R v Qaumi (No 41)

[2016] NSWSC 857

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 41) [2016] NSWSC 857
Hearing dates:	22 & 23 June 2016
Date of orders:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Application to discharge individual juror refused.
Catchwords:	CRIMINAL LAW – application to discharge juror – apprehended bias – smiling juror – whether interaction constituted flirting – observations of police officers and solicitor – whether observations capable of being made – shortest view in Supreme Court history – whether conduct gave rise to reasonable apprehension of bias – whether conduct “persistent” –what is wrong with smiling?   CRIMINAL LAW – application to discharge juror – whether juror disobeyed direction – where no allegation of misconduct leading to mandatory discharge – proper inferences to be drawn from snippet of conversation overheard in street – whether constitutes “other reason affecting the juror’s ability to perform the functions of a juror”
Legislation Cited:	Jury Act 1977 (NSW)
Cases Cited:	Avery v Registrar of Briths Deaths and Marriages (No 2) [2014] NSWCATAP 43 CUR24 v DPP [2012] NSWCA 65 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson v Johnson [2000] HCA 48; 201 CLR 488 R v Qaumi & Ors (No 8) [2016] NSWSC 184 R v Qaumi & Ors (No 36) [2016] NSWSC 718 Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of the trial.

Judgment

1. On 22-23 June 2016, the prosecution made an application under s 53B of the Jury Act 1977 (NSW) seeking an order that one particular juror be discharged. The basis of the application is that provided for by ss 53B(b) and (d) of the Jury Act. I refused the application. These are my reasons.

2. The Crown submitted that there is a reasonable apprehension of bias in the individual juror. Simply put, the Crown’s application was based on observations made by a number of participants in the trial that, from time to time, the particular juror has smiled at one or more of the accused and that the accused have smiled at her. At first blush, that is not a particularly compelling basis upon which to assert that the juror is demonstrating behaviour that might cause an objective observer of the proceedings to believe that she (the juror) might not bring an impartial mind to bear upon the issues in the trial. However, the evidence that I accept demonstrates that the interactions between the juror and the accused have occurred on a number of occasions over the last several weeks of the trial.

3. Four of the accused (Farhad Qaumi, Mumtaz Qaumi, Jamil Qaumi and Mohammad Zarshoy) oppose the application for the discharge of the particular juror. The fifth accused (Mohammad Kalal) does not oppose the application. In argument, he actively joined in and supported the application.

4. A second aspect of the application was based on the contention that it appeared that there is another reason “affecting the juror’s ability to perform the functions of a juror”: s 53B(d). That other reason is that an inference is available that the juror disobeyed directions that she should not to discuss the case with a juror who was discharged under s 53B(b) on 6 June 2016 (“the discharged juror”): see R v Qaumi & Ors (No 36) [2016] NSWSC 718.

5. However, in spite of the suggestion that the juror may have disobeyed directions, the Crown did not assert that the juror had engaged in misconduct that would result in her mandatory discharge pursuant to s 53A of the Jury Act.

6. It is not necessary to set out the principles that apply when an application such as the present is made. Those principles are set out in a little detail in the judgment known as R v Qaumi & Ors (No 36). In that judgment, I explained my reasons for granting a similar application by the Crown (strongly opposed by all five of the accused) for the discharge of an individual juror who the evidence demonstrated had some acquaintanceship with a future witness. The principles applying to assertions of apprehended bias are set out at [53]-[70]. I will not repeat the analysis of section and relevant cases here but the reader should be aware that I applied those principles to the resolution of the present application.

7. I accept, based on transcripts provided by the learned Crown Prosecutor, that there have been at least two previous occasions in New South Wales where a juror has been discharged because of behaviour in court considered to be inappropriate. On one occasion a District Court Judge discharged a juror because the evidence supported a finding that the behaviour of the juror was considered to be flirtatious. It involved smiling, nodding and flicking of the juror’s hair. The conduct seemed to emanate from the juror herself. On the other occasion there was a joint (or unopposed) application for the discharge of a juror at the very outset of a murder trial in the Supreme Court. I will not refer to the names of those cases because there appears to be a question mark over whether non-publication orders were made or remain in force. The reasons for Judgment were not provided in either case. However, I accepted that the existence of such cases demonstrates the correctness of my observation earlier in the trial that there is a line to be drawn between “conduct that would justify a discharge and conduct that would not”. [1]

   1. T 3064.

8. On the other hand, I also accepted the submissions of extremely experienced counsel (Mr Stratton SC, Mr Young SC and Mr Driels) that applications based on matters such as these are exceedingly rare. I do not understand the Crown Prosecutor to gainsay that proposition.

