Citation: R v El-Kahil (No. 2) [2022] NSWDC 607
Court: District Court of New South Wales
Date: 15 November 2022
Judge(s): Bennett SC DCJ
Background
The accused was on trial before a jury of twelve. The trial involved substantial video and audio evidence recorded on police body cameras during what the court described as a confrontational interaction between police officers and the accused.
At the conclusion of the judge's opening remarks, a juror gave visible signs of struggling to understand what had been said. Counsel for the parties noticed this and brought it to the judge's attention immediately.
During a short adjournment, the juror sent a note to the court reading simply: "My English is not good." A court officer also reported that the juror had exhibited difficulty with English when handing over the note.
Legal Issues
- Whether a juror with an insufficient command of English should be discharged from a jury mid-trial under the discretionary power in the Jury Act 1977 (NSW).
- Whether the remaining eleven jurors should continue the trial, or whether the entire jury should be discharged.
Decision
The judge discharged the individual juror under s 53B(c) of the Jury Act 1977, with the consent of both parties. The court treated the matter as falling under the general discretion in s 53B, which permits discharge where it appears to the court that, for any reason affecting a juror's ability to perform the functions of a juror, that juror should not continue to act.
The court reasoned that a juror without a sufficient command of English cannot follow evidence in a trial of this kind. Given the volume of audio and visual recordings that formed a central part of the evidence, adequate English comprehension was essential to a juror's ability to perform their role.
The accused consented to continuing the trial with the remaining eleven jurors and made no application for the discharge of the entire jury. The court proceeded on that basis.
Orders Made
- The individual juror was discharged from further service on the jury.
- The trial continued with the remaining eleven jurors.
Key Takeaways
- The District Court confirmed that a juror's inability to adequately understand English can enliven the discretionary power to discharge an individual juror under s 53B of the Jury Act 1977 (NSW).
- Under s 53B, a court may discharge a juror where it appears that any reason affects that juror's ability to perform the functions of a juror, and insufficient English proficiency falls within this provision.
- Where audio and video evidence forms a substantial part of a criminal trial, the court identified adequate English comprehension as necessary to a juror's ability to fulfil their role.
- Consent of the parties, while noted, is not presented in the judgment as a prerequisite for the exercise of the s 53B discretion. The power is the court's to exercise.
- Following the discharge of one juror, an accused may elect to continue with eleven jurors rather than apply for the discharge of the entire jury.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 53B (discretionary discharge of an individual juror)
Cases cited: None referenced in the judgment.