Citation: R v Duffy (No. 6) [2015] NSWSC 562
Court: Supreme Court of New South Wales
Date: 14 May 2015
Judge(s): Davies J
Background
The accused was on trial for murder and, at the time of the incident, had been in trial for approximately three and a half weeks. During cross-examination about the acts involved in the killing, one juror became visibly and severely distressed. She was unable to leave her seat in the jury box without physical assistance from a sheriff's officer and another juror. Several other jurors in the front row were also temporarily unable to exit the jury box.
Davies J adjourned the proceedings for the day following the incident. The following morning, counsel for the accused applied to discharge the entire jury.
The application rested on two grounds: that the affected juror would be unable to consider the evidence dispassionately, and that the remaining jurors may have been so affected by witnessing her reaction that the jury as a whole could no longer perform its role impartially.
Legal Issues
- Whether the affected juror should be discharged under section 53B of the Jury Act 1977 (NSW), on the basis that she had become incapacitated or could not perform her functions as a juror
- Whether the entire jury should be discharged on the basis that the juror's emotional reaction may have caused the remaining jurors to be unable to bring a dispassionate mind to their task
- The proper procedural sequence for applications to discharge an individual juror versus the whole jury under Part 7A of the Jury Act 1977 (NSW)
Decision
Davies J refused the application to discharge the whole jury. His Honour first considered the position of the affected juror under section 53B of the Jury Act 1977 (NSW). The section permits discharge where a juror has become so ill, infirm or incapacitated as to be likely unable to serve before the verdict, or where any other reason affects her ability to perform juror functions.
His Honour noted that the juror had shown no prior signs of distress or inability to perform her duties during the preceding three and a half weeks of trial. A single emotional episode lasting approximately ten minutes, provoked by graphic evidence of how the deceased was killed, did not satisfy the threshold under section 53B. The court was not satisfied that an emotional reaction to distressing evidence meant the juror could not perform her functions impartially or otherwise.
On the application to discharge the whole jury, Davies J observed that the correct procedural approach is to first address section 53B in relation to the individual juror, and only then consider under section 53C whether the remaining jury members could continue without a substantial miscarriage of justice. The application as made had skipped the individual discharge question, and it was only during the hearing that counsel for the accused raised the alternative of discharging the individual juror.
Even accepting for the sake of argument that grounds to discharge the individual juror existed (which his Honour did not accept), there was nothing observed or known that would give rise to a risk of a substantial miscarriage of justice if the trial continued with the remaining jurors. The test requires a substantial miscarriage of justice, not merely a miscarriage of justice, and that bar was not met on the facts.
Orders Made
No orders were made in this decision.
Key Takeaways
- A single emotional incident during graphic evidence, with no prior signs of difficulty over a weeks-long trial, does not establish the grounds for juror discharge under section 53B of the Jury Act 1977 (NSW).
- Under Part 7A of the Jury Act 1977 (NSW), the proper procedural sequence requires the court to first consider whether an individual juror should be discharged before turning to whether the whole jury should be discharged.
- Section 53C sets a high threshold: the risk must be of a substantial miscarriage of justice, not merely any miscarriage of justice, before the whole jury can be discharged following a juror's removal.
- Speculation that jurors may have discussed a fellow juror's emotional reaction in the jury room is insufficient, without more, to establish that the remaining jury could not act dispassionately.
- In dismissing the application, the Supreme Court confirmed that an emotional response to disturbing evidence does not, without further evidence of lasting impairment, lead to the conclusion that a juror cannot perform her functions.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 22, 53B, 53C
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases
- Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99
- Dietrich v The Queen (1992) 177 CLR 292
- Clarke v R (1995) 78 A Crim R 226