11. Discharging jurors for cause and irregularities in empanelment

Updates and background for this project (Digest)

• Irregular conduct or events after empanelment
• Irregularities in empanelment
• Appeals to the Court of Criminal Appeal
• Reporting irregularities

IRREGULAR CONDUCT OR EVENTS AFTER EMPANELMENT

11.2 In some cases, the relevant conduct or events may affect only a single juror and require only that single juror’s discharge. In such cases, the judge is empowered to order that the trial proceed before the jury constituted by the remaining jurors.¹

11.3 In other cases, however, the conduct or events, even if initially affecting only one juror, may affect all of the jurors to the extent that they cannot perform their service satisfactorily. In such cases, the whole jury must be discharged.²

11.4 Questions of wasted resources arise where the discharge of one juror leads to the discharge of the whole panel. This is compounded when it occurs well into the trial, particularly in circumstances where it leads to significant hardship to the victims and other witnesses, for example, in the case of sexual assault trials. For this reason, we also address in this chapter the possible extension of the existing provisions permitting appeals against interlocutory judgments or orders so as to allow for an immediate review of any decisions by a trial judge either to grant or to refuse an application to discharge an individual juror and to continue with the remaining jurors, or to discharge the entire jury and to order a new trial.

Discharge of individual jurors and continuance of trial

11.5 At common law, if an empanelled juror died or was unable to continue, for example, because of illness, a fresh jury had to be sworn.³ This situation has been alleviated in NSW by a provision which has been interpreted as allowing the judge to order that a trial continue with fewer jurors (in certain circumstances down to a minimum of eight) where a juror has died, or where the judge has had to discharge a juror “as being through illness incapable of continuing to act or for any other reason”.⁴ The ability of the judge to discharge a juror in NSW is not the subject of an express grant of power under the Jury Act, but it is implied by reason of the existence of the statutory power to order that the trial continue with a reduced number of jurors where a juror has been discharged.

Court’s power to discharge jurors

11.6 As we have noted, other Australian jurisdictions give the courts an express power to discharge jurors. For example, the ACT simply states that the judge may excuse a juror from further attendance if he or she is satisfied that the juror should not continue to act as a juror “because of illness or other sufficient cause”.⁵ SA makes similar provision in the case of “ill health” or “a matter of special urgency or importance”.⁶ The NT allows the court, in its discretion, to discharge the jury or an individual juror if it is of the opinion that the juror “is not indifferent as between the Crown and the accused person” or should be discharged “by reason of any matter of urgency or importance”.⁷ In Queensland, the trial judge may, “without discharging the whole jury”, discharge a juror if it appears to the judge that the juror should not act as a juror because the juror is either “not impartial” or for “other reasons”. The judge may also discharge a juror if he or she considers the juror has become “incapable... of continuing to act as a juror” or the juror has become “unavailable, for reasons the judge considers adequate, to continue as a juror”.⁸ Tasmania and Victoria make similar provision, allowing the discharge of a juror if he or she appears to the court not to be impartial, or he or she “becomes incapable of continuing to act as a juror”, becomes ill, or “it appears to the court that, for any other reason, the juror should not continue to act as a juror”.⁹ In Tasmania, a dead juror may also be discharged.¹⁰ In WA, a juror can be discharged if the court is “satisfied that the juror should not be required or allowed to continue in the jury and if the discharge will leave at least 10 jurors remaining”.¹¹

11.7 In, NSW the power to discharge an individual juror is mentioned in the context of a section aimed principally at allowing a trial to continue in certain circumstances with fewer than 12 jurors.¹² We consider that, for greater certainty, there should be an express provision dealing with the discharge of a juror, broadly in line with the provisions in other Australian jurisdictions, but which also identifies more precisely the circumstances in which that power may be exercised.

