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Supreme Court 22 July 2019

R v WE (No.6)

[2019] NSWSC 930

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE JURIES JUROR DISCHARGED ORDERED THAT THE TRIAL CONTINUE

Citation: R v WE (No.6) [2019] NSWSC 930
Court: Supreme Court of New South Wales
Date: 22 July 2019
Judge: Bellew J

Background

The accused stood trial on a single count of doing acts in preparation for, or planning, a terrorist act. The Crown alleged the offence was committed jointly with another person. By the time the relevant application arose, the trial was in its fifth day and had reached the evidence of the Crown's tenth witness. Notably, this was the accused's third trial on the same charge.

Several days before the application, the trial judge's attention was drawn to apparent laughing and smirking between one juror and the accused during a witness's evidence. CCTV footage confirmed the juror had been openly laughing. After viewing the footage, neither party sought further action, but both agreed the jury should be reminded to concentrate on the evidence.

When the trial resumed on 22 July 2019, the same juror, who had been absent the previous day due to illness supported by a medical certificate, was observed by the judge, both Crown prosecutors, the court officer, and court staff to be asleep for the greater part of a 45-minute period. The Crown then applied to have her discharged and for the trial to continue with eleven jurors.

  • Whether the juror's conduct, specifically falling asleep during evidence after an absence for illness, constituted "misconduct" under section 53A of the Jury Act 1977 (NSW), giving rise to a risk of substantial miscarriage of justice so as to require mandatory discharge.
  • Whether, if the juror were discharged, the trial should continue with eleven jurors or whether the entire jury should be discharged.

Decision

Bellew J found that the juror's conduct in sleeping through substantial portions of evidence amounted to a failure to follow the evidence within the meaning of section 53A(2)(b) of the Jury Act 1977. A juror who does not listen to and concentrate on the evidence creates a risk of substantial miscarriage of justice, triggering the mandatory discharge provision. His Honour was satisfied on the observations of multiple independent witnesses, including the judge himself, that this threshold was met.

On the question of whether to discharge the entire jury, counsel for the accused argued the accused had a right to be tried by a jury of twelve and that a more complex trial demanded the full complement of jurors. His Honour, drawing on R v Wu (1998) and Wu v R (1999), acknowledged the right to a twelve-person jury as a relevant consideration but confirmed it is neither absolute nor determinative of the discretion under section 22 of the Act.

Bellew J rejected the submission that the trial was factually or legally complex. The indictment contained a single count whose elements reduced to three issues, the majority of factual matters were not in dispute, and written jury directions would be provided on the legal elements. His Honour also noted the significance of this being the accused's third trial, now on day five of an estimated twenty-day hearing, and that a fourth trial would impose considerable further expense and delay, though that consideration alone was not determinative.

Weighing all relevant matters, Bellew J concluded there was no risk of a substantial miscarriage of justice in the trial proceeding with eleven jurors, and ordered accordingly.

Orders Made

  • Juror number 2220527 was discharged.
  • The trial was to continue with eleven jurors.

Key Takeaways

  • A juror who repeatedly falls asleep during evidence may be found to have engaged in "misconduct" under section 53A(2)(b) of the Jury Act 1977 (NSW), on the basis that such conduct gives rise to a risk of substantial miscarriage of justice.
  • Under section 22 of the Jury Act 1977, the trial may continue with fewer than twelve jurors where the number does not fall below ten, provided the court orders continuation with a reduced jury.
  • An accused's entitlement to be tried by a jury of twelve is a relevant factor in the discretion to continue with a reduced jury, but it is neither absolute nor conclusive, as confirmed by Wu v R [1999] HCA 52.
  • The asserted complexity of a trial is a consideration in the discharge discretion; however, the court's own assessment of actual factual and legal complexity may not support that characterisation even in a terrorism matter.
  • The fact that a discharge would necessitate a further retrial, with associated costs and delay, is a relevant (though not determinative) factor weighing against discharging the entire jury.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 22, 53A, 53B

Cases
- Phan v R [2018] NSWCCA 225
- R v Rogerson and R v McNamara (No. 27) [2016] NSWSC 152
- R v WE (No. 3) [2019] NSWSC 881
- R v Wu (1998) 103 A Crim R 416
- Wu v R [1999] HCA 52; (1999) 199 CLR 99