Citation: R v James Duncan Smith [2009] NSWDC 110
Court: District Court of New South Wales
Date: 30 April 2009
Judge: Cogswell SC DCJ
Background
The accused faced trial on nine charges of child sexual assault. Following empanelment of a jury, a court officer noticed that one juror had recorded their occupation on the standard form as "OVERSEAS LAWYER/JUDGE," while the Sheriff's Office database recorded the same person simply as "LAWYER." Further inquiries revealed the juror was from Bangladesh.
Defence counsel applied under section 53B of the Jury Act 1977 to discharge the juror on the ground of reasonable apprehension of bias. Counsel also submitted that, if the individual juror were discharged, the court should discharge the entire jury rather than continue with eleven jurors.
The prosecution opposed both applications, arguing the available information was insufficient to establish any logical basis for apprehended bias.
Legal Issues
- Whether the juror, as a person described as an overseas lawyer/judge, was ineligible to serve under section 6(b) and Schedule 2 of the Jury Act 1977 (which excludes judicial officers and Australian lawyers)
- Whether there was a reasonable apprehension of bias under section 53B(b) of the Jury Act 1977 justifying discharge of the individual juror
- Whether, if the juror was discharged, the remaining eleven jurors should also be discharged rather than the trial proceeding with a reduced jury
Decision
On eligibility, the court found the juror was neither a judicial officer nor an Australian lawyer within the meaning of the relevant legislation. Because the juror was from overseas, the Judicial Officers' Act 1986 (which defines "judicial officer" for the purposes of Schedule 2) had no application. Similarly, the definition of "Australian lawyer" under the Legal Profession Act 2004 did not extend to a person whose qualifications derived from a foreign legal system.
On apprehended bias, the court applied the test from R v Czajkowski and Shepherd [2002] NSWCCA 530: whether a fair-minded and informed member of the public might entertain a reasonable apprehension that the juror might not bring an impartial and unprejudiced mind to the issues. The court described this as a test of "possibility upon possibility" operating at its strictest in criminal proceedings, and noted it involves a low threshold.
Several factors combined to satisfy that test. Bangladesh retains the death penalty for offences of this kind, appears to have no jury system, and the court had no information confirming that Bangladeshi law requires proof beyond reasonable doubt. Additionally, the Crown intended to lead tendency evidence from a witness who had testified in an earlier trial against the accused that resulted in a conviction. An experienced legal officer familiar with how tendency evidence operates might, the court reasoned, infer from that evidence that a prior conviction existed, even though no such conviction would be formally disclosed to the jury.
On the question of discharging the whole jury, the court balanced the accused's right to trial by twelve jurors against the public interest in proceeding and the significant history of delays the matter had already endured. Because the discharge occurred early in the trial and a fresh panel could be assembled by the following Monday, the court concluded the accused's right to a full jury of twelve weighed in favour of discharging the entire jury rather than continuing with eleven.
Orders Made
- The individual juror was discharged.
- The jury as a whole was discharged.
Key Takeaways
- A person who qualified as a lawyer or judge in an overseas jurisdiction is not rendered ineligible to serve as a juror under Schedule 2 of the Jury Act 1977, because the definitions of "judicial officer" and "Australian lawyer" in the relevant legislation do not extend to foreign qualifications.
- Under section 53B(b), the test for reasonable apprehension of bias is whether a fair-minded and informed member of the public might entertain a reasonable apprehension that the juror might not bring an impartial mind to the case. The threshold is low, particularly in criminal trials.
- Apprehended bias may arise from a combination of factors even where no single factor alone is conclusive. Here, the combination of the juror's assumed judicial background, the absence of a jury system in Bangladesh, uncertainty about the standard of proof in that country, and the particular nature of the tendency evidence to be led was sufficient.
- Where a juror is discharged early in proceedings, an accused's entitlement to trial by twelve jurors (rather than eleven) is a weighty consideration in deciding whether to discharge the remaining jury, particularly where a fresh panel can be convened without significant further delay.
- A trial's "unfortunate antecedent history" of delays is a relevant factor to weigh in the overall balancing exercise when deciding whether to discharge the whole jury, but it does not automatically override the accused's right to a full jury.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 6(b), 53B and Schedule 2
- Judicial Officers' Act 1986 (NSW)
- Legal Profession Act 2004 (NSW), ss 4, 5
Cases
- R v Bright (2000) 114 A Crim R 466
- R v Czajkowski and Shepherd [2002] NSWCCA 530
- Luland v The Queen [2007] NSWCCA 64