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R v Qaumi & Ors (No 56) [2016] NSWSC 1130 (18 August 2016)

Supreme Court of New South Wales Decisions

R v Qaumi & Ors (No 56) [2016] NSWSC 1130 (18 August 2016)

Last Updated: 22 November 2016

Case Name:	R v Qaumi & Ors (No 56)
Medium Neutral Citation:	[2016] NSWSC 1130
Hearing Date(s):	15 August 2016
Date of Orders:	16 August 2016
Decision Date:	18 August 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) The individual juror be discharged; (2) The trial to continue with a reduced number of jurors (13).
Catchwords:	CRIMINAL LAW – application to discharge individual juror – misconduct – reasonable apprehension of bias – other reasons affecting juror’s ability to perform functions of a juror – relevance of judge’s observations of juror’s conduct – whether judge’s observations “evidence before the court” – “autoptic proference” – repeated smiling and staring at particular accused – where another accused is conducting a defence of duress – where duress involved threats alleged to come from accused subject of the juror’s particular attention – risk of substantial miscarriage of justice – where previous application to discharge juror failed – importance of random selection of jury – reluctance of judge to interfere with random selection
Legislation Cited:	Criminal Appeal Act 1912 (NSW) Jury Act 1977 (NSW)
Cases Cited:	Bailiff v R [2011] ACTCA 7 Evans v The Queen [2007] HCA 59; 72 ALJR 250 R v Qaumi & Ors (No 36) [2016] NSWSC 718 R v Qaumi & Ors (No 41) [2016] NSWSC 857 R v Qaumi & Ors (No 55) [2016] NSWSC 1068 RP v R [2015] NSWCCA 215 RP v R  [2016] HCATrans 162  Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71 Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41 Wu v The Queen [1999] HCA 52; 199 CLR 99
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication Restriction:	No publication until the conclusion of the trial.

JUDGMENT

1. On 16 August 2016 I ordered that a particular juror be discharged and that the trial continue with a reduced number of jurors (13). These are my reasons for those decisions.
2. On 23 June 2016, I refused an application by the Crown, supported by the accused Mohammed Kalal, that the juror be discharged: R v Qaumi & Ors (No 41) [2016] NSWSC 857. That application was based on the evidence of a number of police officers and the solicitor instructing the learned Crown Prosecutor in the trial. The evidence is set out in the judgment, for example at [15], [18], [19], [20], [25], [26], [28]-[29]. That evidence is relevant to the present decision, and was tendered on the application, but I do not propose to repeat that survey of evidence in these reasons. However, the reader should incorporate that factual material into these reasons.
3. The basis of the earlier application was twofold. First, it was submitted that the observations of the juror smiling towards some of the accused was such as to give rise to a reasonable apprehension of bias pursuant to s 53B(b) of the Jury Act 1977 (NSW). Second, it was submitted that part of the evidence suggested that the juror may have disobeyed a direction not to discuss things that occurred in the course of the trial. This was the basis of an alternative submission under s 53B(d) of the Jury Act that there was “another reason” to discharge the juror because of matters “affecting the juror’s ability to perform the functions of a juror”. I was not satisfied that the evidence established that the juror had disobeyed directions. On the primary application I concluded, largely for the reasons given at paragraphs [43] and [50]-[54], that the evidence did not establish that a fair-minded observer of the proceedings might conclude that the juror might not bring an impartial mind to bear upon the issues to be determined.
4. Since that judgment was delivered, I have made a number of observations of the juror. Just four days after the earlier judgment was published, I raised with Mr Young SC the fact that I had observed an interchange of smiles between the juror and his client (Mumtaz Qaumi).^[1] Several weeks passed. On 8 August 2016 I indicated that I may need more assistance in relation to the question of whether the juror should now be discharged.^[2] The next day I raised the question again, and specifically sought assistance in relation to the interpretation and operation of s 53B(b).^[3] Later on Wednesday 9 August 2016, I brought to the attention of counsel some of my observations and concerns.^[4] The matter was raised again on Thursday 10 August 2016^[5] and Friday 11 August 2016.^[6]
5. On Monday 15 August 2016, one of the jurors was sick and the remaining thirteen jurors were allowed to disperse. I heard full argument on the issue of whether the juror should be discharged. In the course of the argument and as a matter of procedural fairness to those opposed to the application to discharge the juror, I set out the observations that I had made between 23 June 2016 and 11 August 2016.^[7] Both the Crown Prosecutor and counsel for Mr Kalal submitted that the appropriate course was to discharge the juror. Detective Inspector Glen Browne provided a statement dated 11 August 2016 (exhibit VD RRR). He was called to give evidence and was cross-examined. Both counsel for the Crown and counsel for Mr Kalal relied on the evidence adduced when the application was made on 22 June 2013. Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi opposed the application. To a more muted degree, Mohammad Zarshoy also resisted the discharge of the juror.
6. Sections 53A and 53B of the Jury Act are in the following terms:

