The State of Western Australia v Nicoletti [No 3] - [2024] WADC 18

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NICOLETTI [No 3] [2024] WADC 18
CORAM:   PRIOR DCJ
HEARD:   28 MARCH 2024
DELIVERED          :   Ex tempore
PUBLISHED           :   9 APRIL 2024
FILE NO/S:   IND 1017 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

ALBERTO NICOLETTI

AND

VINCENZO MINEO

Catchwords:

Juror bias - Application to discharge jury - Applications by both accused to discharge jury because perception of bias by a juror - No reasonable apprehension of bias

Legislation:

Criminal Procedure Act 2004 (WA), s 116(2)

Result:

Applications by both accused to discharge jury refused

Representation:

Counsel:

The State of Western Australia	:	Ms E J Noonan & Dr J Tudor-Owen
First Accused	:	Mr T F Percy KC & Ms K A London
Second Accused	:	Ms L Boston

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
First Accused	:	Kate King Legal Pty Ltd
Second Accused	:	Scerri Legal

Case(s) referred to in decision(s):

Darwiche v The Queen; El-Zeyat v The Queen; Aouad v The Queen; Osman v The Queen [2011] NSWCCA 62
I v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420
R v ALH [2003] VSCA 129, (2003) 6 VR 276
R v Bollen (1998) 99 A Crim R 510
R v Bright [2000] NSWCCA 258; (2000) 114 A Crim R 466
R v Chung; R v Rechichi [2010] VSCA 39, (2010) 25 VR 221
R v White [1969] SASR 491
Webb and Hay v The Queen (1993) 181 CLR 41
Wiaceck v The State of Western Australia [2011] WASCA 254

PRIOR DCJ:

[This decision was delivered extemporaneously on 28 March 2024 and edited from the transcript.]

