Citation: [2026] NSWSC 498
Court: Supreme Court of New South Wales
Date: 11 May 2026
Judge(s): Hamill J
Background
Three accused persons stood trial in the Supreme Court on serious criminal charges. The trial ran for approximately seven weeks before a jury of 15, which was balloted down to 12 under s 55G of the Jury Act 1977 (NSW) immediately before the verdict jury retired to deliberate.
Within an hour of the jury retiring, counsel for one of the accused asked for the court to reconvene urgently. He reported that, as the jury filed out to begin deliberations, one juror (identified as "Juror O") had stood up, turned 180 degrees away from the direction of the jury room, and deliberately caught the eye of the detective in charge of the investigation seated in the public gallery. The juror appeared to nod and smile at the detective. In-court CCTV footage was downloaded and played to the parties, confirming counsel's account.
All three defence teams applied to discharge Juror O under s 53B(b) of the Jury Act on the ground of reasonable apprehension of bias. The prosecution opposed the application.
Legal Issues
- Whether Juror O's conduct, specifically turning to nod and smile at the detective in charge immediately before deliberations commenced, gave rise to a reasonable apprehension of bias within the meaning of s 53B(b) of the Jury Act 1977 (NSW).
- Whether the "might/might" test for apprehended bias was satisfied: would a fair-minded observer reasonably apprehend that the juror might not bring an impartial mind to the verdict?
- Whether the trial should continue with a reduced jury of 11 under s 53C(1), or whether a more drastic remedy was required.
Decision
Hamill J granted the application and discharged Juror O. His Honour applied the "might/might" test drawn from the apprehended bias authorities, asking whether a fair-minded lay observer might reasonably apprehend that the juror might not decide the case impartially.
The court accepted that Juror O was characteristically expressive throughout the trial and had regularly nodded and smiled at the trial judge. However, Hamill J drew a distinction between those interactions and the impugned conduct. Nodding at the judge could be understood as deference to the authority of an impartial court. The detective in charge, by contrast, was not an impartial figure. He was the person who had directed the investigation and made the decision to arrest the accused.
Three features were critical to the reasoning. First, the conduct was deliberate: the juror had to turn 180 degrees, away from the jury room, to catch the detective's attention. Second, the recipient of the gesture was a witness with a particular interest in the outcome of the proceedings. Third, the timing was significant. The interaction occurred at the moment the jury was about to commence deliberations on its verdicts, which the court described as the "critical moment." Unlike earlier cases where ongoing monitoring of the juror was possible, Juror O would from that point be in the privacy of the jury room, beyond observation.
Hamill J distinguished the authorities relied on by the prosecution. In R v Crane & Ors (Trial Ruling No 12), a clapping gesture at the end of the prosecutor's closing had not been found sufficient, and in R (Cth) v Cooper, a juror's interactions with the accused could be addressed by direction and monitoring. In the present case, no further direction or monitoring was practicable because deliberations had already begun. The court also distinguished the situation from Webb v The Queen; Hay v The Queen, where a juror's gift of flowers to the deceased's mother was treated as an expression of natural sympathy capable of being cured by direction. Having discharged Juror O, Hamill J was satisfied that the trial could continue with 11 jurors under s 53C(1) without risk of a substantial miscarriage of justice.
Orders Made
- Juror O was discharged pursuant to s 53B(b) of the Jury Act 1977 (NSW).
- The trial was ordered to continue with a reduced jury of 11 pursuant to s 53C(1) of the Jury Act.
Key Takeaways
- The Supreme Court confirmed that the "might/might" test for apprehended bias applies to applications to discharge an individual juror under s 53B(b) of the Jury Act 1977 (NSW), asking whether a fair-minded observer might reasonably apprehend that the juror might not be impartial.
- A juror's deliberate, targeted gesture towards the officer in charge of a criminal investigation, made at the moment deliberations were about to begin, was held to be qualitatively different from general expressiveness or courtesy directed at the trial judge.
- Timing proved a significant factor in the analysis: because the jury had already retired, there was no practical opportunity for further judicial direction or monitoring of the juror's behaviour.
- The identity and role of the person with whom the juror interacted was material to the Court's reasoning, as the detective in charge was not an impartial observer but a figure who could reasonably be perceived as having an interest in the outcome of the trial.
- In discharging a single juror and continuing with a reduced jury of 11, Hamill J found that this course provided a sufficient remedy and did not give rise to a risk of a substantial miscarriage of justice.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 53B, 53B(b), 53C(1), 53C(1)(b), 55G
Cases:
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- R (Cth) v Cooper [2019] NSWSC 1122
- R v Crane & Ors (Trial Ruling No 12) [2022] NSWSC 1228
- R v Qaumi & Ors (No 41) [2016] NSWSC 857
- R v Qaumi & Ors (No 56) [2016] NSWSC 1130
- Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30