“53A Mandatory discharge of individual juror
(1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest:

(a) it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or
(b) the juror has become excluded from jury service, or
(c) the juror has engaged in misconduct in relation to the trial or coronial inquest.

(2) In this section:
misconduct, in relation to a trial or coronial inquest, means:

(a) conduct that constitutes an offence against this Act, or
Note. For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.
(b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.

s 53B Discretionary discharge of individual juror
The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if:
(a) the juror (though able to discharge the duties of a juror) has, in the judge’s or coroner’s opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or
Note. Under clause 12 of Schedule 2, a juror who because of sickness or infirmity is unable to discharge the duties of a juror is ineligible to serve as a juror.
(b) it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or
(c) a juror refuses to take part in the jury’s deliberations, or
(d) it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror.
Note. Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.”

7. One notable aspect of these provisions is that s 53B(b) alone requires there to be material “from the juror’s own statements or from evidence before the court”. There was a dispute between the parties as to whether or not the trial Judge’s observations was “evidence before the court” and the status of those observations in terms of the relevant provisions of the Jury Act. It was submitted on behalf of Farhad Qaumi that, as absurd as the results might appear to be, the observations that I had made were not “evidence before the court”. Accordingly, it was submitted that I could not discharge the juror on the grounds of apprehended bias pursuant to s 53B(b) on the basis of my observations. Those supporting the discharge of the juror submitted that the phrase “evidence before the court” encompasses things that occur in the courtroom as observed by the decision maker. Reliance was placed on observations by the High Court in Evans v The Queen [2007] HCA 59; 72 ALJR 250 and the ACT Court of Appeal in Bailiff v R [2011] ACTCA 7.
8. I will return to that issue in due course, but it should be observed that the application by both the Crown and Mr Kalal encompassed a submission that the juror had engaged in “misconduct” as that expression is defined in s 53A(2). Section 53A does not require that there be “evidence before the court”. Further, s 53A(1) is in mandatory terms; if there has been misconduct, the trial Judge must discharge the juror. The definition of misconduct encompasses conduct that constitutes an offence under the Jury Act or any other conduct that “gives rise to the risk of a substantial miscarriage of justice in the trial”. Senior Counsel for Farhad Qaumi relied on the explanatory notes to the Jury Amendment Bill 2008 and the New South Wales Law Reform Commission report upon which the Bill was based. Based on that extrinsic material, it was submitted that the kind of conduct contemplated by s 53A was serious misconduct and that the conduct here complained of could not properly be so categorised.
9. In addition to reliance on s 53A (misconduct) and 53B(b) (apprehended bias), the Crown and Mr Kalal also relied on the provision in s 53B(d). It was submitted that the conduct complained of constituted “any other reason, affecting the juror’s ability to perform the functions of a juror”. Section 53B(d) does not require evidence. Rather, it requires that “it appears to the court” that there is such a reason. It was not suggested that the Judge’s observations could not properly be taken into account in taking action under that provision.
10. Putting to one side whether or not my observations constitute “evidence before the court” for the purposes of s 53B, it is necessary to set out my observations since 23 June 2016, to understand the context in which the current decision is made. There is no dispute that my observations are relevant to the application insofar as it is made under ss 53A and 53B(d).
11. For the benefit of all parties I detailed my observations in the course of argument. This was based on notes that I made, and then transcribed, in the course of the last several weeks of the trial. I commenced making notes after refusing the earlier application to discharge the juror on 23 June 2016. The following is a reproduction of those notes, amended in form but not in substance, for the purpose of this judgment. I have incorporated other relevant events and included transcript references where relevant. I have placed square brackets around those parts that might be considered to be based on inference or impression rather than simple reporting of what I saw.

