Citation: R v RB (no 7) [2020] NSWDC 859
Court: District Court of New South Wales
Date: 1 October 2020
Judge(s): Grant DCJ
Background
The accused faced trial in the Albury District Court on charges relating to alleged offences that had occurred more than six years earlier. The complainant had made a statement to police in April 2016, and the accused had been committed for trial in August 2017. The matter had already been delayed, including by an earlier jury being discharged without verdict after empanelment.
Following empanelment of a new jury, a juror raised a concern about her capacity to serve. The court took evidence from the juror and found that she lacked sufficient English language proficiency to follow the proceedings.
Both the prosecution and the defence submitted that the juror was not competent to continue and that the entire jury should be discharged. The court was therefore required to determine whether to discharge the whole jury or to discharge only the affected juror and continue the trial with eleven jurors.
Legal Issues
- Whether the juror should be discharged under section 53B(d) of the Jury Act 1977 (NSW) due to her inability to perform the functions of a juror.
- Whether, following the discharge of that juror, the trial should continue with eleven jurors or whether the entire jury should be discharged.
- Whether proceeding with eleven jurors would risk a substantial miscarriage of justice.
Decision
Grant DCJ accepted that the juror lacked sufficient English to follow the evidence, the legal arguments, and final submissions. Her discharge under section 53B(d) of the Jury Act 1977 was therefore warranted and uncontested.
The more significant question was whether the full jury should then be discharged, as both parties urged. Grant DCJ declined to take that course. Drawing on the High Court's reasoning in Wu v The Queen (1999) 199 CLR 99, his Honour affirmed that a fair and lawful trial can proceed despite the mid-trial discharge of a juror.
The court gave considerable weight to the consequences of delay. If the jury were discharged entirely, the next available trial date would not be until 9 June 2021, more than eight months away. This followed years of prior delay and occurred in the context of the COVID-19 pandemic, which had already suspended jury trials in Albury from February to September 2020.
His Honour held that continuing with eleven jurors would not occasion a substantial miscarriage of justice. The court concluded that the interests of the accused, the complainant, witnesses, and the community all pointed against a further lengthy adjournment.
Orders Made
- The affected juror was discharged pursuant to section 53B(d) of the Jury Act 1977 (NSW).
- The trial was ordered to proceed with eleven jurors.
Key Takeaways
- The District Court held that consensus between the parties that a jury should be discharged does not bind the court; the statutory question is whether continuing with a reduced jury would risk a substantial miscarriage of justice.
- Under section 53B(d) of the Jury Act 1977 (NSW), a juror may be discharged where a condition affecting their ability to perform juror functions becomes apparent after empanelment, including insufficient English language proficiency.
- A conviction for insufficient English to follow proceedings is a recognised basis for individual juror discharge, and does not automatically require discharge of the whole jury.
- Prolonged delay was treated as a weighty factor: the court identified that delay causes hardship to accused persons, complainants, witnesses, and the wider community, and that "justice delayed is justice denied" has concrete procedural consequences.
- Consistent with Wu v The Queen, a trial before eleven jurors following a mid-trial discharge can be both fair and lawful, provided no substantial miscarriage of justice would result.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), section 53B(d)
Cases
- Wu v The Queen (1999) 199 CLR 99