Citation: R v Khan (No 1) [2018] NSWSC 577
Court: Supreme Court of New South Wales
Date: 2 May 2018
Judge(s): Bellew J
Background
The accused stood trial on two alternative counts: engaging in a terrorist act and wounding a person with intent to murder, arising from events at Minto on 10 September 2016. The accused had pleaded not guilty on grounds of mental illness to both counts. The trial commenced on 30 April 2018, with the accused's acts not being in dispute.
During the second day of trial, the complainant gave evidence of the attack. After the complainant's evidence concluded, the accused made unsolicited statements from the dock on two occasions. The trial judge immediately directed the jury to disregard those statements and not to incorporate them into their deliberations.
On the morning of the third day, court officers informed the trial judge that one juror was visibly distressed, had separated herself from the other jurors, and was in tears. When asked to describe her health in writing, that juror refused an initial request but subsequently provided a typewritten letter. That letter prompted the trial judge to consider whether she, and then the remaining jurors, should be discharged.
Legal Issues
- Whether the distressed juror should be discharged individually under s 53B(d) of the Jury Act 1977 (NSW) on the basis that she was no longer capable of performing her functions as a juror.
- Whether, following the discharge of that individual juror, the remaining members of the jury should also be discharged in the exercise of the court's separate discretion.
Decision
Issue 1: Discharge of the individual juror
The juror's written communication made no reference to her reported physical illness. More significantly, it stated in explicit terms that she had lost confidence in her ability to freely discuss relevant matters in the jury room (at [13]). Bellew J held that any juror must feel free to participate in deliberations, and this juror had clearly stated she could no longer do so. He therefore discharged her under s 53B(d) of the Jury Act 1977 (NSW) (at [16]).
Issue 2: Discharge of the remaining jury
The question of whether to discharge the remaining jurors engaged a separate and distinct discretion (at [17]). Although the trial was still in its early stages, Bellew J identified two serious concerns. First, the final paragraphs of the juror's letter indicated a degree of disharmony among at least some jurors, including a suggestion that the foreperson may have been seeking to exert inappropriate authority over other members, conduct the judge described as not conducive to the proper administration of justice (at [18]). Second, it was apparent that jurors had been discussing the accused's dock outbursts despite being specifically directed to ignore them (at [19]). Taken together, these matters led Bellew J to discharge the entirety of the jury (at [20]).
Orders Made
- The individual juror was discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW).
- The entirety of the remaining jury was discharged.
Key Takeaways
- Discharge of an individual juror and discharge of the entire jury are governed by separate discretions; the exercise of one does not automatically determine the other (at [17]).
- A juror who expressly states that she has lost confidence in her ability to freely participate in jury room discussions has, in the court's view, rendered herself incapable of performing the essential functions of a juror within the meaning of s 53B(d) of the Jury Act 1977 (NSW) (at [16]).
- Evidence that jurors discussed material they were explicitly directed to disregard weighed in favour of discharging the full jury, even at an early stage of the proceedings (at [19]).
- Indications of internal jury disharmony, including suggestions of inappropriate exercise of authority by a foreperson over other jurors, are relevant considerations when deciding whether to discharge the remaining panel (at [18]).
- Under s 53B(d), the foreperson holds no greater authority than any other juror in the deliberation process; the role is essentially administrative (at [14]).
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW).
Cases
- Not stated