“Date/Time Observation/Event
22-23 June Application for discharge of the juror.
23 June
12-50pm Decision not to discharge: T 3587; R v Qaumi & Ors (No 41).
3.00pm Discussion with counsel as to appropriate directions following application for discharge of the juror: T 3609-3610.
4.00pm Directions provided to jury regarding seriousness of the issues etc: T 3621-3624
24 June Juror looking toward Qaumi brothers – no response from Qaumis.
27 June
12.50pm Juror smiling at the dock – Mumtaz Qaumi appeared to be smiling back.
1.00pm Matter raised with counsel: T 3752
2.00 Juror looking towards Qaumis for extended period – no response from Qaumis.
28 June
11.45am
– 12.00pm Numerous [furtive] looks by juror towards Qaumi brothers. Juror looked up at me. Qaumis looking at me. [Communication that I was watching her?]
12.30pm Smiling during cross-examination by Young SC. [Responsive to evidence.]
12.32pm Smiling, sideways glance in direction of Qaumi brothers. Whispering to juror next to her. Smiling in direction of Qaumis. [Aspects of cross-examination amusing.]
3.15pm Following short break, small [discrete] smirk towards Qaumi brothers
3.30pm Looking in direction of Qaumis, saw me watching, looked down.
6 July
2.30-2.50pm Juror smiling during cross-examination of Witness D about psychological report referring to his belief in aliens. All accused smiling also. [Inappropriate perhaps, but not necessarily indicative of bias.]
7 July
10.55am Smiling [unclear why?]. Not in direction of dock.
11.00am Farhad Qaumi appeared to be smiling in direction of juror. Young juror and coloured hair juror both smiling.^[8]
11 July
12.35pm Smiling in direction of dock or possibly bar table. [Possibly appropriate to evidence and interchange between counsel and bench.]
2.15pm Smiling in direction of dock during s 165 warning regarding Witness D. [Inappropriate. Nothing funny in direction]
3.20pm Smiling/laughing after accused laughed at Witness B evidence of Farhad Qaumi threatening to “chop them up and drink their blood”: T 4485. [Inappropriate response but possibly nervousness or response to unlikelihood of evidence.]
14 July
11.40am As jury came in, smiling towards Qaumis. I looked at dock, Jamil Qaumi smiling in her direction, noticed me, stopped.
3.37pm Smiling in direction of dock after reference to Farhad Qaumi going to Thailand
3.42pm Smiling after Young SC question: “Are you serious?”. Accused laughed, juror laughed. [Situation specific, may be appropriate response to colourful cross-examination.]
3.45pm Smiling towards dock
18 July
12.50pm Smiling towards dock during cross-examination by Carroll of Witness D – nudging jurors on either side.
12.55pm Smiling during heated exchange between witness and Carroll.
22 July
11.15 –
11.25am Laughing (with another juror) during telephone intercept where participants (Amiri/Sadat) impersonating Farhad Qaumi. Accused laughing. Other jurors laughing. [Not inappropriate; it was funny.]
25 July
11.50am Smiling and laughing during Driels cross-examination of witness Sharkey. [Lots of jurors smiling; it was colourful and entertaining cross-examination]
12.00pm Smiling at/with Mumtaz Qaumi during evidence of witness Horan. Witness mispronounced “Mumtaz” several times. [Another juror also smiling. Appropriate to circumstance.]
12.05pm Smiling towards Mumtaz Qaumi. Stopped when she noticed me watching her. [Appeared to be furtive or sneaky.]
12.10pm Laughing with coloured haired juror. Qaumi’s stern faced. [NOTE – either unrelated and irrelevant or they were aware that I had observed the exchange 5 minutes earlier]
1 August Violent incident in dock: R v Qaumi & Ors (No 55) [2016] NSWSC 1068.
3 August Jurors sent away for three days. Directed that there would be changes to the “configuration” of the courtroom upon their return: T 5364.
8 August Jury returned – wall in place between accused
10.20am Juror smiling in direction of Qaumis. [Farhad Qaumi appeared to be aware of it or responsive to it.]
10.23am Smiling/smirking in direction of Qaumis. Farhad Qaumi’s face “twisted” [Appeared to be disguising a smile when he saw me turn to the dock.]
10.50am Looking in direction of Qaumis for extended period [Appeared to be trying to catch their attention].
11.00am Smiling in direction of Qaumis. Jamil Qaumi appeared to be smiling, stopped when he noticed me.
11.07am Looking in direction of Qaumis [Appeared to be trying to catch their eye]
11.24am Smiling in direction of Qaumis
11.21am Smiling in direction of Qaumis
12.25pm Smiling in direction of Qaumis
12.35pm Smiling in direction of Qaumis
1pm Issue raised with counsel: T 5398
10 August
11.38am Jury returned after objection by Carroll. Small smile in direction of Qaumi brothers. Saw me looking at her, looked down.
12.31pm Looking at Qaumi brothers. No response by Qaumis but Mumtaz Qaumi smiling at witness (Inspector Browne). [Event appear to be unrelated.]
12.36pm -
12.41pm Coloured hair juror smiling possibly in direction of Qaumis.
12.52pm Looking towards Qaumis and smiling behind hand.
3pm Smiling with colour hair juror [Not sinister – very slow and disjointed evidence in chief.]
Looking in direction of Qaumis for period, looked away, Jamil Qaumi looking at me.
11 August
10.28am Smiling with long-hair male juror. [Not relevant, responsive to evidence or private joke?]
10.42am Smiling with coloured haired juror.
10.52am Smiling with coloured haired juror.
10.55am Smirking during telephone intercept involving Witness D. [Inappropriate as witness has obvious intellectual disability. Not indicative of bias.]
11.10am Long haired male and colour haired juror smiling with each other (across young juror) – concerning the description of Witness I’s haircut. [Appropriate, bad haircut.]
11.20am Looking in direction of Qaumi brothers – no response from Qaumis.
12.17pm Smiling [No reason – CCTV stills being shown]. Appeared to look toward Qaumi brothers. Qaumi brothers look down.
12.21pm Smiling, initially with coloured haired juror. Then look toward Qaumi brothers.
12.24pm Chatting with coloured hair – amused by something.
12.26 –
12.30pm Extended periods of looking in direction of Qaumi brothers. [Appeared to be attempting to get their attention]. Saw me watching her; looked down.”

