Citation: R v Rogerson; R v McNamara (No 16) [2016] NSWSC 20
Court: Supreme Court of New South Wales
Date: 3 February 2016
Judge: Bellew J
Background
This ruling arose during the high-profile murder trial of Roger Rogerson and Glen McNamara, on day three of proceedings expected to run for at least three months. Fifteen jurors had been empanelled to account for the trial's anticipated length.
On the second day of the trial, a journalist from The Australian newspaper attended court for the first time after being directed by his editors to cover the proceedings. Upon entering the courtroom, he immediately recognised one of the jurors as a close personal friend. He had known her his entire life through a family association spanning 23 years, attended the same church, and spoke with her approximately once a fortnight.
The journalist had not been present when the jury was empanelled. He avoided eye contact with the juror throughout the day, filed a story about the trial, and the following morning notified the Sheriff. Separately, the juror herself sent a note to the judge reporting that she had recognised a member of the media in court. Both parties acted responsibly in bringing the matter to the court's attention promptly.
Legal Issues
- Whether the juror should be discharged given her close personal friendship with a journalist reporting on the trial
- Whether there was any basis to discharge the entire jury on the ground of contamination of the remaining jurors
Decision
Bellew J discharged the individual juror, concluding that it was undesirable and inappropriate to allow her to remain. The central concern was not any actual wrongdoing, but the ongoing risk created by the combination of a close personal relationship between a juror and an active court reporter, and a trial that would attract significant media coverage for several months.
The judge accepted that neither the juror nor the journalist was unaware of their respective responsibilities. However, the court was not in a position to prevent them from associating with each other during the months the trial would run. All parties in the proceedings were entitled to a fair trial, and anything capable of impinging upon that right warranted a serious response. With 15 jurors originally empanelled precisely to guard against attrition, proceeding with 14 remained a viable option at this early stage.
The court firmly rejected the application by counsel for McNamara to discharge the entire jury on contamination grounds. Accepting the journalist's evidence as truthful, no conversation about the trial had taken place between the journalist and the juror. At most, the juror could have told her fellow jurors that she recognised someone from the media in court. That fell well short of the standard required to justify discharging the full panel.
Orders Made
- Juror number 650-14 was discharged.
- The trial was to proceed with the remaining 14 empanelled persons.
- Upon resuming, the judge indicated he would explain the situation to the remaining jurors in broad terms and direct them not to speculate about the reasons for the discharge.
Key Takeaways
- A close, longstanding personal friendship between a juror and a journalist actively reporting on a high-profile trial is sufficient to warrant the juror's discharge, even where no improper communication has occurred.
- The right to a fair trial extends to all parties, and any circumstance with the capacity to impinge upon that right warrants careful and prompt judicial attention.
- Discharging an entire jury on contamination grounds requires actual evidence of contamination; the mere possibility that a juror may have shared innocuous information with fellow jurors does not meet that threshold.
- Where a trial is of significant length and additional jurors have been empanelled precisely to guard against attrition, proceeding with a reduced panel at an early stage remains an appropriate course.
- Both the journalist and the juror were credited for acting responsibly by independently bringing the matter to the court's attention, and no blame was attributed to either for the situation that arose.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment.