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R v BDL; BDL v Director of Public Prosecutions (Qld)

Unreported Citation:

[2020] QCA 249

EDITOR'S NOTE

The appellant in this case sought orders to permit the investigation of suspected bias of certain jurors pursuant to s 70(7) of the Jury Act 1995. In dismissing the appeal, some of the members of the Court (Morrison and McMurdo JJA, in separate reasons) observed that “bias” means actual bias rather than apprehended bias. Ultimately, however, it was not necessary to finally conclude this point as the evidence failed to provide a basis “beyond mere idle wondering” as to the suspected bias of certain jurors.

Morrison and McMurdo JJA and Jackson J

13 November 2020

Background

The appellant was convicted by jury, in the District Court at Goondiwindi, of domestic violence offences against his former wife. [1], [59].

The appellant’s family is well known in Goondiwindi. [8]. Goondiwindi is, as Morrison JA observed, “a small country town where it might be expected that potential jurors knew one or other of the families of the protagonists”. [48].

The relevant issue on appeal was whether there were grounds under s 70(7) of the Jury Act 1995 to authorise an investigation into suspected bias of certain jury members. [4], [65].

Legislative provisions

Section 70(7) of the Jury Act relevantly provides:

“If there are grounds to suspect that a person may have been guilty of bias, fraud or an offence related to the person’s membership of a jury or the performance of functions as a member of a jury, the court before which the trial was conducted may authorise—

(a) an investigation of the suspected bias, fraud or offence; and

(b) the seeking and disclosure of jury information for the purposes of the investigation.”

Decision of the Court of Appeal

In separate reasons, Morrison and McMurdo JJA considered the meaning of the phrase “grounds to suspect that a person may have been guilty of bias”.

By reference to the Court of Appeal’s decision in Knight v the Queen [2013] QCA 144, Morrison JA observed that “the language of s 70(7) could not be divorced from its context and that had an impact upon the level of suspicion necessary for there to be ‘grounds to suspect’”. [28]. McMurdo JA similarly noted, by reference to R v Lacey; Ex Parte Attorney-General (Qld) (2009) 197 A Crim R 399, that jury deliberations “for strong reasons of policy, have been regarded traditionally as unexaminable”. [70].

In reaching that conclusion, Morrison and McMurdo JJA, in separate reasons, discussed the meaning of bias in s 70(7). The appellant’s submission was that the phrase “guilty of bias” in s 70(7) referred to apprehended bias. [29].

While his Honour ultimately held that it was not necessary to reach a final conclusion, Morrison JA observed that s 70(7) required actual bias rather than apprehended bias. [40]. His Honour provided a number of reasons for that conclusion, including:

1. The phrase “guilty of bias” in s 70(7) indicates that the provision requires actual bias as a person is not “guilty” of apprehended bias, but rather apprehended bias exists because of the view of a fair minded but knowledgeable observer. [31].

2. Section 43(2)(b) permits a challenge for cause on the basis that “the person is not impartial”; not that there is an appearance of impartiality. [33].

3. It is a “serious thing to pry into the affairs of a jury and its deliberations” and thus the threshold to do so should be higher than apprehended bias. [37].

4. Section 70(7) operates in circumstances where the trial has concluded. It does not deal with circumstances during trial which give rise to questions of apprehended bias. [38].

5. The risk of a “proliferation of attacks” on the basis of apprehended bias indicates that the legislature intended the provision to be confined to actual bias. [39].

Justice McMurdo agreed that “bias” in s 70(7) requires actual bias. [66]. Justice Jackson held that in the circumstances it was not necessary to express any view on the issue. [80].

Ultimately, the Court of Appeal held, in separate reasons, that there were no grounds to suspect that a jury member may have been guilty of bias and dismissed the appeals. [57], [77], [78].

A Hughes of Counsel

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