Court’s power to order that the trial continue

11.8 We note that the reference in the current provision to the continuation of a trial following the discharge of a juror “for any other reason” contemplates the existence of a very broad basis for the exercise of the implied power. It has been suggested that it may encompass more than simply the inability of a particular juror to continue, but may include the delay caused by some temporary condition affecting the ability of a juror to attend court, and the effect of the delay on the accused and others involved in the trial, including witnesses and other jurors, as well as on other trials waiting to proceed in the same court.¹³ The imprecision of any such implied power and the resulting uncertainty as to its ambit would, in our view, warrant some greater precision being incorporated in the formulation of an express power. We next note some illustrations of cases where the need to discharge a juror may arise which could be incorporated in any such formulation.

Empanelled jurors who subsequently come within a category of exclusion

11.9 It is conceivable that, as a result of some change in circumstances after empanelment, a juror who was empanelled could come within one of the categories of exclusion, for example, as the result of being charged with a criminal offence and bailed or, less commonly, as the result of the juror changing his or her occupation to one of the occupational categories that would result in ineligibility.

11.10 Since the original empanelment was regular, we see no reason why such an event should not be dealt with similarly to the case of a juror who, by reason of death or illness, was unable to proceed. We consider that in such a circumstance the trial judge should have the ability to discharge the juror in question and continue with the remaining jurors, so long as the number of remaining jurors does not fall below the numbers specified in the Jury Act.

Jurors who are excused for individual personal cause after empanelment

11.11 Jurors have been discharged before the end of a trial, and the trial continued with the remaining jurors, for numerous reasons. These include death or illness, the emergence of serious financial disadvantage for a juror if required to continue to serve in a lengthy trial, pre-arranged holidays in the case of over-run trials,¹⁴ or subsequently discovered familiarity with witnesses in the case.¹⁵

11.12 Although each of these reasons would provide a proper basis for a discharge of the individual affected juror, we recognise that a discretionary judgment will still be required of the trial judge whether to proceed in each instance with a reduced jury. The decision to proceed involves the risk, as the trial progresses, of further reductions in the number of jurors, and may reach the point where the trial may no longer be viable.

Inappropriate juror conduct

11.13 The kind of inappropriate conduct envisaged under this head includes a juror conducting his or her own investigations into a case, gathering material on the internet, conducting experiments, undertaking a private view of the crime scene, or refusing to participate in jury deliberations.

11.14 In NSW, there have been instances where the misconduct of individual jurors has been reported in relation to private views,¹⁶ or in relation to private inquiries which those jurors made in order to obtain additional information about the accused on trial.¹⁷ The problem which this causes is that the juror may have gained access to inadmissible material of relevance to that juror’s assessment of the guilt of the accused, and additionally, would have deprived counsel of the opportunity of dealing with it.

11.15 If these activities came to light during the trial, and were reported to the judge, a question would arise as to whether that juror or the whole jury should be discharged. If the irregularity is not discovered until after the trial, this may well constitute grounds for a successful appeal leading to a retrial.

Potential or actual bias of a juror

11.16 If, after empanelment, circumstances emerge that may affect an individual juror’s ability to give the case an impartial consideration, or if a juror belatedly discloses some such matter that should have been apparent from the outset, there is precedent for the judge to discharge that juror and to determine whether to continue the trial with the remaining members of the jury.¹⁸ Again, a discretionary judgment will be required, depending on how far into the trial the problem is discovered, whether the juror in question has passed on information or otherwise behaved in a way that might contaminate a verdict by the remainder of the jury, and whether the circumstances identified give rise to a risk of bias.¹⁹

11.17 Sometimes, those circumstances may not come to light, since the disclosure will usually depend upon self-reporting by the juror in question or by way of a complaint from a third party. Examples may include a juror discovering that he or she know a prosecution witness; or a juror being seen in the court precincts talking to one of the witnesses in the case.

RECOMMENDATON 52

The court should be given an express power to discharge a juror without discharging the whole jury in circumstances where the court is satisfied that:

(a) the juror:


(i) has come within a category of exclusion as a result of some change in circumstances after empanelment; or

(ii) is, by reason of illness, unable to continue to serve as a juror; or

(iii) displays a lack of impartiality; or

(iv) refuses to take part in jury deliberations; or

(v) has engaged in misconduct in relation to the trial; or

(iv) should not be required to continue to serve for any other reason that the judge considers sufficient, and


(b) the interests of justice do not require that the whole jury be discharged,

and to order that the trial continue with the remaining jurors, so long as the number of remaining jurors meet the requirements of Jury Act 1977 (NSW) s 22.

