R v Bushell; R v Tozer (No 14)

In this case, two accused, Bushell and Tozer, were on trial for criminal matters in the Supreme Court of Victoria. The prosecution sought the discharge of a juror who had allegedly communicated non-verbally with an accused. The legal question before the court was whether the judge could rely on his own observations to discharge the juror when there was insufficient evidence to establish a reasonable apprehension of bias. The court had to decide whether the judge's reliance on personal observations was appropriate in the circumstances, given the lack of concrete evidence of bias.

The court held that the judge has the inherent power to discharge a juror when there is a reasonable apprehension of bias. However, the court noted that the capacity of the judge to rely on their own observations to make such a decision is limited to cases where there is clear and compelling evidence of bias. In this instance, the judge had not observed anything that definitively demonstrated a reasonable apprehension of bias. The court found that the evidence available at that stage of the trial was insufficient to support the discharge of the juror.

Consequently, the application to discharge the juror was adjourned. The court held that more evidence was required to determine whether there was a reasonable apprehension of bias. The judge was instructed to continue with the trial and to gather further evidence if possible, before making a final decision on the matter. The case remains open for the possibility of revisiting the issue of bias if additional evidence emerges during the trial.