Citation: R v Khan (No 5) [2019] NSWSC 56
Court: Supreme Court of New South Wales
Date: 7 February 2019
Judge: Bellew J
Background
The accused was charged with doing an act or acts in preparation for a terrorist act. Following his not-guilty plea, a jury was empanelled in the usual way. Before empanelment, Bellew J specifically and twice addressed the panel about the importance of disclosing any health issues that might affect their ability to serve, including a direct warning that failing to do so could cause the entire process to be aborted at significant cost.
The morning after empanelment, the Sheriff delivered a medical certificate to the court. The certificate stated that a juror, referred to as Juror R, was suffering from anxiety and depression following the recent loss of her father and was unfit for jury duty. No explanation emerged as to why Juror R had not raised this when given the opportunity to do so.
The Crown submitted that the entire jury should be discharged so that the trial could recommence with a full jury of twelve. Counsel for the accused was instructed to proceed with eleven jurors, though he acknowledged the general undesirability of commencing a lengthy trial in that way.
Legal Issues
- Whether Juror R should be discharged under section 53B of the Jury Act 1977 (NSW) on the ground of illness or incapacity.
- Whether, following the discharge of Juror R, the remaining eleven jurors should also be discharged under section 53C of the Act, rather than allowing the trial to proceed with a reduced jury.
Decision
Bellew J was satisfied that the medical certificate, though imperfectly worded, provided sufficient basis to exercise the discretionary power under section 53B(a) of the Jury Act 1977 to discharge Juror R. That provision allows discharge where a juror has become so ill or incapacitated as to be likely unable to serve before the jury delivers its verdict.
The more significant question was what to follow from that discharge. Bellew J drew on the Court of Criminal Appeal's reasoning in R v Wu (1998), which emphasised that an accused should not be lightly deprived of the right to be tried by twelve persons. The discharge of even a single juror removes one voice from the deliberations that will determine the verdict.
Given the trial was at its very earliest stage and a new panel could be assembled quickly, Bellew J concluded that it was appropriate to discharge the balance of the jury as well. Proceeding with eleven jurors from the outset of a multi-week trial was considered undesirable, and the accused's right to a full jury of twelve weighed heavily in that determination.
Orders Made
- Juror R is discharged.
- The balance of the jury is also discharged.
Key Takeaways
- The Supreme Court confirmed that an accused's right to be tried by a jury of twelve persons is a significant right not to be lightly set aside, consistent with the Court of Criminal Appeal's position in R v Wu.
- Under section 53B(a) of the Jury Act 1977 (NSW), a judge may discharge an individual juror who has become so ill or incapacitated as to be likely unable to serve before a verdict is delivered.
- Where a juror is discharged very early in a trial, section 53C of the Jury Act 1977 provides a further discretion to discharge the remaining jury, and that discretion may properly be exercised to protect the accused's right to a full twelve-person jury.
- The stage of proceedings at the time of discharge is a relevant factor: commencing a lengthy trial with only eleven jurors from the outset was treated differently from a mid-trial reduction in jury size.
- A juror's failure to disclose a material health condition, despite being explicitly prompted to do so before empanelment, may trigger the discharge of the entire jury and a fresh start, with attendant cost and delay.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), sections 53B and 53C
Cases
- R v Wu (1998) 103 A Crim R 416 (NSW Court of Criminal Appeal)