AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 8 April 2002

R v Lamb and Thurston

[2002] NSWSC 322

Homicide
CRIMINAL LAW & PROCEDURE JURY APPLICATION TO DISCHARGE JUROR DISTANT RELATIVE OF VICTIM EARLY STAGE OF TRIAL AVAILABILITY OF FRESH JURY PANEL

Citation: R v Lamb and Thurston [2002] NSWSC 322
Court: Supreme Court of New South Wales (Common Law Division, Criminal)
Date: 8 April 2002
Judge(s): Dunford J

Background

Two accused faced a murder trial in Tamworth. The trial had commenced earlier that week with jury empanelment, but the jury was then excused while a voir dire (a preliminary hearing to determine admissibility of evidence) proceeded. The Crown had not yet opened its case to the jury proper.

During that period, Dunford J discharged one juror who turned out to be a distant relative of the deceased. A separate incident arose in which a member of the deceased's family approached the discharged juror's mother at her place of business, though the judge noted that approach may have been entirely innocent.

Those events prompted two applications on behalf of one of the accused: first, to discharge the remaining eleven jurors entirely rather than continue with a reduced jury; and second, to move the trial from Tamworth to Sydney on the basis of family tensions and the risk of juror contamination.

  • Whether the full jury should be discharged following the removal of one juror, given the early stage of the trial and the availability of a fresh panel, or whether the trial should continue with the eleven remaining jurors.
  • Whether the trial venue should be changed from Tamworth to Sydney, having regard to alleged threats from the deceased's family, the risk of juror contact with family members, and the right of the accused to a fair trial.

Decision

Discharge of the jury: Dunford J's initial inclination was to continue with eleven jurors, expressing the view that verdicts were unlikely to differ between a jury of eleven and one of twelve. However, several factors pointed toward discharging the full jury: the trial was at a very early stage, the Crown had not yet opened, the Crown ultimately withdrew its opposition to discharge, and the time spent on the voir dire would not be wasted since that hearing could continue. His Honour also took guidance from remarks of McHugh and Kirby JJ in Wu v The Queen (1999) 108 A Crim R 252. A fresh jury panel had already been arranged for the following Monday through considerable effort by the Sheriff's Office.

His Honour exercised his power under the Jury Act 1977 to reduce the standard seven-day notice period for jury summonses, so that summonses delivered by Wednesday would be valid for the Monday panel. The jury was accordingly discharged.

Change of venue: Dunford J refused the application to relocate the trial to Sydney. The Crown's witnesses were predominantly local Aboriginal residents with no experience of metropolitan Sydney, and transporting and housing them in an unfamiliar city would create significant logistical hardship and expense. The deceased's family was entitled to attend the trial, and any suggestion that removal to Sydney would simply reduce their attendance was noted but not treated as a legitimate basis for the application.

His Honour identified several measures to manage the risk of juror contact with the deceased's family in Tamworth: the Crown would read out family members' names during empanelment so that any prospective juror with a connection could be stood aside; his Honour had already given a firm warning to family members against approaching jurors or engaging in threatening conduct; and the accused were both in custody, providing protection against physical reprisals. These measures were considered sufficient to secure a fair trial in Tamworth.

Orders Made

  • The jury was discharged.
  • The application to change the venue from Tamworth to Sydney was refused.
  • The notice period for jury summonses was reduced under the Jury Act 1977, with summonses delivered by Wednesday to be valid for the following Monday's panel.

Key Takeaways

  • At a sufficiently early stage of a trial, before the Crown has even opened its case, discharging a full jury and empanelling a fresh panel may be the preferable course even where continuing with eleven jurors would otherwise be lawful.
  • The availability of a replacement jury panel is a practical factor that weighs in favour of discharge rather than continuation with a reduced jury.
  • A change of venue will not readily be granted in a regional murder trial merely because of family tensions or the risk of incidental juror contact with relatives of the deceased; such risks may instead be managed through careful empanelment procedures and judicial warnings.
  • Under the Jury Act 1977, a judge retains the power to reduce the standard seven-day notice period for jury summonses where circumstances require it.
  • Hardship to lay witnesses, particularly those unfamiliar with metropolitan environments, is a legitimate consideration weighing against a change of venue to a distant city.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 26(3)

Cases:
- Wu v The Queen (1999) 108 A Crim R 252 (remarks of McHugh and Kirby JJ noted; Kirby J's judgment was a dissenting judgment)