Citation: R v Hunter (No 10) [2014] NSWSC 1153
Court: Supreme Court of New South Wales
Date: 14 July 2014
Judge(s): Button J
Background
During a criminal trial before Button J, one juror sent two notes to the court seeking to be discharged. The juror had received an unexpected invitation to participate in elite-level sport, requiring a week of training away from Sydney commencing that afternoon.
The juror's personal details were contained in the second note, which Button J sealed with a direction that it not be opened except on the order of a Supreme Court judge. The first note identified the sport involved but did not attract the same protective treatment.
Both the prosecution and the defence agreed that the juror should be discharged and that the trial should continue with the remaining eleven jurors.
Legal Issues
- Whether the juror should be discharged under s 53B of the Jury Act 1977 (NSW) due to an unexpected personal commitment.
- Whether the trial should continue with eleven jurors, having regard to s 53C(1)(a) of the Jury Act 1977 (NSW) and the principles in Wu v The Queen [1999] HCA 52.
Decision
Button J agreed with both parties that the juror should be discharged under s 53B. His Honour reasoned that retaining a distracted, disgruntled, and disappointed juror on the panel would serve no one's interests. The court noted it was regrettable that the juror had not raised the possibility of such an invitation when the jury was empanelled the previous Tuesday, and confirmed that adjourning the trial for a week to accommodate the juror was not an option.
On the second question, Button J found that the threshold in s 53C(1)(a) was not met. That provision requires a court to discharge the whole jury if continuing with the remaining jurors "would give rise to the risk of a substantial miscarriage of justice." His Honour found no such risk on the facts.
Button J pointed to several features of the trial supporting this conclusion: the jury had been empanelled only the week before, the trial had been proceeding smoothly, approximately half the Crown witnesses had given evidence, there was a real prospect of no defence case being called, and jury deliberations were expected to begin by late that week or early the following week at the latest. There was also no suggestion of anything improper occurring in the jury room, and the jury appeared focused and attentive.
Orders Made
- The trial to continue with eleven jurors.
Key Takeaways
- Under s 53B of the Jury Act 1977 (NSW), a juror may be discharged where an unexpected personal commitment arises that would render continued service detrimental to the trial's proper conduct.
- A court will not adjourn a criminal trial to accommodate a juror's personal convenience, however unforeseen the circumstances.
- Section 53C(1)(a) of the Jury Act 1977 (NSW) sets a high threshold: continuation with a reduced jury must give rise to a risk of substantial miscarriage of justice before the whole jury can be discharged.
- In dismissing the possibility of whole-jury discharge, Button J considered the trial's stage of progress, its smooth conduct to that point, the likelihood of imminent deliberations, and the absence of any irregularity in the jury room as collectively decisive.
- Personal details disclosed by a juror in a jury note may warrant sealing of that note, with a direction prohibiting its opening except on judicial order.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 53B, 53C(1)(a)
Cases:
- Wu v The Queen [1999] HCA 52; 199 CLR 99