Citation: R v Fakhreddine [2023] NSWSC 1423
Court: Supreme Court of New South Wales
Date: 14 November 2023
Judge: Harrison CJ at CL
Background
During a murder trial in the Supreme Court, a juror sent a note to the trial judge advising that he or she was a contract worker who had been offered employment in Queensland beginning 20 November 2023. The juror asked whether the trial was likely to extend beyond 17 November and whether an early discharge could be granted.
The trial had originally empanelled fifteen jurors. The judge initially took a wait-and-see approach, indicating a discharge would follow if it became apparent the trial would in fact run past that Friday.
After consulting with counsel, it became clear the trial would not conclude within the week. The judge then moved to discharge the juror.
Legal Issues
- Whether the trial judge should exercise the discretion under section 53B of the Jury Act 1977 (NSW) to discharge an individual juror on account of personal employment pressures
- Whether that discharge risked a substantial miscarriage of justice given the resulting reduction in juror numbers
Decision
Harrison CJ at CL exercised the discretion conferred by section 53B of the Jury Act 1977 to discharge the juror. The judge found that the juror's concern about missing a remunerative employment opportunity created a real likelihood of distraction during the remaining course of the trial, sufficient to impair that juror's ability to perform the functions of a juror.
The judge reasoned that any juror preoccupied with the prospect of losing paid work may not bring full and undivided attention to the proceedings if the trial extended into the anticipated employment period. That distraction, in the judge's view, went to the juror's capacity to discharge his or her functions, justifying discharge.
On the miscarriage of justice question, the judge was satisfied that no such risk arose. Because fifteen jurors had originally been empanelled, the trial could continue with the remaining jurors without prejudice to the fairness of the proceedings.
Orders Made
• One juror was discharged from the jury under section 53B of the Jury Act 1977 due to employment commitments that would likely affect their ability to perform jury functions.
Key Takeaways
- Under section 53B of the Jury Act 1977 (NSW), a trial judge holds a discretion to discharge an individual juror where that juror's personal circumstances are likely to impair his or her ability to perform the functions of a juror.
- A juror's concern about losing a pending employment opportunity can constitute sufficient grounds for discharge, even where the conflict is financial and anticipatory rather than a present physical incapacity.
- The Supreme Court applied a forward-looking assessment, asking whether the juror's preoccupation with personal matters was likely to cause distraction during the remaining trial, not merely whether it had caused distraction to date.
- Where an enlarged jury was empanelled at the outset, the discharge of one juror does not automatically create a risk of a substantial miscarriage of justice, provided a sufficient number of jurors remains to continue the trial.
- The judge took an expectant approach initially, monitoring whether the trial would in fact extend past the critical date before exercising the discretion, suggesting the power under section 53B is best exercised once the need for it is sufficiently clear.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), section 53B (power to discharge an individual juror)
Cases cited: None referenced in the judgment text.