12. The relative position of the accused in the dock was described in an earlier judgment: R v Qaumi & Ors (No 55) [2016] NSWSC 1068 at [7]. Because of the position of the accused in the dock, the separation of the two groups of men and the geography of the courtroom, it is clear when a juror is looking in the direction of the Qaumi brothers as distinct from looking in the general direction of the dock or at Mr Kalal and Mr Zarshoy. To look at the Qaumi brothers, the juror looks directly across from where she sits and between the two bar tables. To look at the other accused, her gaze would be at (roughly) a 45 degree angle to the front and across (or over) the front bar table.
13. In addition to the evidence tendered on the last application, Detective Inspector Glen Browne provided a statement and gave evidence of noticing what he described as “unusual behaviour” on the part of the juror.^[9] This largely consisted of staring in the direction of the Qaumi brothers. He said:

“It appears to me that the young juror holds her stare until such time that she realises it will not be reciprocated. I have also observed that on many occasions, when the young juror sits down and stares across the court room in the direction of the Qaumi’s, she holds documents or a folder in front of her face so that only her eyes are visible above the object.”

14. Mr Browne contrasted this conduct with the actions of the other jurors and described the conduct as “repetitive and continuous”. He estimated that he had observed this “on as many as twenty or thirty occasions since [late June 2016]”.
15. I accepted the evidence of Mr Browne. Similarly, I accepted the evidence of the officers and the solicitor who gave evidence on the previous application.^[10]
16. Before embarking on an analysis of the merits of the application, I should refer back to the analysis of some of the relevant legal principles undertaken in R v Qaumi & Ors (No 41). I also summarised relevant principles in an earlier judgment where another juror was discharged for apprehended bias: R v Qaumi & Ors (No 36) [2016] NSWSC 718. The reader should be aware of my earlier analyses and incorporate them into this judgment. It is unnecessary to repeat the earlier discussion here, but it is critical that the reader understands that the considerations that led me to decline the application on 23 June 2016 have operated on my mind in considering the present application. I have applied the legal principles discussed in the two earlier judgments in determining the present application.

