Citation: R v Gatt (No 1) [2018] NSWSC 425
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge(s): Schmidt J
Background
The accused was on trial before a jury in criminal proceedings involving allegations related to murder, drug dealing, and the possession of firearms. On the fourth day of the hearing, 6 April 2018, a juror sent a note to the court raising a concern that had arisen that morning.
The juror had recognised people sitting in the public gallery, believing them to be former schoolmates. His concern was that those individuals were present because of a connection to the accused or others involved in the events underlying the criminal proceedings. He indicated he had no concern about continuing to sit if the presence of those people was unconnected to the trial.
Enquiries conducted in court confirmed that the recognised persons were indeed known to the accused. It also emerged that the juror had discussed his recognition of those gallery attendees with other members of the jury before sending his note, though that appeared to be the full extent of those discussions.
Legal Issues
- Whether the juror's circumstances warranted discharge under s 53B(d) of the Jury Act 1977 (NSW)
- Whether the juror's ability to perform his functions as a juror had been sufficiently affected to justify discharge
Decision
The accused applied for the juror to be discharged, and the Crown did not oppose the application. Schmidt J accepted the common position of the parties and discharged the juror on 6 April 2018. These reasons were published on 30 April 2018.
Section 53B(d) of the Jury Act 1977 (NSW) empowers a court to discharge a juror where, for any reason affecting the juror's ability to perform juror functions, it appears the juror should not continue to act. Schmidt J was satisfied that threshold had been met in the circumstances that had arisen.
The judge identified two key considerations. First, the juror's anonymity had been compromised: the people he recognised in the gallery were confirmed to be known to the accused, in a trial involving serious allegations of murder, drug dealing, and firearms offences. Second, the juror had already discussed the matter with other jurors before raising it with the court, which was an additional factor bearing on the integrity of his continued service.
Schmidt J was satisfied that the juror's ability to perform his functions had been sufficiently affected that he should not continue, and the discharge was ordered accordingly.
Orders Made
• The juror was discharged pursuant to section 53B(d) of the Jury Act 1977 (NSW)
Key Takeaways
- Under s 53B(d) of the Jury Act 1977 (NSW), a court may discharge a juror where any reason affects that juror's ability to perform their functions and it appears the juror should not continue.
- Compromise of a juror's anonymity, in the context of a serious criminal trial involving murder, drug dealing, and firearms offences, can constitute sufficient grounds for discharge under that provision.
- The Supreme Court treated the juror's prior discussion of the matter with fellow jurors as a relevant circumstance, though it did not appear to found any separate order regarding the remaining jury.
- A juror acting in accordance with directions by promptly notifying the court of a concern does not thereby avoid the possibility of discharge if the underlying circumstances justify it.
- Where both the accused and the Crown took a common position on the discharge application, the court accepted that position after conducting its own enquiries and satisfying itself that the statutory test was met.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 53B(d)
Cases cited:
- None cited in the judgment.