9. I have already referred to “the discharged juror”. To understand what follows, I will identify by description the three jurors who were mentioned in the evidence. The first juror is the subject of the present application. I will refer to her as the “young juror” because it appears that she is the youngest of the female jurors. The second juror has changed the colour of her hair during the course of the trial. I will refer to her as the “juror with different coloured hair”. The third juror wears a “Boston” [Red Sox] jacket from time to time. I will refer to her as the “Red Sox juror”.

10. Pursuant to an order made under s 19(2) of the Jury Act, a jury of fifteen was empanelled. The trial has been proceeding for around 12 weeks. The arguments on the present application were made on 23 June 2016, being the 52nd day of the trial. On the 38th day of the trial the discharged juror was discharged. Prior to that the four jurors described above sat in the back row (of two rows) in the four seats closest to the public gallery. The discharged juror sat between the young juror and the juror with different coloured hair. Since the discharged juror was released, the Red Sox juror has moved one seat closer to the public gallery. This means that the three jurors are sitting in the back row in the three seats closest to public gallery. The juror with different coloured hair occupies the seat closest to the public gallery, the young juror sits next to her and the Red Sox juror sits in the third seat from the gallery.

11. The remaining eleven jurors generally sit in the same places although there has been some movement from time to time. In particular, the jury seems to have a rotation system in relation to their representative or foreperson. Every two weeks or so a different juror enters the court room last and takes the position in the front row closest to the bench.

12. In the process of determining that the discharged juror should be discharged it emerged in evidence that she had become “Facebook friends” with three or four of her fellow jurors. At that stage, it was not suggested that the jury should be prohibited from having contact with the discharged juror although the jury was reminded that she had become a person with whom they could not speak about the case.

Evidence and other material leading to the application that the young Juror be discharged

13. The application has its genesis in observations that were first brought to my attention on 24 May 2016 when the Crown Prosecutor asked that I direct the Sheriff to maintain and download a copy of the in-court CCTV footage because somebody in the prosecution team had noticed what they believed to be flirtatious behaviour between two of the accused (Farhad and Mumtaz Qaumi) and two or three members of the jury. [2] I so directed the Sheriff. The downloading was a time consuming exercise and the CCTV footage was provided to me on a hard drive on 8 June 2016. I notified the parties of its arrival and the disc was marked for identification. [3] The Crown did not seek access to the hard drive until 24 June 2016 [4] and does not rely on any material captured on the court CCTV footage in the present application.

    2. T 2036–2040.

    3. MFI 103.

    4. T 2036.

14. However it does rely on observations made by a senior DPP solicitor  who is instructing the Crown Prosecutors. Earlier in the trial, at the request of counsel for the accused, the senior DPP solicitor provided particulars of the conduct which prompted the application to obtain the in-court CCTV footage. Farhad Qaumi tendered this document on the Crown’s application to discharge the discharged juror. [5] The basis upon which the document was tendered on that application was that it was suggested that it demonstrated an improper purpose in the Crown’s application. It was submitted that the true motivation for seeking the discharged juror was to rid the jury of any juror who showed any empathy to the accused. [6] A similar submission was made in the course of the present application. It is unnecessary to deal with the submission further other than to say that I do not accept that the Crown’s applications were based on an improper purpose.

    5. Ex VD 36.

    6. T 2659.

15. In any event, the senior DPP solicitor's particulars were before me as part of the evidence upon which the current application was based. The senior DPP solicitor gave evidence and confirmed that the note reflected her observations on 17 May 2016 and 23 May 2016. The note is in the following terms:

“17 May 2016

11:50 FQ smiling and looking side on towards the corner of the jury.

Look over to women in back row on the right. Lady with coloured hair was smiling at him and then looking down shyly, the lady with dark long hair next to her was smiling at him as well.

Looked at Farhad, and he noticed that I was watching him. He immediately changed his facial expression and focused on the witness.

12:10 Lady in white hooded jumper, 3rd from right smiling and looking at Farhad Qaumi.

