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District Court 25 March 2025

R v Kanbut

[2025] NSWDC 83

Sexual offences

Citation: R v Kanbut [2025] NSWDC 83
Court: District Court of New South Wales
Date: 25 March 2025
Judge(s): Bennett SC ADCJ

Background

The accused stood trial in the District Court on six counts under the Criminal Code (Cth), comprising two counts of possessing a slave, two counts of exercising ownership powers over a slave, and two counts of dealing in proceeds of crime valued at $10,000 or more. The alleged offending concerned two complainants whose identities are subject to a non-publication order.

Trial commenced on 12 March 2025. Over the following two weeks, two separate incidents involving individual jurors arose and required the court's intervention.

  • Whether each juror should be discharged under the Jury Act 1977 (NSW) on the basis that circumstances affecting each juror's ability to perform their functions had arisen.
  • Whether, following each discharge, the trial could continue with a reduced number of jurors without giving rise to a substantial miscarriage of justice.

Decision

First incident: juror carrying a knife into court premises

On 19 March 2025, Sheriff's officers detected that a juror had brought a folding lock-blade knife, worn on a belt bracket, into the court complex. The juror's explanation was that the knife was used to cut fruit. NSW Police were notified and the matter was raised with counsel. The Crown applied for discharge; defence counsel neither opposed nor consented.

Bennett SC ADCJ discharged the juror under s 53B(d) of the Jury Act 1977, which permits discharge where any reason affecting a juror's ability to perform their functions exists. The court reasoned that, regardless of the merits of any potential "cutting fruit" defence to a prosecution, the risk of a police investigation and possible prosecution constituted a distraction of sufficient significance to substantially affect the juror's ability to focus on the trial. The court expressly declined to offer any view on the likelihood of a successful prosecution under the Summary Offences Act 1988, the Court Security Act 2005, or the Crimes Act 1900.

Second incident: juror approaching the judge's associate

On the evening of Saturday 22 March 2025, a juror approached the judge's Associate at a social venue and persisted in attempting to engage her in conversation. The Associate firmly declined and left. She provided a signed, dated file note which was marked for identification. Both counsel jointly sought the juror's discharge.

The court found the juror's conduct was a clear breach of directions given at the outset of trial, including instructions not to contact the court, parties, their representatives, or witnesses, and to avoid lingering near the court complex. Although the conversation did not extend to trial-related matters, the juror's persistence in attempting to speak with the Associate demonstrated a fundamental misunderstanding of the juror's role and the obligation to remain separate from trial participants. This was sufficient to affect the juror's ability to perform their functions under s 53B(d), and the juror was discharged.

Continuation of trial

After each discharge, the court examined the jury spokesperson on affirmation. In both instances, the spokesperson confirmed the remaining jurors were unaffected and could continue their role. The court was satisfied there was no risk of a substantial miscarriage of justice under s 53C, and ordered the trial to proceed. After the second discharge, the jury was reduced to ten members, the minimum permitted under s 22 of the Jury Act 1977 without requiring written consent of the parties.

Orders Made

  • First juror discharged from further service in the trial (19 March 2025).
  • Trial ordered to continue with the reduced jury following the first discharge.
  • Second juror discharged from further service in the trial (24 March 2025).
  • Trial ordered to continue with the remaining ten jurors following the second discharge.

Key Takeaways

  • Under s 53B(d) of the Jury Act 1977 (NSW), a juror may be discharged where any reason exists that affects their ability to perform their functions, even where no criminal conduct is established or prosecution commenced.
  • The District Court held that the risk of a police investigation arising from a juror's conduct, and the consequent distraction from the juror's duty, can independently justify discharge without the court needing to assess the merits of any potential prosecution.
  • A juror who approaches and persists in attempting to speak with a judicial officer's associate outside of court demonstrates a fundamental misunderstanding of juror obligations, sufficient to warrant discharge regardless of whether any trial-related matters were actually discussed.
  • Following each individual discharge, the obligation under s 53C of the Jury Act 1977 requires the court to determine whether continuing the trial with the remaining jurors would risk a substantial miscarriage of justice before ordering continuation.
  • Section 22 of the Jury Act 1977 sets the minimum jury size at ten for criminal proceedings, absent written consent from both the Crown and each accused to proceed with fewer.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 270.3(1)(a), 400.6(1)
- Jury Act 1977 (NSW), ss 22, 53B(d), 53C
- Crimes Act 1900 (NSW), s 93IB
- Court Security Act 2005 (NSW), s 8(1)(b)
- Summary Offences Act 1988 (NSW), s 11B
- Weapons Prohibition Act 1998 (NSW) (referenced)
- Firearms Act 1996 (NSW) (referenced)

Cases cited: None cited in the judgment.