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Supreme Court 2 June 2016

R v Rogerson; R v McNamara (No 55)

[2016] NSWSC 720

Other
CRIMINAL LAW JURY DISCRETIONARY DISCHARGE OF JUROR

Citation: R v Rogerson; R v McNamara (No 55) [2016] NSWSC 720
Court: Supreme Court of New South Wales
Date: 2 June 2016
Judge: Bellew J

Background

This decision arose during the high-profile murder trial of two accused, heard before Bellew J in the Supreme Court. By the time of this ruling, the trial had been running for more than four months and the judge was approximately halfway through his summing-up to the jury.

Shortly before proceedings commenced on the day in question, a juror sent the judge a note requesting to be excused, citing a pressing work commitment. The court sought further detail, and through two additional notes the juror explained that he owned a restaurant and that the commencement of Ramadan the following Monday or Tuesday would require him to work until approximately 4am each night due to changed trading hours.

The juror also clarified that while someone had filled in for him during the trial, the changed hours associated with the holy month meant he would personally need to be present at the business until very late each night. The question before the court was whether these circumstances justified his discharge under the Jury Act 1977 (NSW).

  • Whether the circumstances described by the juror constituted a sufficient basis to discharge him under section 53B(d) of the Jury Act 1977 (NSW).
  • Whether the court should first inquire into whether another person could manage the juror's business before exercising the discretion to discharge.

Decision

Bellew J identified the relevant power as section 53B(d) of the Jury Act 1977 (NSW), which permits a court to discharge a juror where it appears that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act. His Honour described the provision as conferring a wide discretion.

The court accepted that if the juror remained and was not eliminated by ballot, and if deliberations extended into the following week, he would be required to work until 4am each night and then return to court only hours later to participate in serious deliberations. Bellew J concluded this situation would plainly not be conducive to the juror properly discharging his obligations, and that allowing it to eventuate would be unfair to all parties.

His Honour also identified a specific risk that, under such pressure, the juror might simply conform to a particular view during deliberations in order to conclude the process quickly and return to his business. That risk was treated as a significant additional reason supporting discharge.

On the question of whether further inquiry was needed into alternative staffing arrangements, Bellew J did proceed to seek that information. The juror's third note confirmed no such alternative was available for the Ramadan period. All counsel ultimately agreed the discharge was appropriate.

Orders Made

  • Juror number 01436073 was discharged.
  • The trial was ordered to proceed with the remaining 12 jurors.
  • The discharged juror was to be brought into court personally to be thanked and reminded that he must have no contact with the remaining jurors prior to the delivery of verdicts, and that the Jury Act creates offences relating to disclosure of jury information.
  • The Sheriff was directed to escort the discharged juror from the premises without further contact with the remaining jurors.
  • The remaining 12 jurors were to be reminded that they must have no contact with the discharged juror.

Key Takeaways

  • Section 53B(d) of the Jury Act 1977 (NSW) confers a wide discretion to discharge a juror where any reason affects that juror's ability to perform juror functions, and the Supreme Court confirmed it extends to significant personal and business commitments arising after a juror has already been serving.
  • A concrete risk that a juror might conform to a verdict simply to escape a personal obligation, rather than based on genuine deliberation, is itself a recognised and weighty reason supporting discharge.
  • Where a juror's circumstances would require them to work until the early hours of the morning before returning to deliberate on serious matters, the court found that allowing such a situation to continue would be unfair to all parties in the proceedings.
  • The court took a graduated approach, seeking three separate notes from the juror before making a final determination, suggesting that adequate factual inquiry into the nature and depth of the commitment formed part of the proper exercise of the discretion.
  • Upon discharge, Bellew J directed both the departing juror and the remaining panel not to have any contact with each other, and arranged physical separation through the Sheriff, reflecting the court's concern to preserve the integrity of deliberations even at a late stage of a lengthy trial.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 53B(d)

Cases cited: None cited in the judgment.