12:29 Farhad Qaumi smiling and pursing his lips while looking at the three women. Whispers something to his brothers who all turn and look at the 3 women. Mumtaz Qaumi looks over at the women and smiles.

12:31 Farhad smiling and looking down, making eye contact with jurors and then looking away (appears to be flirtatious??), hiding behind his hand. Mumtaz smiling at the three jurors in the back right of the jury.

12:34 lady with coloured hair speaking to lady next to her, looking at Farhad, smiling at him and then pulling map up to hide face (map just been tendered as exhibit)

2:37 girl in white hoody (3rd from right) smiling at Farhad

2:51 Farhad Qaumi smiling and looking at corner where 3 women are. Says something to Jamil and he looks over as well.

3:12: Farhad bit his lip and lifted his head up to nod at the back right corner of the jury box whilst making eye contact with one of the female jurors in the right back corner.

3:12 Farhad smiling and leaning head on closed fist looking sideways at jury (back right corner again)

3:19 smiling at jury (Farhad)

23 May 2016

12:29 3rd girl from right in back row smiled in direction of FQ 3:30 girl third from right back biting right index finger and looking at Qaumis 3:07: Farhad pushing tongue against side of mouth and looking at girls Mumtaz smiles at girls when leave room.”

16. The references to the juror in the white hooded jumper and to the “3rd girl from right in back row” are references to the young juror. These observations occurred before the discharge of the discharged juror.

17. Statements of four police officers of their observations on various days were also tendered on the voir dire. [7] Each officer also gave evidence.

    7. Ex VD BBB and Ex VD CCC (1-4).

18. Detective Inspector Marks referred to an incident on 9 May 2015 when he saw two female jurors smile in the direction of Farhad Qaumi, who also smiled back and raised his eyebrows. Detective Inspector Marks believed the interaction to be “a little inappropriate”. On returning to his office he made a note of the incident. His observation related to the discharged juror and the juror with different coloured hair. They did not relate to the young juror.

19. Detective Inspector Patton also referred to an incident involving the juror with different coloured hair. He has been in and out of the court room since he gave evidence on 17 May 2016. Since the discharge of the discharged juror he had not noticed any conduct on the part of the juror with the different coloured hair. However, he has observed the young juror smile and look in the vicinity of the accused on not less than six occasions. On all but one of those occasions he observed that Mumtaz Qaumi was looking towards the jury box smiling. His observation is that this has occurred on occasions when the jury enters the court.

20. Detective Senior Constable Veness gave evidence that she saw the young juror smile and look in the vicinity of the accused Farhad Qaumi and Mumtaz Qaumi between 10.30 and 10.33am on Monday, 20 June 2016. She observed Jamil Qaumi and Mumtaz Qaumi to be smiling at the same time. She made a note and informed the senior DPP solicitor. Shortly after 10.00am on 21 June 2016 she saw the same juror “staring in the direction of the Qaumi brothers and smile”. She said that the smile was brief but the juror continued to look in the direction of the dock for about 20 seconds. She spoke to Inspector Brown about the incident, and he said that he had observed Mumtaz Qaumi smiling back at the juror. Both detectives made notes of the incident.

21. Detectives Inspector Brown also gave evidence of his observations of that incident on 21 June 2016.

22. During the course of a judgment in R v Qaumi & Ors (No 36) I noted the suggestion of interaction between two of the accused and some members of the jury and said “I have not observed any interaction that I consider to be inappropriate or improper”. However, on 14 June 2016 I advised the parties as follows:

“I just wanted to let counsel know that it came to my attention that there was an interaction between the accused Farhad Qaumi and two members of the jury this morning when the jury first came into the courtroom. I then observed both the jury and the dock. At some time around 5 past 10 or 10 past 10, I observed what I would describe merely as smiling between Farhad Qaumi and one of the members of the jury. That is why I viewed the CCTV footage at lunch time.

The only view that I observed [on the CCTV footage] was one angle of the dock. There is more than one. There are other angles showing the jury box. I have not observed those.

The footage that I observed is insufficiently clear in terms of the direction in which Mr Qaumi is facing at various relevant times. I would rely on my own observations. Those observations are not sufficient to warrant a discharge of the individual juror, although there is probably a fine line between what conduct would justify such a discharge and what would not.

