Citation: R v Godfrey (No 3) [2023] NSWSC 1314
Court: Supreme Court of New South Wales
Date: 21 March 2023
Judge: Cavanagh J
Background
The accused stood trial on a murder charge. The Crown's evidence included CCTV footage alleged to show the accused committing the killing, which the jury would be required to view closely on multiple occasions during the trial.
Fourteen jurors had been empanelled, rather than the usual twelve, to account for the risk of juror loss from COVID-19. On the first day of the trial, during the lunch break after the jury had been empanelled and introductory remarks delivered, one juror sent a note requesting discharge because he wished to attend university on Thursdays.
Cavanagh J was not satisfied with the juror's explanation for failing to raise this during the empanelment process, and discharged that juror. The question then became whether the remaining thirteen jurors could continue, or whether the entire jury should be discharged.
Legal Issues
- Whether, following the discharge of one juror, the trial could proceed with thirteen jurors (with twelve ultimately deliberating)
- Whether continuing with thirteen jurors created a risk of a substantial miscarriage of justice under s 53C(1)(a) of the Jury Act 1977 (NSW)
- Specifically, whether the combined effect of ongoing COVID-19 risks and the distressing nature of the evidence created a substantial risk that fewer than twelve jurors would remain by the end of the trial
Decision
Cavanagh J acknowledged that ordinarily, the discharge of one juror at the outset of a trial would not justify discharging the whole jury, particularly where thirteen jurors remained. The starting position was that the trial should continue.
However, the particular circumstances of this case changed that calculus. The jury would be required to view CCTV footage of the alleged killing not once but potentially four times. Cavanagh J treated this as a significant risk factor: jurors confronted with such distressing imagery might find themselves unable to continue participating in the trial.
When that risk was combined with the continuing COVID-19 risk, which had been the very reason for empanelling fourteen jurors rather than twelve, the court was satisfied that there was a substantial risk of ending the trial with fewer than twelve jurors. Proceeding in those circumstances would give rise to a substantial miscarriage of justice within the meaning of s 53C(1)(a) of the Jury Act.
Cavanagh J ordered the discharge of the whole jury, noting that a new jury could be empanelled the following day, limiting the delay to one day.
Orders Made
- The individual juror who requested discharge was discharged.
- The remaining jury was discharged in its entirety.
- A new jury was to be empanelled the following day.
Key Takeaways
- Under s 53C(1)(a) of the Jury Act 1977 (NSW), a judge may discharge the whole jury where continuing would give rise to a risk of substantial miscarriage of justice.
- Cavanagh J held that the threshold for whole-jury discharge is not easily met by the loss of one juror alone, particularly where the panel retains thirteen members.
- Where evidence is of an unusually distressing nature, the risk that jurors may be unable to continue can be a legitimate factor in assessing whether the requisite substantial miscarriage of justice risk is established.
- The COVID-19 rationale for empanelling additional jurors remained a live consideration in March 2023, and the fact that extra jurors had been seated for that very reason was relevant to the analysis.
- The combination of two independent risk factors, COVID-19 and distressing imagery, rather than either factor alone, was what satisfied the court that discharge of the whole jury was necessary.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 53C(1)(a)
Cases cited: None identified in the judgment.