Citation: R v LF (No. 1) [2022] NSWDC 91
Court: District Court of New South Wales
Date: 30 March 2022
Judge(s): Bennett SC DCJ
Background
The accused faced five counts relating to the alleged sexual abuse of two step-granddaughters, including charges of child sexual abuse and inciting a child to participate in the production of child abuse material. The trial was listed to commence on 28 March 2022, with the first day consumed by evidentiary submissions. Jury selection then proceeded on the following sitting day.
Of the community members summoned to attend for jury duty, only approximately half responded. Two of those who did attend were subsequently discharged on application, leaving just six men among the available panel, with 13 women remaining. The selection process produced a jury of four men and eight women, after the Crown exercised two peremptory challenges and the accused exercised three.
Before the jury was sworn or affirmed, senior counsel for the accused applied to have the jury discharged. The application relied on the argument that the low number of men in the panel meant the accused had been unable, despite exhausting his peremptory challenges, to achieve a reasonably balanced jury for a trial involving serious sexual offending allegations.
Legal Issues
- Whether the composition of the jury selected, resulting from an imbalanced panel, was such that the trial might appear unfair to the accused within the meaning of section 47A of the Jury Act 1977.
- Whether the court should exercise its discretion under section 47A to discharge the jury before it was sworn, given the early stage of proceedings and the availability of a larger panel the following day.
Decision
Section 47A of the Jury Act 1977 empowers a presiding judge to discharge a selected jury where, in the judge's opinion, the exercise of peremptory challenges has resulted in a composition such that the trial might be or might appear to be unfair. His Honour observed that this provision reflects a parliamentary recognition that the appearance of fairness is as important as actual fairness in the conduct of criminal trials.
The court acknowledged that an equal gender split on a jury is rarely achieved in practice and that no legal principle holds that one gender is more likely to be biased than the other in cases of this kind. However, the Crown conceded that the smaller number of men in the available panel had placed the accused at a disadvantage from the outset. Having exhausted all available peremptory challenges, the accused was left with a jury whose composition might reasonably appear unfair given the nature of the charges.
Bennett SC DCJ noted there was no criticism to be made of the Sheriff's office. The imbalance arose simply because not all summoned persons responded. The judge further noted that the jury had not yet been sworn, the trial had not formally commenced, and two fresh panels would be available the following day, meaning the practical disadvantage of discharging the panel was minimal.
Expressing some reservation, his Honour granted the application and discharged the selected jury panel.
Orders Made
- The members of the panel selected to serve on the jury were discharged.
Key Takeaways
- Section 47A of the Jury Act 1977 gives a presiding judge a discretionary power to discharge a selected jury where the exercise of peremptory challenges has produced a composition that might appear unfair, even before the jury is sworn.
- The District Court confirmed that the appearance of fairness in a criminal trial is a distinct and legitimate concern, separate from whether actual bias can be established.
- A significant gender imbalance in the available jury panel, caused by low response rates to summonses rather than any administrative error, can contribute to a finding that a trial might appear unfair within the meaning of section 47A.
- The court treated the early stage of proceedings as a relevant factor favouring discharge. Because the jury had not yet been sworn and a larger panel was available the following day, the practical cost of discharging the panel was limited.
- No legal principle was stated that one gender is inherently more or less likely to be biased in sexual offence proceedings. The concern was the appearance of fairness, not an assumption of prejudice on the part of any individual juror.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), section 47A
Cases cited: None cited in the judgment.