Jury discharge

In Crofts v R [1996] HCA 22, the High Court said that much depends on “the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”

A decision to discharge a jury cannot be taken lightly. It goes without saying that there is significant, cost, stress and inconvenience that is caused by having to recommence a trial, particularly if there is to be long delay before a new trial can commence.

Having said that, if a trial becomes unfair, and if directions are incapable of curing that unfairness, then the court has no option other than to discharge the jury.

There are few, if any, absolute rules surrounding when a jury should be discharged. In Crofts v R [1996] HCA 22, the High Court said that much depends on “the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.” These matters are, by their very nature, highly subjective.

More broadly, the relevant principles were summarised in Miller v R [2015] NSWCCA 206.

Maric

Maric v R (1978) 20 ALR 513; (1978) 52 ALJR 631

“It may now be accepted that the rule stated in the English authorities cited in R v Weaver, supra, which were followed in R v Hally [1962] Qd R 214  at 221, was too absolute: it is not an invariable rule that the jury must be discharged in such cases.”