R v James Duncan Smith [2009] NSWDC 110

New South Wales District Court

CITATION: R v James Duncan Smith [2009] NSWDC 110

JUDGMENT DATE: 30 April 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The juror is discharged. The jury is discharged.

CATCHWORDS: CRIMINAL LAW - application to discharge juror with occupation of "overseas lawyer/judge" - eligibility to serve on jury - reasonable apprehension that juror may be biased - application to discharge jury

LEGISLATION CITED: Judicial Officers' Act 1986 Jury Act 1977 s 6(b) s 53B

R v Bright (2000) 114 A Crim R 466 CASES CITED: R v Czajkowski and Shepherd [2002] NSWCCA 530 Luland v The Queen [2007] NSWCCA 64

PARTIES: R James Duncan Smith

FILE NUMBER(S): 2007/11356

COUNSEL: Mr J Gibson (NSWDPP) Mr G Porter

JUDGMENT

1 A jury was empanelled yesterday to try Mr Smith on the nine charges of child sexual assault contained in the indictment. A court officer properly drew to my attention that a routine form completed by one of the jurors referred to that juror's occupation as "OVERSEAS LAWYER/JUDGE". The court officer has also drawn to my attention that on the database of current juror details for that juror kept by the Office of the Sheriff, the occupation is described as "LAWYER."

2 I drew to the attention of counsel in this trial that information. It has prompted an application by Mr Porter, who appears for Mr Smith, to discharge that juror. He argues that if that application is successful then I should, in addition, discharge the other eleven jurors and not proceed with a jury of eleven.

3 His application is made under s53B of the Jury Act 1977 and this judgment concerns the reasons why I accept his submission. Mr Porter primarily relies on s53B (b) which provides that a court may discharge a juror if relevantly it appears to the court that the juror may not be able to give impartial consideration to the case because of "any reasonable apprehension of bias."