Citation: R (Cth) v Petroulias (No. 26) [2007] NSWSC 819
Court: Supreme Court of New South Wales
Date: 26 July 2007
Judge(s): Johnson J
Background
This decision arose on the thirty-first day of a criminal trial with a four-month estimate. A juror wrote to the court seeking discharge, explaining that she had been working as a day trader on the Australian share market for approximately nine months before being empanelled. Since joining the jury, she could not trade as frequently, resulting in financial losses that had caused conflict with her husband and, she said, sleepless nights that were affecting her ability to concentrate on the evidence.
Both the Crown and the accused were notified of the application. The Crown opposed discharge. The accused did not seek the juror's removal. Counsel agreed that sworn evidence from the juror was unnecessary, and the court proceeded on the basis that the factual matters in the note were accepted as accurate.
The juror had not applied to be excused from the panel at the time of empanelment, despite the trial's four-month estimate having been announced to the panel at that stage.
Legal Issues
- Whether the court had power to discharge an individual juror during a trial
- Whether the circumstances described by the juror (financial loss from interrupted share trading and resulting domestic stress) constituted sufficient grounds to warrant discharge
- Whether the possibility of a future application by another juror was a relevant consideration in the exercise of the court's discretion
Decision
Johnson J confirmed that, while the Jury Act 1977 (NSW) does not expressly confer a power to discharge an individual juror, such a power exists at common law or as an implied inherent power, as established in Wu v The Queen and affirmed in Petroulias v The Queen [2007] NSWCCA 134. The discharge of a juror and the subsequent decision whether to continue with eleven are two distinct steps.
His Honour accepted that the circumstances described by the juror were genuine, but held that financial hardship and a degree of domestic stress are foreseeable consequences of jury service and form part of a citizen's duty to the community. The juror had not sought to be excused at empanelment, despite the lengthy trial estimate being clearly stated in advance.
Johnson J distinguished the facts from R v Reardon, where medical evidence supported discharge, noting there was no equivalent body of material here. He also treated as relevant the Crown's submission that another juror's condition might give rise to a future application, meaning the loss of this juror could compound the risk of the trial being unable to continue with a sufficient jury.
His Honour declined the application, observing that the juror would be able to inform her partner that the court had refused the request, which might itself help reduce the domestic pressure she was experiencing.
Orders Made
- The application by the juror to be discharged from the jury was declined.
Key Takeaways
- The court's power to discharge an individual juror during a criminal trial is not expressly stated in the Jury Act 1977 (NSW) but is recognised as an inherent or implied common law power, confirmed by the High Court in Wu v The Queen.
- Financial hardship and domestic stress arising from jury service do not, without more, constitute grounds for discharge; a measure of personal and financial inconvenience is an inherent feature of the duty to serve.
- A juror's failure to apply for excusal under s 38 of the Jury Act 1977 at the time of empanelment, despite a lengthy trial estimate having been clearly communicated, was a material consideration weighing against discharge.
- Under the two-step framework from Wu v The Queen, the court must first determine whether the individual juror should be discharged before separately considering whether the trial should proceed with eleven jurors.
- The prospect of a future discharge application by another juror is a relevant factor when exercising the discretion, particularly in a lengthy trial where attrition could threaten the viability of the jury.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 19, 22, 38
Cases
- Wu v The Queen [1999] 199 CLR 99
- R v Radju [2001] 53 NSWLR 471
- Petroulias v The Queen [2007] NSWCCA 134
- R v Czajkowski [2002] 137 A Crim R 111
- R v Reardon (2002) 186 FLR 1
- Cheatle v The Queen [1993] 177 CLR 541
- Brown v The Queen [1986] 160 CLR 171
- R v Ronen [2005] NSWSC 319
- R (Cth) v Petroulias (No. 22) [2007] NSWSC 692