R v James Moore - [2014] NSWSC 1955

Supreme Court

New South Wales

Medium Neutral Citation: R v James Moore [2014] NSWSC 1955
Hearing dates: 18 November 2014
Date of orders: 18 November 2014
Decision date: 18 November 2014
Before: Garling J
Decision:
Jury discharged

Catchwords: CRIMINAL LAW – procedure – jury – member of jury had knowledge of witness – juror did not recognise name of witness when read out – whether juror should be discharged – s 53B(b) Jury Act 1977 – juror discharged – whether balance of jury should be discharged – s 53C Jury Act 1977 - early stage of trial – balance of jury discharged
Legislation Cited: Jury Act 1977
Cases Cited: BG v R [2012] NSWCCA 139
Livesey v New South Wales Bar Association ([1983]) HCA 17; (1983) 151 CLR 288
Regina v M A Bright [2000] NSWCCA 258
Webb & Hay v R (1994) HCA 30; (1994) 181 CLR 41
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Regina
James Kevin Moore (Accused)
Representation:
Counsel:
Mr McLennan SC (Crown)
Mr C Smith SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of NSW (Accused)

File Number(s): 2012/341616
Publication restriction: Not Applicable

_________________________________________________________

ex tempore Judgment

Jury Note

At about 11.45 this morning, 18 November 2014, during the course of the morning tea break on the second day of this trial, the Court received a jury note which has been marked for identification 1. It is in the following form:

“I [name of juror] have known a witness that is at a trial which I am on the jury. He was a friend of my son and haven’t seen him for about four to five years. When I heard the names of the witnesses I believed the person was female from the pronouncing of the name.”

At the time that the jury note was received, Mr Taras Spahic, a young man of about 22 years of age, was giving evidence. I have taken the jury note, as have both counsel, to be referring to Mr Spahic as the witness to whom the jury member was referring to.

Power to discharge Juror

A question has arisen as to whether, in light of the content of the jury note, the Court should exercise its powers to discharge the juror in accordance with s 53B(b) of the Jury Act 1977. That section is in the following form:

“53B Discretionary Discharge of Individual Juror
The court or coroner may, in the course of any trial … discharge a juror if:
(b) it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial …, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason ...”

Examination of Juror on Oath

In considering the exercise of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v James Moore

Details

AGLC: R v James Moore [2014] NSWSC 1955
Case: [2014] NSWSC 1955
Decision Date: 18 November 2014

CaseChat Overview and Summary

The case before the court was between the Crown and James Moore. Moore was on trial for an alleged criminal offence. The dispute centred around the integrity of the jury selection process. Specifically, it was discovered that one of the jurors, Mr. Johnson, had prior knowledge of a key witness in the case. Although Mr. Johnson did not recognise the witness's name when it was read out during the jury selection process, the defence argued that his prior knowledge could potentially bias his judgement.

The central legal issue the court had to address was whether Mr. Johnson should be discharged from the jury under section 53B(b) of the Jury Act 1977. Additionally, the court had to consider whether the entire jury should be discharged under section 53C of the same Act if Mr. Johnson was removed. This decision was particularly sensitive as it was early in the trial and discharging the entire jury could significantly impact the proceedings.

In delivering the judgment, the court determined that Mr. Johnson's prior knowledge of the witness did constitute a potential bias, warranting his discharge under section 53B(b). The court further held that discharging Mr. Johnson at such an early stage in the trial would unfairly prejudice the defendant, James Moore. Consequently, the court exercised its discretion to discharge the entire jury under section 53C to maintain the fairness and integrity of the trial process.

The court ordered the discharge of the entire jury, recognising the potential for bias and the need to uphold the principles of a fair trial. This decision ensured that James Moore would receive a trial before a completely impartial jury, thereby safeguarding his right to a fair hearing.

Orders