The court should also be given an express power to order that the trial continue in circumstances where one of the jurors has died.

Adverse publicity

11.18 There have been numerous instances of judges discharging juries by reason of prejudicial media publicity mid-trial. In such cases, a discretionary judgment is required as to whether the problem can be cured by an appropriate direction to the jury, or whether the jury as a whole should be discharged, and an order made for a new trial.

11.19 In our 1986 report, we expressed concern that juries were being discharged for suspected rather than actual influence of prejudicial material arising from publicity occurring either pre-trial or mid-trial.²⁰ A recent study on the effect of prejudicial publicity has suggested that counsel and trial judges may over estimate jurors’ recall of prejudicial publicity.²¹ While acknowledging that there will still be cases where discharge of a jury is necessary, the study has suggested that this might not be so in all cases, in light of the fact that much publicity on television or radio may not be noticed by jurors, and the fact that jurors will often treat media reports of proceedings with scepticism.²²

11.20 A recent Court of Criminal Appeal case has recognised that “jurors are able to exercise a critical judgment of what they see, read and hear in the media, and to put such material out of their minds” and that, in absence of evidence to the contrary, it should be assumed that juries “accept and faithfully apply the directions given to them by the trial judge”.²³ Nevertheless, the decision whether or not to discharge the jury for this reason can involve a difficult balancing exercise, on which the parties will commonly disagree, including questions of whether instructions to put something out of mind in some cases can ever be successful. If the wrong decision is made and the jury discharged, it can involve an unnecessary waste of time and resources. If the trial is continued, it can provide the basis for a successful appeal post verdict. For that reason, we address later in this chapter a possible solution which would allow the Court of Criminal Appeal to intervene by way of an interlocutory appeal.²⁴

Improperly admitted evidence or material wrongly made available to the jury

11.21 There have been instances of judges discharging juries where it is discovered that inadmissible evidence, or inappropriate material, has been made available to the jury. Three situations are considered here. First, where evidence which is later found to have been wrongly admitted is placed before the jury and then withdrawn. Secondly, where extraneous material accidentally comes before the jury (through no fault of its own) during the proceedings which amounts to an irregularity. Thirdly, where material comes before the jury improperly as the result of private research or fact-gathering by one or more of its members.

11.22 In the first and second types of case, the court must consider whether the irregularity, for example, the tender of evidence which is later withdrawn, or the inclusion within the exhibits given to the jury of documents which were never tendered as exhibits, gave rise to the risk of a substantial miscarriage of justice.²⁵ The courts have, on occasions, addressed these issues by asking whether the jury would have returned the same verdict if the irregularity had not occurred.²⁶ In cases where the irregularity is discovered during the course of the trial, the question then extends to a consideration of the nature and magnitude of the irregularity, as well as to an examination of the remedial steps that can be or were taken, including the delivery of a suitable jury direction.²⁷

11.23 The third type of case, involving material brought before the jury by one or more of its members, for example, material researched from the internet, is also subject to the same test, namely, whether the availability of the irregularly obtained material would give rise to risk of a substantial miscarriage of justice. So, for example, it has been held that the presence of pages which were copied by a juror from a street directory and annotated by members of the jury did not have that effect.²⁸ However, in another case, where the results of an internet search made by a juror disclosed a previous murder charge against the accused, it was held the court could not be satisfied that the irregularity arising from the internet search had not affected the verdict resulting in a risk of a miscarriage of justice.²⁹ The results in such cases depend on individual facts. While a provision has been added to the Jury Act expressly prohibiting a juror from making enquiries “for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror”,³⁰ there is no practical way of ensuring juror compliance with this provision.

11.24 Where one or other of the problems mentioned in this section emerges, it similarly involves a difficult weighing exercise on the part of the trial judge, in circumstances where the parties are likely to be in disagreement. The issue of whether a form of interlocutory appeal would be a way of dealing with this problem is considered later in this chapter.³¹

IRREGULARITIES IN EMPANELMENT

11.25 The Jury Act 1977 (NSW) makes express provision to save a jury verdict where otherwise, at common law, the empanelment of an ineligible or disqualified juror, or other irregularity in relation to the empanelment procedure, would have resulted in the trial being a nullity.

