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 away and/or sit in the separate room when

we discuss matters about the case. They have also been difficult to communicate with. They

have also shown a cold attitude to everyone and made negative comments about other jury

members. We recently learnt of a personal trauma this member went through and this

incident is very similar to something that has been shown in this case. We share a concern

that this member may alter any opinions they have because of this incident. We appreciate

the limit of jurors that can be dismissed although with these concerns and the communication

issues we have we worry that this will only become a larger issue especially when we need

to deliberate. Thank you for your time and consideration.

6.       The note raised several relevant concerns. First and foremost was the risk that the

juror the subject of the note might not be impartial. Secondly, the note indicated that

the juror was not prepared to discharge their functions as a juror. Finally, the note

identified a risk that the juror might impede the other jurors in the discharge of their

functions as jurors.

7. Section 8(1) of the Juries Act provides:

If the judge is satisfied that, because of illness or other sufficient cause, a juror should not continue to act as a juror, the judge may order that the juror be excused from further attendance during the trial and during any further period that the judge specifies in the order.

8.       A preliminary question was the process by which the Court should ascertain the

circumstances relevant to the exercise of that power. The Juries Act neither prohibits

nor mandates the examination of a juror by the Court for the purpose of determining

whether a juror should be excused. After hearing from the parties, I determined not to

examine Juror 21 as to the content of the note from another juror. Any questioning of

Juror 21 would necessarily have alerted them to the concerns of the other jurors. In

the event that I had determined not to discharge Juror 21, the course of questioning

itself would likely have aggravated the conflict and so contributed to the problem.

9.       Instead, at the suggestion of the prosecutor, Ms Christensen SC, I took sworn evidence

from the author of the note to confirm its truthfulness and to explore the significance of

the problem. The author of the note gave evidence confirming that Juror 21 was not

engaging in conversation or interacting with other members of the jury. The author of

the note emphatically confirmed that this had been a persistent problem throughout the

trial and that the other jurors were concerned the problem would continue, if not worsen,

as the trial went on. The author of the note also confirmed that Juror 21 had disclosed

to the other jurors a history of personal trauma similar to an aspect of the evidence in

the trial and that had caused the other jurors to be concerned as to Juror 21’s

impartiality.

10. Section 8 has been relevantly in the same terms since its inclusion in the Juries

Ordinance 1967 (ACT), before self-government in the Territory. It has not been the

subject of explication in any secondary material of the Legislative Assembly of the

Australian Capital Territory (ACT). Nor is there any local authority that considers the

scope of the expression “other sufficient cause”. That issue has not arisen in the small

number of available decisions that have applied the section: R v Lam (No 2) [2014]

ACTSC 391; R v Eastman (unreported, Supreme Court of the Australian Capital

Territory, Carruthers AJ, 10 November 1995).

11.     The text of the section, read in the context of the overriding duty of the Court to ensure

that a person facing criminal charges receives a fair trial, suggests the existence of a

broad discretion to discharge a juror if cause is shown to apprehend some threat to the

fairness of the trial. Experience tells that the circumstances that may warrant the

discharge of an individual juror are likely to be as varied as jury trials are unpredictable.

12.     It is established that one basis on which a juror should be excused is where there is an

apprehension of bias or a lack of impartiality: Webb v R [1994] HCA 30; 181 CLR 41.

That was an appeal to the High Court from South Australia, where s 56(1) of the Juries

Act 1927 (SA) suggested a more stringent test for the discharge of individual jurors (“by

reason of the ill health of a juror or a matter of special urgency or importance” (emphasis

added)). The accused were charged with murder. On the day the trial judge began his

summing up, a juror arranged for a bunch of daffodils she had picked from her own

garden to be given to the mother of the deceased. Rejecting the more stringent test

applied by the trial judge by majority, the High Court held that (at [14] per Mason CJ

and McHugh J, Brennan, Deane and Toohey JJ agreeing):

[T]he test to be applied in this country for determining whether an irregular incident involving

a juror warrants or warranted the discharge of the juror or, in some cases, the jury is “whether the incident is such that…it gives rise to a reasonable apprehension or suspicion on the part

of a fair-minded and informed member of the public that the juror or jury has not discharged
or will not discharge its task impartially.

13. The relevant provision in New South Wales is s 53B of the Jury Act 1977 (NSW). That

section expands upon the circumstances in which the Court may exercise its discretion

to discharge an individual juror with greater specificity than appears in s 8 of the ACT

legislation. The particular grounds addressed in s 53B include illness or incapacity

(s 53B(a)), apprehension of bias or lack of impartiality (s 53B(b)) and refusal to take

part in the jury’s deliberations (s 53B(c)).

14. Section 53B(d) permits the discharge of a juror where “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”. In R v Al Batat & Ors (No 32) [2020]

NSWSC 1557 at [13], Hamill J described that provision as a “catch all”. His Honour

considered that it “clearly encapsulates a situation where a juror is unable to remain

awake”, the circumstance addressed by his Honour in that case. Justice Hamill

exercised the power in s 53B(d) to discharge the juror on the basis of somnolence.

15.     It may be taken that, notwithstanding the more general terms of the ACT provision

(“because of illness or other sufficient cause, a juror should not continue to act as a

juror”), it was intended to extend to the specific instances addressed in the New South

Wales provision, including lack of impartiality or inability or unwillingness to perform the

functions of a juror. Impartiality and the ability and preparedness to perform the

functions of a juror are essential attributes of every juror if a trial is to be fair. The

reasoning in Webb supports the conclusion that the appearance of their absence is

sufficient warrant for the juror in question to be excused.

16.     The evidence of the author of the note amply supported a reasonable apprehension

that Juror 21 was not impartial and was either unable or unwilling to discharge their

functions as a juror. In circumstances where a decision to excuse Juror 21 would

reduce the number of jurors to 12, which is the usual number of jurors in a criminal trial, I was satisfied that sufficient cause was shown to excuse Juror 21 from further

attendance at the trial.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 30 May 2023