Citation: R v Botrus (No 3) [2020] NSWSC 1448
Court: Supreme Court of NSW
Date: 20 October 2020
Judge: Walton J
Background
The accused stood trial in the Supreme Court charged with the murder of a man in Sydney on 11 January 2019. The trial commenced on 31 August 2020 and was conducted under COVID-19 social distancing arrangements, which required the twelve jurors to be split across two sections of the courtroom: five in the traditional jury box and seven in a cordoned-off section of the public gallery.
On the seventh day of trial, the Crown played the accused's electronically recorded interview with police (an ERISP). During the playback, the accused's two sisters were seated in the public gallery adjacent to the dock. They laughed audibly on multiple occasions while the ERISP played.
The accused's solicitor heard between ten and fifteen short outbursts of giggling and laughter from the sisters. He sent urgent text messages to one sister asking her to stop, and several jurors were observed turning to look toward the source of the noise. No application to discharge the jury was made during the ERISP or before the jury retired at the end of that day. The application was made at the start of the following day.
Legal Issues
- Whether the conduct of the accused's sisters during the playing of the ERISP gave rise to a real risk of prejudice to the accused sufficient to warrant discharging the entire jury.
- Whether appropriate judicial directions could adequately remedy any unfairness or prevent a miscarriage of justice.
- What weight to give to the timing of the application and the stage of proceedings.
Decision
Walton J refused the application to discharge the jury. His Honour assessed the nature, frequency, and impact of the sisters' laughter and concluded that, while the conduct was disruptive, it was limited, aberrant, and intermittent. Not all jurors appeared to have been aware of it, given the courtroom layout.
His Honour accepted that some jurors in the traditional jury box had turned to look toward the sisters, with the faces of two or three displaying what the solicitor described as "clear disgust." However, Walton J considered that any such reaction was more consistent with jurors objecting to being distracted from their function than with any prejudicial inference being drawn against the accused.
Walton J found that the incident was unlikely to be "vividly etched in the mind of the jury" given its transient and intermittent character. Any residual prejudice arising from possible juror discussions about the laughter was considered amenable to judicial direction. His Honour noted that criminal trials proceed on the settled principle that juries are taken to follow and apply directions given by the trial judge.
The court also observed that the jury had been attentive, engaged, and conscientious throughout the trial, including during the ERISP playback. The directions the court had given were considered sufficient to remedy any unfairness to the accused and to prevent a miscarriage of justice. Both parties raised no objection to the form of those directions after the ruling was delivered.
Orders Made
- The application to discharge the whole jury was dismissed.
Key Takeaways
- Walton J applied the settled principle that criminal trials proceed on the basis that juries will follow and apply judicial directions, and that this presumption is not easily displaced by transient in-court disruptions.
- A discharge of the entire jury is a serious remedy that requires more than disruptive spectator behaviour; the conduct must create a real risk of prejudice that directions cannot adequately address.
- The timing of a discharge application carries weight: here, the incident had occurred on the previous day and no application had been made during the ERISP or before the jury retired, which formed part of the factual context assessed by the court.
- Juror reactions such as turning to look at the source of a disturbance do not automatically establish prejudice; the court assessed what those reactions actually conveyed in context.
- Where courtroom layout means not all jurors were exposed equally to a disruption, and where the disruption was intermittent rather than sustained, the threshold for discharge is less readily met.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW)
- Public Health Act 2010 (NSW)
- Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020
Cases
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206
- R v Munday (1984) 14 A Crim R 456
- R v Ahola (No 6) [2013] NSWSC 703
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
- Wilson v R [2019] NSWCCA 38