R v Gordon (No 3) [2016] NSWSC 308

Supreme Court New South Wales

Medium Neutral Citation: R v Gordon (No 3) [2016] NSWSC 308 Hearing dates: 29 February 2016, 1, 2, 3 March 2016 Date of orders: 03 March 2016 Decision date: 03 March 2016 Jurisdiction: Common Law Before: Campbell J Decision: I order that the jury in the trial of Donald Patrick Gordon be discharged Catchwords: CRIMINAL LAW – procedure – discharge of jury – where jury member related to deceased Legislation Cited: Jury Act 1977 (NSW) Category: Consequential orders (other than Costs) Parties: Regina (Crown); Donald Patrick Gordon (Accused) Representation: Counsel: Mr J McLennan SC (Crown); Mr J Watts (Accused)

Solicitors: Director of Public Prosecutions (NSW) Aboriginal Legal Service (NSW/ACT) File Number(s): 2013/337128

EX TeMPORE Judgment (REVISED) 1. Under s 53B(b) of the Jury Act 1977 (NSW) I am empowered to discharge a member of a jury if it appears to me that the juror may not be able to give impartial consideration to the case because, inter alia, of any reasonable apprehension of bias on the part of the juror or any similar reason. This is a discretionary decision. 2. Earlier today I was informed by the sheriff that a juror had contacted her to pass on certain information previously unknown to him that he had learnt about his relationship with the deceased. The juror has since reported for jury service and has sent to me a note which I have marked Jury Note 2, which sets out the circumstances. 3. It is unnecessary for me to read the note onto the record however I am satisfied that the information obtained by the juror was obtained by him in the circumstances he sets out in his note and those circumstances do not involve any aspect of misconduct on the part of the juror. The simple fact of the matter is that he has learnt that he is a relative, as I say, of the deceased. This came up when a member of his family knowing he had been required for jury duty contacted the juror's father and passed on the information. It is the juror's belief that he has not met the deceased during his lifetime. 4. As I remarked during argument about whether the juror should be discharged, it is an important maxim, more than a mere aphorism, that justice should not only be done but must be seen to be done. The latter aspect of justice being seen to be done is always counted as extremely important in our courts of justice as an aspect of the open justice principle. There is no reason to believe that the juror involved has any actual bias or prejudice in the case or would be unable in substance to bring an impartial mind to bear to the issues to be decided in this murder trial. But applying the reasonable bystander test, a reasonable bystander sitting in the back of the court knowing something of the case and knowing these facts would question whether one could truly impartially sit in judgment on a person accused of murdering a blood relative. Applying this test I am of the view that there is what is referred to in law as apprehended bias. Given that one issue in this case is whether the acts or conduct of the accused amount to murder or manslaughter in law, that apprehension of bias could be seen as capable of having a practical impact upon the particular juror's vote. 5. I stress there was no suggestion of misconduct on his part however the interests of the administration of justice require that the juror be discharged. I should add that counsel are in agreement that in the circumstances the juror concerned should be discharged, (See transcript for procedure adopted dismissing the juror concerned.) 1. The next question that arises for determination, and upon which I have already heard counsel, is whether I should order that the reduced jury now of 11 members should continue. 2. Under s 22 of The Jury Act 1977, where the circumstances which have occurred here today, and in criminal proceedings, the reduced number does not fall below ten, the Court is empowered to order that the trial continue. 3. Mr Watts of counsel who appears for Mr Gordon has moved for a discharge of the whole jury and the learned Crown Prosecutor agrees that that is the appropriate course in the circumstances of this case. This is a murder trial, the most serious crime known to our criminal calendar other than the crime of treason. If convicted Mr Gordon will doubtless be imprisoned for decades. The seriousness of the matter is a most relevant consideration to the exercise of my discretion. As Mr Watts points out the expectation, "the normal thing", in our criminal justice system is that persons accused of serious crimes will be tried by a jury of 12 of their peers. That needs to be qualified by the terms of the legislation, of course, which now permit juries of less than 12 members to decide these cases in particular circumstances. 4. However, there is much force in what Mr Watts submits. As the Crown has pointed out we are at a very early stage of the proceedings. The jury were empanelled only yesterday, we have had the opening addresses and the first witness, a crime scene examiner, is still in chief. I am informed that there is another jury panel available on Monday. Although there will be some delay and the matter may extend beyond the Easter break because of it, it seems to me that the interests of justice for the reasons advanced by both counsel, which I accept, requires that the jury be discharged and that the Court start afresh with a new jury panel on Monday. 5. In the meantime there are some interlocutory and evidential rulings that counsel and I can be engaged upon, so that the time will not be entirely wasted. 6. However, even if there was nothing to do between now and Monday the significance of the matters I have referred to; the seriousness of the charge; the importance of the matter to the accused and of course to the community; and the small amount of time wasted strongly suggest that the better course is to discharge the jury. I will make that order after I have explained the position to the remaining jurors.