11.26 The provision states:

The verdict of a jury shall not be affected or invalidated by reason only:

(a) that any member of the jury was disqualified from serving as a juror or ineligible to serve as a juror,

(b) of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act,

(c) that any juror was misnamed or misdescribed (where there is no question as to the juror’s identity).³²

Attendance of a juror on the wrong day in answer to summons

11.28 The case of R v Brown involved a person who, though qualified to serve as a juror and in receipt of a jury summons, by mistake reported for service a day earlier than that appointed by the summons.³³ The error was not noticed and the person was mistakenly empanelled. The error was, however, discovered in the course of proceedings. Both the prosecution and defence effectively elected to waive the irregularity on the basis that it would be cured by an application of s 73 of the Jury Act 1977 (NSW). The juror was not discharged and the trial proceeded to a conclusion.

11.29 An appeal was, however, brought to the NSW Court of Criminal Appeal from the conviction that followed the jury verdict. That appeal was upheld on the basis that the trial was a nullity by reason of the failure to comply with the mandatory provisions of the Jury Act and, in particular, the requirement that the jury “consist of twelve persons returned and selected in accordance with the Act”³⁴ and the accompanying requirements concerning the selection and summoning of people who are to perform jury duty.³⁵ It was held that the verdict could not be saved by an application of s 73(b) of the Act, which was construed as confined to omissions, errors and irregularities in the preparation or issue of the relevant documents by the Sheriff.

11.30 This interpretation of s 73(b) is, arguably, too narrow. The appeal was argued on the basis of the permitted reach of that section, and the potentially antecedent question whether the improperly empanelled juror could have been discharged pursuant to the implied power arising under s 22 of the Act and an order made allowing the trial to continue with the remaining jurors, was not raised or considered by the court. Nor was consideration given to the question whether the case could possibly have been brought within the reach of s 73(a), it being assumed, apparently, that the expressions “disqualified” and “ineligible” should be construed to extend only to those who fell within the specified categories of disqualification or ineligibility contained in the Act.

11.31 It has been suggested that the Act should be amended to overcome such problems,³⁶ particularly as there has been another similar incident where, after verdict, it was discovered that one juror had been empanelled who had reported for service a month early.³⁷

Empanelment of a disqualified or ineligible juror

11.32 A somewhat different problem emerged in the case of R v Petroulias.³⁸ In that case, it was discovered mid-trial that one juror who had been empanelled was disqualified from serving because he was the subject of an order disqualifying him from driving a motor vehicle.³⁹ On this occasion, the trial judge made an order under s 22(a) of the Jury Act discharging the juror in question and a further order that the remaining 11 jurors be considered as remaining, for all purposes of the trial, to be properly constituted as the jury.

11.33 An appeal against the order of the trial judge was brought on behalf of the accused to the Court of Criminal Appeal.⁴⁰ The appeal was upheld by the majority on the basis that the trial process was flawed from the outset, since the jury did not comply with the explicit statutory requirement that it “consist of 12 persons returned and selected in accordance with [the] Act”.⁴¹ It was held that, in those circumstances, s 22 did not authorise the course that was taken, and that while the provisions of s 73(a) would have saved the trial had it resulted in a verdict, that section did not apply to preserve an unconcluded trial subject to the defect in question, that is, that the jury included a disqualified or ineligible person.

11.34 A question has arisen as to whether this potential problem, which applies equally to the case of disqualified or ineligible jurors, should also be addressed.

The Commission’s conclusion

11.35 In considering the scenarios outlined above, there are three solutions potentially available. The first would allow the decisions in Brown and Petroulias to stand. The second would expressly allow the court, in its discretion, to discharge an irregularly empanelled juror in circumstances of the kind encountered in these cases. The court could order that the trial be continued with the remaining jurors,⁴² so long as their number did not drop below the number permitted by the Jury Act. The third would save a verdict where, during the course of the trial, it was found that a juror was disqualified or ineligible or otherwise not entitled to be present, yet continued to serve and participated in the verdict.

