AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 5 February 2019

R v Khan (No 4)

[2019] NSWSC 42

Public order & justice offences
CRIMINAL LAW JURY DISCHARGE OF JURY

Citation: R v Khan (No 4) [2019] NSWSC 42
Court: Supreme Court of New South Wales
Date: 5 February 2019
Judge: Bellew J

Background

The decision arose during a criminal trial before the Supreme Court. Before proceedings commenced one morning, the Sheriff informed the judge that a third party had reported seeing a member of the public approach a juror (referred to as Juror W) near the intersection of King and Elizabeth Streets the previous afternoon. The alleged approach involved the member of the public saying words to the effect of: "You have a big decision to make. Good luck."

When brought into court and questioned under oath, Juror W denied that any such approach had occurred. He attributed the incident to a brief exchange with a fellow juror and a nearby couple who may have mistaken him for someone they knew.

Later that morning, the foreperson of the jury (referred to as Juror X) passed a note to the judge. That note disclosed that on the day Juror X had been empanelled, he had been approached on a train by a woman he believed to be the same person who had approached Juror W. This directly contradicted Juror W's sworn denial that any approach had ever taken place.

  • Whether Juror W should be discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW), which permits discharge of an individual juror.
  • Whether the entire jury should be discharged pursuant to s 53C of the Jury Act 1977 (NSW), on the basis that continuing the trial would give rise to a risk of a substantial miscarriage of justice.
  • Whether the sworn evidence of Juror W was truthful, given the contradictory account provided by Juror X.

Decision

Bellew J found that there was evidence of at least one, and possibly two, jurors having been approached by a member of the public on separate occasions after leaving court. His Honour noted that the situation raised more questions than it answered, but that the contradictions between the sworn evidence of Juror W and the contents of Juror X's note gave rise to prima facie evidence that Juror W's testimony may not have been truthful.

The court first determined that Juror W should be discharged under s 53B(d) of the Jury Act 1977 (NSW). However, having heard the full evidence of Juror X, including that there had been discussion among jurors in the jury room about the matter, Bellew J concluded that discharging Juror W alone was insufficient.

His Honour held that the interests of justice could only be properly served by discharging the entire jury under s 53C. Continuing with the existing jury, in the circumstances, would give rise to the risk of a substantial miscarriage of justice. The court reached this conclusion despite the accused having effectively withdrawn an application for discharge, noting that it was not bound by the parties' positions on that question.

Bellew J also indicated that a copy of the judgment, together with MFI 20 (Juror X's note) and the full transcript of both jurors' evidence, would be forwarded to the Sheriff of New South Wales. His Honour directed that the matters, including Juror W's evidence, be investigated by either the Sheriff or the New South Wales Police.

Orders Made

• Juror W is discharged
• The entire jury is discharged
• A copy of the judgment to be forwarded to the Sheriff of New South Wales, along with a copy of MFI20 and transcript of the evidence of Juror W and Juror X
• The matters raised, including the evidence of Juror W, are to be investigated by the Sheriff or New South Wales Police

Key Takeaways

  • The Supreme Court discharged the entire jury under s 53C of the Jury Act 1977 (NSW) where evidence emerged that at least one juror had been approached by a member of the public outside court, and a second juror's sworn denial of any approach appeared, on its face, to be contradicted by the foreperson's written note.
  • A trial judge is not bound by the positions of the parties when deciding whether to discharge a jury. The accused's effective withdrawal of the discharge application did not prevent the court from ordering discharge on its own assessment of the interests of justice.
  • Under s 53C of the Jury Act 1977 (NSW), discharge of the entire jury is warranted where continuing would give rise to a risk of a substantial miscarriage of justice. The threshold is the risk of substantial miscarriage, not certainty of one.
  • Juror discussions in the jury room about an external approach to one of their members formed part of the factual basis for the whole-jury discharge, illustrating that contamination concerns can extend beyond the juror directly approached.
  • Where a juror's sworn evidence appears inconsistent with other evidence before the court, the matter may warrant referral to the Sheriff or police for investigation, as occurred here.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53B(d), 53C, 55D
- Evidence Act 1995 (NSW)

Cases cited: No cases were cited in the judgment.