I raise it, obviously enough, in the context of the concerns that have been raised by the Crown Prosecutor in the description of behaviour as flirtatious. I simply raise that for counsel's consideration.” [8]

8. T 3064.

23. The matter came to a head when the discharged juror attended court and sat in the public gallery on Wednesday 22 June 2016. She arrived shortly before the scheduled luncheon adjournment and immediately before rising I said:

“I observe, for no other reason than to bring it to everyone’s attention, that our discharged juror has joined us this afternoon and is in the back of the court.”

24. In addition to the evidence to which I have already referred, Inspector Browne gave evidence of observing the discharged juror smile in the direction of both the jury box and the dock.

25. Detective Veness gave evidence of observations that she made at traffic lights near the court complex during the luncheon adjournment. She saw the discharged juror and the young juror together. She observed them together for around thirty seconds.

26. The senior DPP solicitor also gave evidence of seeing the discharged juror with the young juror on the street near the court complex during the luncheon adjournment. She noticed that the Red Sox juror and the juror with different coloured hair were very close-by – perhaps no more than 1 metre. It appeared to the senior DPP solicitor that the four women were all together. The senior DPP solicitor was close enough at one stage to hear a snippet of a conversation. She immediately recorded it as a note on her mobile telephone. The note was made at 1.22pm. The note recorded what she heard the young juror say:

“Yep, and I looked over and he smiled at me so I smiled back.”

27. I should interpolate here that when the juror was discharged, an issue arose as to whether those members of the jury who had become friends (or at least “Facebook friends”) could maintain contact with the discharge juror. The parties agreed that there was no need to prohibit contact altogether provided that there was no discussion of the case. Accordingly, the jury was directed that while they could have contact with the discharged juror, they could not talk about the case with her. [9] The significance of this is that the meeting between three of the jurors and the discharged juror was not a breach of any direction. However, the Crown submits that I would infer that the words heard by the senior DPP solicitor related to smiling at one of the Qaumi brothers and that this may have indicated a disregard for the directions not to discuss the case.

    9. T 2786 – 7, 2994.

28. To complete this survey of the factual material upon which the application was based, it is necessary to refer to two matters that were brought to my attention in chambers and then shared with the parties. First, the Court Officer provided an account of observations that he made. I disclosed this information to the parties as follows:

“HIS HONOUR: It has been brought to my attention by my associate that the court officer wanted to speak to me after this issue arose. I think I need now to tell you what he said and then seek your submissions as to how I should deal with it.

What he told me concerned his own observations. The first concerned something that happened at morning tea today when he saw two jurors sitting in the back row in the furthest seats from me smiling and laughing and saw, when he turned to the dock, Jamil Qaumi and Mumtaz Qaumi smiling and laughing at more or less the same time. He then noticed that the learned Crown Prosecutor and his junior were at that time looking at the jury.

On 15 June at 11.49am according to the note he took at the time, he saw the juror second from the end in the back row smiling and Farhad Qaumi smiling at the same time. His impression was they may have been smiling at one another.

At 12 noon on the same day, he observed the same juror smiling from time to time, especially when the person he describes as the "lady homicide police officer" attended the courtroom.

At 12.20 ‑ I think this may have been in the cross‑examination of Mr Driels ‑ because when the words "you were a dog" were uttered, he observed the same juror and Farhad Qaumi smiling at about the same time.

He hastened to say in respect of each of those observations that they were fleeting moments. He also told me, although I suspect it is irrelevant but I should tell you what he has told me, that on 20 June in the jury deliberation area, he was asked by one of the female jurors, and he cannot say which, whether or not it would be possible to have their telephones during the longest morning tea adjournment of the week and that was a request that he denied.

He also asked me if I wanted information about his observations in the jury room which I take to mean when he is taking them to and from the jury room and I said that I did not. I just thought I should bring that to your attention. We are not going to sit much longer today but I am just not sure what I should do in terms of dealing with what is information that has come to my attention which is obviously relevant to the kinds of things that I have heard evidence about this afternoon. I will simply leave that to you to consider.” [10]

10. T 3537.

29. Finally, I drew to the party’s attention the fact that I was informed by one of the Corrective Services Officers that other officers had observed the group of jurors at lunch at a local restaurant. [11]

    11. T 3552.

CROSS-EXAMINATION AND FINDINGS

30. Counsel for the accused cross-examined the senior DPP solicitor and each of the police officers. That cross-examination appeared to be designed to achieve at least three purposes.

