After 10 hours of deliberations, the jury told the court it could not reach a unanimous or majority verdict in the trial of NRL star Jack de Belin. When the jury was asked if they would be able to majority verdict on any count (note: it is open to the jury to return a verdict on some counts but not others) by Judge Haesler, the jury forewoman responded: “Absolutely not, no.” Resultantly, the jury was discharged and a re-trial scheduled for April 12, 2021.
Likewise, the jury in the trial of NRL star Jarryd Hayne told the court it could not reach a unanimous or majority verdict. The case has reportedly been adjourned to 16 December for mention to decide what happens next.
In light of this, we explain the role of juries in criminal trials and when a jury be discharged in NSW.
The role of juries in criminal trials
Juries play a crucial role in the criminal justice system as they hear the evidence put before the court, apply the law as directed by the Judge, and makes decisions regarding the guilt or innocence of an accused person.
Juries exist so that there is community representation in the judicial process for those accused of serious crimes.
The decision of a jury usually needs to be unanimous, although in NSW there are provisions in the Jury Act that allow for ‘majority verdicts’ – that is a circumstance where, if all jurors are unable to agree, a sole dissenting voice will not stand in the way of a verdict.
In New South Wales, 12 people are selected for a jury, although 15 can be selected and empanelled where trials are expected to last longer than three months.
There are, however, circumstances where a judge must discharge a juror or jury, as well as situations where judges can use their discretion to decide whether it is appropriate to do so. The provisions are set out in Part 7A of the Jury Act 1977 (NSW) (‘The Act’).
Mandatory Discharge
Per section 53A of the Jury Act, a judge must discharge a juror or jury if it becomes apparent during the trial that:
- A juror was mistakenly or irregularly empanelled;
- A juror has become excluded from jury service, or;
- A juror has engaged in misconduct in relation to the trial.
“Misconduct” under this section refers to:
- conduct that constitutes an offence against this Act, for example, making inquiries to obtain information about the accused, or any matters relevant to the trial.
That is, asking a question of any person, conducting any research, for example, by searching an electronic database for information (such as by using the Internet), viewing or inspecting any place or object, conducting an experiment, or causing someone else to make an inquiry per section 68C of the Act.
or
- any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial.
Discretionary Discharge
Per 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.
Who can apply for the discharge of a juror or jury?
Either the defence or the prosecution can apply for the discharge of a juror, or the jury as a whole. Both the Prosecution and Defence will then be allowed to make submissions in support of their position.
Alternatively, the judge may decide to discharge a juror or jury.
It is with reluctance that Judges discharge jurors or juries due to the inconvenience it causes, especially in circumstances where a trial is already well underway. This is because a “mistrial” must be declared and results in the trial needing to be re-commenced (with a new jury) from the start.
Can a trial continue after the discharge of juror?
If an individual juror is discharged, 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.
The Act provides that where, in the course of any trial, any member of the jury is discharged, the jury shall be considered as remaining for all the purposes of that trial if:
- The number of jurors is not reduced below 10; or
- The number of jurors is reduced below 10 but approval in writing is given by both the Crown and the Defence; or
- For trails that have been in progress for at least 2 months: The number of jurors is reduced below 10 but not below 8.
If you or someone you know needs advice or representation for an alleged criminal offence, contact the team at Hamilton Janke Lawyer 24 hours a day, seven days a week by calling 4038 1666.
Photograph: Dan Himbrechts/AAP
Photograph: Dean Lewins/AAP
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
Reviewed By
Drew Hamilton
Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.
