R v Khayat (No 13)

[2019] NSWSC 1322

Supreme Court

New South Wales

Medium Neutral Citation:	R v Khayat (No 13) [2019] NSWSC 1322
Hearing dates:	12 – 19 August 2019
Date of orders:	20 August 2019
Decision date:	19 August 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [24]
Catchwords:	CRIMINAL PROCEDURE – trial – jury – application by accused for discharge – jury question answered informally by contact between the court officer and the Crown’s solicitor – undermined directions given – potential to create false impression that Crown in favoured position – prejudice to the accused could not be remedied by directions – application consented to by Crown
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Khayat (Accused)
Representation:	Counsel: L Crowley QC (Crown) B Walmsley QC (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Birchgrove Legal (Accused)
File Number(s):	2017/236835

Judgment

Introduction

1. I received a jury note this morning, 19 August 2019, being the sixth day of the trial of the accused Mahmoud Khayat, to the effect that a juror was indisposed. Accordingly, the trial could not continue today. Before adjourning the trial for a day, I enquired whether either of the parties wished to raise any matter for my consideration.

2. At this point, the Crown disclosed that there had been an interchange between his solicitor’s personal partner and a juror outside the courtroom. This interchange had been disclosed to Mr Walmsley QC, senior counsel for the accused, by email at 9.32pm on Friday 16 August 2019, which is set out below. Mr Walmsley applied for the jury to be discharged. After initially opposing the application, the Crown, in the course of the luncheon adjournment, obtained instructions to consent to the discharge of the jury. I indicated that I would discharge the jury when it returns in the morning.

The facts

3. The parties agreed that in the first instance it was appropriate that I make enquiries of the court officer to ascertain the relevant facts. Mr Walmsley confirmed that he did not require the court officer to give sworn evidence, at least at this initial stage.

The court officer’s version of events

4. The court officer disclosed to me outside the courtroom, and I read onto the record in the courtroom, her version of events as follows.

5. On Thursday 15 August 2019 or Friday 16 August 2019, when the court officer was in the jury room, a female juror told her, in the presence of all the members of the jury, that she was concerned about a man who was sitting in the back of the courtroom who had long curly hair. The court officer responded that she did not know who the person was and that the juror should write a note which she would give to me. At some time following this discussion, the court officer came into the court room and remarked to the Crown’s solicitor that the jury was very observant. When the Crown’s solicitor asked why this was the case, the court officer told her that the jury was concerned about a man who was sitting at the back of the court room and that she had told them to write a note. The Crown’s solicitor informed the court officer that the man was her partner and was just sitting in court. She also added that her partner was a Federal Agent. The court officer then asked the Crown’s solicitor whether she needed to get the juror to put her concern in a jury note, to which the Crown’s solicitor answered, “No, just tell them he’s my partner.” According to the court officer, she told the Crown’s solicitor, “I’m not informing them of his position because it’s not my place to tell them.”

6. The court officer also said that one of the male jurors who had been listening to the conversation between her and the female juror approached her and told her that he had had an incident on a train where a gentleman was sitting opposite him and he had felt uneasy because he felt that someone might have been taking images of him. The court officer asked whether the person was someone related to the trial, to which the juror said, “No.” The court officer told the juror that as people are not permitted to take photographs without permission, the juror should report it to police. At this point a couple of the other jurors told the male juror that although it might have looked as if the person was taking photographs, he might have just been using his phone to send a text.

7. The court officer went back to the female juror who had raised the question about the identity of the man at the back of the courtroom and said words to the following effect, “Scrap the note. It turns out that he is the partner of the Crown’s solicitor.” The court officer then saw the juror screwing up the note and discarding it. Nothing more was said. The court officer informed me that she had made no mention in her communications with the jury of the man being a Federal Agent.

The version given by the Crown’s solicitor in the email sent to Mr Walmsley

8. The email which the Crown’s solicitor sent to Mr Walmsley at 9.32pm on Friday 16 August 2019 said as follows:

“I write to bring a matter to your attention.

This afternoon following the conclusion of court today one of the female jurors approached my partner who was waiting to meet me outside of the court complex. She approached him and said the following to him ‘I am sorry I misjudged you and I’m paranoid’. She then said ‘and sorry to your lady friend’ to which my partner responded ‘it’s okay, don’t worry about it’. The juror then walked away and nothing further was said. It was a very short interaction of less than a minute.

Following the conclusion of the lunch adjournment today, the Court officer advised me that the same female juror had indicated her concern about observing a man in a leather jacket and dark curly hair sitting in the back of the court room the previous day (Wednesday, 14 August 2019) and also seeing him waiting outside of the court that same afternoon following the conclusion of proceedings. I advised the court officer that he was my partner and that he had come to visit me that day as he had a day off. I also advised the Court officer he was a Federal Agent with the AFP and that I didn’t think it would be an issue for her to advise the juror that he was my partner and had come to court that day to visit me.”

9. Mr Walmsley indicated that he did not accept that the court officer had not divulged the occupation of the Crown’s solicitor’s partner to the jury and wanted to test the court officer’s version by having her sworn so that he could cross-examine her. He also informed me that it was only when I informed the parties of the court officer’s version that he became aware of the discussion about the incident on the train.

10. There are slight differences between the version given by the court officer and the contents of the email from the Crown’s solicitor. Neither has given evidence or been cross-examined. These reasons ought not be read as preferring one version rather than the other where there are differences since those matters revealed by the email and by the court officer raise matters which would make it unfair, in any event, to continue the trial with the current jury. To the extent to which there are differences, these need not be resolved.

