Citation: Hall, Sheriff of New South Wales v The Gilded Wombat Pty Limited [2024] NSWLC 5
Court: Local Court of New South Wales
Date: 27 August 2024
Judge: Nash LCM
Background
The accused was a corporate employer whose employee (referred to throughout as "Juror E") was summoned to serve as a juror in a Supreme Court murder trial. During her jury service, the employer sent two communications to Juror E: an email dated 1 March 2023 and a letter dated 17 April 2023. The prosecutor in this matter was the Sheriff of New South Wales, who holds statutory responsibility for the effective management and administration of the jury system under the Sheriff Act 2005 (NSW).
The Sheriff charged the employer with three offences under s 69(7) of the Jury Act 1977 (NSW). The charges alleged that the two communications constituted threats of, respectively, injury in employment (Sequence 1, arising from the March email), alteration of position to the employee's prejudice (Sequence 2, arising from the April letter), and dismissal (Sequence 3, a backup charge to Sequence 2, also arising from the April letter).
The employer pleaded not guilty, and the matter proceeded to a contested hearing across two days in July and August 2024. The court noted that no previously reported or unreported decisions interpreting the key undefined terms in s 69(7) could be located, making this an apparently novel case.
Legal Issues
- Whether the email of 1 March 2023 constituted a "threat" of "injury" in Juror E's employment within the meaning of s 69(7)(b) of the Jury Act 1977 (NSW)
- Whether the letter of 17 April 2023 constituted a "threat" to "alter" Juror E's position to her prejudice within the meaning of s 69(7)(c)
- Whether Juror E was properly "summoned" to serve as a juror, as that term is used in s 69(7)
- What the term "threat" means in the context of s 69(7), given no prior judicial interpretation existed
- How the reversed onus of proof under s 69(8) operated once the other elements were established
Decision
The Local Court found the employer guilty on both Sequence 1 and Sequence 2. The court concluded that both communications constituted threats within the meaning of s 69(7): the March email amounted to a threat of injury in employment, and the April letter amounted to a threat to alter Juror E's position to her prejudice. Sequence 3, as a backup charge, was withdrawn and dismissed upon the Sequence 2 finding.
On the question of what constitutes a "threat" under s 69(7), the court undertook a detailed analysis of the statutory language in the absence of any guiding precedent, ultimately concluding that the communications satisfied that definition. The court was satisfied that each threat was made by reason of Juror E's jury service obligations, finding that the causal connection required by the phrase "by reason of" was established. The court found that, but for the jury service, the threats would not have been made.
On the reversed onus under s 69(8), once the court was satisfied that all other elements were proven, it was for the employer to establish on the balance of probabilities that the threats were not actuated by Juror E's jury service. The employer called no evidence to discharge that onus, and no alternative reason for the communications was proffered. The court therefore remained unsatisfied that the threats were not connected to the jury service.
The court also found that Juror E was "summoned" for jury service for the purposes of s 69(7), applying consistent reasoning across both sequences. Nash LCM characterised the employer's conduct as striking at the heart of the proper administration of justice and as fundamentally undermining the Jury Act's protective purpose.
Orders Made
• On Sequence 1: guilty
• On Sequence 2: guilty
• Sequence 3: withdrawn and dismissed
Key Takeaways
- This appears to be the first reported decision interpreting s 69(7) of the Jury Act 1977 (NSW), with the Local Court finding no equivalent judicial guidance in New South Wales or comparable interstate or New Zealand provisions.
- Section 69(7) prohibits threats of dismissal, employment injury, or positional prejudice against a summoned juror-employee; unlike s 69(1), it does not require proof that the adverse action was actually carried out.
- Under s 69(8), once the prosecution proves all elements of the offence other than the reason for the employer's conduct, the onus shifts to the employer to establish on the balance of probabilities that the threat was not connected to the employee's jury service. An employer who calls no evidence to discharge that onus will fail to do so.
- The phrase "by reason of" in s 69(7) requires proof of a causal connection, whether direct or indirect, between the threat and the employee's jury service obligations.
- Conduct that threatens an employee's employment conditions during jury service was found to be inexcusable at law and contrary to the Jury Act's core protective object of ensuring employees can fulfil civic duties without fear of employment consequences.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), particularly ss 69, 69(7), 69(8), 69A
- Jury Amendment Act 2010 (NSW)
- Jury Regulation 2022 (NSW)
- Sheriff Act 2005 (NSW)
- Evidence Act 1995 (NSW)
- Interpretation Act 1987 (NSW)
- Fair Work Act 2009 (Cth)
- Courts Legislation Amendment Act 1998 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Comparable interstate and New Zealand provisions: Jury Act 1995 (Qld) s 69; Juries Act 2000 (Vic) s 76; Juries Act 1957 (WA) s 56; Juries Act 2003 (Tas) s 56; Juries Act 1962 (NT) s 52; Juries Act 1967 (ACT) s 44AA; Juries Act 1981 (NZ) s 32A
Cases:
- Attorney-General v Butterworth [1963] 1 QB 696
- Australian Building and Construction Commissioner v Molina [2020] FCAFC 97
- Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239
- Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329
- Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
- Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
- Employment Advocate v National Union of Workers (2000) 100 FCR 454
- Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168
- Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited [2024] NSWLC 2
- Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
- Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179