Citation: R v Dunstall (No 2) [2018] NSWSC 1448
Court: Supreme Court of New South Wales
Date: 26 September 2018
Judge(s): Button J
Background
The accused stood trial in the Supreme Court at Wollongong on a single count of murder. A jury of 12 was empanelled on Monday 10 September 2018 and the trial commenced that day. On the same afternoon, the sheriffs drew the court's attention to a reimbursement application that revealed one juror was an "excluded person" under Schedule 1 of the Jury Act 1977 (NSW), by reason of his employment within the Juvenile Justice system. That juror was questioned in writing, confirmed to be excluded, and was discharged without controversy.
The discharge raised an immediate secondary question: whether to continue with the remaining 11 jurors under ss 22 and 53C of the Act, or to discharge all 11 and start afresh. The Crown pressed for continuation. Senior counsel for the accused sought a fresh start, arguing the accused had a preference to be tried by a full jury of 12 from the outset of the substantive trial.
The logistical history of the trial was significant. An earlier attempt to empanel a jury on Wednesday 5 September 2018 had collapsed because only 22 potential jurors attended, an insufficient number. That proceeding was adjourned to the following Monday, when large panels were available. Discharging the 11 remaining jurors and starting afresh on Thursday 13 September 2018 would have meant the jury phase of the trial was effectively delayed by more than a week from the original commencement date.
Legal Issues
- Whether to discharge the juror who was an "excluded person" under Schedule 1 of the Jury Act 1977 (NSW) (uncontroversial).
- Whether, once that juror was discharged, to exercise the discretion under ss 22 and 53C of the Act to continue the trial with the remaining 11 jurors, or to discharge the whole jury and reconstitute with a fresh panel of 12.
Decision
Button J treated the two questions as entirely separate, following the High Court's approach in Wu v the Queen (1999) 199 CLR 99. Discharge of the excluded juror was inevitable. Continuation with fewer than 12 jurors was not automatic and required a genuine exercise of discretion, framed by the question of how best the trial of the accused should proceed in all the circumstances.
His Honour accepted that there was no basis to infer that the excluded juror had said or done anything prejudicial to the remaining 11. The accused had already received his full right to commence trial before a jury of 12, which had occurred. While a verdict of 12 is generally preferable, the Act already contemplates verdicts by fewer jurors through mechanisms such as majority verdicts.
Button J weighed the earlier logistical delays as a relevant consideration. Discharging the jury and reconvening on Thursday 13 September 2018 would have extended the total delay to over a week from the original commencement date of 5 September. The interests of the administration of justice, while not capable of obliterating other considerations, provided a positive reason to continue. His Honour also assessed the risk of the trial needing to abort due to further juror attrition as reasonably low, given the parties' effective preparation was likely to shorten the hearing.
Weighing all factors, Button J exercised his discretion in favour of continuing the trial with 11 jurors. He characterised a verdict from 11 randomly selected community members, focused on a serious allegation, as remaining a "formidable body of opinion."
Orders Made
• The court exercised its discretion not to discharge the remaining 11 jurors and to continue with the trial
Key Takeaways
- The discharge of an excluded juror and the decision whether to continue with a reduced jury are two legally distinct questions, to be addressed separately: Wu v the Queen (1999) 199 CLR 99 remains the leading authority.
- Continuation with fewer than 12 jurors is not automatic following the discharge of an excluded juror; the court must exercise a genuine discretion directed to how best the trial of the accused should proceed in all the circumstances.
- The history and context of logistical difficulties that have already delayed a trial form a relevant, though not determinative, consideration when deciding whether to incur further delay by discharging a jury and reconstituting.
- An accused person has a right to commence trial before a jury of 12, but a verdict from a reduced jury remains lawful under the Jury Act 1977 (NSW), and the Act itself already contemplates verdicts by fewer than 12 through mechanisms including majority verdicts.
- The interests of the administration of justice are a legitimate factor in the continuation discretion, provided they do not overwhelm the other considerations bearing on a fair trial for the accused.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 22, 53C, Schedule 1
Cases
- Wu v the Queen [1999] HCA 52; (1999) 199 CLR 99