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Supreme Court 29 February 2016

R v Rogerson; R v McNamara (No 27)

[2016] NSWSC 152

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE JUROR DISCHARGED

Citation: R v Rogerson; R v McNamara (No 27) [2016] NSWSC 152
Court: Supreme Court of New South Wales
Date: 29 February 2016
Judge: Bellew J

Background

This ruling arose during a high-profile criminal trial that had reached its fifth week. The two accused faced serious charges, and the trial was being conducted before a jury of 14 members empanelled in accordance with the Jury Act 1977 (NSW).

During the morning session on 29 February 2016, Bellew J observed one male juror repeatedly closing his eyes and falling asleep while evidence was being given. The judge paid close attention to the juror throughout the morning and observed him asleep for broken periods. Counsel for both accused and the Crown Prosecutor were informed during the morning tea adjournment and invited to make their own observations after the break.

Those observations corroborated the judge's concerns. Counsel for one accused confirmed the juror had his "eyes closed and head down" and noted this was not the first time the behaviour had been observed. Counsel for the other accused also reported observing the juror with eyes closed the previous week. An application was made for the juror's discharge.

  • Whether the juror's conduct in falling asleep during evidence constituted "misconduct" within the meaning of s 53A of the Jury Act 1977 (NSW), specifically whether it gave rise to the risk of a substantial miscarriage of justice.
  • Whether, in the alternative, the discretionary discharge power under s 53B of the Act applied because the juror was unable to perform the functions of a juror.

Decision

Bellew J found that the juror's conduct fell squarely within the definition of "misconduct" under s 53A(2)(b) of the Jury Act 1977 (NSW). That provision defines misconduct broadly to include any conduct that, in the court's opinion, gives rise to the risk of a substantial miscarriage of justice, even if it does not amount to a criminal offence under the Act.

The judge held that the inability of a juror to remain awake during evidence carries an obvious and self-evident risk of a substantial miscarriage of justice. All parties to a criminal trial have a fundamental right to a fair hearing, and that right requires every juror to be alert, attentive, and capable of following and comprehending the evidence as it is given. A juror who is asleep cannot discharge that function.

The judge also noted that even if the juror's sleepiness stemmed from a medical condition, that would not change the outcome. The fact of falling asleep during evidence was itself the disqualifying circumstance, regardless of its cause.

Although Bellew J found it unnecessary to consider the discretionary power under s 53B, he observed that, had it been necessary to do so, he would have concluded that the juror was unable to perform his functions and should not continue to serve.

Orders Made

  • Pursuant to s 53A of the Jury Act 1977 (NSW), the juror identified by number was discharged.
  • Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), the trial was directed to continue with a reduced jury of 13 members.

Key Takeaways

  • Under s 53A(2)(b) of the Jury Act 1977 (NSW), "misconduct" extends beyond criminal offences to include any conduct that, in the court's opinion, gives rise to the risk of a substantial miscarriage of justice, making mandatory discharge applicable in such cases.
  • Bellew J confirmed that a juror falling asleep during evidence is a paradigm example of conduct giving rise to the risk of a substantial miscarriage of justice, requiring mandatory discharge rather than merely permitting it.
  • A juror's possible medical explanation for sleepiness does not prevent discharge under s 53A. The operative fact is the juror's inability to attend to the evidence, not the reason for it.
  • The Supreme Court confirmed that all parties to a criminal trial, including both the accused and the Crown, hold a fundamental interest in having each juror remain alert and capable of comprehending the evidence throughout proceedings.
  • Where mandatory discharge under s 53A is established, it is unnecessary to proceed to consider the discretionary discharge provisions under s 53B, though the same factual circumstances may independently satisfy those provisions.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53A, 53B, 53C(1)(b)

Cases cited: No cases were cited in the judgment.