Citation: R v WE (No.8) [2019] NSWSC 1030
Court: Supreme Court of NSW
Date: 13 August 2019
Judge: Bellew J
Background
The accused stood trial on an indictment alleging the commission of acts in preparation for, or planning, a terrorist act. The trial commenced on 15 July 2019 with a jury that was subsequently reduced to 11 members after an earlier discharge of one juror. Deliberations began on the morning of Friday 9 August 2019.
On 12 August 2019, the jury sent a note to Bellew J raising concerns about reaching a unanimous verdict and noting that one juror was due to travel overseas on 18 August. The court had already been aware of that travel commitment and had previously assured the juror that steps could be taken to address the situation if it arose.
On the morning of 13 August 2019, before the court reconvened, the Sheriff provided Bellew J with two documents: a medical certificate and a handwritten note from the foreperson. Those two documents prompted the decisions that are the subject of this judgment.
Legal Issues
- Whether juror 2334050 should be discharged on the basis of medical evidence that she was suffering severe stress caused by the jury deliberations.
- Whether, following a significant verbal altercation between that juror and the foreperson, continuing with the remaining jury would give rise to the risk of a substantial miscarriage of justice, warranting discharge of the whole jury under s 53C(1)(a) of the Jury Act 1977 (NSW).
Decision
A medical certificate from a general practitioner stated that juror 2334050 was suffering from severe stress brought about by the deliberations and that it was in her best interest to withdraw immediately. Bellew J discharged that juror on the basis of the medical evidence. This was relatively straightforward.
The foreperson's note described a verbal confrontation that had occurred early in the deliberations. The exchange escalated from a dispute about who should write on the board to a deeply offensive homophobic slur directed at the foreperson by the other juror, in front of all remaining jurors. The foreperson confirmed that the juror involved in the altercation was juror 2334050.
Bellew J interviewed the foreperson and other jurors about whether effective deliberations could continue. Their responses were not unanimous. Some jurors expressed concern that harmonious deliberations were no longer possible. Bellew J noted that the altercation had occurred at a very early stage of deliberations, which heightened the concern about whether the remaining jury could properly perform its function.
Under s 53C(1)(a) of the Jury Act 1977, the court must discharge the jury if it forms the opinion that continuing with the remaining jurors would give rise to a risk (not merely a certainty) of a substantial miscarriage of justice. Bellew J concluded that the combination of the early breakdown in civil conduct, the nature and severity of the exchange, and the divided views among remaining jurors about whether harmonious deliberations could resume, satisfied that test. He accordingly discharged the remaining members of the jury.
Orders Made
- Juror 2334050 was discharged.
- The remaining members of the jury were discharged.
Key Takeaways
- Section 53C(1)(a) of the Jury Act 1977 (NSW) requires discharge of a jury where the court is of the opinion that continuing the trial with remaining jurors would give rise to the risk of a substantial miscarriage of justice. The threshold is risk, not certainty.
- A medical certificate establishing that a juror is suffering severe stress caused by deliberations provided sufficient basis for that juror's individual discharge.
- Jury deliberations that are not harmonious, civil, and conducive to reaching a unanimous verdict can satisfy the risk threshold under s 53C(1)(a), particularly where the breakdown in conduct occurs at a very early stage.
- The Supreme Court confirmed that divided views among the remaining jurors as to whether effective deliberations could continue was a relevant and significant factor in the discharge decision.
- Bellew J reiterated that all jurors are equals in the jury room, that no juror's opinion carries greater weight than another's, and that the foreperson occupies a particular procedural role only.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), particularly s 53C(1)(a), s 55D, and s 55DA
Cases:
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Phan v R [2018] NSWCCA 225
- R v Moore [2014] NSWSC 1955
- R v Mulvihill [2016] NSWCCA 259
- R v Qaumi and ors (No 36) [2016] NSWSC 718
- R v WE (No 6) [2019] NSWSC 930
- Wu v R [1999] HCA 52; (1999) 199 CLR 99