The Queen v GH (No 3) - [2018] NTSC 25

CITATION: The Queen v GH (No 3) [2018] NTSC 25
PARTIES:THE QUEEN

v
GH

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21608932
DELIVERED:  19 April 2018
HEARING DATE:  18 and 19 April 2018
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURIES

Application for discharge of the jury – juror’s disclosure of a history of sexual abuse – whether matter which might lead that juror to decide the case other than on legal and factual merits – whether “high degree of need” for discharge – could not conclude that juror was unable or unwilling to bring unbiased and impartial mind to bear on the assessment of the evidence simply because juror previously experienced sexual abuse – note from juror did not disclose that other jurors harboured any concern of actual bias or inability – no inference properly drawn that some members of the jury harboured an apprehension of bias – application dismissed.
Criminal Code (NT) s 371, s 373

Ashley v The Queen [2016] NTCCA 2, Cant v The Queen (2002) 12 NTLR 133, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gilbert v The Queen (2000) 201 CLR 414, Holt and Merriman v The Queen (1996) 87 A Crim R 82, I v Western Australia (2006) 165 A Crim R 420, R v Abdroikov; R v Green; R v Williamson [2007] UKHL 37, R v Goodall (2007) 169 A Crim R 440, The Queen v Czajkowski (2002) 137 A Crim R 111, Webb & Hay v The Queen (1994) 181 CLR 41, referred to.
REPRESENTATION:
Counsel:
Crown:S Tasneem
Accused:R Goldflam and S Karpeles
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  GRA1807
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v GH (No 3) [2018] NTSC 25
No. 21608932
BETWEEN:

THE QUEEN

AND:

GH

CORAM: GRANT CJ
EX TEMPORE REASONS FOR JUDGMENT
(Delivered 19 April 2018)

The accused has applied for the discharge of the jury pursuant to s 371 or s 373 of the Criminal Code (NT).
By indictment dated 13 April 2017 the accused is charged with historical sex offences against his two stepdaughters when they were in their early teens. Those offences include gross indecency, unlawful sexual intercourse, exposure to an indecent act, exposure to an indecent book, maintaining an unlawful sexual relationship, and indecent dealing.
The basis of the application is that following an adjournment on the morning of the third day of the trial one of the jurors sent a message to me in the following terms:
Could I please have a short private conversation with you in regards to my own history of sexual abuse?
I believe I can be impartial & unbiased but the jury would like me to get your clearance on the matter.
The note was…

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 The Queen v GH (No 3)

Details

AGLC: The Queen v GH (No 3) [2018] NTSC 25
Case: [2018] NTSC 25
Decision Date: 19 April 2018

CaseChat Overview and Summary

In The Queen v GH (No 3), the appellant sought the discharge of the jury on the basis that one of the jurors had disclosed a history of sexual abuse. The application was made on the grounds that this history might lead the juror to decide the case other than on the legal and factual merits. The court was tasked with determining whether the disclosure constituted a matter that could influence the juror's impartiality and whether there was a "high degree of need" for the discharge of the jury.

The central issue before the court was whether the disclosure of the juror's history of sexual abuse constituted a matter that might affect the juror's ability to decide the case solely on the evidence presented. The court considered whether the mere experience of sexual abuse by itself could imply that the juror was unable or unwilling to bring an unbiased and impartial mind to the assessment of the evidence. Additionally, the court assessed whether the note from the juror suggested that other jurors had concerns about actual bias or inability, and whether an inference of apprehension of bias could be properly drawn from the disclosure.

The court found that the disclosure of the juror's history of sexual abuse did not necessarily imply that the juror was unable or unwilling to be impartial. The court held that it could not conclude that the juror was biased simply because they had experienced sexual abuse in the past. Furthermore, the note from the juror did not indicate that other jurors harboured any concerns of actual bias or inability. The court concluded that no proper inference could be drawn that some members of the jury harboured an apprehension of bias based on the information provided. Therefore, the application for the discharge of the jury was dismissed.

The final orders of the court confirmed the dismissal of the application for the discharge of the jury. The court ruled that there was no sufficient basis to conclude that the juror was unable or unwilling to decide the case impartially based on the evidence, and that the disclosure of the juror's history of sexual abuse did not meet the threshold for necessitating the discharge of the jury.

Orders