Citation: R v Sharpe (No 3) [2021] NSWSC 33
Court: Supreme Court of NSW
Date: 2 February 2021
Judge: Bellew J
Background
The accused stood trial on a murder charge. A jury of 12 was empanelled on 1 February 2021, the first day of a trial estimated to run for four weeks. During the empanelment process, Bellew J repeatedly invited any panel member who foresaw difficulty serving to raise the matter before selection.
One panel member had already indicated to the Sheriff, during a pre-trial administrative process the previous week, that a five-week commitment might conflict with her work hours. She was given the opportunity to apply to be excused at that point but declined, saying she wanted to "get it over and done with." She was later selected without making any application to be excused.
After the court adjourned on the first day, the Sheriff informed the judge that this juror had become emotional in the jury room and stated she could not commit to jury service. She indicated she would need to work until the early hours of the morning to meet employment obligations, then attend court each day on limited sleep. The juror also told the Sheriff that a friend had advised her she could simply tell the Sheriff she "wasn't doing it." The judge directed the juror to put her concerns in writing, and a note was received the following morning.
Legal Issues
- Whether the individual juror should be discharged under section 53B(d) of the Jury Act 1977 (NSW) on the ground that her circumstances affected her ability to perform her functions as a juror.
- Whether the entire jury should be discharged under section 53C(1)(a) of the Jury Act 1977 (NSW) on the ground that continuing with 11 jurors would give rise to a risk of a substantial miscarriage of justice.
Decision
Issue 1: Discharge of the individual juror
Bellew J was satisfied that the discretion under section 53B(d) should be exercised to discharge the juror. The juror was clearly preoccupied with her employment commitments and faced the prospect of working until the early hours of the morning before attending court each day to concentrate on evidence in a murder trial. Those circumstances, the court found, may be productive of unfairness to both parties (at [9]-[10]).
The court rejected the juror's implicit suggestion that she was blameless. She had been given multiple clear opportunities to apply to be excused before empanelment, and her failure to take those opportunities was described as "frankly beyond belief" (at [7], [9]). Both the Crown and defence counsel agreed the individual juror should be discharged (at [9]).
Issue 2: Discharge of the entire jury
The court declined to discharge the entire jury. Under section 53C(1)(a), discharge of the full jury is mandatory only if the court forms the opinion that continuing with the reduced jury would give rise to a risk of a substantial miscarriage of justice. If no such risk exists, the court must order the trial to continue with fewer jurors (at [12]).
Defence counsel raised several concerns: the trial was commencing effectively with 11 jurors before the Crown had opened; there was a risk of further juror attrition; and the Sheriff had received an abusive telephone call from the mother of another juror. The court found all of those matters were speculative (at [13]). The juror whose mother had called had not raised any issue herself, and nothing before the court suggested any problem arising from her participation (at [16]). On the evidence available at the time of the ruling, the court was satisfied there was no risk of a substantial miscarriage of justice, and ordered the trial to proceed with 11 jurors (at [16]-[17]).
Orders Made
- Juror No 11 from panel 218 discharged pursuant to section 53B(d) of the Jury Act 1977 (NSW).
- The Sheriff directed to notify the discharged juror forthwith.
- Trial to continue with a jury of 11 pursuant to section 53C(1)(b) of the Jury Act 1977 (NSW).
Key Takeaways
- Under section 53B(d) of the Jury Act 1977 (NSW), a juror may be discharged where circumstances affecting her ability to perform her functions, such as severe sleep deprivation from overnight work commitments, may produce unfairness to the parties in a serious criminal trial (at [9]-[10]).
- The court's assessment under section 53C(1)(a) is made on the evidence available at the time of the ruling, not on speculative concerns about future juror attrition or unresolved peripheral matters (at [16]-[17]).
- Where one juror is discharged early in a trial and no concrete evidence exists of further risk to the remaining jurors, the court is required by section 53C(1)(b) to order the trial to continue rather than discharge the entire jury (at [12], [16]-[17]).
- A juror who fails to apply to be excused despite repeated, clear invitations from the trial judge, and despite having identified a potential difficulty before selection, will not readily be found blameless for the disruption that follows (at [7], [9]).
- Although the High Court in Wu v The Queen acknowledged a prima facie right to trial by 12 jurors, the subsequent enactment of section 53C in its current form governs how courts manage mid-trial reductions in jury size (at [16]).
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW)
Cases
- Phan v R [2018] NSWCCA 225
- R v WE (No 6) [2019] NSWSC 930
- Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52