Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1050
Court: Supreme Court of New South Wales
Date: 1 July 2011
Judge(s): James J
Background
This decision arose during a criminal trial in which the accused faced Commonwealth charges. The jury had been empanelled on the basis of a projected trial length estimated by the parties, which suggested the proceedings would conclude before a particular date.
One juror had sought to be excused from jury service before empanelment, citing pre-arranged overseas travel commitments scheduled from 7 July 2011. That application was refused because the estimated trial length indicated the proceedings would finish in time. The trial, however, ran significantly longer than anticipated.
With the 7 July departure date approaching and no prospect of the trial concluding by then, the juror applied formally to be discharged. Both the Crown and defence counsel had previously indicated their consent to the discharge if the circumstances made it necessary.
Legal Issues
- Whether the court had power under s 53B(d) of the Jury Act to discharge the juror on the ground that a reason "affecting the juror's ability to perform the functions of a juror" existed.
- Whether that provision was consistent with s 80 of the Commonwealth Constitution (which guarantees trial by jury for Commonwealth indictable offences).
- Whether, in all the circumstances, the juror should be discharged and the trial continue with the remaining eleven jurors.
Decision
Issue 1: Power to discharge under s 53B(d) of the Jury Act
James J confirmed that s 53B(d) of the Jury Act confers a discretionary power to discharge a juror where any reason, beyond those enumerated in paragraphs (a) to (c), affects the juror's ability to perform her functions. His Honour noted this provision operates consistently with s 80 of the Commonwealth Constitution and raised no constitutional difficulty.
Issue 2: Whether the juror's circumstances engaged the power
The court found that the juror's planned overseas trip was not merely a holiday. She had undertaken solemn obligations to others who were relying on her attendance, and those commitments materially affected her ability to continue functioning as a juror. The juror had also attempted to be excused before empanelment, and her current predicament arose directly from the trial exceeding its estimated length.
Issue 3: Balancing the interests of justice
James J acknowledged the need to weigh interests beyond the juror's own circumstances, including the general interests of justice and the accused's right to be tried by a full jury of twelve. Having regard to the common position of both parties, the nature of the juror's obligations, and the commitment the court had already given the juror in mid-June, His Honour concluded the balance favoured discharge. The trial was to proceed with the remaining eleven jurors.
Orders Made
- The application to discharge the juror was granted.
Key Takeaways
- Section 53B(d) of the Jury Act provides a flexible residual ground for discharging a juror where any reason affects her ability to perform jury functions, and this provision is compatible with s 80 of the Commonwealth Constitution.
- Pre-arranged travel commitments, particularly where they involve solemn obligations to third parties rather than recreational travel, can constitute a sufficient reason to discharge a juror under the residual limb of s 53B(d).
- Where a juror sought to be excused before empanelment and was refused based on an estimated trial length that was ultimately exceeded, that history is a relevant consideration in the discharge analysis.
- The court balanced the juror's circumstances against the accused's right to a full twelve-person jury, but found that balance satisfied where both parties consented and the court had already given the juror a conditional assurance of discharge.
- Consent of both the Crown and the defence, while not determinative, is a significant factor weighing in favour of exercising the discretion to discharge.
Legislation and Cases Referenced
Legislation
- Commonwealth Constitution - s 80
- Jury Act - s 53B(d)
Cases
- Not stated