R v Jenkins; R v Clayton [2013] NSWDC 208

R v Jenkins; R v Clayton [2013] NSWDC 208

Although the jury's separation without a prior express or implied order was a grave irregularity and no retrospective order could be made under s 54(2), the irregularity did not amount to a departure from the essential requirements of the law going to the root of the proceedings. The judge had intended to allow separation, told counsel seconds after the jury left that he proposed to allow the jury to go home if it wished, had repeatedly directed the jury not to discuss the case with anyone except themselves in the jury room, there was no indication of interference or contamination, the separation resulted from a misunderstanding, and the case was not exceptional. No miscarriage of justice...

Jurisdiction
Australia
Judgment Date
26 September 2013
Procedural Posture
Criminal Trial Procedural Ruling / Application to Discharge the Jury After Jury Separation During Deliberations
Outcome
The application to discharge the jury is refused.
Legal Topics
['juries' 'jury Separation' 'application to Discharge Jury' 'jury Deliberations' 'procedural Irregularity' 'miscarriage of Justice']
['criminal Law' 'criminal Procedure'] ['juries' 'jury Separation' 'application to Discharge Jury' 'jury Deliberations' 'procedural Irregularity' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Trial Procedural Ruling / Application to Discharge the Jury After Jury Separation During Deliberations

Legal Issues

  1. 1 ["Whether the jury's separation after retiring to consider its verdicts without an order under s 54(1)(b) of the Jury Act 1977 required discharge of the jury." 'Whether the separation was an irregularity going to the root of the trial process.' 'Whether a retrospective order could be made under s 54(2) of the Jury Act 1977 after the jury had left the courthouse.']

Ratio Decidendi

Although the jury's separation without a prior express or implied order was a grave irregularity and no retrospective order could be made under s 54(2), the irregularity did not amount to a departure from the essential requirements of the law going to the root of the proceedings. The judge had intended to allow separation, told counsel seconds after the jury left that he proposed to allow the jury to go home if it wished, had repeatedly directed the jury not to discuss the case with anyone except themselves in the jury room, there was no indication of interference or contamination, the separation resulted from a misunderstanding, and the case was not exceptional. No miscarriage of justice...

Court Disposition

The application to discharge the jury is refused.

Orders

  • ['The application to discharge the jury is refused.']