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Supreme Court 12 June 2013

R v Jacobs

[2013] NSWSC 942

Public order & justice offences
CRIMINAL LAW JUROR DISCHARGED WHETHER TO DISCHARGE WHOLE JURY TRIAL AT VERY EARLY STAGE WHOLE JURY DISCHARGED

Citation: R v Jacobs [2013] NSWSC 942
Court: Supreme Court of New South Wales
Date: 12 June 2013
Judge(s): Button J

Background

The accused stood trial on a charge of murdering a police officer. The jury was empanelled on the day before the judgment and sent home to allow resolution of legal issues before the Crown opening, which was scheduled for the following morning.

Before the Crown opening could proceed, the court received a handwritten note from one juror. The juror cited high blood pressure, high cholesterol, ongoing medication, and an inability to sleep due to anxiety about the pressures of the case. The juror requested to be excused.

Both counsel agreed the individual juror should be discharged. They also jointly submitted that the trial should not continue with only eleven jurors and that a fresh jury should be empanelled the following day.

  • Whether the individual juror should be discharged under the Jury Act 1977.
  • Whether the remaining eleven jurors should continue the trial, or whether the whole jury should be discharged and a fresh jury empanelled.

Decision

Button J treated the matter as a two-step process, consistent with the approach set out in Wu v The Queen and R v Petroulias (No 33). On the first question, his Honour found the juror's difficulty was primarily one of stress rather than a purely medical condition, though he acknowledged that high blood pressure and high cholesterol can be aggravated by stress. He considered it highly undesirable to have a reluctant, distracted, or distressed juror sitting on a serious murder trial, particularly given the trial's length of several weeks.

His Honour also noted the risk that, if not discharged, the juror might become increasingly distressed and ultimately unable to continue later in the proceedings, causing greater disruption at a more advanced stage. Weighing all these factors, Button J discharged the juror under sections 53B(a) and (b) of the Jury Act 1977.

On the second question, Button J accepted the joint submissions of counsel that continuing with eleven jurors was undesirable, particularly so early in the trial. He emphasised that an accused ordinarily has the right to be tried by a jury of twelve, and that proceeding with fewer jurors from a very early stage could also have indirect consequences under other provisions of the Jury Act. The contrast drawn was with a situation where a juror seeks discharge just before the jury retires after weeks of evidence, where the calculus around discharge would be very different.

Noting that a fresh jury could be empanelled the next morning and that the day could still be used productively to deal with outstanding legal issues, Button J discharged the whole jury and directed a new jury to be empanelled the following day.

Orders Made

  • The individual juror was discharged pursuant to sections 53B(a) and (b) of the Jury Act 1977.
  • The whole jury was discharged.
  • A fresh jury was to be empanelled the following day.

Key Takeaways

  • The decision confirms the two-step analytical framework for juror discharge decisions: first, whether the individual juror should be discharged; and second, whether the trial should continue with the remaining jurors or the whole jury should be discharged.
  • A juror's anxiety and stress about trial subject matter, rather than a purely medical condition, can satisfy the grounds for discharge under sections 53B(a) and (b) of the Jury Act 1977, particularly where the trial is serious and lengthy.
  • An accused's right to be tried by a jury of twelve is a significant factor weighing against continuing with eleven jurors, especially from a very early stage in proceedings.
  • The stage at which a juror seeks discharge is directly relevant to the second question: the earlier in the trial, the more readily a whole-jury discharge may be appropriate, given minimal wasted time and no prejudice to the accused.
  • Under Wu v The Queen, the two questions of individual juror discharge and continuation of the trial with remaining jurors are treated as entirely separate inquiries, each requiring independent consideration.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 22, 53B(a) and (b), 55F

Cases
- Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99
- R v Petroulias (No 33) [2007] NSWSC 1447