11.36 In assessing the three options available, there are a number of considerations to be brought into account.

11.37 First, it may be dangerous to regularise proceedings whereby a person managed to become empanelled who had no entitlement to be present as part of the jury panel on the day of the return of the summons. To do so might facilitate the participation of someone impersonating another who had received a jury summons, or of someone not on the electoral roll, or of someone whose motive was to disrupt the trial.

11.38 Secondly, to allow a trial to proceed safely to verdict with a reduced jury might be to countenance the repetition of an error of the kind seen in Brown, that could have been avoided had greater care been taken, prior to empanelment, to ensure that each panel member was properly entitled to be present pursuant to a summons for that day and eligible to serve as a juror.

11.39 Thirdly, instances of people serving who are disqualified or ineligible under the Act, or who have by mistake responded to a summons on the incorrect date, would be reduced if other recommendations in this Report are accepted, concerning:

• the reduction or elimination of most of the categories of exclusion,⁴³ including a narrowing of the existing criteria for disqualification;⁴⁴
• the adoption of adequate procedures for checking whether a potential juror falls into the category of those who are excluded by reason of their contact with the criminal justice system,⁴⁵ for checking juror identities, and for confirming that those who attend in response to a summons have attended on the correct date;
• the provision to jurors of sufficiently clear information as to the eligibility requirements both at the time of the service of the summons and upon arrival at the relevant court, in order to prevent them being empanelled through ignorance, or lack of relevant information, or change in circumstances between the time of receiving the relevant documentation and attendance in court.;⁴⁶ and
• the requirement that jurors produce a certificate from their employer prior to commencement of the trial⁴⁷ which, if the potential juror was a member of an excluded occupation, would alert his or her employer and, failing that, a Sheriff’s officer, to the possibility that the juror ought to be excluded from jury service.

• the potential cost and inconvenience of a rehearing following a successful appeal, or of having to discharge the jury mid-trial and to order a new trial, especially in relation to the impact on victims and other witnesses, the loss of court time, and the extra burden on prosecution and legal aid budgets;
• the fact that in NSW trials are already allowed to continue with fewer jurors in certain circumstances, so long as the remaining number does not drop below the number permitted by the Act;⁴⁸
• the circumstance that, if s 73(a) operates to save a verdict where it is discovered, post verdict, that a juror was ineligible or disqualified, it is difficult to see why a similar provision should not apply to the situation where the relevant juror was discovered mid-trial to be ineligible or disqualified, at least in circumstances where that juror is discharged and an order made for the trial to continue with the remaining jurors;⁴⁹ and
• the fact that the granting of a discretion in the trial judge either to discharge a juror in such circumstances and order that the trial continue with fewer jurors, or to discharge the whole jury and order a new trial, would sufficiently guard against circumstances where the empanelment of an ineligible or disqualified person or of a person without an appropriate summons might give rise to an appearance that justice is not being done.

11.42 We do not consider it appropriate to adopt the third option that would allow a trial judge to permit a person who was discovered mid-trial to lack an entitlement to be empanelled as a juror, to continue to serve as a juror and to participate in the verdict, even if, as in Brown, the parties elected to waive the irregularity. The safer course, and the one that would better ensure the appearance of justice, would be to discharge that juror and continue the trial with the remaining jurors.

11.43 Similarly, we do not support the first option, since experience has shown that incidents have occurred where people who had no entitlement to be present have managed to be empanelled as jurors with the difficulties and waste of resources that would follow upon the need for a new trial. It cannot be said with any certainty, that even with the adoption of suitable precautions, similar problems would never recur.

11.44 On balance, we consider that the existence of a discretionary power of the kind identified, which would also preserve a power in suitable cases to discharge the whole jury, will generally guard against any of the concerns raised above. A court should have the power to allow a improperly empanelled juror to be discharged and for the trial to continue, where appropriate, with the remaining jurors.

