R v Sean (a pseudonym) (No 3) - [2023] ACTSC 133

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sean (a pseudonym) (No 3)
Citation:	[2023] ACTSC 133
Decision Date:	18 May 2022
Reasons Date:	30 May 2023
Before:	McCallum CJ
Decision:	Publication of reserved reasons for excusing Juror 21 from further attendance at the trial.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Discharge of Juror – Whether the juror should
not continue to act as a juror because of illness or other sufficient
cause – meaning of “other sufficient cause” – where jury members communicate concerns about another juror’s impartiality – where juror is not prepared to discharge their functions – where juror
risks preventing other jury members from discharging their functions as jurors
Legislation Cited:	Juries Act 1927 (SA) s 56(1) Juries Act 1967 (ACT) ss 8, 31A Juries Ordinance 1967 (ACT) s 8 Jury Act 1977 (NSW) s 53B
Cases Cited:	R v Al Batat & Ors (No 32) [2020] NSWSC 1557 R v Lam (No 2) [2014] ACTSC 391 R v Eastman (unreported, Supreme Court of the Australian Capital Territory, Carruthers AJ, 10 November 1995) Webb v R [1994] HCA 30; 181 CLR 4
Parties:	The Queen (Crown)
Wren Sean (a pseudonym) (Accused)
Representation:	Counsel
R Christensen SC (Crown)
D Barrow (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Hugo Law Group (Accused)
File Number:	SCC 132 of 2021
McCALLUM CJ:

1.       The accused, a young person known by the pseudonym Wren Sean, was charged with
one count of murder and one count of recklessly inflicting grievous bodily harm. He
pleaded guilty to the count of recklessly inflicting grievous bodily harm and was tried by
jury on the count of murder.
2.       At the commencement of the trial, having regard to the parties’ estimate of the likely
length of the trial and mindful also of the heightened risk of jurors becoming unwell
during the COVID-19 pandemic, I empanelled 16 jurors, as allowed under s 31A of the
Juries Act 1967 (ACT).
3. On day 15 of the trial, I made an order under s 8(1) of the Juries Act excusing Juror 21
from further attendance at the trial. These are my reasons for making that order.
4.       By the time the issue concerning Juror 21 arose, the number of jurors had already been
reduced to 13, three jurors having been discharged for uncontentious reasons relating
to illness and other personal circumstances. In accordance with s 8(3) of the Juries
Act, a verdict can be taken from less than 12 jurors so long as the number of jurors is
not reduced to less than 10.
5.       Before the trial commenced on day 15, the Sheriff delivered a note to me from a juror
in the following terms:
Your Honour, on behalf of all jurors I would like to express our concern with a member in the
jury, I believe number 21. This member has shown that they are not wanting to join any
conversations about the case and decides to step…

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 Sean (a pseudonym) (No 3)

Details

AGLC: R v Sean (a pseudonym) (No 3) [2023] ACTSC 133
Case: [2023] ACTSC 133
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory was presented with a case involving Wren Sean (a pseudonym), accused of one count of murder and one count of recklessly inflicting grievous bodily harm. Sean pleaded guilty to the latter charge and faced a jury trial for the murder charge. On the 15th day of the trial, the judge, McCallum CJ, excused Juror 21 from further attendance at the trial under s 8(1) of the Juries Act 1967 (ACT). The decision was made following concerns raised by other jurors regarding Juror 21's conduct and potential impartiality due to personal trauma similar to the case's evidence.

The court had to determine whether sufficient cause existed to excuse Juror 21 from the trial. The relevant legal issues included the meaning of "other sufficient cause" in the context of s 8(1) of the Juries Act 1967 (ACT) and whether the concerns raised by other jurors warranted the exercise of the judge's discretion to excuse Juror 21. The court considered the High Court's decision in Webb v R [1994] HCA 30, which established that a juror should be excused if there was an apprehension of bias or lack of impartiality. The court also examined s 53B(d) of the Jury Act 1977 (NSW), which provides for the discharge of a juror for any reason affecting their ability to perform the functions of a juror.

The court found that the concerns raised by other jurors regarding Juror 21's conduct and potential lack of impartiality were sufficient to warrant the exercise of the judge's discretion to excuse Juror 21. The court noted that impartiality and the ability and preparedness to perform the functions of a juror were essential attributes of every juror if a trial was to be fair. The evidence provided by the author of the note confirmed that Juror 21 was not engaging in conversation or interacting with other members of the jury and had disclosed a history of personal trauma similar to an aspect of the evidence in the trial. These factors supported a reasonable apprehension that Juror 21 was not impartial and was either unable or unwilling to discharge their functions as a juror.

The court decided to excuse Juror 21 from further attendance at the trial, reducing the number of jurors to 12, which is the usual number of jurors in a criminal trial. The decision was made in the interest of ensuring a fair trial for the accused and maintaining the integrity of the jury process. The court concluded that sufficient cause was shown to excuse Juror 21 from further attendance at the trial.

Orders