Citation: R v Fakhreddine [2023] NSWSC 1424
Court: Supreme Court of New South Wales
Date: 20 November 2023
Judge: Harrison CJ at CL
Background
The accused stood trial for murder before the Supreme Court, with fifteen jurors originally empanelled. One juror had already been discharged earlier in the proceedings due to unexpected work commitments, leaving fourteen.
The trial entered its fifth week, having originally been estimated to run for four. Harrison CJ at CL had completed the summing up to the jury and anticipated the jury would retire to deliberate the following day. Before that could occur, the court needed to conduct a ballot to reduce the panel to the final twelve deliberating jurors.
A second juror then indicated she wished to be excused. She had a non-refundable flight to Perth booked for Thursday 23 November 2023, and cancelling the booking would have incurred a financial penalty. The court considered whether to discharge her under the Jury Act 1977 (NSW) before the ballot took place.
Legal Issues
- Whether the juror's travel deadline constituted a reason "affecting the juror's ability to perform the functions of a juror" within the meaning of section 53B(d) of the Jury Act 1977 (NSW), warranting her individual discharge.
- Whether continuing the trial with the remaining jurors would give rise to a risk of substantial miscarriage of justice under section 53C of the Jury Act 1977 (NSW).
- Whether retaining the juror until after the ballot created an additional procedural risk of reducing the deliberating jury below twelve members.
Decision
Harrison CJ at CL determined that the juror should be discharged before the ballot was conducted. The core concern was that a looming personal deadline creates pressure on a juror to reach a verdict quickly, rather than deliberating with proper care and consideration. In the court's view, such pressure makes a juror more susceptible to reaching a hasty conclusion or capitulating to the views of other jurors in circumstances where, without that pressure, they might resist and reflect further.
His Honour observed from experience that jurors faced with an unusual or additional personal time pressure find it notoriously difficult to perform their deliberative function properly. That pressure, whether real or merely perceived, was found sufficient to affect the juror's ability to perform the functions required of her under section 53B(d).
A second and distinct concern informed the decision. If the juror were retained through the ballot and selected as one of the final twelve deliberating jurors, any subsequent application to be discharged before or during deliberations would risk reducing the jury below twelve members. Discharging her before the ballot entirely removed that risk.
The court was satisfied that continuing the trial with the remaining jurors would not give rise to any risk of a substantial miscarriage of justice, as required by section 53C before the trial could proceed with a reduced panel.
Orders Made
• The juror in question is discharged
Key Takeaways
- Under section 53B(d) of the Jury Act 1977 (NSW), a looming personal deadline such as a non-refundable travel booking can constitute a reason affecting a juror's ability to perform their functions, justifying individual discharge.
- A juror facing an imminent personal time constraint is, in the Supreme Court's view, at heightened risk of reaching a decision prematurely or of yielding to others' views without adequate deliberation.
- Pressure that affects a juror's deliberative capacity need not be financial or work-related; personal commitments creating a perceived urgency to conclude are sufficient to engage the discretion under section 53B.
- Where retaining a juror through a ballot creates a foreseeable risk of the deliberating jury later falling below twelve, pre-ballot discharge is a practical mechanism to avoid that procedural complication entirely.
- Discharge of an individual juror does not require discharge of the whole jury: under section 53C, the trial may continue with a reduced number where the court is satisfied no substantial miscarriage of justice would result.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 53B, 53C
Cases cited: None cited in the judgment.