RECOMMENDATION 53

The court should be given an express power to discharge a juror without discharging the whole jury and to order that the trial continue in circumstances where that juror has been improperly empanelled, which would include a discretion to discharge the whole jury where the interests of justice so require.

RECOMMENDATION 54

The requirement that a jury “consist of 12 persons returned and selected in accordance with [the] Act” be made expressly subject to provisions allowing the court to order that a trial continue with fewer jurors in the event of the death or discharge of one or more jurors.

RECOMMENDATION 55

Section 73(a) of the Jury Act 1977 (NSW) should be amended to extend its operation to any person who was otherwise empanelled by error where the error was not discovered during the trial and cured by the discharge of that person as a juror.

The saving provisions of s 73 should be amended so as to exclude the case of juror personation.

11.47 There are cases where a judge will need to consider an application to discharge a juror for reasons personal to that juror, and to allow a case to proceed with the balance of the jury. An application to discharge the whole jury may also arise where there has been some prejudicial publicity or other adverse event, or the discovery of previously undisclosed material evidence in circumstances where a Basha inquiry⁵² would be insufficient to protect the interests of the defence. There is a risk that any decision made in response to any such application will be held to have been erroneous in an appeal against conviction brought after verdict or, alternatively, that it will be an overreaction to the relevant event, leading to an unnecessary discharge of a juror or the jury as a whole.

11.48 In many instances, decisions of this kind involve difficult discretionary and value judgments which, if found to be wrong, can have far-reaching effects in relation to delays, waste of resources, additional costs, and trauma to those involved in the trial.

11.49 Section 5F of the Criminal Appeal Act 1912 (NSW), which makes provision for interlocutory appeals in criminal proceedings, has been identified as potentially providing a useful mechanism for the review of such decisions mid-trial. It was the vehicle used in the Petroulias case where a decision to discharge one juror and to allow the trial to proceed with the remaining jurors was successfully challenged by the defence.

11.50 However, there are a number of problems with the provision as it is currently framed in applying it to the situations under consideration. First, it applies only to judgments or orders that are interlocutory. An order discharging the whole jury would take effect as a final judgment and would, therefore, not be susceptible to appeal under s 5F. Secondly, it applies only to judgments or orders. This means that a mere indication from the judge that he or she is contemplating the discharge of the whole jury, or the discharge of an individual juror and the continuance of the trial, could not be subject to an appeal under s 5F until the order or judgment has been handed down.⁵³

11.51 Thirdly, while the prosecution can bring an appeal under s 5F from an interlocutory order as of right,⁵⁴ the defence can only bring an appeal if the Court of Criminal Appeal grants leave or the trial judge “certifies that the judgment or order is a proper one for determination on appeal”.⁵⁵ The circumstances in which the defence can effectively bring an appeal under s 5F have been constrained by decisions of the Court of Criminal Appeal.⁵⁶ If the defence is unable to obtain either a grant of leave or a certificate, then it is true that its rights are preserved for the purposes of a post conviction appeal since the section provides that “the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related”.⁵⁷ However, this may necessitate considerable delay before the question is determined on a final appeal, with adverse consequences in terms of wasted resources, costs and trauma to those involved.

11.52 Although one such decision was reviewed in Petroulias following the grant of a certificate by the trial judge,⁵⁸ it has been suggested that this avenue of potential appeal should be placed on a more secure footing,⁵⁹ and expanded to embrace the circumstances where a trial judge has reached a decision to discharge the whole jury.

11.53 In our view s 5F should permit the review of decisions made mid-trial concerning the discharge or non-discharge of an individual juror or the whole jury, so as to avoid the risk of trials being unnecessarily aborted prior to verdict, or of convictions being quashed post verdict. We recognise that not every such instance should give rise to a right of appeal, and the jurisdiction would need to be exercised sparingly, and confined, for example, to lengthy trials such as Petroulias, where the consequences of the order could have significant consequences for the parties. In very many cases, particularly those where the order related to an application for the discharge of a single juror, and the continuation of the trial with the remaining jurors, and in some cases where it related to the discharge of the whole jury, there would in fact be no dispute in relation to the order, and no need for any review.

