Citation: R v Sloan (No. 3) [2022] NSWDC 511
Court: District Court of New South Wales
Date: 25 October 2022
Judge(s): Bennett SC DCJ
Background
During the empanelment of a jury at the commencement of a criminal trial, both the accused and the Crown exercised their respective peremptory challenges. Because the trial was anticipated to last more than four weeks, a jury of 15 was empanelled, with each party entitled to four peremptory challenges under the Jury Act 1977.
After exhausting those four challenges, counsel for the accused inadvertently challenged a fifth prospective juror. This exceeded the number of peremptory challenges the accused was entitled to make as of right.
The Crown responded by seeking a brief opportunity to confer with counsel, then consented to the additional challenge. His Honour delivered these brief ex tempore reasons to explain why the trial could proceed without difficulty.
Legal Issues
- Whether a party's accidental exercise of a peremptory challenge beyond the statutory entitlement could be given effect
- Whether the Crown's consent was sufficient to validate the additional challenge under the Jury Act 1977
Decision
His Honour identified the relevant provision as s 42(2) of the Jury Act 1977, which permits any number of peremptory challenges to be made where the Crown and all accused persons agree to those challenges. This provision operates as an exception to the ordinary limit on peremptory challenges.
Because the Crown consented to the fifth challenge made by counsel for the accused, s 42(2) was satisfied. The challenge was therefore valid, no procedural irregularity arose, and the trial proceeded as empanelled.
His Honour characterised the inadvertent challenge as creating no difficulty once consent was given, and the brief judgment served to record the procedural episode on the record.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court confirmed that s 42(2) of the Jury Act 1977 provides a mechanism by which peremptory challenges exceeding the ordinary statutory limit can be given effect, provided the Crown and all accused persons agree.
- An accidental peremptory challenge beyond the statutory entitlement does not automatically invalidate empanelment where Crown consent is obtained.
- Under s 42(2), the agreement of both the Crown and all accused persons is required to validate any additional peremptory challenges; unilateral action by one party would not suffice.
- Where a larger jury is empanelled for a long trial, the standard entitlements and the s 42(2) consent mechanism continue to apply in the same way as in an ordinary trial.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 42(2)
Cases cited: None cited in this decision.