Misconduct

17. I accept the submission of Senior Counsel for Farhad Qaumi that the definition of “misconduct” in s 53A and the secondary materials to which he has referred suggests that, before a juror is subject to mandatory discharge under s 53A, there must be misconduct of a relatively serious kind.
18. Ordinarily, the fact that a juror smiles in the course of a trial, even in the direction of an accused person or at an alleged victim sitting in the back of the court, would not give rise to a finding of misconduct for the purpose of this section. Similarly, if a juror was seen to react adversely to an accused upon heard the evidence of a complainant, such a reaction would not ordinarily result in a finding of misconduct (or for that matter give rise to a reasonable apprehension of bias).
19. However, in the present case, the smiling is both continual and specifically directed to three of the accused. It is of some significance that one of the accused men (Mr Kalal) supports the application in circumstances where he is conducting a defence of duress in which he says that he was threatened by two of the three accused brothers to whom the juror’s attention is directed. In those circumstances, there is a respectable argument that the conduct “gives rise to the risk of a substantial miscarriage of justice”.
20. The term “substantial miscarriage of justice” is one that is very familiar to criminal appellate lawyers because it forms part of the common form “proviso” in, for example, the Criminal Appeal Act 1912 (NSW). The term has been subject to considerable jurisprudence in the context of appeals against conviction: see, for example, the catalogue of cases in my dissenting judgment in RP v R [2015] NSWCCA 215 at [151]–[154].^[11] While that jurisprudence is not directly relevant to the interpretation of the definition of misconduct in s 53A, it is significant that one of the applicants for a discharge of the juror is the accused, Mohammad Kalal. If it were found that the juror’s interaction with the Qaumi brothers was such as to diminish Mr Kalal’s prospects of receiving a fair trial and having his defence of duress considered seriously by the particular juror, there is a strong argument that there is a “risk” that it would give rise to a substantial miscarriage of justice.
21. Furthermore, this is not an instance of an occasional or isolated smile that can readily be explained in some other way. Some of the conduct appeared to be furtive and, on occasion when the juror realised that I was observing her, the conduct ceased. These things could lead to an inference that the juror believed or realised that her conduct was inappropriate.
22. In the course of the previous application the learned Crown Prosecutor accepted the fact that if a juror was seen to be scowling at the accused it would not give rise to a legitimate application by an accused person to have that juror discharged. Similarly, as I pointed out in R v Qaumi & Ors (No 41), the High Court held in Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41 that direction could cure an irregularity even where a juror gave a relative of a homicide victim flowers during the course of a murder trial.
23. Because I have determined that the juror should be discharged under the provisions of s 53B, it is strictly unnecessary to determine whether the juror’s conduct rises to the level of “misconduct”. It is also the case that the juror has not been examined and has not had the opportunity to explain herself. As I said to the juror when she was formally discharged, her “interaction [with the accused] may well be perfectly innocent”.^[12] In those circumstances, I do not propose to make a formal finding of misconduct.
24. However, because of the persistent and furtive nature of the conduct, which went on for at least two months, and because of the unenviable position in which it placed the accused Mohammed Kalal, I was inclined to take the view that the conduct overall constituted misconduct as that expression is defined in s 53A of the Jury Act. If that finding was made formally, the discharge of the juror would be mandatory.