Both accused, Mr Mineo and Mr Nicoletti, have now applied that I make an order discharging the jury. That application has been based on the information they have received and put before the court concerning Juror 698, who is one of the 11 remaining jurors on the jury who have retired to consider the verdicts.
The application is generally that the jury be discharged because a fair‑minded and informed member of the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to their deliberations left in the trial.
The application is based, by both accused, on two limbs. The first limb is some contact that Juror 698 has had with a person sitting in the back of the court for the majority, if not all the trial who there is no dispute, is the mother of one of the nine complainants. That complainant is JOB, who is the complainant relating to counts 9 and 10 on the indictment. There is no suggestion there has been any verbal communication between Juror 698 and that person in the public gallery.
I am mindful of the fact that this is an open court and open to the public.
The second limb is that it has recently come to the attention of counsel for the accused that Juror 698 is a scientist employed by PathWest. That employment has been confirmed with my inquiries with that juror today.
This trial is presently at day 38 of the trial. It is the eighth week of the trial. The jury themselves have been engaged for 36 days, the other two days being taken up with legal argument.
At present, the jury has now been deliberating for nearly two days, having retired on Tuesday at about 11.30 am.
There are 53 witnesses, including the two accused, who gave evidence at the trial. There were three experts - medical and scientific experts who gave evidence at the trial.
One of the witnesses was a PathWest scientist, Julie Murakami, who gave evidence relating to DNA analysis for swabs taken from five of the nine complainants.
Generally speaking, that evidence, the scientific evidence in relation to the DNA analysis, is not that contentious in this trial. The term used by me and some of the counsel, in my charge to the jury and addresses to the jury by counsel, has been that it was 'neutral' evidence.
The case unsurprisingly, given there is about 10 incidents of allegations of sexual offences, rests primarily on the State's perspective on the credibility of each of the nine complainants.
The jury when coming to a decision on the verdicts have been told in no uncertain terms by both counsel and by myself that credibility findings and reliability findings in relation to each of the nine complainants is crucial in coming to verdicts.
In relation to the application by both accused, the State opposes the applications by both accused that I discharge the jury.
This morning I received material concerning people's perception, including the accused, Mr Mineo and an independent person sitting at the back of the court, and persons related to Mr Mineo, of what they thought were, my words, 'body language' between the complainant JOB's mother and the juror in question, Juror 698.
Before the formal applications were made by both accused, Juror 698 was brought into the courtroom, in the absence of the other 10 jurors, and I made some inquiries of this juror in relation to the two live issues, that is, any contact or knowledge she had of JOB, the complainant, and members of her family, including her mother and her aunt, and what was her role if any as a scientist, and was she employed by PathWest? The transcript will reveal the various answers that the juror gave to me, and I am not going to go through them in detail.
Some of the general principles that apply to this application are the following: as stated by Kirby J, as he then was, in R v Bright:[1] applying the test in Webb and Hay v The Queen:[2]
A person should not sit as a juror if, in all the circumstances, the parties, or a fair‑minded and informed member of the public might entertain a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to the resolution of questions involved in the trial.
[1] R v Bright [2000] NSWCCA 258; (2000) 114 A Crim R 466, 470.
[2] Webb and Hay v The Queen (1993) 181 CLR 41 (Webb).
Where the issue of bias arises during a jury trial, the judge should question the juror concerned in the absence of other jurors, but the judge is not obliged in deciding the objective question of apprehended bias to accept what the juror has said.[3]
[3] I v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420 [16], [21].
In I v The State of Western Australia Steytler P said at [24]:
… without knowing what the juror's preconceived opinion was, or upon what basis it was formed, it is impossible to assess whether or not a fair‑minded and informed member of the public would have formed a reasonable apprehension that the juror would not be impartial notwithstanding these directions. As I have stressed, bias, by its very nature, can operate either at a conscious or subconscious level.
So, I pause there and say I have made that inquiry with Juror 698, because it is Juror 698 and the perception of bias, and the fact that that juror has now sat for nearly two days in deliberations and throughout the trial that both accused make the application that the whole jury should be discharged.
In Wiaceck v The State of Western Australia,[4] the Court of Appeal said the following:
The requirement that justice be done, and be seen to be done requires that judges and juries determine cases on their merits, and without prejudice or sympathy, or the appearance of it. A direction in this regard is commonly given to juries at the start of a trial. This does not mean that jurors are expected to maintain stony-faced impassivity throughout the trial. In performing their duty to listen to the proceedings and assess the evidence, they may well have spontaneous reactions, or even form preliminary views. If jurors do this, it is not necessarily inconsistent with their duty, nor would it lead reasonable observers to doubt that they will discharge that duty impartially.
[4] Wiaceck v The State of Western Australia [2011] WASCA 254 [37].
They are some of the general principles I have taken into account when considering these two applications.
I have also considered a number of cases where there have been applications to discharge the jury in trials, and some of those cases I will refer to:
1.In R v ALH,[5] a person in the public gallery who was vaguely known to a juror, having mouthed the word, 'Convict', to that juror was held not to require the discharge of the jury.
2.In R v Chung; R v Rechichi,[6] an aunt of the accused having in the precincts of the court given a cough lozenge to a juror who was coughing was held not to be grounds for discharge of the jury.
3.In Webb, an impulsive act of sympathy by a juror towards a relative of the victim is not necessary misconduct. The relevant act was the juror gave flowers to the mother of a deceased victim in a murder trial.
4.In R v White,[7] a juror merely greeting the prosecutor while passing him during an adjournment did not give rise to the need to discharge the jury.
5.In R v Bollen,[8] a short, casual conversation before the empanelling of the jury between a panel member and someone wearing a photograph of the deceased victim was held not to require a new trial.
6.In Darwiche v The Queen; El-Zeyat v The Queen; Aouad v The Queen; Osman v The Queen,[9] counsel for the accused informed the trial judge of instructions from the court and some of the other three accused that a female juror had been observed making vulgar gestures towards them. The decision not to discharge the jury in that case was upheld.
[5] R v ALH [2003] VSCA 129, (2003) 6 VR 276.
[6] R v Chung; R v Rechichi [2010] VSCA 39, (2010) 25 VR 221.
[7] R v White [1969] SASR 491.
[8] R v Bollen (1998) 99 A Crim R 510.
[9] Darwiche v The Queen; El-Zeyat v The Queen; Aouad v The Queen; Osman v The Queen [2011] NSWCCA 62.
Now, as suggested implicitly by Mr Scerri's submissions on behalf of Mr Mineo, every case is different. Mr Scerri drew my attention to some of the factual differences between Webb and this case.
In this case, I have given, not only at the beginning of the trial but in my charge to the jury, and in some places throughout the trial, directions that they must judge the case without sympathy and prejudice, and put emotions aside.
I accept generally that there are High Court authorities that suggest when directions are given to a jury by a judge, there is an assumption they will follow them.
In my assessment of these applications, I have taken into account what Juror 698 said in answer to my various inquiries to her and I accept she gave truthful answers.
In relation to the issue about her interaction with JOB's mother, she said clearly, she had no knowledge of that name or the family before the trial started. She confirmed that she would comply with her oath to give a true verdict according to the evidence.
In relation to the issue about her employment at PathWest, she said she has no relationship with the expert who gave evidence, Ms Murakami. Generally, I also take into account that PathWest is a large organisation employing scientists and other people for different roles and is located in different parts of metropolitan Perth.
The juror herself, although confirming she was a scientist, said she was not a forensic scientist, and I take into account what I have already said: the scientific evidence, and in particular the expert evidence, the DNA evidence is not a significant issue in this trial.
I am not satisfied on the juror's answers and in the context of this trial that her expertise will elevate her amongst anyone else in the 10 remaining jurors in carrying out the deliberations.
I am not satisfied that juror bias by Juror 698 has been demonstrated on the material before me, or that she has or will corrupt the jury deliberations by the other 10 jurors by her presence.
On all the material before me, I am not satisfied a fair‑minded and informed member of the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to their deliberations in this trial if they were to continue.
For those reasons I refuse both accuseds' applications to discharge the jury.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
9 APRIL 2024