Citation: R v Lamey (No. 1) [2023] NSWDC 67
Court: District Court of New South Wales
Date: 22 March 2023
Judge(s): Bennett SC DCJ
Background
The accused faced trial on 14 counts of sexual offences against three child complainants, with alleged conduct spanning several years. This was already the second jury empanelled in the proceedings; the first jury had been discharged shortly after selection due to misconduct by one of its members.
On 21 March 2023, while the trial was part-way through closing addresses, a court officer brought a handwritten note to the judge's attention. The note, marked as MFI 19, reported that a juror had been "bullied/yelled at" for holding a different opinion, to the point of being reduced to tears and leaving the jury room.
The following day, counsel for the accused applied to discharge the entire jury. In the alternative, counsel sought the discharge of any individual juror who had demonstrated an unwillingness to fulfil their oath or affirmation.
Legal Issues
- Whether the conduct reported in the jury note warranted the discharge of the entire jury under the Jury Act 1977
- Whether any individual juror should be discharged for demonstrated unwillingness to perform their function
- Whether premature deliberations or expressions of concluded views by jurors constituted a basis for discharge
Decision
His Honour drew on the Court of Criminal Appeal's guidance in Bahrami v R [2017] NSWCCA 8, where a similar complaint of juror bullying arose mid-trial. In that case, the trial judge conducted an inquiry by putting two questions to individual jurors: whether each juror personally could continue to freely discharge their function, and whether they believed the jury as a whole could do likewise. The CCA found no error in that approach.
Following that framework, Bennett SC DCJ conducted his own inquiry. The court officer who had received the complaint was called to give evidence. She described speaking with the distressed juror and confirmed the note had been provided without any solicitation. Her evidence also revealed a secondary concern: that some jurors had been discussing the case and forming views before the close of evidence.
Each juror was then questioned individually and confirmed they could continue to discharge their function freely and impartially. No juror indicated an inability or unwillingness to continue. His Honour was satisfied, on the basis of those responses and the overall circumstances, that neither a full jury discharge nor the discharge of any individual juror was warranted.
His Honour also addressed the jury collectively, reminding them that they must not form any concluded view until they had heard closing addresses, the judge's directions of law, and had the opportunity for deliberation. He reinforced that preliminary views are permissible and natural, but that no final decision should be reached prematurely.
Orders Made
- The application to discharge the jury was refused.
Key Takeaways
- The District Court confirmed that a structured individual inquiry of jurors, modelled on the approach in Bahrami v R, is an appropriate method for investigating complaints of juror misconduct or bullying during trial.
- A juror bullying complaint does not automatically warrant discharge of the entire jury; the critical question is whether individual jurors can each continue to freely and impartially discharge their oath or affirmation.
- Under the Jury Act 1977, the court retains a discretion to discharge one or more jurors, but the threshold for exercising that discretion requires demonstrated unwillingness or incapacity to perform the juror's function, not merely reported interpersonal conflict.
- Preliminary discussions among jurors about the evidence, before deliberations formally begin, do not automatically constitute a basis for discharge, provided no juror has formed a concluded, irrevocable view before the close of the case.
- Refusing the discharge application here, the District Court preserved the continuity of proceedings without finding that the reported conduct had irreparably compromised the jury's integrity.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Jury Act 1977 (NSW)
Cases
- Bahrami v R [2017] NSWCCA 8
- Black v The Queen (1993) 179 CLR 44