Consideration

11. Mr Walmsley submitted that it was altogether inappropriate of the Crown’s solicitor to have any information communicated to the juror through the court officer or by any other means. He submitted that there was a real chance that the juror might feel grateful to the Crown for disclosing the identity of the man who had been observed at the back of the court room. Mr Walmsley submitted that this would tend to entrench the prosecution’s position as the “protector” of the jury whose evidence and submissions ought accordingly be given more favourable consideration. Mr Walmsley argued that such considerations were particularly relevant in a trial such as the present where the accused is charged with a terrorist offence. He contended that it was of importance that the two “plots” alleged against the accused involved the intended placement of a bomb on a passenger airline or the release of poisonous gas in an enclosed space such as a bus or train carriage. He submitted that, in these circumstances, what had occurred was sufficient to warrant a discharge of the jury. He submitted further that, if it had also been disclosed, contrary to the version the court officer gave to me, that the man was a Federal Agent, the case for the jury to be discharged would be even stronger.

12. As referred to above, the Crown initially opposed the application for discharge but subsequently consented to it. Although the parties have consented to an order that the jury be discharged, it is ultimately a matter for me whether it is appropriate to do so. For the following reasons, I am satisfied that it is both necessary and appropriate that the jury be discharged.

13. The directions I gave to the jury following the empanelment have been breached. First, I told the jurors that the court officers were there to attend to their general needs but not to answer any questions relating to the trial itself and that the appropriate procedure was to write a note to me. Secondly, I directed the jurors not to communicate with anyone else about any matter relating to the trial unless it was to the other members of the jury when they were all present in the jury room, or in a written note to me. Further, there is a risk that another direction that I gave the jury, that the Crown is not in any special position merely because it represents the community, has been significantly undermined.

14. Although the court officer initially instructed the juror to write a note, the court officer reversed this instruction after having spoken with the Crown’s solicitor. The matter was then dealt with between the jury, the court officer and the solicitor. These interchanges resulted in the note, which was in the process of being written, being discarded. The informality then continued when the juror approached the partner to apologise to him, and, through him, to the Crown’s solicitor.

15. The principle which underlies the rule that a juror’s question be reduced to written form in a note which is then marked for identification and the subject of submissions from the parties before it is answered is a fundamental one. The process ensures that the requirements of natural justice are fulfilled. The parties learn of the contents of the note at the same time as each other and are each given an opportunity to be heard on an appropriate response. Thus, the accused is on the same footing as the Crown in terms of the receipt of such questions and the answer to be given. The irregular procedure which has been adopted in the present case has denied the accused procedural fairness and also, potentially, given the jury and the accused the false impression that there is a special relationship between the Crown and the court such that the Crown is entitled to be privy to what is occurring in the jury room and may respond to the jury’s questions, but the accused is not.

16. Had the proper channels been used, the accused, the Crown and the court would have been aware of the question and the answer to be given could have been the subject of debate. The jury would have been given a different answer: they would have been told that members of the public are entitled to be in a court room but would not have been told that the man was the partner of the Crown’s solicitor. While this matter may not be of particular moment, the impression created which I have referred to above is of great significance.

17. Although I do not accept Mr Walmsley’s submission that the juror would have felt “grateful” both to the man for not posing a threat and to the Crown’s solicitor for providing this assurance, I consider that the risk of a false impression being created in the minds of the jurors about the status of the Crown is a serious one. It is understandable that members of the public who find themselves on the jury in a trial of a person accused of a terrorism offence may feel apprehensive about being identified and targeted. It is imperative that these concerns be dealt with, as with any other question a juror might raise, in accordance with well-established trial procedure.

18. It is also of significance that the initial irregularity (the court officer disclosing the jury’s question to the Crown’s solicitor) led to three further irregularities: the Crown’s solicitor telling the court officer the answer to the juror’s query; the court officer telling the jury that no note was required; and the juror approaching the man in question to apologise to him and to the Crown’s solicitor. All of these matters occurred without either the court or the accused (and presumably also the Crown prosecutor) being aware of them and in breach of my directions.

19. Further, the juror who initially raised the query about the man in the courtroom, and potentially the whole jury, might feel that the need for any further directions I might give had been brought about by the accused insisting that they be given. The jury might feel sympathetic to the Crown’s solicitor at the expense of the accused.

20. The court officer’s position has also, in my view, become untenable, since she has, by her conduct, undermined my directions and led at least one of the jurors to breach them. Court officers play a very important role in jury trials. They are prohibited from disclosing matters to the parties since such disclosures undermine procedural fairness and compromise the confidentiality of the jury room on which trial by jury is based. Although the court officer could be replaced for the trial, the harm she has caused cannot be undone except by discharging the whole jury.

21. The conduct of the Crown’s solicitor, in so far as it is recorded in the email, falls well short of what is required. Legal practitioners have an obligation to assist the court in the administration of justice, not to hinder it. While the conduct of the Crown’s solicitor does not excuse the conduct of the court officer, had the Crown’s solicitor behaved correctly, the situation could have been remedied. The Crown’s solicitor ought not to have questioned the court officer about her remark that the jury was observant and ought not to have offered any information to the court officer arising from the juror’s concern. While it was improper for the court officer to have initiated the conversation with the Crown’s solicitor, it was also improper of the Crown’s solicitor to have responded as she did.

22. Directions may, in some cases, be sufficient to deal with an irregularity. However, I do not consider that any direction which I can give will be sufficient to ameliorate the risk of prejudice to the accused in the present case.

23. In order to address the accused’s application for discharge of the jury, it has been necessary to make findings regarding the conduct of the court officer and the Crown’s solicitor. These persons have not had an opportunity to be heard. In these circumstances I have refrained from naming these persons since their conduct is relevant only because of the effect that it has had on the trial of the accused.

24. Accordingly, when the jury returns in the morning, I propose to make an order discharging the jury.

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Decision last updated: 30 September 2019