Citation: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 5) [2016] NSWSC 1866
Court: Supreme Court of New South Wales
Date: 20 December 2016
Judge(s): Rothman J
Background
Three accused were on trial for murder before a jury that, by the time of this application, had been reduced to 11 members following the earlier discharge of one juror on apprehension of bias grounds. During Rothman J's summing-up to the jury, family members of the deceased seated at the back of the courtroom displayed one or two photographs of the deceased, the largest being an A4 colour photograph, in a manner visible toward the front of the court.
Counsel for the accused applied to have the entire jury discharged, submitting that the display was intended to influence the jury through sympathy for the deceased. The Judge reserved his reasons at the time of refusing the application and issued this short judgment to explain that decision.
Legal Issues
- Whether the display of photographs of the deceased by the deceased's family during the summing-up gave rise to a sufficient risk of a miscarriage of justice to warrant discharge of the jury in the court's discretion.
- Whether the apparent intention of those displaying the photographs was a determinative factor in the exercise of that discretion.
- Whether an appropriate jury direction could adequately address any prejudice arising from the display.
Decision
Rothman J acknowledged the general discretion available to a trial judge to discharge a jury, noting that discharge is warranted where a mistrial is apprehended or there is a serious risk of a miscarriage of justice. The Judge accepted, on the basis of observations relayed from solicitors and his Associate, that photographs were displayed during the summing-up, even though he had not personally noticed the display during his own surveys of the courtroom.
The Judge rejected the submission that the intention behind displaying the photographs was the determinative factor. Rather, the proper focus was on the actual or apprehended effect on the jury's capacity to determine the issues impartially.
On that question, Rothman J found the risk was not sufficient to warrant discharge for several reasons. The jury already had before it graphic evidence including photographs of the deceased's charred body, meaning additional photographs were unlikely to generate materially greater sympathy. The significant media coverage of the case, including published photographs of the deceased, further reduced the likely impact of the display. Additionally, not all jurors would necessarily have seen the photographs, given the partial obstruction between the back of the courtroom and the jury box.
The Judge made clear he did not condone the conduct, but was satisfied that an appropriate direction to the jury, building on earlier directions emphasising adherence to the evidence, would be sufficient to overcome any risk of prejudice. On that basis, the application was refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that a trial judge's discretion to discharge a jury is enlivened where a mistrial is apprehended or a serious risk of a miscarriage of justice exists, but that threshold must actually be met before discharge is warranted.
- The intention of those responsible for potentially prejudicial conduct is not the determinative consideration; the focus falls on the actual or apprehended effect on the jury's impartiality.
- Where potentially prejudicial material is unlikely to have reached all jurors, and where similar or more confronting material is already in evidence, the residual risk may be addressable by a carefully crafted jury direction rather than the more drastic remedy of discharge.
- Significant pre-existing media coverage of a case, including published images of the deceased, is a relevant factor in assessing the incremental prejudicial effect of photographs displayed in court.
- In dismissing the application, the Court signalled that jury discharge remains a remedy of last resort, to be exercised only where the integrity of the trial process cannot otherwise be preserved.
Legislation and Cases Referenced
No legislation or cases were cited in the text of this judgment.