When Can a Jury be Discharged?

Juries play an important role in our criminal justice system. As ‘fact finders’ in criminal trials, jurors are required to determine whether the prosecution has proven the guilt of the defendant beyond reasonable doubt.

Jury of One’s Peers

Juries are supposed promote fairness and equality before the law by allowing the defendant to be tried by a panel of their ‘peers’, who are expected to return a verdict based upon the evidence presented at trial.

But many have questioned whether this can ever be achieved for racial minorities – especially for Muslims in the current environment – when juries are exclusively made up of citizens on the electoral role; primarily ‘white ‘ Australians.

And in cases where the defendant is from a racial minority, the prosecution will often use one or more of its three ‘challenges’ to knock-off any juror/s from a similar racial background to the defendant, normally leaving a jury that is ‘all white’, or very close to it – which is far from a panel of the hapless defendant’s ‘peers’.

Despite this, having an ‘all white’ jury when you are a racial minority (or vice versa) is not a proper basis for the jury to be discharged, nor a ‘ground of appeal’ if there is a conviction.

When Can a Jury be Discharged?

However, certain issues may arise during criminal trials which indicate that a particular juror – or the jury as a whole – is unable to carry out its duties according to law.

In these cases, it may be necessary for the judge to discharge the individual juror, or even the entire jury.

The Law

The discharge of jurors is covered by Part 7A of the Jury Act 1977 (NSW); which sets out the circumstances where a judge must discharge a juror or jury, and the situations where they can use their discretion to decide whether it would be appropriate to do so.

Under section 53A of the Jury Act, a judge must discharge a juror or jury if it becomes apparent during the trial that:

• The juror was mistakenly or irregularly empanelled;
• The juror has become excluded from jury service, or;
• The juror has engaged in misconduct in relation to the trial or coronial inquest.

Under section 53B of the Act, a judge may choose to discharge an individual juror if:

• The juror has become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict, or has become so ill as to be a health risk to the other jurors or persons present at the trial;
• 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 or interest on the part of the juror, or any similar reason;
• A juror refuses to take part in the jury’s deliberations, or;
• 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.

How Can a Jury be Discharged?

If any of the above issues are detected during a trial, either party can apply for the discharge of a juror, or the jury as a whole. Alternatively, the judge may decide to discharge a juror or jury of his or her own accord.

If a party applies, they will need to provide reasons, and each side will be given the opportunity to make submissions in support of their position.

In practice, judges are often reluctant to discharge jurors or juries due to the inconvenience it would cause – especially if the trial is already well underway.

If an individual juror is discharged in NSW, the judge may allow the trial to continue with the remaining jurors, unless doing so would ‘give rise to the risk of a substantial miscarriage of justice’ – in which case the judge is bound to discharge the jury as a whole.

This generally means that there will be a retrial, which burdens the court system, causes further delay, and can come at a great cost to the prosecution and defendant.

Rather, the judge often decides to continue with the trial and give ‘directions’ to the jury. For example, if a juror is found to have improperly spoken to a person outside the jury about the case, the judge might remind the jury as a whole not to do this, and direct the particular juror to put the other person’s comments out of his or her mind.

Misconduct and Impartiality

One of the most commonly raised issues is that a particular juror, or the jury as a whole, is unable to give impartial consideration to the case, or has engaged in some form of misconduct.

Impartiality is distinct from misconduct – while misconduct generally requires a juror to commit an offence under Part 9 of the Act, impartiality involves a lesser degree of culpability – generally referring to a particular state of mind, or the juror’s familiarity with certain people or places involved in the case.

Impartiality is defined by Section 53B as ‘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.’

In contrast, jury misconduct refers to more proactive forms of conduct, such as:

• Making an inquiry in respect of the proceedings during the trial – for example, taking a view of the scene of the alleged crime, conducting their own research or experiments, or asking witnesses questions;
• Disclosing information about the jury’s deliberations or how they formed an opinion about a particular matter without the consent of the judge.

If a juror engages in any of the above conduct, they may be charged with a criminal offence, which can carry heavy penalties.

Cases of Misconduct and Impartiality

Instances of jury misconduct or impartiality are more common than some might think.

For example, in a case which concerned the ‘aggravated sexual assault’ of a 16-year-old girl in 2000 by brothers Bilal and Mohammed Skaf, the jury was discharged after it was discovered that two jurors went to the park where the incident occurred to ‘check the lighting conditions,’ despite the trial judge directing the jury not to conduct its own inquiries. The NSW Court of Criminal Appeal found that this constituted juror misconduct and ordered a retrial.

And earlier this year, a juror was discharged in the trial of Robert Xie, who is accused of murdering the Lin family at their Epping home in 2009. While Presiding Justice Elizabeth Fullerton did not publicise her reasons for the discharge, it is understood that members of the jury informed the Justice that one of the jurors had been engaging in misconduct. In that case, the trial proceeded with the remaining 11 jurors.

In another recent trial before the Downing Centre District Court, a jury was discharged after it became apparent that a female juror was ‘flirting’ with the defendant.

While the misconduct was uncovered in these cases, there is little doubt that in many others, jurors engage in such conduct without being detected; taking it upon themselves to make inquiries outside the courtroom, whether by way of internet searches or otherwise, or by discussing cases with partners and friends.