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Supreme Court 12 May 2026

R v Bobak (No 6) (Jury discharge application)

[2026] NSWSC 576

Homicide
CRIME MURDER TRIAL PROCEDURE APPLICATION TO DISCHARGE JURY DEFENCE POTENTIAL REMEDIES

Citation: [2026] NSWSC 576
Court: Supreme Court of New South Wales
Date: 12 May 2026
Judge(s): Dhanji J

Background

The accused was on trial for the murder of the deceased, allegedly committed on 17 December 2022 at Woy Woy. He had pleaded not guilty to murder but guilty to manslaughter, a plea the Crown did not accept. The jury was empanelled on 6 May 2026, and evidence commenced shortly afterward.

Two issues were live at trial: whether the Crown could prove the accused intended to kill or inflict grievous bodily harm, and whether the Crown could prove the accused did not believe his act was necessary in self-defence. It was not disputed that the accused had deliberately inflicted the fatal wound with a bladed weapon described as a "mini sword."

During cross-examination, the accused's uncle (a Crown witness) volunteered evidence that the accused had told him the killing was not self-defence. This evidence had not been led by the Crown, was not responsive to the question asked, and both parties had agreed it would not be adduced. The accused applied to have the jury discharged on the basis of this prejudicial evidence.

  • Whether the jury should be discharged following the witness's unsolicited evidence that the accused denied acting in self-defence.
  • Whether a proposed remedy (recalling the witness, Crown concession, and judicial direction) could adequately cure the prejudice.
  • How the criterion of "necessity" in the test for jury discharge applied in the circumstances.

Decision

Dhanji J acknowledged the discretionary nature of the decision and applied the test from Crofts v The Queen, which requires that discharge be "necessary" to maintain the fairness of the trial. His Honour noted this does not set an impossibly high bar: necessity must be understood in the context of the accused's entitlement to a fair trial, even though a fair trial need not be a perfect one.

The evidence the witness volunteered, on its face, suggested the accused had admitted his actions were not in self-defence. However, read in the context of the witness's full police statement, the accused's remark reflected a pessimistic assessment of his prospects based on his family name, not on the merits of any self-defence claim. The accused had effectively said he would not be believed because he was "a Bobak."

Dhanji J considered a proposed remedy: recalling the witness to lead the contextualising evidence, having the Crown expressly tell the jury the statement was not an admission, and giving a judicial direction. His Honour found this remedy had at least two difficulties. First, it risked drawing the jury's attention to the accused's family reputation, inviting speculation about why that reputation would make the accused pessimistic. Second, despite the direction, the jury might still misuse the initial evidence as an admission. The proposed fix, in other words, did not eliminate the risk of prejudice and could introduce new prejudice.

His Honour weighed the real costs of discharging the jury, including distress to civilian witnesses (some of whom would give evidence for a third time following an earlier aborted trial in September 2025), upset to the deceased's family, and delay. Ultimately, Dhanji J concluded these significant countervailing considerations were outweighed by the risk that the trial would be rendered unfair if it continued. The jury was discharged.

Orders Made

  • The jury was discharged.
  • A new jury panel was expected to be available the following day, enabling the trial to recommence with minimal delay.

Key Takeaways

  • The test for discharging a jury following inadvertent receipt of prejudicial evidence remains one of "necessity," assessed in the context of the accused's entitlement to a fair trial, as established in Crofts v The Queen.
  • No rigid rule governs the exercise of the discretion; the seriousness of the occurrence, the stage of trial, the deliberateness of the conduct, and the likely effectiveness of a curative direction are all relevant considerations.
  • Where a proposed remedy risks compounding prejudice (here, by drawing attention to the accused's family reputation and inviting speculation), the court may conclude that discharge is the only adequate safeguard.
  • Neither the Crown nor defence counsel was at fault. The Crown had appropriately conferenced the witness and led evidence-in-chief carefully. The prejudicial material was entirely unsolicited.
  • Practical hardship to witnesses and delay, while weighty factors against discharge, did not outweigh the risk of an unfair trial in these circumstances.

Legislation and Cases Referenced

Cases cited: