R v We (No.3)

[2019] NSWSC 881

Supreme Court

New South Wales

Medium Neutral Citation:	R v WE (No.3) [2019] NSWSC 881
Hearing dates:	11 July 2019
Date of orders:	11 July 2019
Decision date:	11 July 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [11]
Catchwords:	CRIMINAL LAW – Practice and Procedure – Juries – Where communication received from a member of the jury advising that the accused had smiled and given a “thumbs up” signal to the jury upon leaving Court – Question asked by jury member as to whether such behaviour was “normal” – Where the answer to the question posed was “no” – Where that answer may be prejudicial to the right of an accused to a fair trial, notwithstanding the fact that the situation was of the accused’s own making – Application made on behalf of the accused to discharge the jury – Application not opposed by the Crown – Jury discharged
Legislation Cited:	Jury Act 1977 (NSW)
Category:	Procedural and other rulings
Parties:	Regina – Crown WE – Accused
Representation:	Counsel: P McGuire SC and B Anniwell – Crown J Trevallion and N Bennett – Accused   Solicitors: Director of Public Prosecutions (Cth) – Crown Alexanders Lawyers – Accused
File Number(s):	2016/305103
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The accused is charged with an offence of doing an act or acts in preparation for, or planning, a terrorist act or acts. His trial, which has an estimate of four weeks, is in its fourth day.

2. At the commencement of the proceedings this morning I received a note from a member of the jury which is now MFI 13. It reads as follows:

“Yesterday, 10 July, about 4pm, when we (were) leaving the stand, the accused signalled to one of the members of the jury (signal thumbs up and smile). Is this normal? I just want to inform (you) about it because hopefully (it) doesn't affect the case.”

3. The member of the jury who wrote that note should be commended. He or she has acted with complete propriety, and completely in accordance with the directions that I gave the jury on the first day of the trial, namely to err on the side of caution and draw my attention to (inter alia) anything which might give the appearance of being irregular.

4. When the issue was raised with counsel for the accused, counsel was given the opportunity to obtain instructions. Counsel made it clear, and I accept, that he was not aware of the incident. Having been given that opportunity, counsel responded as follows:

“I have spoken to my client. I have taken some instructions from him about this. I can disclose to your Honour and to the Court that my instructions were that he did in fact smile back at one of the jurors, but says that he didn't put his thumbs up.

Now whether that happened or not, I advised him that there is CCTV footage in here and that is recorded, so that can be confirmed one way or the other because we don't want to get into an argument or a dispute with one of the jurors about what did or didn't happen...I have told him that smiling at a juror or acknowledging them, even if they acknowledge him, is not appropriate and it shouldn't be done.”

5. I responded by commenting that any actions of the kind set out in the note (to at least part of which, it seems, the accused has admitted) were entirely inappropriate and unacceptable. I then gave counsel the opportunity to obtain further instructions. Upon resumption, counsel initially submitted that I could answer the question in terms which suggested that conduct of this nature was not out of the ordinary. In my experience, that is not so. Any answer to the question in the terms suggested by counsel for the accused would, in my view be both disingenuous and misleading. Counsel then informed me that he had instructions to make an application that the jury be discharged. The Crown did not oppose that application.

6. The joint position of the parties does not, of itself, bind me in terms of any decision that I might make. However, in all of the circumstances, it seems to me that the only available course is to accede to the application. My reasons for coming to that view can be shortly stated.

7. The question embodied in MFI 13, is:

“Is (the conduct of the accused) normal?

8. I am under an obligation to honestly answer that question. The honest answer to the question posed is “No, it is not normal”. That answer carries with it significant potential to impact adversely upon the accused.

9. There may well be some members of the community who would take the view that because this situation has been brought about by the accused's own conduct, and is thus of his own making, he should simply be regarded the author of his own downfall in terms of what the jury might make of it, and that the trial should proceed. However, as the trial judge, I retain the responsibility of ensuring that the accused has a fair trial. If I were to answer the question which has been posed honestly (as I must) there would necessarily be a significant risk of the jury forming an adverse view about the accused as a consequence of his conduct. That may jeopardise his right to a fair trial. The fact that it is his conduct which has given rise to the present situation does not matter. In all of those circumstances, I have come to the view that I have no alternative but to take the course which I have outlined.

10. Whilst none of this will affect, in any way, the manner in which I preside over the conduct of the accused’s trial, the accused should be in no doubt as to the seriousness with which I view his conduct. At the conclusion of the trial, and irrespective of the outcome, I propose to refer the matter to the Registrar of the court for consideration of bringing charges of contempt of court against the accused.

11. Accordingly, for these reasons, I order that the jury be discharged.

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Decision last updated: 08 April 2020