Reasonable apprehension of bias

25. Section 53B(b) provides for discretionary discharge of a juror when “it appears to the Court” that a juror may not be able to give impartial consideration to the case because of (amongst other things) a “reasonable apprehension of bias or conflict of interest or any similar reason”. That power can only be invoked when the appearance arises “from the juror’s own statements or from evidence before the court”. As I have said, there is a dispute as to whether my own observations can be taken into account because (it is submitted) that my observations do not constitute evidence.
26. Accepting that submission for the purpose of the argument, the material in Detective Inspector Browne’s statement shows that the conduct has been persistent over many weeks since the original application to discharge the juror was refused. The conduct to which he testified involves the juror staring for periods of time towards the Qaumi brothers apparently in an attempt to gain their attention. This is, as Detective Inspector Browne suggested, “unusual” behaviour. When it was put to him that his statement did not suggest whether the juror has “a partisan feeling one way or another either for or against the accused”, he replied

“A. I haven't suggested that, Mr Stratton, but I think the fact that in my mind at least, the fact that they are stares accompanied with smiles, as opposed to stares accompanied with snarls or something similar that I imagine to me it suggests that she would be perhaps in favour of the accused.”

27. Based on the evidence previously before the Court, along with Detective Inspector Browne’s additional statement and evidence, I concluded that a fair-minded observer of the proceedings might conclude that the juror might not bring an impartial mind to bear upon the issues before the court. As advised on 23 June 2016, I was unable to reach that positive conclusion for the reasons stated in the judgment. In particular, I was not then persuaded that the conduct would mean that the juror would not, when confronted with the reality of having to make the decision concerning the guilt of the accused, be able to put any feelings which are reflected in her conduct out of her mind. However, I have now reached the contrary view. In coming to that opinion, I am particularly conscious of the position of Mr Kalal. Detective Inspector Browne’s evidence was that he has not seen the juror look in the direction of Mr Kalal or Mr Zarshoy. The reasonable apprehension of bias arises in circumstances where Mr Kalal will rely on threats allegedly emanating from the Qaumi brothers, where those threats are denied, and where the juror’s smiling and staring appears (on the evidence) to be solely directed to the Qaumi brothers.
28. It is impossible for me to know whether the conclusions that I reached were influenced to some degree by my own observations and it would be disingenuous to suggest that I can be certain that my observations have not impacted on my decision. I am reminded of the words of North J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71:

“A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder. Some judges, including myself, who have in recent years attended gender and race awareness programmes, have been struck by the unrecognised nature of the baggage which we carry on such issues. Decisions made upon assumptions or prejudgments concerning race or gender have been made by many well-meaning judges, unaware of the assumptions or preconceptions which, in fact, governed their decision-making.”

29. Whatever subliminal influence my own observations may have had, I have attempted to put those observations to one side in considering the application.

Are my own observations “evidence before the Court” for the purpose of s 53B(b) of the Jury Act?

30. In any event, I was also persuaded that the proper interpretation of s 53B(b) and the phrase “evidence before the court” as it is used in that provision is capable of encompassing the observations made by the judicial officer upon whom the duty of making such decisions is cast. However, the terms and structure of the Jury Act mean that this is not a matter free of controversy. The fact is that – of all of the powers to discharge in ss 53A and 53 – only s 53B(b) requires statements from the juror or “evidence before the court”.
31. Although the legal and factual circumstance are not analogous, the approach urged by the Crown gains some support from the observations concerning “autoptic proference” discussed in Evans v The Queen at [20]–[21]. Similarly I have considered the discussion of the ACT Court of Appeal in Bailiff v R, where the Court said:

“Nothing in s 52 of the Evidence Act prohibits a court, in the course of an investigation or inquiry undertaken such as the one undertaken by the primary judge, from taking into account what the court observes about the behaviour of a party. It was recognised, in Evans v The Queen [2007] HCA; [2007] HCA 59; (2007) 82 ALJR 250 at [21], per Gummow and Hayne JJ, that a tribunal of fact in a personal injuries matter is entitled to make its own observations about the extent of a plaintiff’s injuries on the appearance of the plaintiff.”

