me, and my family, physical pain to my body, internal organs with the use of directed energy weapons and many nights of sleep deprivation after I have started reporting this.’
(4)   had experienced noticeable effects starting with noises (voices) like threats to his or her life…

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 Bechalany

Details

AGLC: R v Bechalany [2021] NSWSC 1262
Case: [2021] NSWSC 1262
Decision Date: 10 September 2021

CaseChat Overview and Summary

The case of R v Bechalany involved a criminal proceeding where the defendant sought an application for the Sheriff to investigate whether the jury verdict had been affected by the improper conduct of a jury member. The matter was heard in the New South Wales Supreme Court. The defendant argued that the jury's verdict was compromised due to an email sent by one of the jurors to the Commonwealth Attorney General and the National Security Committee. The email, which was sent during the jury's deliberations, was headed 'Torture and inhumane from intelligence Agencies'.

The legal issues the court needed to address were whether the email constituted improper conduct by a juror and if such conduct warranted an investigation under section 73A of the Jury Act 1977 (NSW). The court had to determine the mental state of the juror at the time of sending the email and assess whether it amounted to improper conduct that could have influenced the jury's decision. The court also needed to examine whether the juror's action was a genuine expression of concern or an attempt to sway the jury's verdict.

The court examined the content and context of the email and concluded that the juror's mental state was not indicative of improper conduct. The email was found to be an expression of concern about the treatment of detainees by intelligence agencies and was not directed at influencing the jury's decision. The court held that the email did not meet the threshold of improper conduct as defined by the Jury Act 1977 (NSW). Consequently, the application for the Sheriff to investigate the matter was dismissed.

Orders