R v Crane & Ors (Trial Ruling No 12)

[2022] NSWSC 1228

Supreme Court

New South Wales

Medium Neutral Citation:

R v Crane & Ors (Trial Ruling No 12) [2022] NSWSC 1228

Hearing dates:

6 and 7 July 2022

Date of orders:

7 July 2022

Decision date:

25 July 2022

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

Application to discharge an individual juror for apprehended bias refused.

Catchwords:

CRIME – application under the Jury Act 1977 to discharge individual juror – whether the observed conduct of the individual juror gave rise to an apprehension of bias

Legislation Cited:

Jury Act 1977 (NSW)

Cases Cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Webb v The Queen (1994) 181 CLR 41

Category:

Procedural rulings

Parties:

Regina (Crown)
Colin Stephen Crane (accused)
James Peter Crane (accused)
Simon Alexander Rodden (accused)
Adam David Symons (accused)
Beau Andrew McDonald (accused)
Guy Robertson (accused)
Jake William McDonough (accused)

Representation:

Counsel:
G Turner with K Prince (Crown)
P Young SC (accused C.Crane)
S Boland (accused J.Crane)
T Edwards (accused Rodden)
J Trevallion (accused Symons)
T Hughes (accused McDonald)
W Flynn (accused Robertson)
N Steel (accused McDonough)

File Number(s):

2018/228604; 2019/00134906; 2019/00181340; 2017/00329279; 2017/00386819; 2017/00387058; 2017/00387048

JUDGMENT

1. On Wednesday 6 July 2022, the 28^th day of this trial, Mr Hughes on behalf of the accused Beau McDonald applied for an order under s 53B(b) of the Jury Act 1977 (NSW) that one of the jurors, Juror F, be discharged on the basis that:

the juror may not be able to give impartial consideration to the case because of […] any reasonable apprehension of bias […] on the part of the juror.

Mr Hughes’ application is recorded at T 1931. It was made after the Crown prosecutor had concluded her final address and the first of the defence addresses had been delivered, by Mr Steel on behalf of the accused Jake McDonough. Mr Flynn on behalf of the accused Guy Robertson joined the application at T 1932.

2. I did not consider that there was a sufficient basis for the application when it was made and I informed counsel that I would maintain close observation of Juror F while the closing arguments continued. Defence counsel had agreed amongst themselves that they would address in the reverse of the order in which their clients’ names appear on the indictment, with the result that the next address was that of Mr Flynn (Guy Robertson).

3. The trial commenced with 15 jurors. By 6 July 2022 two had been discharged due to illness. Part way through Mr Flynn’s address on the afternoon of 6 July 2022 another juror became ill and the trial had to be adjourned until the next day. On Thursday 7 July that juror was still unwell and advised the Sheriff’s office that she would be unable to resume jury service until Monday 11 July. In the course of hearing counsel’s views as to whether the unwell juror should be discharged or whether the trial should be adjourned to await her recovery, Mr Edwards on behalf of the accused Simon Rodden applied for the discharge of Juror F. He adopted the same ground as had been advanced by Messrs Hughes and Flynn.

4. I refused the application. From the totality of my own observations of Juror F from the commencement of the trial and from what counsel reported to me of his behaviour I considered that there was no basis for the application. These reasons are published to record fully the observed conduct of the juror and the manner in which I applied the legal test for disqualification of a juror on the ground of apprehension of bias.

Reduction of expanded jury to 12

5. I should first mention the manner in which the jury was subsequently reduced to 12 at the time when they were asked to retire and consider their verdicts. All 13 jurors attended on Monday, 11 July 2022 and addresses continued from then until the luncheon adjournment on 14 July. The summing up was delivered over the afternoon of 14 July, the whole of 15 and 18 July and the morning of Tuesday 19 July. By that date the trial was in its ninth week, one week beyond the estimate that had been given to the panel when jury selection had taken place on 23 May. One of the jurors had an immovable travel commitment that would render him unavailable for three sitting days after Wednesday 20 July. I did not expect that the jury would be in a position to return their verdicts by the end of the Wednesday. I therefore discharged that juror under s 53B(d) of the Jury Act.

6. That order was made over the opposition of the Crown and all defence counsel. All parties urged me to conduct a ballot under s 55G of the Jury Act and to accept that if the juror who had the travel commitment should remain after that ballot, the jury’s deliberations be suspended from the Wednesday afternoon, for three sitting days, and resume when that juror would again be available on Tuesday 26 July. On full consideration I concluded that that alternative would involve a highly undesirable dislocation and prolongation of the deliberation process, to no advantage. It would extend the duration of the risk that one or more jurors would contract COVID-19, or one of the other highly infectious viral illnesses that are circulating in the community, and cause yet further disruption of the jury’s progress towards verdicts. Counsel’s reasons for unanimously proposing the alternative course are recorded at T 228.41-2251.5. I did not find any of those reasons to be of substance.

The legal test for reasonable apprehension of bias

7. The application of s 53B(b) to the circumstances of this case turns upon whether a fair-minded and informed lay observer might reasonably apprehend that the juror might not bring an impartial and unprejudiced mind to the resolution of the factual issues that the jury will have to resolve: Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]. The test is the same for a juror as for a judicial officer: Webb v The Queen (1994) 181 CLR 41 at p 53.

8. The concept of each juror bringing an impartial and unprejudiced mind to the jury’s collective task involves that each juror will make his or her decision according to the evidence, not according to any material interest of the juror in the outcome, nor according to any personal, ideological or other connection with any party witness or legal representative and not according to pre-judgment formed without assessment of the evidence. These various bases of reasonable apprehension of bias are referred to in Ebner v Official Trustee in Bankruptcy at [2] and in Johnson v Johnson at [11]. It is the last mentioned source of bias – pre-judgment – that is said to be reasonably apprehended in respect of Juror F.

Observations of Juror F’s conduct from the bench

9. Juror F is a male whom I estimate to be aged approximately in his late 20s or early 30s. He appears to be of Chinese descent, which is a circumstance relevant to the interpretation of his manner and behaviour in court, as will be seen. The juror is a slightly built individual who gives the impression of nervous energy, fidgeting at times and frequently shifting about in his chair. My observations of Juror F prior to Mr Hughes’ application for him to be discharged on the 28^th day were as follows.

10. First, upon his jury number being called during the empanelment process, Juror F walked to his place in the jury box with a posture that was open to interpretation as exhibiting disappointment, irritation and/or reluctance at having been selected. He wore a facemask, as he has done throughout the proceedings. Without being able to see his facial expression no confident conclusion could reasonably be drawn regarding his attitude. Neither the Crown prosecutor nor any of the seven counsel who assisted their clients saw fit to challenge him.

11. Secondly, on the afternoon of the second day of the trial, during the evidence in chief of the officer in charge of the investigation, Juror F was at times sitting with his eyes closed. It did not appear to me that he was falling asleep but I was concerned that he may not be paying adequate attention. I directed him as follows:

[You] appear to be leaning back and closing your eyes. It is giving me the impression that you are not actually concentrating on the evidence. I would just ask you to be a little more alert, please, and take the evidence in as it is given. You won't be able to try the case fairly unless you do.

The juror made no verbal response to this admonishment but nodded his acceptance of it and remained alert for the balance of that day.

12. Following the above direction to the juror the jury sat for the equivalent of only 18 full days up to 6 July, that being the 19^th day. In this period many days were lost due to the illness of jurors, counsel and/or those of the accused who are on remand in custody. During those 18 days Juror F was not inattentive. I took note of him frequently, both because I had found it necessary early in the trial to direct him to pay attention and because his restive manner tended to catch my eye. His fidgeting included twirling a pen around his fingers at eye level, causing me to look in this direction. I never observed him to fall asleep. He did at times put his head back and briefly close his eyes, followed by shaking his head as if making himself refocus. At other times he bent forward and put his head down, briefly. When the jury were asked to look at CCTV recordings on the monitors or to refer to pages within their exhibit books, Juror F complied.

