Regina (C'Wealth) v Elomar [No 4]

[2008] NSWSC 1444

CITATION:	Regina (C'Wealth) v Elomar & Ors [No 4] [2008] NSWSC 1444
HEARING DATE(S):	26/11/08; 27/11/08
JUDGMENT DATE :	27 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	I decline to order the discharge of the jury
CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Scope of application for discharge of jury - Misconduct of a member of the public - Threats to jurors
CASES CITED:	William Edward Pearson [2000] 114 A Crim R 80 Webb v R (1994) 122 ALR 41 R v Wood [2008] NSWSC 817 per Barr J
PARTIES:	Regina (C'Wealth) v Mohamed Ali ELOMAR [No 4] Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohammed Omar JAMAL
FILE NUMBER(S):	SC 2007/2399001;; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001
COUNSEL:	R Maidment SC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho G Scragg; D Carroll - Accused Jamal
SOLICITORS:	Commonwealth DPP Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Michael Doughty Solicitor - Accused Jamal

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: THURSDAY 27 November 2008

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 4]
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2452001 - Regina v Mohammed Omar JAMAL

NON-PUBLICATION ORDER

JUDGMENT - Applications to discharge jury

1 HIS HONOUR: There is before the Court a series of applications to discharge the jury.

2 On 31 October 2008 five men were indicted before me on a charge of conspiring to do acts in preparation for a terrorist act or acts. The same men, together with four others, had been indicted before me in mid 2007. Pre-trial proceedings in relation to the original indictment have proceeded before me at Sydney West Trial Courts in the period between the end of February and 31 October 2008.

3 For reasons that are not necessary to explain in this decision, the indictment presented on 31 October, as I have said, related to five only of the original accused. The remaining men are, however, alleged to be co-conspirators with the five accused and their names are set out and identified in the October indictment.

4 The position has now been reached where the trial is, for practical purposes, nearing the end of its fourth week. It is said to be a trial that is likely to last for approximately nine months.

5 The jury empanelment process was a lengthy one, taking a week in all. As might be expected, it was not an easy matter to find a body of jury panel members who were willing, able and prepared to sit on a lengthy criminal trial lasting nine months or more. Five thousand jury panel members were summonsed and the ultimate pool of panel members representing those who were willing and able to serve was approximately 240 persons. A jury of fifteen was selected. It has been the Court's overall impression that these fifteen jury members are diligent, attentive and highly conscious of their duties as members of a criminal jury.

A note is received

6 Shortly before 10am on 26 November 2008, I received a note from the jury. It is apparent that it has been written by the foreperson, although the last two sentences indicate that these are the words of one individual juror concerning a particular incident. The note reads:

“On Thursday 19th November 4 jurors were followed to our car park (Parramatta Stadium). All 4 didn't enter our cars & waited until those people went to their cars (but we didn't see them enter or drive away).
On Tuesday 25th November, 1 juror as she was turning out from the car park noticed that the same person from the week before was standing behind her car & pulled out a note pad from her handbag & wrote something down & then pulled out her phone & made a call.
I am not normal paranoid, but this did cause me to park in a different location & this has caused the other jurors some concern.
The lady has a head scarf & is located in the public gallery.”

7 It appears, plainly enough, that the person identified by the juror as being involved in the second incident, and probably involved in the first, is a young woman who, dressed in traditional Islamic garb, has been present in Court on a number of days during the trial. I have been told by Mr Ozen junior counsel for Mr Elomar, (although this is not known to the jury), that the young woman in question is the niece of Mr Elomar. Mr Ozen has also told me (although this is also apparently unknown to the jury) that on occasions his solicitor has made inquiries of that person in the courtroom while the trial has been underway. Mr Ozen said this has happened on more than one occasion in the last two and a half weeks or so.

8 I would simply observe that, as trial Judge, I do my best to keep an eye on what is happening in the courtroom and around the courtroom. I have noticed the young woman in Court myself, but, for my part, I certainly have not noticed those inquiries taking place. I accept what Mr Ozen says, of course, but I do not think it has been particularly apparent. Certainly, it has not been apparent to me, and there is nothing in the jury’s note that indicates, that it was apparent to them. Indeed, the form of the note really suggests that the identification has simply been of a person observed in the public gallery.

9 Upon receiving the jury note, I arranged for counsel to see me in private Chambers. This was an unusual course to take, but I did it on the basis that the young woman in question might have been present in Court at 10 o'clock yesterday. It seemed preferable that I should draw the attention of counsel to the note in private Chambers before proceeding to Court. Proceedings in chambers were attended by our Court Reporters and the content of the brief meeting was transcribed and forms part of the trial transcript.

