Citation: R v Kilincer (No. 3) [2022] NSWSC 1730
Court: Supreme Court of New South Wales
Date: 1 August 2022
Judge(s): Wilson J
Background
The accused stood trial on a charge of murder before a jury of 15 empanelled in the Supreme Court. During the empanelment process, the jury panel was provided with a list of witnesses and significant persons connected to the matter, and an outline of the alleged offence was read to them.
Shortly after empanelment, during the Crown Prosecutor's opening address, an unidentified juror sent a note to the court disclosing that he or she had recognised a witness named in the opening, a Mr Brijeski. The juror was aware of both the witness and the witness's occupation.
The Crown Prosecutor advised the court that Mr Brijeski's evidence was in dispute, meaning it would be the subject of challenge at trial. Both the Crown and the defence agreed that the juror should be discharged.
Legal Issues
- Whether a juror who personally knows a witness whose evidence is disputed can remain on the jury following empanelment
- Whether the court had power to discharge the juror under the Jury Act 1977 (NSW)
Decision
Wilson J noted that the juror's familiarity with a witness whose evidence was to be challenged at trial meant it was not appropriate for that juror to remain on the panel. The concern was straightforward: a juror who knows a witness may not approach that witness's evidence impartially, particularly where the evidence is in dispute between the parties.
Her Honour observed that it was "entirely regrettable" that the juror had not raised the matter when earlier invited to do so during the empanelment process, only hours before. Despite that, the court found there was no practical alternative to discharge.
Both parties agreed discharge was the appropriate course, and Wilson J made the order accordingly under section 53B(b) of the Jury Act 1977 (NSW).
Orders Made
- The juror acquainted with witness Mr Brijeski was discharged pursuant to s 53B(b) of the Jury Act 1977 (NSW).
Key Takeaways
- Under s 53B(b) of the Jury Act 1977 (NSW), the Supreme Court has power to discharge a juror after empanelment where circumstances arise that render the juror's continued service inappropriate.
- A juror's personal acquaintance with a witness whose evidence is in dispute is a sufficient basis to warrant discharge, even if the connection only comes to light after empanelment.
- The court's ruling was reached by consent, with both the Crown and the defence supporting discharge, reflecting a shared recognition that the integrity of the fact-finding process required it.
- Wilson J's remarks signal that jurors are expected to identify connections to witnesses promptly, and failure to raise such matters during empanelment, when expressly invited to do so, is treated as regrettable even if not determinative of any further consequence in this instance.
- The trial continued with the remaining jurors, consistent with the practice of empanelling an enlarged jury to accommodate potential mid-trial discharges.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 53B(b)
Cases:
- No cases were cited in this decision.