Citation: R v Newson (No 2) [2021] NSWSC 442
Court: Supreme Court of New South Wales
Date: 28 April 2021
Judge: Ierace J
Background
On the thirteenth day of a murder trial, the jury foreperson submitted a note to the trial judge advising that fellow jurors were concerned about one member who was struggling to stay awake during proceedings. The foreperson identified the juror by reference to her usual seat in the courtroom.
The juror was brought into court, sworn, and questioned by the judge. She denied having slept at any point, explaining that what may have appeared to be drowsiness was simply her looking downward. On the basis of her sworn explanation, the judge initially declined to discharge her and the trial resumed.
Shortly afterwards, however, the judge directly observed the juror with her head bowed, rising and falling with her breathing, in a manner consistent with sleep. A Crown solicitor seated approximately two to three metres from the juror independently confirmed the observation, as did defence counsel from his end of the bar table.
Legal Issues
- Whether the juror's apparent sleep during the taking of evidence rendered her unable to perform the functions of a juror.
- Whether discharge was warranted under section 53B(d) of the Jury Act 1977 (NSW) in circumstances where the juror had previously denied sleeping when questioned on oath.
Decision
Ierace J discharged the juror after personally observing her appear to fall asleep during the afternoon's evidence. The judge's own observation was corroborated by both the Crown's solicitor and counsel for the accused, each of whom independently formed the same view from different vantage points in the courtroom.
The judge relied on section 53B(d) of the Jury Act 1977 (NSW), which permits a court to discharge a juror during a trial where it appears that, for any reason not covered by the other subsections, the juror should not continue to act. The judge was satisfied that a juror who was asleep during the receipt of evidence was unable to perform the functions of a juror.
Because the trial had commenced with fifteen jurors, anticipating its length, the proceedings continued with fourteen jurors remaining.
Orders Made
- The juror in question was discharged from the jury pursuant to section 53B(d) of the Jury Act 1977 (NSW).
- The trial continued with the remaining fourteen jurors.
Key Takeaways
- Under section 53B(d) of the Jury Act 1977 (NSW), a trial judge may discharge a juror during proceedings where it appears the juror is unable to perform juror functions for reasons not covered by other subsections of that provision.
- A juror observed by the judge, Crown solicitor, and defence counsel to be asleep during the taking of evidence presents a sufficient basis for discharge, even where the juror had earlier denied sleeping when questioned on oath.
- The Supreme Court treated first-hand judicial observation of the juror's condition, corroborated by multiple courtroom observers, as the decisive factor justifying discharge.
- An initial sworn denial by the juror did not preclude discharge where the judge's own subsequent observation provided independent grounds for concluding the juror was asleep.
- Empanelling additional jurors at the outset of a lengthy trial allows proceedings to continue uninterrupted when an individual juror must be discharged mid-trial.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 53B (in particular s 53B(d))
Cases cited: No cases were cited in the judgment.