10 In open Court I marked the jury note as MFI 61. I recorded the fact of the meeting in private Chambers and I was informed, as was in any event apparent, that the young woman in question was not in Court on that day. I indicated that I had come to the decision that I should ask the events referred to in the note be brought to the attention of the police, so that inquiries could be made about the matter. It was my view that the police were in a better position than I was to investigate the matter that had arisen and that, in all the circumstances, the matter should be followed up in that way.

11 After consulting counsel as to the appropriate procedure to adopt, I determined that I would bring the jury into Court and give them a direction that immediately addressed the issues raised in the note. A number of counsel indicated that they wished to get instructions as to whether to seek a discharge of the jury, although Mr Button of Senior Counsel for Moustafa Cheikho indicated that he had such instructions at the time and was ready to make an application for a discharge whenever it was convenient to the Court. There was no opposition to my suggestion that the jury should receive an immediate direction concerning the incidents in the note, MFI 61.

12 When the jury returned to Court, I gave them a direction in the following terms:

“ HIS HONOUR: Thank you, members of the jury, for the note you have sent me. As you would well appreciate, the subject matter of the note is clearly a matter of concern to the Court. You may be assured the Court takes the issue very seriously.
What I want to do is this: I am going to refer the incident to the police for investigation and ask that a report be given to them. It may be that there is an entirely innocent explanation for the incident. I don't know. Just like you, I try to keep an open mind on all these things and that is the important thing to do. That might take a few days to examine.
But, more importantly, I want to say to you that while it appears that, at least at face value, that the incident had something to do with the person who has been in court in the public gallery, there is not the slightest suggestion that this incident has anything to do with the accused at all. There is not the slightest suggestion that the incident has been prompted by the accused, has been suggested by the accused, has been encouraged by the accused. There is not the slightest suggestion that it has anything to do with the accused at all.
If I may pick an analogy, you know yourselves if you read in the paper that sometimes supporters of a club will misbehave at a match, and it is a sad thing when that happens, but it often has nothing to do with the club or the players. They have not sought it to be done or encouraged it. So here what I say to you, and I want to stress it as much as I possibly can, it has nothing to do with the accused, and you should not draw any inference against the accused at all because of the occurrence of this incident.
Your duty is to judge this trial impartially and on the evidence you hear in this court. I have said that to you a number of times, and I cannot stress too highly how important that is. So that when an incident of this kind happens, you have to put it out of your mind and you have to say to yourself: "I will judge this case on the evidence I hear in court and nothing else."
These are not just empty words. They are words that you should deeply reflect upon, and I trust that all of you, having taken an oath or affirmation to decide this case according to the evidence will do just that. You should not allow this to be a distraction to you. It will be investigated, the Court will take care of it, and you should put it out of your mind and simply concentrate on the evidence that is brought before you.
Of course, if anything of a similar kind were to happen again, you should report it to me immediately. A prompt report would mean that I can take prompt steps. I trust that nothing of this kind will happen again, but if it does, please let me know and please do not hesitate to let me know.
There are a number of practical steps I want to put in place today, and I think that they may take me a little while. There will be some further matters I have to deal with counsel arising out of the incident, and I think in all those circumstances, rather than keep you hanging around today, I will ask you to disperse for the day and to come back at 10 o'clock tomorrow morning. I am sorry that you lost a day. It was the last thing I wanted to happen, but these things happen, as I say, and we must take them in our stride.
The important thing I want to stress to you is that this incident has nothing to do with the accused and you should not draw any inference adverse to these men arising from this incident, and you can be assured that I will have a look at the issue, about car parking, or where you park, and how you get here, and see from a practical point of view if I can protect you from any similar sort of incident happening again. I will be attending to that during the course of today and reporting back to you tomorrow. Thank you, see you tomorrow.”

13 Following the retirement of the jury for the day, I gave counsel the opportunity to obtain instructions and prepare their applications. The Court resumed at 12.30pm and applications were then made on behalf of all of the accused for a discharge of the jury.

14 The principal submission was made by Mr Button of Senior Counsel. There was support for his submissions from other counsel, but it is fair to say that Mr Button's submissions were adopted by all. Mr Button emphasised a number of factual aspects of the situation. These may be briefly described as follows:

(1) The temporal sequence of the "incidents" indicated that the "problem" had existed for about a week. It was not something that had just happened yesterday.

