Citation: Lamb; R v Mason; R v Hill v R [2016] NSWCCA 135
Court: New South Wales Court of Criminal Appeal
Date: 8 July 2016
Judge(s): Bathurst CJ, Harrison J, Button J
Background
Three accused were standing trial in the District Court on charges arising from an alleged home invasion at Narrabri in December 2013. The charges included entering a dwelling with intent to commit a serious indictable offence, with aggravating circumstances. The trial had run for eleven days and the judge was partway through his summing-up when a jury note raised a serious concern.
The note described an incident in which one of the accused, Mr Lamb, had followed a juror from a car park into the court building and then spoken to a second juror near the jury entrance, asking whether it was the jury entrance. The jury expressed discomfort, describing the incident as what they believed was an attempt to intimidate them. The foreman subsequently gave evidence on oath that only two jurors held those concerns and that, while uncomfortable with what had happened, both were willing to continue.
All parties agreed that the two jurors who had direct contact with the accused should be discharged under the Jury Act. The contested question was whether the remaining ten jurors should also be discharged.
Legal Issues
- Whether the trial judge erred in concluding that continuing the trial with the remaining ten jurors would give rise to a risk of a substantial miscarriage of justice under s 53C(1)(a) of the Jury Act 1977 (NSW).
- Whether the Crown, as applicant, established grounds for appellate intervention in the exercise of the trial judge's discretion under the principles in House v The King.
- Whether a direction to the jury about the innocent explanation offered for Mr Lamb's conduct would have been sufficient to address any risk, making discharge of the full jury unnecessary.
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The Court found no error of fact or law in the trial judge's reasoning. His Honour had correctly identified and applied the statutory test under s 53C(1)(a), considered the relevant authorities, and weighed the competing factors with care, despite the ex tempore nature of the judgment.
The Court acknowledged that a different judge could reasonably have reached a different conclusion. Factors pointing against discharge included the length of the trial, its special fixture status, the distance witnesses had travelled, and the foreman's evidence that the remaining jurors were not unduly troubled. A firm judicial direction could, on one view, have been sufficient.
However, under the House v The King standard, appellate intervention requires more than a finding that another outcome was open. The result had to be unreasonable or plainly unjust. The Court found it was not. The Court also emphasised that the trial judge was in a significantly better position than the appellate bench to assess the atmosphere in the courtroom, consistent with the approach taken in Crofts v The Queen and Trieu v R.
The Court left open the question of whether the s 53C(1)(a) test should be assessed independently or informed by the arguably higher test in Crofts v The Queen, noting the matter had not been fully argued and that the outcome was the same either way.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Under s 53C(1)(a) of the Jury Act 1977 (NSW), a trial judge must discharge the whole jury where continuing with the remaining jurors would give rise to a risk of a substantial miscarriage of justice. The question is one of evaluative judgment, not bright-line rule.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the House v The King standard governs appellate review of this kind of decision: intervention requires the result to be unreasonable or plainly unjust, not merely one that another judge might have decided differently.
- Trial judges are recognised as being in a substantially better position than appellate courts to assess courtroom atmosphere and the potential effect of jury contamination, a principle drawn from both Crofts v The Queen and Trieu v R.
- The availability of a curative jury direction does not automatically preclude discharge of the whole jury. It is one factor to weigh, but it did not lead to error on the trial judge's part here.
- The Court expressly left unresolved whether the s 53C(1)(a) test operates independently or is informed by the test in Crofts v The Queen, flagging this as a question for fuller argument in a future case.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5G
- Jury Act 1977 (NSW), ss 53B(b), 53B(d), 53C(1)(a)
Cases:
- Barber v R; Zraika v R [2016] NSWCCA 125
- Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Munn v R; Miller v R [2006] NSWCCA 61
- Trieu v R [2012] NSWCCA 169