32. I appreciate that the observations of the High Court in Evans v The Queen and those of the ACT Court of Appeal in Bailiff v R arose in completely different circumstances to those arising on the present application. However, the absurdity of the results to which the interpretation contended on behalf of Farhad Qaumi leads me to conclude that a judge who makes observations of the kind that I have made may take such observations into account as “evidence before the court”.
33. The Judge confronted with such a situation should be, as I have been, particularly careful not to draw inferences upon their own observations unless those inferences are clear and rational inferences. The Judge should also be conscious of the fact that there is a possibility of their observations being affected by the background. By that last sentence, and in the context of the present case, I refer to the fact that the observations that I have made and noted were made following an earnest application on behalf of the prosecutor and Mr Kalal. Accordingly, I was attentive to the juror’s conduct and I allowed for the possibility that the background may have had some influence on my perception of the juror’s conduct.
34. I have also observed the conduct of the other jury members to see whether the juror’s behaviour is significantly different to theirs. I have no doubt that it is. Reference was made in argument to one of the juror’s glaring at the accused. I have observed the jury in question and have never observed such behaviour, although I have certainly observed that he looks at the dock from time to time. I have seen (and mentioned in one of the earlier arguments) that another member of the juror looked sternly at the dock earlier in the trial but I have not observed that conduct recently and the conduct was neither persistent nor furtive.
35. The point of raising these matters is this: if it were the case that a trial judge observed conduct on the part of a juror that clearly demonstrated bias against an accused person, and if nobody else in the courtroom observed the behaviour and there was no “evidence” from a witness or an exhibit such as CCTV footage, the trial judge would be powerless to remedy the potential injustice on the construction urged by counsel for the Qaumis. This absurd result that would arise from an interpretation of the provision that excluded the court’s observation from the phrase “evidence before the court”. The Judge would be prevented from exercising their discretionary power on the basis that their own observations could not constitute evidence. Such an interpretation would serve to defeat the purpose of the provision and has a true capacity to result in serious miscarriages of justice.
36. Further, it would have been possible to examine the juror and put to her my observations. The sole purpose of that process would have been to adduce evidence in accordance with my observations. Had the juror agreed that the she had engaged in the conduct that I observed, there would have been “evidence before the court”. However, the juror would most likely have been embarrassed and there would have been a risk process of examining her would have created a problem for her to continue to serve. If the observations were denied by the juror, another basis for discharging the juror may have arisen (misconduct by not being true to the oath or affirmation). While contending that the Judge’s observations were not evidence, Senior Counsel for Farhad Qaumi submitted that I should not call the juror to give evidence.^[13]
37. My own observations in the present case would certainly provide support for the conclusion that I have otherwise reached under s 53B(b). However, as I have said, that conclusion was reached on the basis of material that was, without question, “evidence before the Court”.

Section 53B(d) of the Jury Act

38. Based on the evidence and also my own observations, I am also satisfied that the provision in s 53B(d) is engaged. This provision refers to “any other reason” that may affect the juror’s ability to perform the functions of a juror that leads to a conclusion that “it appears” that the juror should not continue to act as a juror. While the facts and circumstances might lead to some cross-over between the various paragraphs in s 53B, the use of the word “other” in the phrase “any other reason” suggests that the reason must be something separate from those matters specifically dealt with in paragraphs (a), (b) and (c). However, the paragraph is cast in deliberately broad terms. It may be that conduct that does not rise to the level of “apprehended bias” might be caught by the provision in sub-paragraph (d).
39. Contrary to the Crown’s submissions, I am not satisfied that the juror disobeyed directions. The directions provided in 23 June 2016^[14] stressed the seriousness of the decisions that the jury would be called upon to make and referred to “relationships formed across the courtroom”. However, I did not suggest that it was wrong to smile or to interact with the participants in the trial.
40. Nevertheless, her inappropriate reactions to some of the evidence and her apparent distraction by her repeated attempts to gain the attention of the accused give rise to concerns as to her ability to perform the functions of a juror. In contesting the proposition that there was a reasonable apprehension of bias, counsel for Jamil Qaumi said that “one can't exclude the possibility perhaps her level of maturity might not be such that she was able to appropriately deal with that material when confronted with it”. As I said at the time that fact may give rise to questions under s 53B(d).
41. Senior Counsel for Farhad Qaumi submitted that the juror appeared to him to be attentive to the evidence. Counsel for Mr Zarshoy observed that she had a number of pens and that she passed tissues to other jurors. Precisely what one can make of those matters is difficult to know. My observation is that she is attentive to the evidence some of the time but not others and her repeated attempts to interact with the accused, her inappropriate responses to parts of the evidence and directions, suggests a level of distraction that may compromise her ability to perform the task of a juror.
42. It appeared to me that the juror’s conduct may affect her ability to perform the functions of a juror and that she should not continue as a juror.