(2) Mr Button noted that the first incident was expressed in emphatic terms. By this counsel conveyed that the jurors did not merely suspect that they were being followed, but said that they were in fact followed to the car park at Parramatta Stadium.

(3) Mr Button correctly noted that the concern was not merely that of one juror. There were four involved in the first incident. Moreover, the second incident was said to have caused "the other jurors" some concern. I took this to mean that Mr Button’s proposition was that really all the jurors were concerned, not just one, and not just four.

(4) Mr Button referred to evidence given yesterday, suggesting that apparently Mr Baladjam had followed a practice of noting down car registration numbers. Senior Counsel suggested that the second incident might be strongly identified with that type of evidence. I would merely comment that this was, however, very bland evidence in its context, that is, the evidence relating to Mr Baladjam. I do not consider that it would have impacted on the jury in the manner suggested.

(5) The person in question had been in Court on a number of occasions and always dressed in Islamic garb. This, of itself, would suggest an association with the accused, who are all devout Muslims. Mr Ozen's information about his instructing solicitor having consulted with that person in the courtroom on more than one occasion would, according to the submission, make an association between that person and the accused "virtually inevitable" in the mind of the jury.

(6) Mr Button stressed the contextual aspects of the factual appreciation of the incidents. These were the indictment itself and the evidence in support of the indictment; the possession by some of the accused and a co-conspirator of loaded firearms at the time of arrest, and finally, that the conspiracy is alleged to have involved four other men, not in the dock. This last matter was a reference by Mr Button to the proposition that, for all the jury knows, these four persons may not be in custody. They may be at large. They may be free to threaten or take retribution against members of the jury.

(7) Finally, there was a repeat of the contextual aspect arising from the concept that Mr Button described as Islamic prejudice. The combination of these four contextual matters was the overall proposition that the jury was likely to be experiencing discomfort, prejudice and fear.

15 Mr Button next referred to the legal principles applicable to the present application to discharge the jury. Those principles are well known and there was no dispute at the Bar table as to the extent and application of those principles.

16 I took Mr Button’s proposition to be similar to that advocated by Ms Yehia, Mr Scragg and Mr Waterstreet namely that their clients would be likely to be linked with the woman’s apparent and possible efforts to intimidate or influence jury members.

17 Indeed, as I have said, other counsel adopted Mr Button's submissions and added other considerations. There was a concern expressed that a part of the direction I gave may have inadvertently compounded "the problem". This was a reference in the direction I gave where there was a mention by me of sending the matter to the police for investigation, and asking that a report be given to me by the police.

18 Mr Waterstreet suggested that this might lead to an inevitable tension, suggesting the jury had been tainted, not only by their own apprehensions at what might be innocent behaviour, but where such tainting could not be cured.

19 Surprisingly, the Crown indicated, later in the afternoon, that it had received instructions from the Director of Public Prosecutions, that he was prepared to offer no objection to the application for discharge.

20 I do not intend to be critical of the Director of Public Prosecutions, but I regard the Crown's position as somewhat of a surprising one. This was because the Crown eschewed any suggestion that the circumstances of the incidents called for a discharge of the jury. Notably, the Crown did not embrace the defence submission that the directions which I had given were inadequate to address the issue. Indeed, the only basis on which the Director of Public Prosecutions instructed his legal representatives to indicate that he did not oppose the application related to his concern that an appellate court might possibly take an adverse view about a decision not to discharge the jury.

21 In that possible circumstance, the fact that the trial was only in its fourth week persuaded the Director, apparently, that he should not, in such circumstances, oppose the applications. It may be convenient if I set out those parts of the transcript where the Crown made its position clear:

“ CROWN PROSECUTOR: Your Honour, thank you for the time that your Honour has permitted us. Your Honour, our position is that, having regard to the stage of the trial some four weeks, essentially, into a trial which is scheduled to last for at least six months, we have reluctantly come to the conclusion that we should not oppose this application, having regard to what might be called the appellate risks in the facts that have been presented to the court thus far. If the matter had been further down the track, if I can put it that way, we might have taken a different view, and sought to persuade your Honour that directions were an appropriate way of dealing with the matter.
HIS HONOUR: Your only concern is your position as a possible unsuccessful respondent to an appeal, is it?
CROWN PROSECUTOR: Your Honour, that is our concern. There is an appreciable risk that an appellate court might take the view about the matter, if it was to proceed, that would result in the expenditure of a good deal of public money, from both ends of the bar table, inherent in the prospects of a retrial. And as I say, it is the stage of the trial we are at that has persuaded us that we should not in those circumstances oppose the applications.
HIS HONOUR: That is the only basis on which you take that position?
CROWN PROSECUTOR: Yes, that is the basis on which we take that position, your Honour.”

