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Supreme Court 3 March 2016

R v Gordon (No 3)

[2016] NSWSC 308

Homicide
CRIMINAL LAW PROCEDURE DISCHARGE OF JURY WHERE JURY MEMBER RELATED TO DECEASED

Citation: R v Gordon (No 3) [2016] NSWSC 308
Court: Supreme Court of New South Wales
Date: 3 March 2016
Judge: Campbell J

Background

The accused stood trial for murder before a jury empanelled the day before this decision. Opening addresses had been completed and examination-in-chief of the first Crown witness, a crime scene examiner, was underway.

During the trial, the sheriff informed the court that a juror had contacted her with newly discovered information about his relationship to the deceased. The juror had learned, through a family member who became aware he was on jury duty, that he was a blood relative of the deceased. The juror believed he had never met the deceased during his lifetime.

Two questions then arose for the court: whether to discharge the individual juror, and, if so, whether the remaining eleven jurors should continue the trial or the whole jury should be discharged.

  • Whether the juror's family connection to the deceased gave rise to apprehended bias sufficient to warrant discharge under s 53B(b) of the Jury Act 1977 (NSW)
  • Whether the trial should continue with the remaining eleven jurors, or whether the entire jury should be discharged

Decision

Campbell J discharged the juror under s 53B(b) of the Jury Act 1977. The section permits discharge where it appears that a juror may not be able to give impartial consideration to the case due to a reasonable apprehension of bias or a similar reason. His Honour was satisfied the juror had not acted with any misconduct and had come upon the information innocently through family communication.

Although there was no reason to believe the juror harboured actual bias, Campbell J applied the reasonable bystander test. A reasonable bystander, knowing the facts of the case and the juror's family connection to the deceased, would question whether that juror could impartially adjudicate a charge of murdering a blood relative. His Honour also noted that because one live issue was whether the accused's conduct constituted murder or manslaughter, apprehended bias could have a practical impact on that juror's deliberations.

On the second question, both defence counsel and the Crown agreed the whole jury should be discharged rather than the trial continuing with eleven jurors. Campbell J accepted their submissions. The charge was the most serious in the criminal calendar aside from treason, and the accused faced the prospect of decades of imprisonment if convicted. The ordinary expectation in such cases is trial by twelve peers, and the proceedings were at a very early stage with minimal time and evidence lost.

Campbell J ordered discharge of the entire jury, noting that another panel was available the following Monday and that the short delay, while potentially extending proceedings beyond the Easter break, was outweighed by the interests of justice. He also observed that counsel and the court could use the intervening time on interlocutory and evidentiary matters.

Orders Made

  • The individual juror was discharged pursuant to s 53B(b) of the Jury Act 1977 (NSW)
  • The remaining jury of eleven members was discharged in full
  • The trial was to recommence with a fresh jury panel on the following Monday

Key Takeaways

  • Under s 53B(b) of the Jury Act 1977 (NSW), discharge of a juror does not require a finding of actual bias or misconduct; a reasonable apprehension of bias is sufficient.
  • Apprehended bias is assessed by asking whether a reasonable bystander, knowing the relevant facts, would question whether the juror could bring an impartial mind to the case.
  • A family connection between a juror and the deceased in a murder trial can give rise to apprehended bias even where the juror has never met the deceased and discovered the connection innocently.
  • Where a juror is discharged early in a serious criminal trial, the court retains a discretion under s 22 of the Jury Act 1977 to allow the trial to continue with a reduced jury of not fewer than ten, but the seriousness of the charge and the stage of proceedings are material considerations in exercising that discretion.
  • The principle that justice must not only be done but must be seen to be done was treated as a substantive driver of the decision, not merely a rhetorical flourish.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 53B(b) (discharge of individual juror for apprehended bias)
- Jury Act 1977 (NSW), s 22 (continuation of trial with reduced jury)

Cases cited: No cases were cited in the judgment.