13. During Mr Flynn’s address on 6 July 2022, after the application for discharge had first been made, I did not observe any relevant conduct of Juror F. He remained attentive during Mr Flynn’s address and referred to an exhibit when counsel asked the whole jury to do so. Juror F’s fidgeting continued. I recorded these observations at T 1943.

14. When defence addresses resumed on Monday, 11 July 2022 I kept Juror F under close observation, albeit discreetly to avoid discomfiting him. I did not observe any lapse of his attention nor any gesture or other reaction to the addresses. I recorded this at T 2015. At that reference, Mr Flynn said that he had observed Juror F shaking his head during the afternoon of 11 July, while Mr Hughes was addressing. I did not see that gesture and it must have been very brief and insignificant having regard to the amount of attention that I was paying to him throughout the day. To my observation, the juror was attentive and impassive during the remaining days of defence counsel’s addresses and throughout the summing up.

Counsel’s observations of Juror F’s conduct

Clapping gesture at the end of the Crown address

15. The first of counsel’s observations that gave rise to Mr Hughes’ application on 6 July 2022 was that at the end of the Crown prosecutor’s address, as she thanked the jury for their attention, Mr Edwards observed Juror F to bring his hands together “a number of times” as if clapping. I say “as if” because this gesture made no sound that I could hear. I did not observe the gesture myself. It will be necessary to consider in combination all of the juror’s conduct that is the subject of complaint. However, it is useful initially to apply the legal test to each individual element of impugned behaviour.

16. The clapping gesture described could not reasonably be interpreted as signifying endorsement of the Crown’s arguments or that Juror F might not determine the factual issues, after hearing the defence arguments and the trial judge’s directions, in an impartial manner. The Crown’s address extended over 2 ½ days and about 110 pages of transcript. It dealt with diverse cases against seven accused in three distinct legal and factual categories. It was necessarily long and complex. Juror F’s clap may have signified that he found the arguments, or some of them compelling; or that he recognised the address as involving substantial skill in advocacy; or that he had found it helpful in clarifying the matters that he would have to decide. A fair-minded lay observer would reasonably allow that, as a person of apparently Chinese descent, with possibly a lack of background knowledge or experience concerning Australian court proceedings, the juror may have considered it polite to clap as acknowledgement of completion of the prosecutor’s professional duties in the case.

17. Juror F’s physical manner up until 6 July at times suggested diffidence with respect to the proceedings and, possibly, frustration at having to sit and listen for long hours. An alternative possible interpretation of the clapping gesture is that it may have been intended as a sardonic expression of relief that the Crown’s long address had concluded. A fair-minded lay observer would reasonably take into account that Juror F may not have had lifelong awareness of the institution of jury trial and any diffidence he may appear to have displayed towards the proceedings may stem from puzzlement that ordinary citizens should be required to undertake such a responsibility.

18. It is not common but nor is it unheard of that an individual juror may display facial expressions or adopt body postures that suggest reluctance about being required to serve on a jury and/or impatience about the pace or the content of the proceedings. Such behaviour is occasionally seen in jurors from all walks of life and from all cultural backgrounds. A fair-minded and informed observer would allow for a range of attitudes that jurors may have towards jury service and for a range in the degree of overt expression of their attitudes, without finding in such behaviour any reason to apprehend that a juror might not discharge his or her duty according to the evidence.

19. It is important that at the stage when the clapping gesture was made, the jury had heard the entirety of the evidence, including that of Adam Symons and Beau McDonald, given over three days. Through their evidence the case of self-defence was fully articulated and tested in cross-examination. Given the stage of the trial, if Juror F’s gesture indicated that at that point he found the Crown case convincing, that could not to a fair-minded observer indicate that he might not give full and fair consideration to the defence addresses that were yet to come or might not heed the trial judge’s directions in summing up. At its highest the gesture could not reasonably be taken as any more than an expression of what the juror had found persuasive up to that point.

