District Court New South Wales Medium Neutral Citation: R v Paul JAMES [2011] NSWDC 164 Decision date: 04 August 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: I reject the application to discharge the juror. Catchwords: CRIMINAL LAW - jury trial - child pornography offences - application by defence counsel to discharge juror - juror became visibly upset during discussion of a descriptive exhibit - concern that juror would be distracted by emotion and not give objective and fair consideration to the evidence - jury of twelve required for Commonwealth prosecutions - submission from the Crown that a direction could address any issues - discharge of juror should be a remedy of last resort Category: Separate question Parties: Regina Paul James Representation: Mr B Neild for the Commonwealth Director of Public Prosecutions Mr T Phelan for Mr James File Number(s): 2010/154421 Judgment 1. Mr T Phelan of counsel who appears for the accused has applied to discharge one of the jurors. 2. His client is charged with a series of child pornography offences. 3. The basis of his application is something that occurred this morning. When one of the exhibits was being discussed, a juror became obviously upset. She asked for tissues and it was apparent that she was crying. I asked her whether she wanted a break and she said no. The trial carried on. 4. I discussed the matter after the jury retired. It is common ground that the juror might have been upset for reasons completely unconnected with the trial, but it is fair to say that most of us think that the likelihood is that she was upset because of the subject matter of the exhibit. 5. There were no photographs in the exhibit, but it gave a description of the kinds of child pornography on particular files by reference to an ' Oliver scale' which had terms such as " Penetrative " and " Bestiality ". Other descriptions were less objective and were the titles of the files but made reference to children engaged in sexual activity in enticing terms. 6. Mr Phelan argues that his and his client's observation was that the particular juror, between morning tea and lunch, did not observe the exhibits during the course of the evidence. His concern is that the juror will be distracted by the emotion involved in what we all regard as the likely reaction to the evidence and will not give objective and fair consideration to the evidence so that his client may not get a fair trial. 7. Mr B Neild of counsel who appears for the Commonwealth Director of Public Prosecution opposes the application. He points out that because it is a Commonwealth prosecution a jury of twelve is needed, so that in effect Mr Phelan's application is for a discharge of the whole jury. He argued that there was at this stage insufficient indication that the juror was unable to sit on in the trial. He suggested that any issue about the emotional distraction by the subject matter of the charges could be addressed by a direction now and a direction during the summing-up, rather than the extreme course of discharging the juror. The direction should refer to the need for a dispassionate analysis of the evidence. 8. Both counsel fairly acknowledge that, of course, our observations are fairly speculative. 9. I have decided not to discharge the juror. A discharge of a juror should be regarded as, in my opinion, a remedy of last resort, particularly when it might involve the effective discharge of the jury. 10. I would make these observations about what has happened. Both counsel have acknowledged the hardly surprising proposition that the subject matter of the trial, namely child pornography, is something that almost all members of the community would regard as repulsive. That does not mean in my opinion that jurors cannot be objective. Nor does it mean that other jurors may not be affected in the same way. It may be that the juror who broke into tears, assuming that that was precipitated by the trial, was someone who more readily expresses her emotions physically than others. It may be that there are others who have similar reactions. Once again I observe that that is hardly surprising. 11. Judges, magistrates and jurors are required to put aside their personal views and emotions when dealing with any criminal matter. This is especially important when the subject matter is offensive. 12. I am inclined to accept Mr Nield's submission that the fact that the juror was observed not to be looking at exhibits is neither here nor there. It may well be that the juror elected not to look at them in court in order to avoid breaking out into tears publicly. It may be that she looks at the exhibits in the privacy of the jury room where she can talk. 13. In my opinion this predicament is one which can be dealt with by a reminder both now and during the summing-up of the jury's responsibility to be objective and dispassionate in their consideration of the case. I do not think it requires a discharge of this juror. I am not convinced that the juror will not give fair consideration to the evidence. Judges must bear in mind, as the High Court has observed, that jurors are assumed to follow the directions given by a judge. 14. For those reasons I reject the application. ********** 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 October 2011