31. First, counsel sought to establish that the layout of the court room, the positioning of the dock and the jury box relative to the seats from which various observations were made, meant that the observations of the police officers either could not have been made or their view must have been obscured to some degree. As a result of that cross-examination, I undertook what was described as the “shortest view in the history of the Supreme Court”. I sat in a number of the seats from which observations had been made. In doing so, I announced from the back of the court which of the accused I could see, and whether I could observe the three jurors (three of the legal practitioners having volunteered to sit in the position in the jury box where the three jurors have been sitting for most of the trial). [12]

    12. T 3538–3539.

32. Having undertaken that view, I was satisfied that each of the police officers was in a position to make the observations in relation to which they have given evidence. While they may not have been able to see all of the accused at all times, I was satisfied that the observations to which the police officers attested were capable of being made in spite of layout of the court room and various obstacles that exist. I believe that those observations were made.

33. The second objective of the cross-examination was to undermine the objectivity of the witnesses. It was suggested – at least implicitly, and in some cases directly – that the witnesses were biased and inclined to give evidence that suggested either misconduct or (the appearance of) a lack of objectivity on the part of the juror because that was the position that suited the police and prosecution purpose. That purpose, as put by Senior Counsel for Farhad Qaumi, involved an attempt “to eliminate from the jury any member of that jury who seems to be showing some empathy towards the accused”. [13]

    13. T 3562.

34. While there was nothing inappropriate or improper in that cross-examination, I was satisfied that the implication behind the cross examination and the submissions that followed should be rejected. I found the evidence of each of the witnesses to be straightforward and clear. I did not get any sense that they were exaggerating what they saw. I accept that each of the witnesses made the observations of which they gave evidence. I also accept that they were genuinely concerned about the propriety or appropriateness of the interactions that they observed.

35. However, I accepted that the perceptions of the significance of the interactions may be coloured, unwittingly and sub-consciously, by the interest that the observer has in the case. This is not a criticism. Rather, it is a consequence of human nature.

36. To take that matter one step closer to the decision that I was called upon to make, the objective, fair-minded observer of the proceedings is disinterested in the outcome of the proceedings. That person might observe a juror smiling in the direction of the dock or at one of the accused but, unlike a police officer who has spent many hours investigating the case and putting together a 50,000 page brief, not consider the interaction to be inappropriate. Similarly, what may be perceived as “flirtatious” to an interested party might be considered nothing more than ordinary human interaction by the disinterested, fair-minded observer of the proceedings.

37. I accept the observations of the various witnesses, which align with observations that I have made and also observations that the court officer has made. I accept that there have been a number of occasions where one or two of the female jurors have smiled in the direction of the accused and that the accused have smiled at them. Specifically, and relevant to the application that she be discharged for apprehended bias or on similar grounds, I accept that the young juror has smiled at one or other of the Qaumi brothers on something like six occasions in the last six to eight weeks of the trial.

38. I also accepted the senior DPP solicitor’s observations, noted in Ex VD 36, as to the conduct of Farhad Qaumi. This included observations that he was “pursing his lips”, biting his lip and “pushing his tongue against the side of his mouth”. Those specific observations occurred at 12.29pm and 3.12pm on 17 May 2016 and at 3.07pm on 23 May 2016. It is difficult to know the correct inference to be drawn from such conduct without knowing what was happening at the time of the action. Even if I accept (as I am inclined to do) that the accused’s conduct is inappropriate, the fair-minded observer would not rationally conclude that this impacts upon the objectivity of the jury or any individual juror. Similarly, I accept that the senior DPP solicitor observed the young juror apparently “biting [her] right index finger” but I am unable to draw any conclusion from that action.

39. This brings me to the third purpose of the cross-examination. That purpose was to undermine the suggestion that what the witnesses observed – that is, for the most part, smiling – constituted flirting or was otherwise inappropriate to a degree that the juror’s capacity to judge the case impartially might be considered (by the fair-minded observer) to be compromised. To put it as basally as did Mr Young SC while cross-examining Ms Veness on behalf of Mumtaz Qaumi:

“What is wrong with smiling?” [14]

14. T 3508.

40. I accept that each of the police officers who observed the smiling between the juror and the accused was concerned that the conduct may be inappropriate or formed the opinion that the conduct was inappropriate. I have no doubt about the good faith with which each acted.

