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)

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.
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.”

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v We (No.3)

Details

AGLC: R v We (No.3) [2019] NSWSC 881
Case: [2019] NSWSC 881
Decision Date: 11 July 2019

CaseChat Overview and Summary

In the matter of R v We (No.3), the dispute arose within the context of a criminal trial. The accused was alleged to have committed an offence under Australian criminal law. The issue before the court was the handling of a communication received by the trial judge from a member of the jury. The communication indicated that the accused had smiled and given a thumbs-up signal to the jury upon leaving the courtroom. In response to this, the juror asked whether such behaviour was “normal”. The trial judge responded that it was not, a response that the court had to consider in light of its potential impact on the accused’s right to a fair trial.

The central legal issue that the court needed to address was whether the response to the juror’s question was prejudicial to the accused. Although the behaviour in question was of the accused’s own making, the court was required to consider the broader implications of the trial judge’s response on the fairness of the trial process. The court had to determine if the response constituted an irregularity that could have influenced the jury's perception of the accused. The accused’s legal representatives argued that the response might have prejudiced the jury against the accused, thereby compromising the fairness of the trial.

The court concluded that the response to the juror's question could potentially prejudice the accused’s right to a fair trial. The court reasoned that even if the accused’s behaviour was of their own making, the trial judge’s response could be seen as an implicit comment on the accused's conduct, which might have influenced the jury. The court found that discharging the jury was the appropriate course of action to ensure that the accused received a fair trial. The Crown did not oppose the application to discharge the jury, and the court granted the application accordingly. The trial was thus reset with a new jury, ensuring the accused's right to a fair trial was preserved.

Orders