Supreme Court New South Wales Medium Neutral Citation: R v Bushell; R v Tozer (No 16) [2023] NSWSC 1452 Hearing dates: 26-28, 31 July, 1-4, 7-10, 14 August 2023 Decision date: 17 August 2023 Jurisdiction: Common Law Before: Rothman J Decision: Juror to be discharged pursuant to s 53B(b) of the Jury Act 1977 (NSW). Catchwords: CRIMINAL PROCEDURE – trial – jury – discharge of individual juror – juror misconduct – communication by body language with accused – juror discharged Category: Procedural rulings Parties: Rex (Crown) Daniel Michael Bushell (Accused) John Jamie Tozer (Accused) Representation: Counsel: G Wright SC/J Sfinas (Crown) R Pontello SC (Accused Bushell) A Djemal (Accused Tozer) Solicitors: Director of Public Prosecutions (NSW) (Crown) Jamieson Criminal Law (Accused Bushell) Fahmy Lawyers (Accused Tozer) File Number(s): 2018/229735; 2018/230025 JUDGMENT 1. HIS HONOUR: Senior Counsel for Crown has raised the question with the Court as to the conduct of a particular juror during the course of the trial. It is alleged that a particular juror was making inappropriate facial contact with one of the accused. 2. The inappropriate contact includes smiling, raising eyebrows and seeking to communicate visually using facial expressions. The issue was raised on the last hearing day with the jury, before today. The trial is continuing. 3. The issue had been raised with me on an earlier occasion by my staff and in relation to the juror smiling at the accused during the adducing of evidence; raising his eyebrows at evidence and signalling to the accused. At one stage, the juror was seen flirting with the accused. 4. Of course, these are perceptions based on body language. After being informed by my staff of this conduct, I paid particular attention to the conduct of the juror. The issue raised by the Crown is valid. 5. The facial expressions were clearly a kind of communication with the accused. The facial expressions were on one view almost flirtations. Further, the communication was at times reciprocated by the accused. 6. It seems to me that the conduct by the juror is sufficient to give rise to a reasonable apprehension by an informed bystander that the juror may not bring an impartial or unbiased mind to the task at hand. 7. Ordinarily, the Court takes account of the right of accused to have a jury of 12. In this case, such an issue has less weight because 15 jurors have been empanelled and 11 of the 14 jurors, being all other than the foreperson, will need to be balloted prior to deliberations. Nevertheless, the consideration is still relevant; just less weighty. It is relevant because it would reduce the number from which the 11 will be chosen. 8. As a consequence of the foregoing, pursuant to s 53B(b) of the Jury Act 1977 (NSW), the juror will be discharged. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2023