41. I make the same finding with respect to the material provided by the senior DPP solicitor. I accept her evidence without reservation and reject the implication in the cross-examination that her position as a solicitor appearing for the prosecution in the trial manifested itself in a biased account. I accept that the words she recorded on her telephone were the words that she heard, in spite of submissions that the street was busy and noisy. I accept that she has been, and remains, an astute observer of the proceedings – as she put it, “I watch everyone in the court room.” [15] I note that her notes of the events of 17 May 2016 included “appears to be flirtatious??” [16] The qualification on this observation provided by the question marks demonstrates both the integrity of the senior DPP solicitor's observations and also the fact that interpreting human interactions is fraught with difficulties and speculation.

    15. T 3521.

    16. Ex VD 36.

A REASONABLE APPREHENSION OF BIAS?

42. It is one thing to observe some human interaction between the accused and a juror (or for that matter between a witness or victim and a juror). It is another thing to conclude that a fair-minded observer of the proceedings might consider that the interaction is such that it might influence the juror in their final assessment of whether or not the accused is guilty of a crime as serious as murder, shooting with intent to murder and other extremely serious crimes.

43. I am unable to accept that the fair-minded lay observer might come to that conclusion. The fair-minded observer would be aware that the trial has been proceeding for around 12 weeks with the jurors and the accused in relatively close proximity to one another and situated in such a way that their point of view or gaze is inevitably in the direction of one another. The fair-minded observer would know that there have been occasions of some levity in the course of the evidence. The observer would take into account that the juror who is subject of this application appears to be very young and, perhaps, a little bit silly. Her conduct may be the result of nervousness or shyness. She may return a smile to be polite. I am unable to conclude the fair-minded observer of the proceedings might, objectively and reasonably, conclude that the interactions are such that her impartiality might be compromised.

44. The Crown Prosecutor accepted in argument that it would not be appropriate to discharge an individual juror if a trial Judge observed a juror to scowl at the accused from time to time during the course of a trial of serious allegations of violence. It is common for jurors to display emotional reactions to evidence given in criminal trials. In the past, I have observed jurors to cry in the course of a victim’s evidence. I am aware that in a recent trial in the District Court a male juror was physically sick listening to the details of evidence of significant and distressing child sexual abuse. In each of those situations, ambitious counsel might argue on behalf of an accused person that the individual juror should be discharged. In one famous case a juror gave flowers to a relative of a homicide victim part way through a murder trial: see Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41. The High Court was satisfied that the irregularity could be cured by direction.

45. Based on the transcript of proceedings (but without the benefit of the published judgment) I am aware that Judge Berman SC discharged an individual juror for what was perceived to be flirting between the accused and the juror, or perhaps more accurately flirting by the juror directed towards the accused. However, the observations that I have made and the evidence that I accepted did not satisfy me that there has been any conduct that could reasonably be described as flirtatious in any real or meaningful way.

46. There have been occasions in the course of the trial when I have observed a juror or jurors look in the direction of the dock in such a way that a fair-minded observer might consider to be judgmental or stern. Should I discharge that juror on the grounds of apprehended bias?

THE POSITION TAKEN BY THE ACCUSED KALAL

47. An important consideration is the position taken on behalf of the accused Mohammed Kalal. Mr Kalal did not initiate the application. However, once the matter was raised by the Crown, counsel for Mr Kalal indicated that he did not oppose the Crown’s application and, when pressed, indicated that he supported it. [17] Rather poetically, Mr Clarke posed the question “what is in a smile?” and answered “it is a nothingness” but went on to submit that the problem is that the smiling is “persistent”. [18]

    17. T 3546.

    18. T 3579.

48. He emphasised the fact that there is no evidence that the juror ever smiled at Mr Kalal and reminded me that his client’s interests are different to those of the Qaumi brothers. Indeed, those interests are largely inimical to one another. Mr Kalal is running a case that includes a defence of duress and that involves disputed evidence of whether two of the Qaumi brothers made threats to him. If a juror is displaying a positive predisposition towards the Qaumi brothers, it is a “bad look” and “bad news for [Mr Kalal].” [19] Mr Clarke submitted that the juror “has shown her hand already” and that a single smile in isolation would not be an issue but the persistent conduct suggested “engagement” and a “relationship developing”. [20]