Discretion

43. Section 53B provides that the court “may” discharge the juror if any of the matters referred to in paragraphs (a) – (d) arise. Accordingly, the Court has a discretion as to whether the juror should be discharged. However, given the nature of the matters in (a) to (d) it would be unusual if the Court came to those conclusions but did not discharge the juror.
44. Nevertheless, the section is discretionary and before discharging the juror a number of matters should be taken into account. In the present case, I have been particularly conscious of the importance that the selection of a jury in criminal proceedings must be random and that a judge should not lightly interfere with the randomness that is facilitated by the various ballots and procedures provided for by the Jury Act. It is also the case that there are still many weeks left in the trial and that the discharge of the juror would reduce the number of jurors down to thirteen. In R v Qaumi & Ors (No 36) at [62] I referred to the important observations of McHugh J in Wu v The Queen [1999] HCA 52; 199 CLR 99 concerning the historical significance of an accused person being tried by a jury of twelve. Kirby J in the same case referred at [45] to the importance of the jury representing a cross-section of the community.
45. These matters highlight the fact that a judge should not lightly exercise the discretion to discharge an individual juror. Even so, I was quite sure that the correct exercise of the discretion in the present case was to order that the juror be discharged.

Decision to Continue with a Reduced Number of Jurors

46. Section 53C(1)(a) of the Jury Act provides that the Court must discharge the entire jury if it is of the opinion that a continuing with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. If satisfied that there is “no such risk” the court must order that the trial is to continue with a reduced number of jurors.
47. I was satisfied that there is no such risk. There has been no indication from the jury that the juror’s conduct has impacted on their consideration of the evidence. While there has been interaction with other jurors during the course of the evidence, there is nothing to suggest that the other jurors have been distracted from their task or have lost focus on the evidence. On the contrary, the jury as a whole has appeared to be very attentive, responding appropriately to the evidence and communicating with the court to seek clarification of legal directions, disclose relevant personal matters or to access parts of the transcript.
48. There has been no application for discharge of the whole jury based on the discharge of the individual juror although counsel for Mr Zarshoy raised some concerns. He said that there may be concerns:

“...if you have one juror who appears to be either not listening to what has been asked of the jurors and explained to them and told to them, or is showing a potential bias, what that effect is upon the others whom she has clearly been relating to, mixing to, socialising with since over four months now, and whether or not it can be said if she is such a person who should not be on the jury now, whether there are others who are contaminated by whatever view she may have or not and whether or not the whole jury in that circumstance needs to go because it is so late in the trial.
This has not happened a day or two in. Four months these 14 now have been together. They must know each, must have spoken to each other, must have said things, talked about things that are going on. So I say that. That is a worry as to where this goes to, where it leads to, if there is a dismissal of this particular juror alone.”^[15]

49. In view of the substantial experience and wisdom of counsel raising those concerns, I gave consideration to the matters that he raised. However, I was firmly of the view that that there was no risk that continuing with the remaining thirteen jurors might lead to a substantial miscarriage of justice.

Orders

50. It was for those reasons that I made the following orders:
    • (1) The individual juror be discharged.
    • (2) The trial is to continue with a reduced number of jurors (13).

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^[1] T 3752.
^[2] T 5398.
^[3] T 5508.
^[4] T 5532-5533.
^[5] T 5601-5606.
^[6] T 5703-5707.
^[7] T 5724-5725, 5733-5735. See also T 5532, 5703.
^[8] The description of the jurors comes from the judgment in R v Qaumi & Ors (No 41). The “young juror” is “the juror” subject of the present application and the application made in June.
^[9] Ex VD RRR, T 5712-5715.
^[10] See R v Qaumi & Ors (No 41) at [32], [37] and [38].
^[11] Special leave has been granted but that is not relevant for present purposes:  [2016] HCATrans 162. 
^[12] T 5772.
^[13] T 5740.
^[14] T 3621-3623.
^[15] T 5755