Jury irregularities

The question for the court to answer is whether a very expensive, long running jury trial (potentially with a defendant refused bail) should be abandoned when such rule breaking occurs.

Regrettably, jurors do not always follow the that judges give them at the start of trials.

Generally speaking, the failure to follow these rules is a criminal offence. The question for the court to answer is whether a very expensive, long running jury trial (potentially with a defendant refused bail) should be abandoned when such rule breaking occurs.

The court has a power under the Jury Act to question some or even all of the jurors (R v Wood [2008] NSWSC 817), or to discharge just the juror in question.

In Hoang v The Queen [2022] HCA 14, the High Court made emphasized that discharge a juror who has engaged in misconduct is mandatory even where, as occurred in that case, the searches were for an innocent purpose, and the jury had already indicated that they had reached verdicts.

Of course, juror bias is a different matter. It is entirely possible for a juror to bring about an apprehension of bias without an act of misconduct. The test, as set out in Webb & Hay v R [1994] HCA 30, is the same as for a judicial officer.

Webb & Hay

Webb & Hay v R [1994] HCA 30

“In our opinion, the test that his Honour should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror.”