Citation: R v Kelu; R v Millner (No 2) [2023] NSWSC 1538
Court: Supreme Court of New South Wales
Date: 13 June 2023
Judge(s): Cavanagh J
Background
This decision arose during a criminal trial before the Supreme Court involving two accused, referred to by their roles as the defendants. The trial was characterised as complex, involving documentary evidence that required sustained attention and concentration from all jury members.
During the trial, a juror sent a note to the court (Jury Note 6) indicating that something had occurred in the jury room that she found unacceptable. The note communicated that the juror no longer felt able to "respect" the court officers responsible for managing the jury's administrative movements and conduct.
The question before Cavanagh J was whether that juror should be discharged from the panel.
Legal Issues
- Whether the contents of Jury Note 6 indicated that the juror's ability to perform her functions as a juror had been, or was likely to be, affected
- Whether discharge of the individual juror was warranted in the circumstances
Decision
Cavanagh J found that the concerns expressed in the note raised a real risk that the juror would not be able to give proper attention to the evidence as it continued to emerge at trial. The judge reasoned that the juror's stated inability to respect the court officers went to the practicalities of participating fully in the trial process.
The court noted that court officers perform a vital role in ensuring the trial runs smoothly, including managing the jury's administrative tasks and movements in and out of the courtroom. A juror who has lost confidence in those officers may be distracted from the central task of focusing on the evidence.
The trial was described as particularly demanding, involving complex issues and documentary evidence requiring concentrated attention from all jurors. Against that backdrop, the judge concluded the risk to the juror's effective participation was sufficient to justify discharge.
Orders Made
- The individual juror was discharged from the jury.
Key Takeaways
- Cavanagh J applied the principle that a juror may be discharged where there is a real risk that his or her ability to perform juror functions has been affected, even where the disruption originates from the jury room rather than from the evidence or the parties.
- A juror's expressed loss of respect for court officers was treated as capable of impairing effective participation in the trial, particularly where the trial involved complex documentary evidence requiring sustained focus.
- The complexity and documentary nature of the trial was a relevant contextual factor, with the court emphasising that all jurors must be able to devote full attention to the proceedings.
- Jury notes disclosing interpersonal or attitudinal concerns within the jury context may, depending on their content, satisfy the threshold for individual juror discharge.
- The decision was delivered ex tempore (on the spot, without a reserved written judgment), reflecting the need for prompt procedural rulings during a running trial.
Legislation and Cases Referenced
No legislation or cases were cited in the provided text of the judgment.