R v WE (No.11) [2020] NSWSC 92

R v WE (No.11) [2020] NSWSC 92

The reported and observed conduct of Juror C in closing his eyes and failing to engage with the evidence constituted misconduct under s 53A(1)(c) and s 53A(2)(b) of the Jury Act 1977 (NSW), requiring discharge. There was no material suggesting that the remaining 11 jurors had the same difficulty; rather, they appeared attentive and conscientious. Because continuation with 11 jurors would not give rise to the risk of a substantial miscarriage of justice, and because s 22 of the Jury Act 1977 (NSW), applied through s 68(1) of the Judiciary Act 1903 (Cth), permitted continuation, the trial could proceed with a jury of 11.

Jurisdiction
Australia
Judgment Date
17 February 2020
Procedural Posture
Criminal Trial for Doing an Act or Acts in Preparation for a Terrorist Act or Acts / Procedural Ruling During Trial on Discharge of an Individual Juror and Continuation With a Reduced Jury
Outcome
Juror discharged; trial ordered to continue with a jury of 11.
Legal Topics
['juror Misconduct' 'juror Falling Asleep' 'discharge of Juror' 'continuation of Trial With 11 Jurors' 'trial by Jury for Commonwealth Offences']
['criminal Law' 'jury Procedure'] ['juror Misconduct' 'juror Falling Asleep' 'discharge of Juror' 'continuation of Trial With 11 Jurors' 'trial by Jury for Commonwealth Offences']

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Procedural Posture

Criminal Trial for Doing an Act or Acts in Preparation for a Terrorist Act or Acts / Procedural Ruling During Trial on Discharge of an Individual Juror and Continuation With a Reduced Jury

Legal Issues

  1. 1 ['Whether Juror C should be discharged for misconduct under s 53A of the Jury Act 1977 (NSW) after apparently falling asleep or failing to pay attention during evidence.' 'Whether the trial should continue with the remaining 11 jurors or the whole jury should be discharged under s 53C of the Jury Act 1977 (NSW).' 'Whether s 80 of The Commonwealth of Australia Constitution Act 1901 prevented continuation of a Commonwealth offence trial with fewer than 12 jurors.']

Ratio Decidendi

The reported and observed conduct of Juror C in closing his eyes and failing to engage with the evidence constituted misconduct under s 53A(1)(c) and s 53A(2)(b) of the Jury Act 1977 (NSW), requiring discharge. There was no material suggesting that the remaining 11 jurors had the same difficulty; rather, they appeared attentive and conscientious. Because continuation with 11 jurors would not give rise to the risk of a substantial miscarriage of justice, and because s 22 of the Jury Act 1977 (NSW), applied through s 68(1) of the Judiciary Act 1903 (Cth), permitted continuation, the trial could proceed with a jury of 11.

Court Disposition

Juror discharged; trial ordered to continue with a jury of 11.

Orders

  • ['Juror C, being juror 2 from panel 745, is discharged pursuant to s 53A of the Jury Act 1977 (NSW).' 'Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), the trial continue with a jury of 11.']