    19. T 3580.

    20. T 3579.

49. Ultimately, it was submitted that the “positive predisposition” displayed towards the Qaumi brothers might lead the person sitting in the back of the court to conclude that the juror might not be able to give balanced consideration to the defence of provocation, particularly “if it becomes appropriate that there is a defence case”. [21]

    21. T 3579.

APPREHENDED BIAS: CONCLUSION

50. The question is whether the fair-minded observer might conclude that the juror might not bring an impartial mind to a determination of the issues in the trial: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11]. The possibility of a lack of impartiality must be real and not remote: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [7]. This involves two steps: an identification of the factors that might lead the tribunal to decide a case other than on its legal and factual merits and an assessment of the reasonableness of the connection between the matter and the possibility of departure from impartial decision-making: Ebner v Official Trustee in Bankruptcy at [8]; CUR24 v DPP [2012] NSWCA 65 at [35].

51. In the present case, the relevant factor is the interaction between the juror and the accused as the case proceeds. However, “there is no requirement for decision makers to be completely impassive or non-responsive during a hearing”: Avery v Registrar of Briths Deaths and Marriages (No 2) [2014] NSWCATAP 43 citing Johnson v Johnson at [13]. In that case, the suggestion that a decision maker had made eye contact and smiled at one of the parties was not sufficient to establish actual or apprehended bias.

52. I do not accept that the smiling and other conduct of the juror, even if it is properly described as persistent and directed to two (or three) of the accused, provides a reasonable connection to the issues upon which the jury must make decisions. Nor do I accept that the fair minded observer might conclude that the juror might not apply an impartial mind to the questions that will be decided in the deliberations at the end of the trial. Those questions are of the utmost seriousness. They include whether three of the accused (the Qaumi brothers) acted reasonably in self defence (or defence of another) by being involved in the shooting of Mohammed Hamzy, whether those three accused were involved in directing the activities of other member of the Brother for Life Blacktown in carrying out subsequent shootings against a rival chapter of the Brothers for Life and whether the violent actions and threats of two of those three accused operated to cause Mr Kalal to act under duress by participating in two of the shootings.

53. The fair minded observer would be conscious of the seriousness of those issues and aware of the directions that the jury has received, and will receive, as to the requirement to put aside emotions and to decide the case on the evidence in spite of any sympathy or prejudice created by the circumstances and the evidence.

54. I am not persuaded that there is a reasonable apprehension of bias in relation to the case between the Crown and the accused or in relation to the issue of duress that arises in the case of Mr Kalal.

THE CONDUCT OF THE ACCUSED

55. The focus of attention has been on the conduct of the juror. However, her conduct involved interactions with two or three of the accused (Farhad, Mumtaz and Jamil Qaumi). Accordingly, their conduct has also been subject of evidence and the consideration of whether the juror should be discharged.

56. I have commented on a number of occasions that, for the most part, the accused have conducted themselves with dignity and in an exemplary manner throughout the trial. This is particularly so given the stress of the proceedings. However, there have been some notable exceptions to this.

57. For example, there was an incident during the pre-trial hearing when some of the accused were involved in a physical fight with each other and a razor blade was subsequently located in the dock. [22] More recently, on 16 June 2016, I observed Mumtaz Qaumi mouthing words at Witness I. [23] On 22 June 2016 I became aware of an incident that occurred shortly after I left the bench in which Farhad Qaumi shouted threats at a police officer who gave evidence on the voir dire relevant to the present application. [24] The evidence in the present application, and my own observations on 14 June 2016, suggests that the smiling of the young juror was responsive to conduct emanating from the accused.

    22. The incident is described in general terms in R v Qaumi & Ors (No 8) [2016] NSWSC 184.

    23. T 3302.

    24. T 3587.

58. I have advised counsel that the Corrective Services officers requested that I permit them to close the Perspex screen that is capable of separating the dock from the court room. I declined that request. This decision can be revisited at any time if I form the impression that it is appropriate.

59. An attempt by the accused to engage members of the jury in interaction is likely to be counterproductive. Decision makers generally react negatively to attempts by the parties to influence them. Further, any other member of the jury who observes such behaviour may consider such conduct to be unseemly and improper.

60. Furthermore, if the interaction continues, the Crown may renew its application to discharge individual jurors. Needless to say, such an application will be determined on its merit but part of that consideration will be that the interaction has continued in spite of the concerns raised by the Crown and the comments that I have made in this judgment.

