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Supreme Court 5 February 2020

R v Holmes

[2020] NSWSC 103

HomicidePublic order & justice offences
CRIMINAL PROCEDURE APPLICATION TO DISCHARGE JURY JUROR CONNECTED TO ACCUSED’S MOTHER INTEREST OF JUSTICE WHOLE JURY DISCHARGED.

Citation: R v Holmes [2020] NSWSC 103
Court: Supreme Court of New South Wales
Date: 5 February 2020
Judge: Campbell J

Background

The accused stood trial in Newcastle for the murder of a long-time friend following an altercation on the foreshore near the Newcastle Wharf on 14 January 2018. The two men had been drinking heavily and were removed from licensed premises separately by security, before meeting again nearby. The central issue at trial was whether the accused held the requisite intention for murder, specifically whether he intended to inflict grievous bodily harm when he struck the fatal blow.

The jury was empanelled on the first day and received opening addresses from both Crown and defence on the second morning. During the mid-morning adjournment, the accused's mother, who had arrived at court that day, informed defence counsel that one of the female jurors attended the same line-dancing class as her, twice weekly, for the past two years.

The Crown applied to discharge the juror. Defence counsel did not strongly oppose that application. Campbell J then considered whether discharging the individual juror was sufficient, or whether the whole jury should be discharged.

  • Whether the juror's social connection to the accused's mother gave rise to apprehended bias sufficient to disqualify her from continuing to serve
  • Whether the logical connection between that relationship and a possible deviation from impartial decision-making could be articulated, as required by the applicable test
  • Whether discharging the individual juror was sufficient, or whether the entire jury had been infected by the possibility of bias such that a full discharge was necessary

Decision

Campbell J applied the apprehended bias test from the High Court's decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, which provides that a juror is disqualified if a fair-minded lay observer might reasonably apprehend that the juror might not bring an impartial mind to the resolution of the questions before them. His Honour noted that the relevant standard is possibility, real and not remote, not probability.

His Honour identified the logical connection required by Ebner: although the juror may not have initially connected the accused to the woman she knew from dancing, the accused's mother was present in court and would remain so throughout the trial. Once that connection was made, the juror's pre-existing feelings toward the mother could colour her assessment of the son's guilt, in either direction, and she might communicate those views to fellow jurors.

On the question of whether to discharge the whole jury, Campbell J observed that during the extended adjournment caused by argument on the application, the juror may already have recognised the accused's mother and shared her thoughts with colleagues. The possibility that the balance of the jury had already been affected by that contact, however remote in actuality, was sufficient to justify full discharge in the interests of justice.

His Honour acknowledged that trials at the hands of eleven or even ten jurors can be fair, but concluded that because the trial had only just commenced and another panel was available, the better exercise of discretion was to discharge the whole jury and recommence.

Orders Made

  • The juror known to the accused's mother was disqualified from jury service and discharged (not discharged separately, given the further order below)
  • The whole jury was discharged

Key Takeaways

  • The Supreme Court confirmed that the apprehended bias principle from Ebner v Official Trustee in Bankruptcy, developed in the context of judicial officers, applies equally to jurors: disqualification arises where a fair-minded lay observer might reasonably apprehend a juror might not decide impartially.
  • Apprehended bias does not require proof of actual partiality. The test concerns real, not remote, possibility, and requires an articulated logical connection between the relationship and the feared deviation from impartial decision-making.
  • A social connection between a juror and the accused's mother, consisting of twice-weekly attendance at the same activity over two years, was held sufficient to satisfy that test, even absent close friendship or hostility.
  • Where a potentially biased juror had opportunity during an adjournment to share observations about a party's family member with fellow jurors, the court treated the possibility of contamination of the full panel as real and sufficient to justify discharging all twelve jurors.
  • Discharging an entire jury at the outset of a trial is a serious step, but the court prioritised the integrity and appearance of a fair trial over the inconvenience of recommencement, particularly where a fresh panel was readily available.

Legislation and Cases Referenced

Cases:
- Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Legislation:
No specific legislation was cited in the judgment. Campbell J referred in general terms to statutory powers permitting a trial to continue with fewer than twelve jurors, but did not identify the provision by name.