R v Duffy (No. 6) [2015] NSWSC 562

Supreme Court New South Wales

Medium Neutral Citation: R v Duffy (No. 6) [2015] NSWSC 562 Hearing dates: 14 May 2015 Date of orders: 14 May 2015 Decision date: 14 May 2015 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Application to discharge jury is refused Catchwords: CRIMINAL LAW – juries – juror becomes emotional during graphic evidence – application to discharge the whole jury – assertion that the whole jury may be so affected by the juror's emotional reaction that it could not perform its role dispassionately – trial in its fourth week – no prior indication or emotional reaction – application refused. Legislation Cited: Criminal Appeal Act 1912 (NSW) Jury Act 1977 (NSW) Cases Cited: Clarke v R (1995) 78 A Crim R 226 Dietrich v The Queen (1992) 177 CLR 292 Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 Category: Procedural and other rulings Parties: Crown Micheal John Duffy (Defendant) Representation: Counsel: E Wilkins SC (Crown) J Trevallion (Defendant)

Solicitors: Solicitor for Public Prosecutions (Crown) McGowan Lawyers (Defendant) File Number(s): 2012/175139

Judgment 1. Towards the close of proceedings yesterday on 13 May, whilst the accused was being cross-examined about the acts involved in the killing of the deceased, one of the jurors became visibly upset. As a result of that, I indicated that there should be a break in the proceedings and that the jury should be sent back to the jury room. It then became clear that the juror's upset was to such an extent that she was unable to move from her seat in the jury box. Eventually she was assisted to her feet and helped out of the court by the sheriff's officer and one other member of the jury. In the meantime four jurors in the front row were not able to exit the jury box to return to the jury room. 2. After the jury returned to the jury room, I indicated that I would adjourn the proceedings for the day. 3. Mr Trevallion for the accused now applies to discharge the whole of the jury by reason of that incident. He submits that the juror concerned has demonstrated by her reactions yesterday that she would be unable to consider the evidence in the matter dispassionately. In addition, he submits that the other members of the jury are likely to have been affected by her emotional reaction. He said it cannot be known, but speculated that it might be the case that one or more of the jurors has discussed this juror's emotional reaction afterwards in the jury room. This might lead to the view that the jury as a whole would be unable to bring a dispassionate mind to bear. 4. Relevant sections of the Jury Act 1977 (NSW) are these: 22 Continuation of trial or inquest on death or discharge of juror Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below 10, (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months, … and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A. … 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if: (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) … (c) … (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must: (a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors. … 1. The present application requires consideration of s 53B (a) and (d). Paragraph (a) refers to the juror becoming "so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict". 2. There has been no prior indication in the three and a half weeks that this trial has been proceeding that this juror has been unable to attend to her duties and responsibilities as a juror. There has been no outward indication that she has been emotionally affected by the evidence that has been given in the case. In those circumstances, I do not consider that one incident that took place over perhaps a 10 minute period in the course of the trial means that the juror falls within the words of that paragraph. 3. On the basis that paragraph (d) is directed more widely I could not be satisfied that, simply because a juror became emotional or upset at hearing graphic evidence of how the deceased was killed, such a reaction leads to the conclusion that the juror could not perform her functions as a juror, whether by not being able to bring an impartial or dispassionate mind to examine the evidence, or otherwise. 4. The application was to discharge the jury as a whole. No basis was demonstrated for that application apart from the suggestion that it might be the case that the whole jury would be so affected by this juror's reaction that the other members would not be able to properly to perform their roles. 5. In my opinion, the proper approach in a situation like the present is to consider first the position of the juror concerned under s 53B. If the Court is satisfied that one or more grounds in that section has been made out and that it was appropriate to discharge the juror concerned, then consideration would need to be given under s 53C whether the jury as a whole should be discharged. Although Gleeson CJ and Hayne J in Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 say at [6] that the decision to discharge a juror and the decision to proceed with a jury of less than 12 are distinct steps often affected by different considerations, it will often not be possible to separate the two stages, as McHugh J said at [30]. 6. If a single juror is to be discharged, the Court must form an opinion about whether continuing the trial with the remaining jury members would give rise to the risk of a substantial miscarriage of justice. If there is such a risk the whole jury must be discharged. If there is not such a risk the trial is to continue with the reduced number as section 22 provides. The test sets the bar at a high level. The risk is not simply of a miscarriage of justice but a substantial miscarriage of justice (Cf. s 6(1) of the Criminal Appeal Act 1912 (NSW) where both expressions are used and the distinction is maintained: Dietrich v The Queen (1992) 177 CLR 292 at 337; Clarke v R (1995) 78 A Crim R 226 at 237. 7. What was sought on the present application was not that the particular juror be discharged but that the whole jury be discharged. It was only when I raised with counsel for the accused during his submissions in reply to the Crown the distinction between the two possible applications that counsel said that if I refused to discharge the whole jury he would ask that I discharge the particular juror. Part 7A of the Act appears to contemplate, however, that in the circumstances giving rise to the present application an application to discharge the jury as a whole would only arise after an application under s 53B with respect to the individual juror. 8. Even if I had been satisfied that a basis was made out for discharging the juror concerned (which I have indicated that I am not) I would not have been of the opinion on the basis of anything that was observed or known that continuing with the remaining jurors would give rise to a risk of any miscarriage of justice, let alone a substantial miscarriage of justice. 9. The application is refused.