The principles to be applied

22 I turn now to consider the principles to be applied. As I have said, there is no dispute about the principles to be applied. They derive essentially from the remarks of the High Court in Webb v R (1994) 122 ALR 41. In that case, the appellants Webb and Hay had been charged with murder of one Patrick. On the second day of the Judge's summing-up, and after the evidence had closed, a juror brought some daffodils into Court and gave them to a person to give to the deceased's mother. The trial Judge was asked to discharge the jury and refused to do so. A majority of the High Court upheld the trial Judge's decision. In the course of the judgment of Mason CJ and McHugh J, their Honours stated:

“The learned trial Judge held that he had a discretion to discharge the jury if he believed that 'there was a real danger that the position of the accused had been, or might have been, prejudiced' by the conduct of the juror in arranging for flowers to be given to the deceased's mother. The learned Judge relied on English authority in formulating the 'real danger' test. However, we are of opinion that this was too stringent a test. In our opinion, the test that his Honour should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror.”

23 A decision to like effect was given by the other majority justice, Toohey J, at 75.

24 In R v Wood (2008) NSWSC 817, Barr J, in determining to discharge a jury, applied the Webb test in the following paragraphs:

“(31) The exercise of a trial judge's discretion to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends upon the principle of necessity stated in Winsor v R (1866) LR 1 QB 390. There must be evident 'a high degree of need for such discharge...such as in the wider sense of the word might be denoted by necessity'. Per Earl CJ at 394. This principle was adopted by the Victorian Supreme Court in R v Boland (1974) VR 849 at 866-867; the New South Wales Court of Criminal Appeal in R v George, Harris and Hilton (1987) 9 NSWLR 527 at 533; and the High Court in Crofts v R (1996) 186 CLR 427.
(32) The test to be applied for determining whether any irregular incidents involving a juror warrants the discharge of the juror or the jury as a whole is whether or not the incident is such that, notwithstanding any proposed direction of the trial Judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror or jury will not discharge its tasks impartially ( Webb and Hay v R ).
(33) One of the overriding factors to keep in mind is that the appearance as well as the facts of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done ( Webb and Hay v R at 50).
(34) The High Court in Crofts v R held that no rigid rule can be adopted to govern decisions on application to discharge a jury, however, factors to be considered include the seriousness of the incident in the context of the contested issues; the stage at which the incident occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome any apprehended impact. Much leeway must be allowed to the trial Judge to evaluate these and other considerations relevant to the fairness of the trial.”

25 In William Edward Pearson [2000] 114 A Crim R 80, the Court of Criminal Appeal emphasised that the test to be applied is an objective one.

Resolution of the issues

26 I have given careful consideration to the submissions made by counsel for the defence. I accept that the trial is only in its fourth week and we have many months to go before the trial concludes. On the other hand, I do not accept that there is the slightest suggestion that either of the incidents referred to in the note has been prompted, initiated, supported or encouraged by the accused. That seems to me to be a highly important matter for consideration in the present applications for discharge. The direction I have given to the jury emphasises that this is the situation and tells them, in plain terms, that the incident, if I may describe both events in that way, had nothing to do with the accused. I have told the jury, in plain terms, that they should not draw any inference adverse to the accused arising from the matters of concern in their note.

27 I have watched this jury carefully since its empanelment. I have particularly observed that they are very heedful and attentive to any direction I have given them. They readily indicate from their body language and response that they are mindful of the need to respect the directions of the Court. In particular, when I gave the direction to the jury yesterday, I watched the members of the jury very carefully and I am satisfied that they understood and intended to comply with that direction. There was not the slightest indication that any jury member felt unable, as a consequence of the incidents, to act impartially in this trial.

28 To confirm my observations and impressions, or to disabuse them, I asked the jury this morning, before finally determining the issue, whether each member of the jury could assure the Court that, notwithstanding the events mentioned in the note, MFI 61, each juror was able to discharge his or her task as a juror in this trial impartially. The response was in the affirmative.

29 Mr Button of Senior Counsel, Ms Yehia, Mr Waterstreet and Mr Scragg have all addressed me about the question and answer given to me this morning. Mr Button has argued that there is no, or limited, value in the answer. Mr Button submitted that it would have been embarrassing for a juror to say “I cannot be impartial”. It would have required him or her, perhaps, to “break ranks”. In those circumstances, Senior Counsel argued that there was little value in the juror’s response.

