Citation: R v Kilincer (No. 4) [2022] NSWSC 1731
Court: Supreme Court of New South Wales
Date: 19 August 2022
Judge: Wilson J
Background
During a criminal trial in the King Street complex in Sydney, an issue emerged concerning a potential appearance of conflict of interest involving a member of the jury. A legal clerk forming part of the Crown's trial team had a partner who worked with the son of one juror, referred to as Juror H. Through what appears to have been casual conversation, the clerk's partner deduced that Juror H was serving on this particular trial, a conclusion made possible because it was the only trial proceeding in the complex that week.
The court questioned Juror H under oath to establish the extent of any connection and whether the matter had been discussed in the jury room. Juror H gave evidence that she had only communicated to family members that she was serving on a jury at the King Street complex, which was within the bounds the court had permitted.
Legal Issues
- Whether Juror H had engaged in any impropriety or exhibited actual bias arising from the indirect connection between her son and a member of the Crown's legal team
- Whether, even in the absence of actual bias, a perception of bias existed sufficient to warrant discharge of the juror under the Jury Act 1977 (NSW)
Decision
Issue 1: Actual Bias or Impropriety
Wilson J found no reason to doubt Juror H's evidence and was satisfied that she had conducted herself entirely appropriately, complying with the court's directions about what could and could not be communicated to family members (at [4]). There was no sound basis to conclude that anything had been said to or by the juror that could lead to actual prejudice or bias on her part (at [4]).
Issue 2: Perception of Bias
Despite finding no actual bias, Wilson J concluded that a reasonable observer, even in possession of all the known facts, could harbour some suspicion that an avenue of information existed beyond what was provided in court (at [4]). The court held that the appearance of complete impartiality must be preserved alongside the fact of it, and that this perception was sufficient to affect the juror's ability to perform her functions (at [5]).
Issue 3: Power to Discharge
Counsel for the accused applied for Juror H's discharge. Wilson J held that the court possessed the power under s 57 of the Jury Act 1977 (NSW) to discharge a juror even where no actual bias exists, and made an order discharging Juror H pursuant to s 53B(d) of that Act on the basis that, for any other reason, it appeared her ability to perform her functions as a juror was affected (at [5]).
Orders Made
- Order discharging Juror H from further service pursuant to s 53B(d) of the Jury Act 1977 (NSW).
Key Takeaways
- The Supreme Court confirmed that a juror may be discharged under s 53B(d) of the Jury Act 1977 (NSW) where a perception of bias exists, even where the court is satisfied there is no actual bias or impropriety on the juror's part (at [5]).
- A finding of full compliance with the court's directions regarding communication with family members does not, of itself, preclude a perception of bias from arising through indirect connections between the juror and members of the legal team (at [3]-[4]).
- Under s 57 of the Jury Act 1977 (NSW), the court retains a broad discretionary power to discharge a juror on perception grounds, and exercising that power was considered prudent where even a remote chain of connection could give rise to reasonable suspicion in the mind of an objective observer (at [5]).
- The appearance of complete impartiality is treated as a distinct requirement from the fact of impartiality; circumstantial factors beyond a juror's control can engage that requirement (at [4]).
- Where an unusual circumstance, such as only one trial proceeding in a court complex, makes a juror's identity more readily deducible than would ordinarily be the case, that factor can contribute to a finding that a perception of bias is open (at [3]-[4]).
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW)
Cases
- Not stated