R v Sam Alhassan
[2011] ACTSC 128
•26 July 2011
R v SAM ALHASSAN [2011] ACTSC 128 (26 July 2011)
JURY – jury in criminal proceedings – photograph taken in court during jury trial – jury concerned by photography – jury became aware that person taking photograph was associate of accused – fair-minded and informed member of public could have a reasonable apprehension or suspicion that jury’s knowledge might influence it in performing its task – jury discharged.
EX TEMPORE JUDGMENT
No. SCC 147 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 26 July 2011
IN THE SUPREME COURT OF THE )
) No. SCC 147 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
SAM ALHASSAN
ORDER
Judge: Penfold J
Date: 26 July 2011
Place: Canberra
THE COURT ORDERS:
That the jury be discharged.
Background
[Sam Alhassan was charged with attempting by a deception to dishonestly obtain a financial advantage from another person, namely the Commonwealth. The charge related to the importation of a large quantity of tobacco that had not been included in an import declaration made on behalf of Mr Alhassan. Mr Alhassan pleaded not guilty. On 25 July 2011 a jury was empanelled and his trial began.]
Photographs taken in court
Shortly after 3.00 pm on the first day of the trial, it was drawn to my attention that a person in the public gallery was taking photographs in the courtroom.
At that stage I noted that it was not permitted to take photographs in court and asked one of the Sheriff’s Officers to speak to the person. The Sheriff’s Officer then escorted that person outside. While they were outside, I was informed that the person had taken a photograph, possibly of the witness then giving evidence, and so I asked a second Sheriff’s Officer to go outside and pursue this question with the person with the camera.
When the Sheriff’s Officers returned, one of them advised that the person had told them that he had been looking at a photograph of his son and that he, the Sheriff’s Officer, was satisfied that no photographs had been taken in court. The trial continued.
Jury concerns
After the jury was excused for the day, some jurors told the Sheriff’s Officer that they were sure that the person had taken a photograph, and they were concerned about the possibility that it was a photograph of jury members. The Sheriff’s Officer then approached the person in the court foyer, told him that jury members had seen the camera flash, and asked again to see his photos.
The Sheriff’s Officer was again shown the phone and again no photograph of the courtroom was found. The Sheriff’s Officer asked to see the Sent Messages list and satisfied himself that nothing had been sent from the phone that afternoon. The Sheriff’s Officer reported back to the jury, but the jury members were still concerned, so he returned again to the court foyer.
Accused’s role in resolving jury concerns
At this stage the accused in this case came out of the courtroom and the Sheriff’s Officer asked him if he had had a friend in the courtroom that afternoon. The accused confirmed that the person the Sheriff’s Officer had spoken to was his friend.
The Sheriff’s Officer told the accused that his friend had taken a photo in court, but wouldn’t show it to the Sheriff’s Officer. The accused then took the Sheriff’s Officer outside to where the person was sitting in a vehicle parked outside the court.
The accused called his friend, who came over. The accused took the phone from his friend and, after speaking to him, went through the phone and found a photograph taken in the courtroom, showing a back view of the accused and the Corrections Officer sitting next to him, and a front view of one of the Sheriff’s Officers. I don’t know, and I don’t imagine anyone else here knows, whether that was intended to be a photograph of the witness who was immediately beyond the Sheriff’s Officer.
The accused showed this photograph to the Sheriff’s Officer, who asked him to delete it. The accused then deleted it while the Sheriff’s Officer watched him. The accused then checked all the other photographs on the phone while the Sheriff’s Officer watched. The other photographs were of children and none of them appeared to have been taken in the court.
Information given to jurors
The Sheriff’s Officer then returned to the jury room and told jury members:
(a) that a photograph had been taken;
(b) what the photograph was;
(c) that there were no photographs of the jury; and
(d) that the accused had been involved in helping him to check the phone and in deleting the photograph that was found.
Scope for concern about effect on jury’s performance of its task
The position now is that the jury, having been worried by the possibility that a person was trying to take photographs of them in the court, is aware that that person is an associate of the accused. Despite the accused’s role in clarifying the actions of his friend and assisting the Sheriff’s Officer, I do not think it could be said that a fair-minded and informed member of the public would have no reasonable apprehension or suspicion that the events of yesterday might influence the jury in the performance of its task.
In saying that, I note that far from implying any criticism of any member of the jury, I commend them for their observations and for their determination to resolve their concerns.
However, I think that the manner in which that resolution occurred obliges me to discharge the jury from this trial.
Order
That the jury be discharged.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 15 August 2011
Counsel for the prosecution: Mr D Berents
Solicitor for the prosecution: Commonwealth Director of Public Prosecutions
Counsel for the accused: Mr R Livingston
Solicitor for the accused: Legal Aid Office (ACT)
Date of hearing: 25 and 26 July 2011
Date of judgment: 26 July 2011
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