Citation: R v Issakidis [2016] NSWSC 1102
Court: Supreme Court of New South Wales
Date: 11 August 2016
Judge(s): Beech-Jones J
Background
The accused faced two counts under the Criminal Code Act 1995 (Cth) and was tried before a jury from 16 March 2016. After several days of deliberations, the jury was unable to reach a unanimous verdict. On 7 June 2016, the trial judge discharged the jury following examination of the foreperson on oath, who indicated that fundamental and longstanding divisions among jurors had emerged early in the trial, apparently before closing addresses and the summing-up.
Following the discharge, the accused's solicitors wrote to the sheriff requesting a jury investigation under section 73A of the Jury Act 1977 (NSW). They argued that the foreperson's evidence suggested one or more jurors had refused to participate properly in deliberations or had demonstrated a reasonable apprehension of bias, given the complexity of the case and the apparent early formation of strong opinions.
The sheriff referred the matter to the trial judge to determine whether the Supreme Court would give the consent required under section 73A(1) before any investigation could proceed. The trial judge declined to give consent and provided written reasons.
Legal Issues
- Whether section 73A of the Jury Act 1977 (NSW) is engaged following a hung jury, where no verdict was returned
- Whether the matters raised by the accused's solicitors provided a reasonable basis to suspect a jury irregularity of the kind described in section 75C of the Jury Act
Decision
Issue 1: Whether section 73A is engaged where no verdict was returned
Section 73A(1) only permits a jury investigation following a "verdict" in criminal proceedings (at [9]). The trial judge held that a failure to reach a verdict is not a "verdict" within the meaning of the provision. The jury's non-verdict therefore fell outside the scope of section 73A, and the power to conduct an investigation was simply not engaged (at [9]).
Issue 2: Whether there was a reasonable basis to suspect jury irregularity
The trial judge found that the foreperson's evidence did not give rise to a reasonable basis to suspect any irregularity of the kind alleged (at [10]). Divisions of opinion from an early stage of a trial do not indicate that jurors were unwilling to be persuaded by evidence and argument that followed. By the point at which divisions were said to have emerged, jurors had already heard the Crown opening and the outline of the defence case and had been directed to engage with the evidence as it unfolded (at [10]).
The trial judge also noted that granting consent in these circumstances would substantially intrude upon or reveal jury deliberations, which the law seeks to protect (at [10]).
Orders Made
- Consent to jury investigation refused.
Key Takeaways
- Section 73A of the Jury Act 1977 (NSW) is only enlivened where a jury has returned a "verdict." A hung jury resulting in discharge produces no verdict, meaning the provision cannot be invoked to investigate the jury's conduct (at [9]).
- Under section 73A(1), the Supreme Court's consent to an investigation is a prerequisite, and where no appeal or review is on foot the giving or withholding of that consent is a purely administrative function, as confirmed in Lodhi v Attorney General of New South Wales (at [8]).
- A trial judge who declines to give consent under section 73A is not obliged to provide reasons in the absence of a request for them, though the position may differ if reasons are specifically sought (at [8]).
- Early divisions of opinion among jurors do not, without more, establish a reasonable basis to suspect that any juror improperly refused to participate in deliberations or harboured bias. Jurors may form and express differing views as evidence unfolds without that conduct amounting to an irregularity (at [10]).
- Granting consent to investigate jury deliberations requires a genuine evidential foundation. Speculative inferences drawn from a foreperson's brief evidence at discharge do not meet that threshold (at [10]).
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth)
- Jury Act 1977 (NSW)
Cases
- Anderson v Ntzounas [1988] VR 748
- Lodhi v Attorney General of New South Wales [2013] NSWCA 433