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Supreme Court 17 February 2020

R v WE (No.11)

[2020] NSWSC 92

Public order & justice offences
CRIMINAL LAW JURIES MISCONDUCT WHETHER JUROR SHOULD BE DISCHARGED

Citation: R v WE (No.11) [2020] NSWSC 92
Court: Supreme Court of New South Wales
Date: 17 February 2020
Judge: Bellew J

Background

The accused faced a charge of doing acts in preparation for a terrorist act, an offence against Commonwealth law. The jury had been empanelled only days earlier, on 12 February 2020, and the trial was effectively in its second day of evidence when the issue arose.

During the morning session, Crown counsel brought to the court's attention that a juror in the back row appeared to have been falling asleep during the surveillance evidence. The accused's instructing solicitor independently confirmed she had noticed the same behaviour on the previous sitting day. The court directed that any further incidents be reported at the luncheon adjournment.

By mid-afternoon, the problem had continued. Crown counsel's team recorded specific times at which the juror's eyes were closed, and noted that even when his eyes were open, he appeared disengaged. Bellew J himself observed an absence of engagement, noting the juror had not followed along with an exhibit the other eleven jurors were examining. The jury foreperson also communicated to a court officer that some jurors were "having issues" with the member in question.

  • Whether the identified juror should be discharged under s 53A of the Jury Act 1977 (NSW) for misconduct, specifically for failing to pay attention to the evidence.
  • Whether, if that juror were discharged, the trial should continue with a jury of eleven under s 53C of the Jury Act, or whether the entire jury should be discharged.
  • Whether the NSW Jury Act provisions applied at all to a trial for a Commonwealth offence, given the constitutional requirement of a trial by jury under s 80 of the Constitution.

Decision

Bellew J rejected the defence submission that a strong direction to the jury was the appropriate remedy. His Honour accepted that, given the cumulative observations from Crown counsel's team, the defence solicitor, the court officer's report from the foreperson, and his own direct observations, the evidence of inattention was sufficiently established. The threshold under s 53A of the Jury Act was met, and discharge of the juror was mandatory once that threshold was reached.

The more contested question was whether the trial should then continue with eleven jurors or whether the entire jury should be discharged. The defence argued the accused was entitled to be tried by a jury of twelve, particularly in a Commonwealth prosecution. Bellew J examined the constitutional requirement of a jury trial under s 80 of the Constitution, drawing on Cheatle v R (1993) 177 CLR 541 and Alqudsi v R (2016) 258 CLR 203. His Honour noted that while s 80 requires a jury trial on indictment for Commonwealth offences, it does not fix the number of jurors at twelve in all circumstances.

On the question of applicable law, Bellew J held that s 68(1) of the Judiciary Act 1903 (Cth) applied the NSW Jury Act provisions, including ss 53A and 53C, to the Commonwealth prosecution. Relying also on Phan v R [2018] NSWCCA 225 and R v Rogerson & R v McNamara (No. 27) [2016] NSWSC 152, his Honour was satisfied that continuing with eleven jurors did not give rise to a risk of substantial miscarriage of justice, particularly given the trial was at an early stage and no verdict had yet been reached on the evidence heard before the juror's inattention came to light.

Orders Made

  • Juror C (juror 2 from panel 745) was discharged pursuant to s 53A of the Jury Act 1977 (NSW).
  • Pursuant to s 53C(1)(b) of the Jury Act, the trial was ordered to continue with a jury of eleven.

Key Takeaways

  • Section 53A of the Jury Act 1977 (NSW) operates mandatorily once the threshold for juror misconduct, including persistent inattention, is established to the court's satisfaction; discharge is not a discretionary remedy at that point.
  • The constitutional requirement of a jury trial under s 80 of the Constitution does not, of itself, require a jury of exactly twelve persons in all cases involving Commonwealth offences; the relevant High Court authorities in Cheatle and Alqudsi were applied to reach this conclusion.
  • Under s 68(1) of the Judiciary Act 1903 (Cth), NSW jury legislation, including the provisions permitting a reduced jury, applies to the trial of Commonwealth offences in NSW courts.
  • A combination of direct judicial observation, detailed contemporaneous notes from counsel's team, independent observations from the defence solicitor, and a report from the jury foreperson was sufficient to establish the factual basis for discharge.
  • Where a juror is discharged early in a trial, the separate discretion under s 53C to continue with a reduced jury remains available; the stage of the trial and the absence of any identified prejudice to the accused are relevant considerations in exercising that discretion.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 53A, 53C
- Judiciary Act 1903 (Cth), s 68(1)
- The Commonwealth of Australia Constitution Act 1901, s 80

Cases
- Cheatle v R (1993) 177 CLR 541; [1993] HCA 44
- Alqudsi v R (2016) 258 CLR 203; [2016] HCA 24
- Phan v R [2018] NSWCCA 225
- R v Rogerson & R v McNamara (No. 27) [2016] NSWSC 152
- R v WE (No. 6) [2019] NSWSC 930