Citation: R v Bushell; R v Tozer (No 16) [2023] NSWSC 1452
Court: Supreme Court of New South Wales
Date: 17 August 2023
Judge(s): Rothman J
Background
The decision arises from an ongoing criminal trial in which 15 jurors had been empanelled. During the proceedings, concerns emerged about the conduct of one juror toward one of the accused.
Court staff initially brought the matter to the judge's attention, reporting that the juror had been smiling at the accused, raising his eyebrows in apparent response to evidence, and signalling to the accused during the adducing of evidence. The conduct was described at one point as flirtatious in nature.
The Crown formally raised the issue on the last hearing day before this ruling, prompting Rothman J to address the question of whether the juror should be discharged.
Legal Issues
- Whether the juror's non-verbal conduct toward the accused constituted a form of communication amounting to juror misconduct
- Whether that conduct gave rise to a reasonable apprehension of bias or partiality sufficient to warrant discharge of the juror under the Jury Act 1977 (NSW)
Decision
Rothman J found the concerns raised by the Crown to be valid. After his staff alerted him to the conduct, the judge personally observed the juror and confirmed that the facial expressions amounted to a form of communication with the accused. On one view, the exchanges were almost flirtatious, and at times the accused appeared to reciprocate.
The court applied the standard of the informed bystander, asking whether such a person would have a reasonable apprehension that the juror might not bring an impartial or unbiased mind to the task. The judge was satisfied that the juror's conduct met that threshold.
The court acknowledged the general principle that an accused has a right to a jury of 12, and that discharging a juror is not a step taken lightly. However, in this case the weight of that consideration was reduced because 15 jurors had been empanelled and 11 of the remaining 14 (excluding the foreperson) were still required to be balloted before deliberations. The reduction was nonetheless relevant, as it would diminish the pool from which those 11 would be drawn.
Rothman J ordered the discharge of the juror under section 53B(b) of the Jury Act 1977 (NSW), which permits discharge where there is a reasonable apprehension that a juror may not be impartial.
Orders Made
- The juror was discharged pursuant to section 53B(b) of the Jury Act 1977 (NSW).
Key Takeaways
- Non-verbal conduct by a juror, including smiling, raising eyebrows, and exchanging facial expressions with an accused, can constitute a form of communication sufficient to ground discharge for juror misconduct.
- The operative test for discharge under section 53B(b) of the Jury Act 1977 (NSW) is whether an informed bystander would have a reasonable apprehension that the juror may not bring an impartial or unbiased mind to the proceedings.
- An accused's general right to a full jury of 12 remains a relevant consideration when discharge is contemplated, even where a larger panel was originally empanelled, though its weight may be reduced in those circumstances.
- Rothman J personally observed the juror's conduct after being alerted by court staff, underlining that judicial scrutiny of such conduct can occur directly, not only through formal evidence or submissions.
- In a trial with an expanded jury panel, the discharge of one juror before balloting for deliberations is permissible where the impartiality threshold is met, though it still affects the available pool.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), section 53B(b)
Cases cited:
No cases were cited in the judgment.