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Supreme Court 30 June 2014

R v Hunter (No 3)

[2014] NSWSC 1146

Homicide
CRIMINAL LAW JUROR DISCHARGED WHETHER TO DISCHARGE WHOLE JURY TRIAL AT VERY EARLY STAGE

Citation: R v Hunter (No 3) [2014] NSWSC 1146
Court: Supreme Court of New South Wales
Date: 30 June 2014
Judge(s): Button J

Background

The accused stood trial for murder before a jury empanelled at around midday on 30 June 2014. Shortly before 2 PM on the same day, the court received a note from one juror stating that he or she felt intimidated, scared, and emotionally overwhelmed by the responsibility of serving, and requesting to be excused. The juror had not yet heard any evidence or the Crown's opening address.

The trial was estimated to run for approximately three weeks and was expected to include distressing evidence, including medical evidence relating to a violent death. Both the Crown and the defence agreed on the appropriate course of action in response to the note.

  • Whether the individual juror should be discharged under s 53B of the Jury Act 1977 (NSW) on the basis that, for reasons affecting the juror's ability to perform his or her functions, the juror should not continue.
  • Whether, following the discharge of that juror, the whole jury should also be discharged under s 53C of the Jury Act 1977 (NSW) on the basis that continuing with eleven jurors would give rise to a risk of a substantial miscarriage of justice.

Decision

Button J discharged the individual juror under s 53B of the Jury Act. The juror's own note demonstrated that, even before a single piece of evidence had been tendered, the juror felt incapable of continuing comfortably and had foreshadowed that the situation could worsen. Both parties supported the discharge, and the court accepted that submission.

The court then turned to the separate and more significant question of whether to discharge the whole jury under s 53C. Again, both parties submitted that discharging the whole jury and commencing afresh was preferable to proceeding with eleven jurors. His Honour accepted this joint submission.

Button J identified six reasons supporting the discharge of the full jury. Both the accused and the Crown are generally entitled to a verdict from twelve jurors. The charge of murder is exceptionally serious. Because the trial had not yet commenced, no time would effectively be lost by empanelling a fresh jury and no witness would be required to repeat evidence. The trial was estimated to last three weeks, meaning that proceeding with only eleven jurors from the very outset would reduce the margin available if further attrition occurred. Taken together, these circumstances satisfied the court that continuing with eleven jurors from such an early stage could give rise to a risk of a substantial miscarriage of justice within the meaning of s 53C(1)(a).

Orders Made

  • The individual juror was discharged pursuant to s 53B of the Jury Act 1977 (NSW).
  • The whole jury was discharged pursuant to s 53C of the Jury Act 1977 (NSW).
  • The parties were to discuss with the court the logistical way forward to empanel a fresh jury as soon as reasonably practicable.

Key Takeaways

  • Under s 53B(d) of the Jury Act 1977 (NSW), a juror may be discharged where it appears to the court that, for any reason affecting that juror's ability to perform the functions of a juror, he or she should not continue, even where no evidence has yet been heard.
  • Section 53C(1)(a) of the Jury Act requires discharge of the whole jury where continuing with a reduced number would give rise to a risk of a substantial miscarriage of justice, and the provision does not require certainty of injustice, only a risk of it.
  • Both the accused and the Crown hold a general entitlement to a verdict returned by twelve jurors, and this entitlement carries weight in the discretionary analysis under s 53C.
  • Where a trial is at its very earliest stage and no evidence has been heard, the practical consequences of discharging the whole jury are minimal, because there is no evidence to repeat and no witnesses are inconvenienced.
  • Proceeding with a reduced jury from the outset of a lengthy, serious trial narrows the margin available if further jurors must later be discharged, and this is a relevant consideration in the miscarriage of justice analysis.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 22, 53B, 53C

Cases:
- Wu v The Queen [1999] HCA 52; 199 CLR 99