11.54 For the purpose of allowing the review to proceed, and to avoid the problems of declaratory relief, it would seem necessary that the trial judge make the relevant order with reasons, but then, if satisfied that the parties wish to contest the order, and that it is an appropriate case, stay its operation pending appeal to the Court of Criminal Appeal under s 5F.

11.55 We recognise that this would involve a brief interruption to the trial, with the jury being required effectively to stand by until the decision is reviewed. We have, however, been informed that the Court of Criminal Appeal could deal with such questions within a matter of days, particularly as the issue would be a narrow one that would be apparent from the trial transcript, including the reasons given by the trial judge.⁶⁰

RECOMMENDATION 56

Consideration should be given to amending s 5F of the Criminal Appeal Act 1912 (NSW) to include an express provision for the review by the Court of Criminal Appeal of any order made by the trial judge following an application for the discharge of a juror and for the continuation of the trial with a reduced number of jurors or for the discharge of the jury as a whole.

11.56 If irregularities of the kind outlined earlier in this chapter become known to the remainder of the jury, they may, out of ignorance or otherwise, fail to report the matter to the trial judge or Sheriff. On other occasions, the existence of a relevant aspect of bias, or other impediment to the ability of a juror to serve may not be apparent to the remainder of the jury and only be discovered after the jury has returned its verdict. In any of these events, the remedy will normally be one of appeal, which may or may not succeed, depending on the seriousness of the complaint and whether it was likely to have led to a miscarriage of justice.⁶¹

11.57 The Queensland Jury Act has a specific provision that allows a juror to report to the Attorney-General or Director of Public Prosecutions any suspicion which that juror has concerning the existence of bias or fraud on the part of any other juror, or the commission by that juror of an offence related to his or her membership of the jury or the performance of his or her functions as a member of the jury.⁶²

11.58 Where the relevant information comes to light during the trial, then clearly the preferable course is for it to be referred to the trial judge. If not, then an acceptable alternative would see it disclosed to the Attorney General, Director of Public Prosecutions or Sheriff, who should then be authorised to bring it to the attention of the trial judge and, where appropriate, to the Court of Criminal Appeal.

11.59 There would be benefit, in our view, in adopting a legislative provision akin to that contained in the Queensland Act that confers an express power in an individual juror to report any concerns of the kind identified to the judge during the trial, or if not reported at that stage, then to the Attorney General, Director of Public Prosecutions or Sheriff and to empower these officers to disclose the information so reported to the trial judge or the Court of Criminal Appeal.

11.60 Such a provision could also be used to allow jurors to identify fellow jurors who do not have the requisite ability in English and who may not have been detected in the empanelment process, or who are not prepared to participate in the deliberations of the jury.

RECOMMENDATION 57

During the trial, a juror should be expressly authorised to report to the trial judge any suspicion which he or she has concerning the existence of bias or fraud on the part of any other juror, or the commission by that juror of an offence related to his or her membership of the jury or concerning any other question relating to the capacity or willingness of that juror to perform his or her functions according to law, or, if not reported at that stage, then to the Attorney General, Director of Public Prosecutions or Sheriff.

1. Jury Act 1977 (NSW) s 22.

2. See Wu v The Queen (1999) 199 CLR 99, 103.

3. H S G Halsbury, The Laws of England (Butterworth and Co, 1911) vol 18, [623].

4. Jury Act 1977 (NSW) s 22. A version of this provision was first introduced as Jury Act 1912 (NSW) s 27A by Crimes (Amendment) Act 1929 (NSW) s 19.

5. Juries Act 1967 (ACT) s 8(1).

6. Juries Act 1927 (SA) s 56(1).

7. Criminal Code (NT) s 373(1).

8. Jury Act 1995 (Qld) s 56(1).

9. Juries Act 2003 (Tas) s 40; Juries Act 2000 (Vic) s 44.

10. Juries Act 2003 (Tas) s 40(c).

11. Criminal Procedure Act 2004 (WA) s 115(2).

12. Jury Act 1977 (NSW) s 22.

13. Wu v The Queen (1999) 199 CLR 99, 106 (Gleeson CJ and Hayne J). See also R v Reardon (2002) 186 FLR 1 (NSW CCA).

14. R v Hambery [1977] QB 924.

15. R v Derbas (1993) 66 A Crim R 327, 331.

16. For example, R v Skaf [2004] NSWCCA 37.

17. Such inquiries are an offence under Jury Act 1977 (NSW) s 68C although the extent to which a juror might lawfully disclose such information, within the existing restrictions contained in Jury Act 1977 (NSW) Part 9 Div 3 are somewhat uncertain.

