Citation: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 4) [2016] NSWSC 1865
Court: Supreme Court of New South Wales
Date: 7 October 2016
Judge: Rothman J
Background
Three accused were on trial together: two charged with murder and one charged with accessory after the fact to murder. The trial had been proceeding with a full jury of twelve when an issue arose with one juror during the Crown's final witness.
As the last Crown witness entered the courtroom, a juror immediately notified the Sheriff's officer that the witness was his work colleague. The juror had not recognised the witness's name when the Crown read the witness list at the outset of the trial, so no earlier disclosure had been made. Steps were taken to separate the juror from the remaining eleven while the matter was addressed in the absence of the full jury.
The court received several competing applications about how to proceed. Counsel for the two accused charged with murder argued the trial should be severed, with their clients continuing before a full twelve-person jury, since the witness was relevant only to the accessory charge. The Crown submitted the juror should be discharged and the trial continue with eleven jurors under the Jury Act 1977.
Legal Issues
- Whether the juror should be discharged on the basis of a reasonable apprehension of bias arising from his personal connection to the Crown witness.
- Whether, following discharge, the trial should be severed so that the murder accused could continue before a full twelve-person jury.
- Whether the trial could properly continue with eleven jurors under section 53C(1)(b) of the Jury Act 1977, and specifically whether there was "no risk of a substantial miscarriage of justice" in doing so.
Decision
Rothman J was not satisfied that the juror would actually fail to give impartial consideration to the case. However, his Honour was satisfied that the juror's relationship with the witness gave rise to a reasonable apprehension of bias, and that discharge was therefore appropriate. The mandatory discharge provisions of section 53A of the Jury Act 1977 did not apply, but the court's general discretion to discharge a juror on grounds of potential partiality was engaged.
On the severance application, his Honour declined to sever the trial at this late stage. The accused had been content to proceed together throughout, and the witness in question was the very last in the Crown case. No application for severance had been made at any earlier point. Rothman J was not persuaded that any of the accused would be disadvantaged by the discharge of the juror or that severance was warranted.
His Honour acknowledged the strong principle that an accused is prima facie entitled to a verdict reached by twelve jurors, describing that as the optimal operation of the jury system. The legislature had nonetheless provided for continuation with a reduced jury under strict conditions. Satisfied that the remaining eleven jurors were not coloured by the juror's connection to the witness, and noting that the collective nature of jury deliberation would still function effectively, his Honour concluded there was no risk of a substantial miscarriage of justice.
The trial was ordered to continue with eleven jurors pursuant to section 53C(1)(b) of the Jury Act 1977, a course his Honour also noted satisfied the requirements of section 22 of that Act.
Orders Made
- The juror was discharged.
- An order was made under section 53C(1)(b) of the Jury Act 1977 that the trial continue with eleven jurors.
Key Takeaways
- A juror need not be shown to be actually biased before discharge is appropriate; a reasonable apprehension of bias arising from the juror's familiarity with a witness is sufficient to enliven the court's discretion to discharge.
- Under section 53C(1)(b) of the Jury Act 1977, a trial may continue with fewer than twelve jurors where the court is satisfied there is no risk of a substantial miscarriage of justice, provided the number does not fall below ten.
- The Supreme Court confirmed that an accused's entitlement to a verdict by twelve jurors is the starting point and the preferred position, but the legislature has sanctioned departure from that position under strict conditions.
- Refusing the severance application, Rothman J weighed the stage of proceedings heavily: with only the final Crown witness remaining, and no earlier application for severance having been made, the disruption of splitting the trial was not justified.
- The circumstances of disclosure mattered to the court's reasoning: the juror's immediate notification to the Sheriff upon seeing the witness, rather than at the time the witness list was read, indicated there was no earlier opportunity for the juror to have identified the connection.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), sections 22, 53A, and 53C(1)(b)
Cases cited: None identified in the judgment text or metadata.