Tasmania v Jordan and Jordan - [2023] TASSC 20

[2023] TASSC 20

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Jordan and Jordan [2023] TASSC 20
PARTIES:	STATE OF TASMANIA
v
JORDAN, Cedric Harper
JORDAN, Noelene June
FILE NO:	413/2020
DELIVERED ON:	18 May 2023
DELIVERED AT:	Launceston
HEARING DATE:	8 May 2023
JUDGMENT OF:	Pearce J
CATCHWORDS:

Criminal Law – Procedure – Juries – Discharge and excusing from attendance – Individual jurors – Juror and reserve juror in relationship – No reasonable apprehension of improper influence, lack of impartiality

or unfairness.
Juries Act 2003, s 40.
Webb & Hay v The Queen (1994) 181 CLR 41; R v Czajkowski [2002] NSWCCA 530, 137 A Crim R 111, I B
F v Tasmania [2022] TASCCA 11 applied.

Aust Dig Criminal Law [3118]

REPRESENTATION:

Counsel:

Crown: D G Coates SC, J Shapiro, E Brett
First Accused: P O'Halloran
Second Accused: F McCracken

Solicitors:

Crown: Director of Public Prosecutions
First Accused: Rae & Partners
Second Accused: Grant Tucker

Judgment Number:	[2023] TASSC 20
Number of paragraphs:	19

Serial No 20/2023 File No 413/2020

STATE OF TASMANIA v CEDRIC HARPER JORDAN and

NOELENE JUNE JORDAN

REASONS FOR JUDGMENT

PEARCE J
18 May 2023

1             Cedric and Noelene Jordan are jointly charged with the murder of Shane Barker. The trial commenced on 17 April 2023 and the jury was empanelled. On 8 May 2023 both accused applied for an order pursuant to the Juries Act 2003, s 40(a), that one of the jurors be discharged, without discharging the whole jury. The application was made on the basis that there were reasonable grounds to suspect that the juror may not be able to consider the case impartially. On 9 May 2023 I refused the application and said I would later give reasons. These are those reasons.
2             Mr Barker was killed in Campbell Town during the evening of 2 August 2009. The prosecution case is that Mr Barker was shot in the driveway of his home with a .22 rifle and that one of the four shots which struck his torso caused the fatal wound. The strong inference is that he was shot by someone who intended to kill him. The principal issue in the trial is not whether Mr Barker was murdered, but the identity of the perpetrator or perpetrators. The prosecution alleges that one of the accused actually committed the murder by firing the fatal shot and the other was present with a common intention to commit that crime.
3             The case against the accused is circumstantial. The jury will be directed that they cannot find an accused guilty unless the circumstances established by the evidence are inconsistent with any reasonable hypothesis other than his or her guilt. That is, the jury must exclude beyond reasonable doubt, as an inference that is reasonably open, the hypothesis that a person or persons other than the accused killed Mr Barker. The accused are the parents of Mr Barker's former wife. Part of the prosecution…

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.

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Details

Case: [2023] TASSC 20
Decision Date: 18 May 2023

CaseChat Overview and Summary

In the matter of Tasmania v Jordan and Jordan, the High Court of Australia addressed the issue of discharging a juror due to a relationship with a reserve juror. The case involved two defendants, Jordan and Jordan, who were subject to a criminal trial in Tasmania. The primary legal issue was whether the trial judge correctly refused to discharge a juror after discovering that the juror had a relationship with a reserve juror. Specifically, the court had to determine if the relationship was grounds for a reasonable apprehension of improper influence or lack of impartiality, necessitating the juror's discharge.

The Court examined the principle that a juror's impartiality is critical to the fairness of the trial process. However, the Court held that the trial judge's decision to not discharge the juror was appropriate. The relationship between the juror and the reserve juror did not automatically create a reasonable apprehension of improper influence or lack of impartiality. The Court noted that the trial judge had considered the relationship and found no evidence to suggest that the juror's impartiality had been compromised. Consequently, the trial judge's decision was upheld, as there was no basis to conclude that the juror's involvement in the trial was improper.

The High Court's decision reinforced the principle that not every relationship between a juror and a reserve juror warrants the discharge of the juror. The Court underscored the importance of the trial judge's discretion in assessing the circumstances and determining whether a reasonable apprehension of improper influence or lack of impartiality exists. In this instance, the trial judge's assessment was deemed to be within the bounds of reasonable judgment, and thus, the decision not to discharge the juror was affirmed.

Orders