R v Bushell; R v Tozer (No 14) [2023] NSWSC 1450

R v Bushell; R v Tozer (No 14) [2023] NSWSC 1450

Because the detail of what was observed by or on behalf of the Crown was not absolutely clear and further instructions might provide evidence comparable to the detailed observations available to the judge, the application should not be determined immediately; the Crown should obtain instructions, and the matter would be dealt with later if necessary.

Jurisdiction
Australia
Judgment Date
16 August 2023
Procedural Posture
Criminal Procedure Trial Jury Application Concerning Discharge of Individual Juror / Procedural Ruling During Trial
Outcome
Application adjourned; matter to be dealt with at a later time dependent upon instructions obtained by the Crown and observations made by the trial Judge.
Legal Topics
['jury' 'discharge of Individual Juror' 'reasonable Apprehension of Bias' 'non Verbal Communication Between Juror and Accused' 'judicial Observations as Evidence']
['criminal Procedure'] ['jury' 'discharge of Individual Juror' 'reasonable Apprehension of Bias' 'non Verbal Communication Between Juror and Accused' 'judicial Observations as Evidence']

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Procedural Posture

Criminal Procedure Trial Jury Application Concerning Discharge of Individual Juror / Procedural Ruling During Trial

Legal Issues

  1. 1 ['Whether observed non-verbal interaction between a juror and an accused went beyond an informal greeting or exchange of looks and created a reasonable apprehension of bias.' "Whether the trial judge could rely on the judge's own observations in assessing whether the threshold under s 53B of the Jury Act 1977 (NSW) had been passed." "Whether there was currently sufficient evidence to determine the Crown's application."]

Ratio Decidendi

Because the detail of what was observed by or on behalf of the Crown was not absolutely clear and further instructions might provide evidence comparable to the detailed observations available to the judge, the application should not be determined immediately; the Crown should obtain instructions, and the matter would be dealt with later if necessary.

Court Disposition

Application adjourned; matter to be dealt with at a later time dependent upon instructions obtained by the Crown and observations made by the trial Judge.

Orders

  • ['The Crown should seek and obtain instructions if evidence is needed.' "If the Crown's instructions contain more or as much detail as the observations made by the judge's staff member, the matter will be dealt with on that basis." 'Otherwise, the judge will continue to observe the juror and the matter will be dealt...