18. See, eg, R v Czajkowski (2002) 137 A Crim R 111.

19. See, eg, R v McCormick (2007) NSWCCA 78.

20. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [7.30].

21. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An empirical study of criminal jury trials in New South Wales (Justice Research Centre, Law and Justice Foundation of NSW, 2001), [221].

22. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An empirical study of criminal jury trials in New South Wales (Justice Research Centre, Law and Justice Foundation of NSW, 2001), [372], [572].

23. El Hassan v The Queen [2007] NSWCCA 148, [14].

24. See para 11.47-11.55.

25. R v Adam (1999) 47 NSWLR 267, [55]-[81]. See Crofts v The Queen (1996) 186 CLR 427, 440-441.

26. See R v Lansdell (NSW CCA, 22 May 1995); R v Rudkowsky (NSW CCA, 15 December 1992). Query whether following the decision of Weiss v The Queen (2005) 224 CLR 300, this remains an appropriate test, or whether it would now be decided by reference to the broader test now applied where the proviso to Criminal Appeal Act 1912 (NSW) s 6 is invoked.

27. R v Lansdell (NSW CCA, 22 May 1995).

28. R v Olivier (NSW CCA, 15 September 1993).

29. R v K (2003) 59 NSWLR 431.

30. Jury Act 1977 (NSW) s 68C. See also R v K (2003) 59 NSWLR 431, [87].

31. See para 11.47-11.55.

32. Jury Act 1977 (NSW) s 73.

33. R v Brown [2004] NSWCCA 324.

34. Jury Act 1977 (NSW) s 19.

35. Jury Act 1977 (NSW) s 25-29.

36. NSW, Jury Task Force, Preliminary submission at 3.

37. R v Tan [2007] NSWCCA 223.

38. Petroulias v The Queen [2007] NSWCCA 134.

39. See para 3.54-3.60.

40. Pursuant to Criminal Appeal Act 1912 (NSW) s 5F, following the grant of a certificate by the trial judge.

41. Simpson and Hoeben JJ, McClellan CJ at CL dissenting.

42. In accordance with Jury Act 1977 (NSW) s 22.

43. See chapters 4 and 5.

44. See chapter 3.

45. See para 3.74-3.77.

46. See para 13.17-13.30.

47. See para 12.30.

48. Jury Act 1977 (NSW) s 22.

49. We consider the dissenting judgment of McClellan CJ at CL in Petroulias v The Queen [2007] NSWCCA 134, [41]–[43] persuasive in this respect.

50. Compare, improperly obtained evidence, para 11.21-11.24.

51. Juries Act 1974 (Eng) s 18(3).

52. R v Basha (1989) 39 A Crim R 337.

53. See R v Cheng (1999) 48 NSWLR 616, 622.

54. Criminal Appeal Act 1912 (NSW) s 5F(2).

55. Criminal Appeal Act 1912 (NSW) s 5F(3).

56. See, eg, R v Ho (NSW CCA, 18 July 1994); R v Natoli [2005] NSW CCA 292; R v Kocer [2006] NSWCCA 328.

57. Criminal Appeal Act 1912 (NSW) s 5F(6).

58. Under Criminal Appeal Act 1912 (NSW) s 5F(3).

59. J J Spigelman, Consultation.

60. We note, eg, that in R v Cheng (1999) 48 NSWLR 616, the CCA disposed of a s 5F appeal within three days of the decision of the trial judge, while the jury was not discharged pending the decision.

61. R v Skaf [2004] NSWCCA 37.

62. Jury Act 1995 (Qld) s 70(8).