R v Ferguson (No 10)
[2005] VSC 514
•16 November 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| FERGUSON AND ANOR |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 16 November 2005 | |
CASE MAY BE CITED AS: | R v Ferguson and anor (Ruling No. 10) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 514 | |
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CRIMINAL LAW – Consumption of alcohol by juror during trial – Juror at same premises as accused – Discharge of juror pursuant to s.43 Juries Act 2000 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tovey Q.C. with Mr D. Brown | Office of Public Prosecutions |
| For the Accused Ian Ferguson | Mr D. O’Doherty with Ms A. Marjanovic | C. Marshall & Associates |
| For the Accused Joanne Ferguson | Mr F. Gucciardo with Ms M. Tittensor | Theo Magazis & Associates |
HIS HONOUR:
I raised this morning with counsel matters concerning the observed conduct of one of the jurors empanelled in this trial. At the commencement of this discussion I outlined to counsel matters that had come to my attention. Primarily, they concerned two matters: firstly, the consumption of alcohol by that juror in a public place before attending court in the morning and, secondly, the circumstance that the particular juror had on a number of occasions been seen to be at the same premises attended by the two accused, Ian Ferguson and Joanne Ferguson, before court in the morning.
The matters which have brought this to a head were raised with my tipstaff on 14 November and I took the opportunity to raise them with counsel today. My particular concern is whether I ought to discharge the juror under any of the captions in s.43 of the Juries Act 2000. If any of the sub‑paragraphs of that section are applicable, it would be sub‑sect.(d) which provides:
"A judge may, during a trial, discharge a juror without discharging the whole of the jury if –
…
(d)it appears to the judge that for any other reason the juror should not continue to act as a juror."
Having raised this matter with counsel, and given them the opportunity to confer with their clients, senior counsel for the Crown (Mr Tovey of Queen's Counsel) has submitted that I ought in the circumstances to discharge the juror. Mr O'Doherty and Mr Gucciardo, who respectively appear as senior counsel for the accused Ian Ferguson and Joanne Ferguson, oppose that course.
In taking instructions, Mr Gucciardo confirmed to me that the accused have observed the juror in question to attend the Metropolitan Hotel approximately once a week, that hotel being premises which they attend themselves to partake of morning coffee before attending court. I say at the outset that that observation and the fact that the Fergusons are at the hotel is no criticism at all of the accused. They have a right to attend a public place before court to partake of refreshment. I should also observe at the outset that it has been my observation, which I referred to in a ruling yesterday, that the whole of the jury has, to my perception, been particularly attentive to the matters which have occurred in court; their concentration has been outstanding, and that observation I think fairly applies to the juror in question in this case. Since these matters have been drawn to my attention, I have taken the opportunity to particularly observe her and my observation has been that she has worked conscientiously in following the evidence. Nonetheless, the matters which have come to my attention have raised two very troubling issues concerning the fitness and appropriateness of retaining this particular juror on the jury which is to decide the verdict in this case.
First, on 19 October when it came to my attention that in fact there had been some small communication between the accused and the juror at the Metropolitan Hotel, I mentioned the matter both to counsel and the accused in the absence of the jury and then I raised the issue in more general form to the jury before adjourning that evening. It is true that I did not direct the jury in terms not to attend the same premises as the Fergusons, but it would seem clear to me that the import of what I said to the jury would have disclosed to them quite clearly the desirability of them remaining apart from the accused, and should they encounter the accused, that they are each to ignore them. It is a matter of concern that this juror has attended premises where it is clear that Mr and Mrs Ferguson frequent, and that she has done so on a number of occasions.
