Citation: R v Khayat (No 12) [2019] NSWSC 1321
Court: Supreme Court of New South Wales
Date: 9 August 2019
Judge(s): Adamson J
Background
The accused was on trial before a jury in the Supreme Court on what was described as a relatively complex circumstantial case. The trial had reached its fifth day and was expected to run for approximately four weeks in total.
On the afternoon of the fifth day, a series of jury notes prompted the court's attention. The notes revealed that at least one juror had been expressing vociferous opinions during breaks and behaving in a way that was distressing to fellow jurors. After the trial judge addressed the jury about their roles and responsibilities, abusive remarks were made by one juror toward at least one other during a subsequent adjournment.
The accused, through senior counsel, applied for the discharge of the entire jury. The Crown did not oppose the application and indicated it would consent if a new panel could be empanelled promptly, which the listing office confirmed was a real prospect for the following Monday.
Legal Issues
- Whether the conduct and disharmony among jurors reached the threshold of "high degree of necessity" required to justify discharging the whole jury in the exercise of the court's inherent jurisdiction.
Decision
Adamson J identified the core principle at stake: all jurors must be able to perform their role as impartial judges of fact without fear of recrimination from fellow jurors and without being distracted by disharmony within the group. Jurors must feel comfortable adhering to their oaths or affirmations. The court observed it has a responsibility for the welfare of jurors as participants in the administration of justice.
The conduct that had occurred by the fifth day of trial was, in her Honour's assessment, fundamentally inconsistent with maintaining that necessary level of comfort and impartiality. The pattern of escalating notes, the visible apprehension among jurors when the judge gave directions, and the abusive remarks made during the adjournment all pointed to a breakdown in the jury's capacity to function properly.
Adamson J was satisfied that the high degree of necessity required to discharge the entire jury had been met. The case was a complex one that required each juror to apply themselves carefully and without distraction. While some disagreement among randomly selected jurors is normal and a feature of the system's strength, the situation here went beyond that threshold and required the jury's discharge in the interests of justice.
Orders Made
- The whole jury was discharged.
Key Takeaways
- The Supreme Court confirmed that the inherent jurisdiction to discharge an entire jury requires a "high degree of necessity," a threshold it found satisfied by a combination of escalating juror disharmony, abusive conduct between jurors, and visible apprehension among members of the panel.
- Jurors must be able to perform their fact-finding role free from fear of recrimination by fellow jurors. A court has an obligation to be solicitous for the welfare of jurors as contributors to the administration of justice.
- Some degree of disagreement among randomly selected jurors is an accepted and healthy feature of the jury system. The present conduct, however, crossed into territory inconsistent with proper jury function.
- The complexity of the case was a relevant factor: a circumstantial case of this kind demanded sustained, undistracted attention from each juror, making the prevailing disharmony particularly corrosive to the trial process.
- The accused's application was not opposed by the Crown, and the availability of a new panel within days was a practical consideration informing the court's readiness to discharge.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment as extracted.