No.
1489
of
2001
- On the morning of the third day of this trial I received from
my tipstaff a message in his hand that he has been informed by the
foreman of
the jury that the foreman has in turn been informed by one of the jurors that
that juror's grandchild knew both the accused
and the deceased. The message
continued that the juror's daughter had spoken to a relative of the accused
yesterday, which is to
say the second day of the trial, and indicated that the
juror was on jury duty. The message concluded that the juror was confident
that a breach had not occurred, which I take to be a reference to a breach of
the duty which I explained to the jury on the first
day of the trial, to keep
their own counsel and not discuss with anyone other than jury members the
matters, the subject of the trial.
- Application was then made by Mr Bourke on behalf of the accused
that I discharge the jury as the result of the report. He submitted
in support
of that application:
§ first, that based upon the report, there must be a
reasonable assumption that the grand-daughter, to whom the message refers,
must
have conveyed information to the juror;
§ secondly, that it was not known what was said by the grand-daughter, but
there must be at least some possibility that what
was said reflected in some
way on either or both of the accused and the deceased;
§ thirdly, that the message necessarily implies that there had been some
discussion between the juror and her daughter;
§ fourthly, there is a possibility, to put it at its lowest, of a
perception in the mind of the juror, and perhaps therefore
in the minds of
other jurors, as to the character or attributes or other factors affecting the
accused;
§ and finally, that the only way to ensure that there is no possibility of
stain upon the process of deliberation to be engaged
in by the jury, is to
discharge the jury.
- Mr Bourke added that the problems to which he adverts are so
serious as to be incapable of cure by direction to the juror concerned,
or to
the jury generally.
- The application was opposed by Mr Ryan on behalf of the Crown.
He referred to the strong warning which I gave to the jury at the
outset of the
trial (as to the need to keep their own counsel and thus not to discuss with
persons other than members of the jury
matters the subject of the trial) and he
submitted that one should place reliance upon the oath given by the jurors and
by this juror
in particular to observe their duty and the directions which I
have given to them.
- Having heard those submissions I adopted the course of bringing
the juror into court in the absence of the remainder of the jury
and asking her
questions, not on oath, about the communications which gave rise to the
message. As a result of that process the
juror told me that the facts are
that: her grandson's girlfriend knows both the accused and the deceased; last
night the juror's
daughter met on a social occasion the mother of the juror's
grandson's girlfriend; in the course of that social occasion the juror's
daughter told the mother of the girlfriend that the juror was engaged in jury
duty; the daughter also told the mother of the girlfriend
that it was a long
case; the mother of the girlfriend then posed the question to the juror's
daughter of whether the case upon which
the juror is engaged is the trial of
the accused; following that occasion the juror's daughter spoke to the juror
this morning and
asked her whether the case upon which the juror is engaged is
the trial of the accused; and the juror responded that she could not
comment or
identify the case with which she was concerned.
- I then asked the juror what if any communication she had had
with the foreman or other members of the jury about the matter. She
replied
that the only communication she had had with them upon this matter was in terms
substantially identical to those which I
have just outlined.
- Those answers having been given, I sent the juror out of the
courtroom to a place away from other jury members, and heard further
submissions from counsel for the accused as to whether he persisted in his
application that the jury be discharged. He submitted
that it is still not
clear what other members of the jury may have been told and that there is cause
for concern in the fact that
the answers given by the juror to my questions are
to some extent different to the contents of the message conveyed to me this
morning.
He contended also that the very process which I have adopted of
bringing the juror concerned out to court in the absence of the
other jurors
and keeping her apart for the half hour which it has taken from the time when
she was first brought into court until
now, will raise concern and question in
the minds of the other jurors, and perhaps, if not probably, lead to further
enquiries being
made by them of her at a later stage as to what has
occurred.
- The test required to be applied by a trial judge in the
exercise of his discretion to discharge a jury is well settled. It is stated
in R v Boland[1] that there must be a
high degree of need for such discharge.
- Moreover, as has subsequently been said by the High Court of
Australia in Crofts v R[2],
much depends on the seriousness of the occasion in the context of the contested
issues, the stage at which the mishap occurs, the
deliberateness of the
conduct, and the likely effectiveness of a judicial direction designed to
overcome its apprehended impact.
- Ordinarily, therefore, much leeway is allowed to a trial judge
to evaluate these and other considerations relevant to the fairness
of the
trial, bearing in mind that the judge will usually have a better appreciation
of the significance of the event complained
of, seen in context, than can be
discerned from reading transcript.[3]
- Having heard what the juror concerned has had to say in answer
to my questions, and bearing in mind the nature of the warning which
I gave to
the jury twice on the first day of the trial, I do not consider that there is
any significant risk that there has been
communicated to or by the juror
concerned anything which would prejudice the fair determination of the matters
the subject of the
trial.
- I also do not consider that there is any significant risk that
there has been communicated by the juror concerned to the foreman
or other
members of the jury anything which would deflect them from the proper
consideration of the matters upon which they must
deliberate.
- I appreciate the force of the submissions made by Mr Bourke
that this is a murder trial and thus that one cannot be too careful
in
attempting to do justice to the accused. I appreciate also that by reason of
what has occurred, there may be raised in the mind
of the other jurors a degree
of interest and enquiry likely to lead to questions being asked by them of the
juror concerned. And
I also accept that there must be some consequent degree
of risk of relatively minor distraction from the matters which should properly
be occupying their attention for the remainder of the trial.
- But that said, having heard the juror, and having watched her
and the way in which she has conducted herself in the first two days
of the
trial, I am confident that what she has said to me is the truth. Once it is
accepted that it is the truth, I consider it
follows that any risk of prejudice
to this trial must be extremely low.
- When I weigh that against the fact that we have now proceeded
two days into a trial which is estimated to take a total of ten, and
we have
already had pass through the witness box several of what might properly be
regarded as the principal witnesses, and that
each has been subjected to a
greater or lesser extent to significant cross-examination, I regard the
appropriate exercise of my discretion
as being to refuse the application and to
continue with the juror and the remainder of the jurors for the remainder of
the trial.
- I do, however, propose to give a warning once the jury
returns, to remind them yet again of their obligations and the way in which
they should discharge them, substantially in the terms upon which I first
directed them on the first day of the trial.
- The application is refused.
[1] [1974] VicRp 100; [1974] VR 849 at 966
[2] [1996] HCA 22; (1996) 186 CLR 427 at 440
[3] See also R v Alexander Robert Brown
[2000] VSCA 102 and R v Murphy and Watson, Ruling No 2 [2001] VSC 320 at
para [5].
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