R v Kilincer (No. 4)

[2022] NSWSC 1731

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kilincer (No. 4) [2022] NSWSC 1731
Hearing dates:	19 August 2022
Date of orders:	19 August 2022
Decision date:	19 August 2022
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Order discharging the juror pursuant to s 53B(d) Jury Act.
Catchwords:	CRIME – trial – question of juror impropriety – question of whether perception of bias might arise – no impropriety by juror – possibility of perception of bias even though no reason to conclude actual bias – juror discharged
Legislation Cited:	Jury Act 1977 (NSW)
Category:	Procedural rulings
Parties:	Regina (Crown) Kubilay Kilincer (Accused)
Representation:	Counsel: B Hatfield (Crown) E Ozen SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Abbas Jacobs Lawyers
File Number(s):	2020/30002
Publication restriction:	Nil

Ex Tempore Judgment (REvised)

1. HER HONOUR: This morning an issue has arisen with respect to a potential for an appearance of a conflict of interest between a member of the jury and the issues which are to be tried. MFI 66 contains an email chain which sets out the circumstances of that potential issue. It is a little contorted, and the connections are a little remote, but, in short, it appears that a legal clerk who is part of the Crown’s legal team in this trial has a partner who works with an individual who is the son of a member of the jury, subsequently identified as Juror H. Simply on the basis that the partner of the legal clerk was able to conclude that the juror was serving on this particular trial, there was at least a suggestion that the juror may have discussed the trial with her son, beyond the way in which jurors were advised that they could communicate their role as jurors.

2. It was thought best to bring the juror in, once identified, and question the juror under oath as to, firstly, the circumstances of any connection between the juror’s son and the member of the Crown’s legal team, and, secondly, as to whether or not there had been any discussion in the jury room about that potential connection. Juror H has given evidence which, in my view, there is no reason at all to doubt. She was clearly most earnest in her wish to assist the Court with such information as she had, but I am satisfied by what the juror has said that, in fact, she has very little information at all.

3. It seems that the juror has, in the way that the Court said was available, mentioned to family members that she is serving on a jury in the King Street complex here in Sydney. That information has been sufficient for the partner of the Crown’s legal clerk, in what seems to have been casual conversation with the son of the juror, to conclude that, necessarily, the juror must be serving on this particular trial. Ordinarily, the King Street complex would be hosting more than one trial, and that would not be a sound inference to draw, but, as it happens this week, this is the only trial proceeding in this complex, and so the assumption that was reached by that person is an accurate one.

4. There is no proper reason, no sound reason, to conclude that anything has been said by or to the juror which could lead to any actual prejudice or bias on the juror’s part. Indeed, it seems to me that she has conducted herself entirely appropriately and has obeyed the Court’s directions with respect to what can and cannot be said to family members, but there is, of course, a need to preserve the appearance of complete impartiality, as well as the actual fact of complete impartiality, and I think it is open to conclude that the reasonable observer, even in possession of all of the facts such as they are now known, could have some suspicion that there was an avenue of information available to the juror beyond the information provided in Court.

5. Mr Ozen of Senior Counsel for the accused makes an application on that basis for the juror to be discharged. The Court has that power under the Jury Act, even though there is no actual bias. The Court can make such a decision pursuant to s 57 of the Jury Act, and I think, in the circumstances that prevail here, it is prudent to make that determination and to make an order discharging the juror pursuant to s 53B(d), that is, that for any other reason, it appears that the juror’s ability to perform the functions of a juror are affected and the juror should not continue to act as a juror. Again, I make clear that I have no concerns about the juror’s actual ability to perform her functions, but I think there is a perception which now connects to that particular juror, and it is that perception that affects her ability to perform her functions, and, on that basis, I make an order discharging juror H from further service.

**********

Decision last updated: 15 December 2022