Citation: R v Bushell; R v Tozer (No 14) [2023] NSWSC 1450
Court: Supreme Court of New South Wales
Date: 16 August 2023
Judge: Rothman J
Background
This judgment arises from an ongoing criminal trial involving two accused persons. During the course of proceedings, a question emerged about whether a juror had been engaging in non-verbal communication with one of the accused that went beyond ordinary, incidental social exchange.
The matter was initially observed by a member of the judge's staff over a number of days and subsequently brought to the attention of Rothman J, who made his own observations. The Crown later raised the issue formally, prompting the court to consider whether an application to discharge the individual juror should be dealt with immediately or adjourned.
Legal Issues
- Whether the observed interaction between the juror and an accused gave rise to a reasonable apprehension of bias sufficient to warrant discharge of that juror under s 53B of the Jury Act 1977 (NSW)
- Whether sufficient evidence was before the court at the time of the application to determine that question
- What role, if any, the trial judge's own observations could play in assessing whether the threshold for discharge had been met
Decision
Rothman J distinguished between informal social conduct, such as returning a smile, and interactions that go beyond ordinary politeness. His Honour noted there was nothing improper in an accused returning a smile from a juror, and the observations of concern related solely to the juror's conduct, not to any misconduct by either accused.
The relevant legal standard was the reasonable apprehension of bias as perceived by a properly informed, independent observer. His Honour accepted that a judge's own observations of courtroom conduct can constitute evidence capable of informing whether the statutory threshold under s 53B has been crossed.
However, at the point the application was made, the detail of the Crown's observations had not been fully articulated. Rothman J identified that much would depend on the specifics of the evidence, and that the Crown needed to obtain and provide detailed instructions before the matter could be properly resolved.
On that basis, the application was adjourned rather than determined. His Honour indicated he would continue to observe the juror and would address the matter further if the conduct persisted.
Orders Made
No formal orders were made in this decision. The application was adjourned to allow the Crown to obtain and provide detailed instructions regarding the observed conduct.
Key Takeaways
- A trial judge's personal observations of juror behaviour in court can constitute evidence relevant to whether the threshold for discharge under s 53B of the Jury Act 1977 (NSW) has been met.
- Under s 53B, the applicable test is whether a properly informed, independent observer would hold a reasonable apprehension of bias arising from the juror's conduct.
- Rothman J drew a clear distinction between incidental social exchange, including returning a smile, and conduct by a juror that goes beyond informal greeting and warrants closer scrutiny.
- Insufficient detail before the court at the time of the application led to the adjournment rather than a determination; the quality and specificity of the Crown's evidence was treated as central to the outcome.
- Where a discharge application raises factual questions about observed conduct, the court may defer resolution to allow parties to gather and present adequate evidentiary material.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 53B (discharge of individual juror)
Cases cited: No cases were cited in the judgment.