The second matter which concerns me is the consumption of alcohol by the juror before court. It is correct to say that I do not think anyone in this court has made any observation of the juror to the effect that she has been adversely affected. However, that does not completely resolve the issue. First, it is quite possible that she may still have been affected by the consumption of alcohol but simply has not, by her demeanour, disclosed that. Secondly, the fact that she has been consuming alcohol has clearly become evident to the jurors and that observation by the jurors is a matter of concern to me. If the ongoing consumption of alcohol by this jury were to be countenanced by me saying nothing, it would send a signal to the jurors that the standard of conduct and care expected of them is somewhat less than the high standard I have deliberately set for them in order to protect the rights of the accused in this case.
This is a long and difficult case calling for a lot of hard work and concentration by the jury. At the outset of the trial and at every opportunity I have emphasised to the jury their judicial responsibilities and the high standard of conduct expected of them. I have done so, not simply as a matter of dignity and decorum, but much more importantly, to ensure that the jury will pay careful heed to important directions I have to give them in relation to matters of law. The directions which I will be giving to the jury, and some of which I have already given, are directions which safeguard and protect the rights of the accused to a fair trial. Directions which will be given in my final charge will include how they are to approach the evidence of particular categories of witnesses. Those directions are very important and are seen to be such by the law, and it is most important that the jury follow them and do so in a most judicial way.
This is a long and difficult case calling for a lot of hard work and concentration by the jury. At the outset of the trial and at every opportunity I have emphasised to the jury their judicial responsibilities and the high standard of conduct expected of them. I have done so, not simply as a matter of dignity and decorum, but much more importantly, to ensure that the jury will pay careful heed to important directions I have to give them in relation to matters of law. The directions which I will be giving to the jury, and some of which I have already given, are directions which safeguard and protect the rights of the accused to a fair trial. Directions which will be given in my final charge will include how they are to approach the evidence of particular categories of witnesses. Those directions are very important and are seen to be such by the law, and it is most important that the jury follow them and do so in a most judicial way.
This is a jury which has, to my perception, been particularly conscientious in adhering to my directions and in following the case. It is most important that they continue to set that high standard for themselves and not to be of the view that indeed a lesser standard of conduct is acceptable or to be tolerated.
There is another factor which concerns me, and that is this: the jurors in this case are, properly, anonymous, but they are not invisible. They are judges in this case. If an ordinary impartial observer were to know the facts which had been related by me and to which I have adverted to this morning, it would be my assessment that that impartial observer would have real reservations as to the impartiality and the effectiveness of that juror in going about her deliberations.
The discharge of a juror in this case, particularly one who has, to my observation, worked hard, would be a very harsh step and I would take it with a very heavy heart and with some reluctance. I have given this matter anxious consideration and listened carefully to the submissions put to me on behalf of the accused. One of the difficulties is that there is little that I can do to cure the problems which have been raised if I do not discharge this juror. I raised this matter with Mr O'Doherty and Mr Gucciardo and I agreed with them that any admonition I gave to this juror today in court in the absence of the other jurors would cause her undue embarrassment and may be counterproductive. The most I could do would be to admonish her and direct her not to attend at venues at which she saw the accused or anyone else connected with the case. My concern is whilst she has not flouted the letter of the direction I gave the jury on 19 October, certainly the spirit and intent of that direction has not been observed by her. In the end it would seem to me my choice is either to give her a general direction to stay away from the accused during the case or to discharge her. If I follow the former alternative, that would leave the issue for consumption of alcohol unaddressed. It would, it seems to me, fail to adequately address the other issues that I have raised, particularly the issue relating to the perceptions of the other jurors and indeed the public perception concerning the administration of justice.
As I say, the discharge of a juror is something which a judge should never undertake lightly. The jury has been lawfully empanelled to sit as judges in this case, but in the end it seems to me that the conduct of this juror in the way I have outlined is such as to render her unfit to remain as a juror in this case. I would be acting in grave dereliction of my duty to the system of justice and to protect the rights of the accused in this case if I did not discharge that juror. Accordingly, and with regret, I have determined that in the exercise of my discretion I have no real option than to discharge that juror pursuant to s.43(d) of the Juries Act and I intend to do so shortly.
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