20. For the most part, jurors sit impassively through evidence and addresses but it is by no means extraordinary for jurors, at some point in the trial, to smile in disbelief at the evidence of a witness, or to avert their eyes from a witness out of embarrassment at the improbability of something being said, or to look down stonily during an unconvincing address. Similarly, one may observe jurors from time to time nodding in recognition of something they find compelling or making notes of evidence or arguments. It is an impossible expectation that all jurors should be completely un-reactive throughout a trial. For reasons given above, to the fair-minded lay observer Juror F’s clapping gesture was ambiguous, and even if it might be taken as an indication of agreement with the Crown address, having regard to the range of interim reactions that any juror might exhibit it could not reasonably be taken as an indication that Juror F might decide the case irrespective of his conscientious assessment of the evidence, or with a mind closed to the defence addresses yet to come, or irrespective of the summing up.

Placing hands over ears during Mr Steel’s address

21. When Mr Hughes’ application was made on 6 July, Mr Edwards informed me that during Mr Steel’s address Juror F “had his hands over his ears in a demonstrative [manner] for a period of time before taking them down”. Mr Boland said that during the same address, which occupied less than an hour, he observed the juror “doubled over at almost 90 degrees”. Neither of these gestures can have continued for very long as I did notice either of them. They are referred to at T 1932.

22. Each of these further observations is, like the clapping gesture, ambiguous as to what, if anything, the juror’s hand and body movements might reasonably be taken to indicate about the juror’s views upon the issues in the case or about whether he might not decide the factual questions according to the merits. Having regard to his constant restlessness I do not consider that a fair-minded lay observer could regard the placement of the hands over his ears or his bending forward “at almost 90 degrees”, in each case for some brief period, as a demonstration of refusal to hear anything said against the Crown case. The position would be quite different Juror F had until that point sat entirely still or if the placement of his hands was clearly such as to prevent him hearing anything and if it continued for a significant duration.

Nodding during the Crown’s cross examination of Beau McDonald

23. Mr Trevallion informed me on 7July that during the Crown’s cross-examination of Beau McDonald he had observed Juror F “very enthusiastically nodding”: T 1946-1945. The juror said nothing during that cross-examination. He has said nothing at any time during the trial. Mr Trevallion said that he interpreted the nodding as “almost sort of barracking and cheering on the cross-examination of the Crown”. That is defence counsel’s conclusion about what the juror may have been thinking and what he may have intended to convey. I did not see these gestures but if they signified, as well they might, that Juror F found the prosecutor’s questions telling, that could not cause a fair-minded observer to perceive a possibility that juror might not decide the case according to the evidence. The same considerations apply as discussed at [20] above.

Juror shaking his head during defence counsel’s address and not attending

24. On 7 July Mr Boland stated that during Mr Flynn’s address he had observed Juror F shaking his head “very emphatically from side to side”. He also said that he had observed the juror “sleeping repeatedly during the trial and waking with a start”. He said that “he sleeps every day”. These observations are referred to at T 1947-1948. Until this point no counsel had reported to me that Juror F was sleeping repeatedly, or every day, during the 28 days up until the application for his discharge was first made. Based on my own observations, summarised at [12] above, I am satisfied that Mr Boland is mistaken in his impression of the juror’s inattention. Failure to pay attention during the trial, if it should occur, would be a basis for admonishing the juror or, if it persisted, discharging him. It would not support a reasonable apprehension that the juror might be biased and it would not engage s 53B(b). I am also not satisfied that Juror F’s head shaking could reasonably be interpreted as a demonstration of disagreement with the address that was being delivered when this occurred. As earlier mentioned, a similar gesture has from time to time been noted by me and has been consistent with the juror feeling that his attention had waned and attempting to revive concentration.

Combined effect of all observations

25. Taken altogether, the matters identified by counsel fell far short of satisfying me that a fair-minded and informed lay observer might conclude that Juror F might not bring an impartial mind to the task of assessing the evidence on its merits and deliberating conscientiously upon the verdicts to be returned.

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Decision last updated: 13 September 2022