30 Secondly, Mr Button argued that, even if each juror thought individually that he or she was perfectly able to heed my direction yesterday, able to give impartial consideration to the issues in this trial, and able to put to one side altogether the behaviour of the young woman, there might be lurking beneath the surface some form of unrecognised prejudice or bias. This would be so, senior counsel argued, even if the jury were able to act on the basis that, what ever the true nature of her actions, there was no culpable connection between the woman and the accused.

31 I consider that the question that was asked of the jurors this morning was quite clear. I think it required each of them to focus on the question as an individual and to answer, through the foreman, as an individual. If there were any individual among them who felt he or she could not act impartially in the trial, I would have expected that the note would have been expressed in terms to indicate that situation. Moreover, I think that one is entitled to take the response contained in the note at its face value and, in my view, it has considerable value.

32 As I have said, I have endeavoured to take into account all of the matters placed before me by counsel in their careful arguments. I accept that there is an association between the young Muslim woman in Court and Mr Elomar. The extent of that association arising from her blood relationship to him is not known to the jury. I doubt very much whether the jury will have noticed at all that on more than one occasion Mr Elomar's solicitor has spoken to this woman.

33 But I accept that it would be clear to the jury that she is here as a supporter, in some way or other, of the accused men, or at least one of them. This is a matter to be taken into account, but the important point is that there is no suggestion that she has been "put up" to the incidents by Mr Elomar or any of the other accused. My direction to the jury reinforces that that is so.

34 I have also taken into account Mr Waterstreet's submission. But, for my part, I do not consider that there is any problem in informing the jury that the police are required to examine the matter. That is all they have been told and that is all they need to know at this stage. Indeed, I took the view that the jury needs to be reassured that the incident would be examined, particularly to ensure that it, or some other incident of that kind, does not happen again.

35 I will, however, take an additional step, not indicated yesterday, in that I will ask the Crown to provide the material, that is the note and a copy of that transcript, to the Registrar of the Court, with a request that the Registrar contact the police to look into the matter. I think that that is more appropriate than to involve the Crown directly in any police examination, inquiry or investigation.

36 As I see it, there is no need for such an inquiry to involve individual members of the jury at this stage. It may require such a situation at a later stage, perhaps after the trial has concluded. But I have no doubt that the issue will be handled sensitively and discreetly, both by the Registrar and the police.

37 As I have said, I have taken into account all the matters put to me by the defence. I have come to the conclusion, after assessing those matters, that, in the light of the direction I have given the jury and the jury's reaction to it, I cannot, and do not, conclude that the parties, or the public, might entertain any reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the trial.

38 I have addressed this jury on a number of occasions on the need to bring an impartial and unbiased mind to the resolution of the issues involved in the proceedings. I am satisfied that the particular incidents, and the concerns expressed by the jury, in the light of the direction I have given, will not lead to the presence of bias or a lack of partiality in the proceedings. I accept, however, that the ultimate test is an objective one and goes beyond this consideration. In that regard, in the light of the direction I have given and my overall evaluation of the circumstances, I have concluded, as an objective matter, that a fair-minded and informed observer would not reasonably apprehend a lack of impartiality on the part of any of the members of the present jury.

39 That leaves me only to comment on the position of the Crown. I realise that it is unusual for the Court, in the face of the Director’s apparent willingness not to oppose an application for discharge, to stand firm and refuse the application. Even though the situation is unusual, I have come to the clear view that the position of the Crown should not, in the present matter, lead me to a different conclusion. Where the Court has arrived at a firm state of satisfaction that the circumstances, in the light of the direction given, would not, or might not, result in a fair-minded and informed observer entertaining a reasonable apprehension of lack of impartiality, the Court should not abrogate its responsibilities, and should not abandon a trial, because of mere convenience and the possibility of a saving of costs, even where the prospect of an appeal may be in the air.

40 The ultimate concern of the Court is to ensure a fair trial for the accused. Where the Court is convinced a fair trial can be had, and that no miscarriage of justice is likely, it would be quite wrong for the Court to discharge a jury simply because, for reasons not of substance but arising out of mere forensic or other expediency, the Crown has, effectively, been instructed to succumb to a defence application of this kind. The Court must respect the integrity of the institution of trial by jury, just as it must respect the jurors themselves.

41 The Court should not too readily underestimate and devalue the diligence and attentive work already done and being done by the jury in the trial process. A discharge that is not truly warranted would undermine these important considerations and weaken the value and importance of jury service.

42 For those reasons, I decline to order the discharge of the jury.

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