Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 370
Court: Supreme Court of New South Wales
Date: 23 March 2018
Judge(s): Harrison J
Background
Four accused were being tried together in concurrent criminal trials. During jury deliberations, one juror failed to appear, having telephoned the Sheriff's Office to report that he was suffering from anxiety and did not feel he could continue participating in the proceedings.
The Sheriff's Acting Officer in Charge gave evidence that the juror had expressed difficulty being in a room with eleven strangers and indicated he intended to seek a medical certificate on Monday with a view to being formally excused. The juror had also been absent on two prior occasions due to illness, though those earlier absences had not been attributed to anxiety.
Harrison J had previously observed that this juror appeared to fall asleep or doze during the trials, at one point reclining with his jacket pulled over him like a blanket. The court had not acted on those observations previously, as neither counsel nor the jury foreperson had raised any concern.
Legal Issues
- Whether the juror should be discharged under s 53B of the Jury Act 1977 (NSW) on the ground that he had become so ill or incapacitated as to be likely to become unable to serve before the jury delivered its verdicts.
- Whether the trials should continue with the remaining eleven jurors under s 53C, or whether the entire jury should be discharged under s 22.
Decision
Issue 1: Discharge of the individual juror
Harrison J was satisfied that the juror should be discharged under s 53B. The court found the juror had become so ill or incapacitated as to be likely unable to serve before verdicts were delivered (at [6]). Although no medical evidence had yet been produced and the reference to "anxiety" came only from the juror himself, the court accepted that the juror had effectively disengaged from the process entirely (at [6]).
The court identified a specific risk that if the juror were compelled to continue, he might make a decision driven by a desire to end the process quickly rather than by a calm consideration of the evidence, which the court described as inimical to the interests of justice (at [6]). All counsel, having taken instructions, agreed that discharge was appropriate (at [4]).
Issue 2: Continuation with eleven jurors
Harrison J then considered s 53C, which required the court to assess whether continuing with eleven jurors risked a substantial miscarriage of justice. The court concluded there was no such risk (at [11]).
The remaining jurors had proceeded diligently, asking detailed questions of the court, and there were no signs of deadlock, disharmony, or any disrupting effect from the departing juror's discharge (at [11]). In those circumstances, the court determined the trials should proceed with eleven jurors and that s 22 of the Act, which would require discharge of the whole jury, was not engaged (at [12]).
Orders Made
- The juror was discharged.
- The trials are to continue with eleven jurors.
Key Takeaways
- Under s 53B of the Jury Act 1977 (NSW), a juror may be discharged where the court forms the view that illness or incapacity makes the juror likely to be unable to serve before the jury delivers its verdict, even in the absence of formal medical evidence, where the broader circumstances demonstrate effective disengagement from the process (at [6]).
- A juror's self-reported anxiety, combined with evidence of a complete unwillingness to return, can satisfy the incapacity threshold in s 53B, with the court expressly noting the risk that a compromised juror might decide based on a desire to end proceedings rather than on the evidence (at [6]).
- Where an individual juror is discharged during deliberations, s 53C requires the court to assess whether continuing with a reduced jury risks a substantial miscarriage of justice. The absence of deadlock, disharmony, or disruption among the remaining jurors weighs in favour of continuation (at [11]).
- The Supreme Court confirmed that s 22 of the Act, which provides for discharge of the entire jury, is only engaged where a risk of miscarriage of justice from continuing with fewer jurors is established (at [12]).
- Prior episodes of a juror appearing inattentive or drowsy during a trial, without complaint from counsel or the foreperson, did not independently lead the court to take action, though the court noted those observations as part of the overall picture when assessing the juror's capacity (at [8]).
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW) ss 22, 53B, 53C
Cases
- Not stated