R v Azari (No 9) [2018] NSWSC 1678

R v Azari (No 9) [2018] NSWSC 1678

The discharged juror was removed on the basis of a reasonable apprehension of bias, not actual bias. Her denial that she recognised the witness and her statement that she had not discussed any possible association with other jurors were accepted as genuine. Because she did not remember the witness, she was not in a position to communicate prior knowledge of him to the other jurors. The concern that the remaining jurors had been contaminated was speculative, and continuing with 11 jurors would not give rise to a risk of a substantial miscarriage of justice under s 53C(1)(a) of the Jury Act 1977 (NSW).

Jurisdiction
Australia
Judgment Date
18 October 2018
Procedural Posture
Criminal Trial / Procedural Ruling on the Accused's Application to Discharge the Jury After One Juror Was Discharged
Outcome
Application dismissed; trial to continue with a jury of 11.
Legal Topics
['application to Discharge Jury' 'reduced Jury' 'reasonable Apprehension of Bias' 'risk of Substantial Miscarriage of Justice' 'juror Familiarity With Witness']
['criminal Law' 'jury Procedure'] ['application to Discharge Jury' 'reduced Jury' 'reasonable Apprehension of Bias' 'risk of Substantial Miscarriage of Justice' 'juror Familiarity With Witness']

Case Brief

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Procedural Posture

Criminal Trial / Procedural Ruling on the Accused's Application to Discharge the Jury After One Juror Was Discharged

Legal Issues

  1. 1 ['Whether the remaining jury members should be discharged under s 53C(1)(a) of the Jury Act 1977 (NSW) after a juror was discharged under s 53B(b).' 'Whether continuing the trial with 11 jurors would give rise to the risk of a substantial miscarriage of justice.' 'Whether any possible communication by the discharged juror with other jurors could have contaminated the jury.']

Ratio Decidendi

The discharged juror was removed on the basis of a reasonable apprehension of bias, not actual bias. Her denial that she recognised the witness and her statement that she had not discussed any possible association with other jurors were accepted as genuine. Because she did not remember the witness, she was not in a position to communicate prior knowledge of him to the other jurors. The concern that the remaining jurors had been contaminated was speculative, and continuing with 11 jurors would not give rise to a risk of a substantial miscarriage of justice under s 53C(1)(a) of the Jury Act 1977 (NSW).

Court Disposition

Application dismissed; trial to continue with a jury of 11.

Orders

  • ["The accused's application to discharge the jury under s 53C(1)(a) of the Jury Act 1977 (NSW) is dismissed." 'In accordance with ss 53C(1)(b) and 22(a)(i) of the Jury Act 1977 (NSW), the trial is to continue with a jury of 11.']