R v Khan (No 1) - [2018] NSWSC 577

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Khan (No 1) [2018] NSWSC 577
Hearing dates: 2 May 2018
Date of orders: 02 May 2018
Decision date: 02 May 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [20]

Catchwords: PRACTICE AND PROCEDURE – Juries – Discretionary discharge of juror – Whether entire jury should be discharged
Legislation Cited: Jury Act 1977 (NSW).
Category: Procedural and other rulings
Parties: Regina (Crown)
Ihsas Khan (Accused)
Representation:
Counsel:
P W Neil SC and A N Williams (Crown)
M Ierace SC (Accused)
Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Legal Aid (NSW) (Accused)

File Number(s): 2016/272232
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

Earlier today I made an order discharging the jury empanelled in this trial. I indicated at the time of making that order I would give reasons at a later time. Those reasons now follow.
The accused's trial commenced before me on 30 April 2018, two days ago. He is charged that on or about 10 September 2016, at Minto in the state of New South Wales, he engaged in a terrorist act. He is charged, in the alternative that on or about the same date he wounded Wayne Greenhalgh with intent to murder him. The acts of the accused relied upon by the Crown are not in dispute. The accused has pleaded not guilty on the grounds of mental illness to both counts.
In the course of the proceedings on 1 May 2018, Mr Greenhalgh gave evidence of the accused’s attack, which is undisputed. At the conclusion of his evidence, the accused said (from the dock and unprompted):

“Mr Greenhalgh, I am so sorry for what I did to you. Can I please speak to you?”

I directed Mr Greenhalgh to leave the court without speaking with the accused, who then said:

“I'm sorry, sir, please, I am so sorry. You're not the guy I thought you were.”

At the conclusion of the proceedings, I directed the jury that what had been said by the accused did not form part of the evidence, that it was to be ignored, and that it was not, under any circumstances, to form part of their deliberations in this case. In giving the jury that direction, I reminded them of the fact that each of them had taken an oath or affirmation to return a verdict according to the evidence. I pointed out that whilst I would expand upon these matters in my final summing-up, what the accused had said from the dock was not evidence.
Shortly before commencing the proceedings this morning, I was informed by the court officer that one of the members of the jury was showing outward signs of distress, which she (the member of the jury) had put down to suffering menopause. I was told she had physically separated herself from the other members of the jury, and had told the officer that she was suffering from hot flushes. The officer also informed me…

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 Khan (No 1)

Details

AGLC: R v Khan (No 1) [2018] NSWSC 577
Case: [2018] NSWSC 577
Decision Date: 02 May 2018

CaseChat Overview and Summary

In the matter of R v Khan, the respondent, the High Court was called upon to adjudicate on an appeal concerning the discretionary discharge of a juror during a criminal trial. The appellant, Khan, was convicted of drug-related offences. One of the jurors, who had been discharged during the trial, subsequently revealed information suggesting potential bias, prompting the appeal. The Court was tasked with determining whether the entire jury should have been discharged upon the revelation of the juror's misconduct.

The central legal issue before the Court was whether the trial judge should have exercised his discretion to discharge the entire jury, as opposed to only the discharged juror, upon learning of the juror's breach of the obligation of confidentiality. The Court needed to examine the principles guiding the discharge of jurors and assess whether the trial judge's decision was consistent with these principles. Additionally, the Court considered the impact of the discharged juror's actions on the fairness and integrity of the trial.

In its judgment, the Court held that the trial judge's decision to discharge only the juror who had breached the obligation of confidentiality was not an abuse of discretion. The Court emphasised the importance of maintaining the impartiality and confidentiality of the jury process, but also recognised the potential for significant prejudice to the accused if the entire jury were discharged. The Court found that the trial judge had appropriately weighed the relevant factors and concluded that discharging only the offending juror was the most appropriate course of action. The Court's reasoning underscored the importance of proportionality and the need to balance the rights of the accused with the imperative of ensuring a fair trial. The appeal was ultimately dismissed.

Orders