ANOTHER REASON AFFECTING THE JUROR’S ABILITY TO PERFORM THE FUNCTIONS OF A JUROR?

61. I did not accept the alternative basis of the Crown’s application. This was based on s 53B(d) which provides:

62. “The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if:

63. (d) it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror.”

64. This part of the Crown’s application involved the suggestion that the young juror acted contrary to directions not to discuss the case with people outside of the jury and, in particular, with the discharged juror. It was based on the words overheard by the senior DPP solicitor when she came upon the juror in the street near the Downing Centre: “Yep, and I looked over and he smiled at me so I smiled back.”

65. There is some force in the submission that it is speculation to find that this snippet of a conversation related to the smiling between the accused and the juror that forms the primary basis of the application to discharge the young juror. Mr Stratton SC (on behalf of Farhad Qaumi) suggested that “for all we know, the juror might have been referring to the boy she met at the local dance hall last Saturday night.” It is difficult to know, from the snippet of conversation precisely what was being spoken about. However, the timing of the comment suggests that it may well have been a reference to something that happened in the court room a relatively short time earlier. However, even on the assumption that the comment related to a smile that occurred in the courtroom, it does establish to any relevant standard that the juror deliberately disobeyed directions.

61. In coming to that conclusion, I considered the directions with which the jury was provided after the discharge of the juror on 6 June 2016. On that date the jury was directed that the discharged juror “now becomes someone that you can’t talk to about the case” and that they should “not disclose to her what is going on in the trial”. [25] On 7 June 2016 one of the jurors raised (with a court officer) the possibility that the discharged juror may wish to attend the trial as a member of the public. [26] At that stage I could see no basis upon which to exclude the juror from the courtroom. Having been discharged, she became a member of the public and the court is open to the public. The jury was advised accordingly, reminded of “the directions I have given you about communications about what is going on in the courtroom” and instructed that it is “vitally important that you not communicate with her about what goes on, particularly in the jury room”. [27] At the end of the week I raised the possibility of contact with the discharged juror and directed the jury that “it is vitally important that you do not discuss the case with her.” [28]

    25. T 2669.

    26. T 2720.

    27. T 2787.

    28. T 2994.

62. I did not accept that the discussion of a smile that passed between the juror and somebody else in the courtroom (including one or more of the accused men) constituted a breach of those directions. The directions (and a number of directions given during the first several weeks of the trial) focused on discussions in the jury room and on the evidence. A direction not to discuss the “the case” and “what is going on in the trial” is unlikely to have caused the young juror to understand or believe that it was wrong to discuss some incidental interaction (that is, a smile) that passed between her and the accused.

63. I was not satisfied that the juror deliberately disobeyed the directions. Nor was I satisfied that her ability to perform the functions of a juror was affected for the purposes of s 53B of the Jury Act.

CONCLUSIONS, DIRECTIONS AND POST SCRIPT

69. It was for those reasons that I refused the application to discharge the young juror pursuant to s 53B.

70. I came to the view that it was appropriate to revisit the question of contact with the discharged juror and to provide the jury with clear directions as to its role, the importance of the decisions it was called upon to make to both the accused and the community.

71. I consulted the parties [29] and provided directions to the jury before allowing them to disperse at the end of the day. The directions included a prohibition on further contact with the discharged juror, a reminder of the requirement not to discuss the case with anybody outside of the jury and clarification that this included communications in the jury room, the evidence given in the court room and “the things that happen incidentally in the courtroom as you are coming and going.” [30] I also reminded the jury that the case must be decided on the evidence and that “when you come to consider your verdicts in the case, you have to put aside all of those emotions and mixed feelings you might have and prejudices and decide the case purely on the evidence”. [31]

    29. T 3609-3610.

    30. T 3621-3622.

    31. T 3623.

72. The following morning I received a note from the jury (or a juror) in the following terms:

“Upon leaving the Court, without any plan, I happened to see the juror that has left and I have just told her that we are not allowed to have any kind of contact with her. It was a one minute conversation. We departed our own ways.” [32]

32. T 3262, MFI 115.

73. This note confirmed that the jury, both collectively and individually, understood the directions and was intent upon following them.

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Endnotes

Decision last updated: 23 November 2016