R v Schulz

This matter principally concerned the discharge of a juror under s 56(1)(a) Jury Act 1995 on the basis that the juror was not impartial. In considering the appeal, their Honours were required to determine whether exercise of the statutory power to discharge the juror was necessary in light of the concerns of bias raised by other members of the jury. In an informative judgment, Bradley JA, with whom Bowskill CJ and Callaghan J agreed, held it was not open on the evidence before the learned trial judge, including the juror’s own statements, to have found that the discharged juror “is not impartial” for the purpose of s 56(1)(a) Jury Act 1995.

Bowskill CJ, Bradley JA and Callaghan J

12 May 2025

On 9 December 2024, following a 14-day trial, a jury found the appellant guilty of two unlawful stalking counts, and not guilty of an extortion count. The appellant was sentenced to 18 months’ imprisonment with a parole release date of 9 July 2025. [4]. The appellant contended, in bringing his appeal, that the trial judge erred in law in discharging a juror and that a miscarriage of justice occurred because her Honour allowed the jury to deliberate, after an application to discharge the whole of the jury was refused, and after the juror was discharged and replaced by a reserve juror. [5].

Leave was also sought to appeal against sentence on the grounds of manifest excess although that ground was ultimately not considered. [6].

The events at trial

Following the evidence of 29 witnesses on the first 13 days of trial, the trial judge commenced her summing up in the afternoon of the 13th day which was to continue on the 14th morning. [12]. Prior to the recommencement of the summing up, a jury note had been received which raised concerns regarding a juror’s bias and behaviour. [13]. Before the opportunity arose to discuss the note with the jury, another two unrelated notes arrived.

As to the first note, Counsel agreed on the course the trial judge should adopt. Her Honour then addressed the jury and informed them that matters of bias must be raised and addressed in open court. Her Honour invited the jury to return to discuss whether they would be able to bring in a true verdict according to the evidence. [17]. Forty minutes later, another note was received which queried whether her Honour would discuss the concerns raised by the jury with the member of the jury with whom the concerns had been raised. [18].

By agreement with Counsel, her Honour sought to identify whether the difficulties were in relation to one person alone and to then send away the remaining members of the jury whilst she spoke with the member separately. [19]. A fifth jury note was then received identifying that another juror was feeling uncomfortable in making a decision in the case. [21]. When the jury returned, her Honour sought to determine, first, whether, as a body, the jury thought they would be able to bring in a true verdict according to the evidence. [22]. The jury were reminded, collectively, that they have an obligation to judge the evidence fairly and impartially, putting aside any biases or prejudices. By the time the first note had been discussed, the juror had determined that they would now be able to reach a verdict.

Following the jury’s return to consider whether they could bring in a true verdict, two further notes arrived. The first sought a morning tea break outside. The second read as follows:

“I want to voluntarily remove myself because the other jurors have voted I should go & in addition, I feel there are sufficient jurors who are not impartial to secure a carefully weighted decision. The reason those who voted against me feel uncomfortable is I challenge their prejudices in my opinion & they see that as me being biased in favor of the defendant. In my view, the jury should disband, but I am leaving, so that is up to them now. I am neurodivergent so its [sic] hard to communicate with them. The decision was majority, not unanimous.” [26].

As a result of what was contained in the seventh note, defence counsel asked the trial judge to discharge the jury. [28]. The application was opposed by the Crown prosecutor and ultimately unsuccessful. [29]. The Crown prosecutor proposed the discharge of the individual juror who had sought that outcome in the seventh note. Defence counsel proposed that the trial continue with a reiteration of the Black-style direction and the balance of the summing up. [30]. Following an exchange with the jury speaker and the trial judge, the speaker indicated the jury were still of the view that there was one person who was incapable of bringing an impartial mind to deliberations. That person was the same person who requested to be discharged. On that basis, the juror was discharged. [35].

Was there an error of law in discharging the juror?

On appeal the question to be determined was whether the trial judge erred in discharging the juror under s 56(1)(a) on the basis that the juror was not impartial. The court held that the discharge was an error of law.

Bradley JA explained the test as follows:

“[t]he question for the trial judge might be framed as whether a fair-minded observer of the proceedings might consider that the evidence of the juror’s conduct was such that the juror might be influenced in their final assessment of whether the accused was guilty. Circumstances giving rise to a reasonable apprehension of bias would call for the discharge of any affected juror, unless directions to the jury could with certainty cure that apprehension. If the evidence did not give rise to a reasonable apprehension of bias, then the statutory power to discharge a juror should not be exercised. [40].

In considering the matters raised by the jury speaker, Bradley JA noted that no fact or circumstance that would give rise to a reasonable apprehension of bias was disclosed. [42]. The jury notes, as identified by the trial judge, indicated the matter was internal to the jury, the juror to be discharged had no familiarity with the appellant, any witness or legal representative in the case. [43]. By contrast, the broader evidence, in the form of the other jury notes during the trial to that point, had indicated that the jury was trying the appellant on the counts according to law. [44].

Bradley JA, with whom Bowskill CJ and Callaghan J agreed, found that there was no basis for a reasonable apprehension of bias on the part of the juror who was discharged. It could not have been clearly concluded that the circumstances called for the discharge of the juror for a lack of impartiality. The trial judge’s finding, their Honours found, of actual bias, was not open on the evidence. [46].

In agreeing with the findings of Bradley JA, Bowskill CJ, in her brief reasons, noted that the proper course was to instruct the jury as a whole that it was not within their power to vote one of their members out, despite their differences; that they were all obliged to perform their duty according to their oath or affirmation; and, to proceed to complete the trial with the sworn jury. [2], [54].

Disposition

In the result, the appeal was allowed, setting aside the guilty verdict and a new trial was ordered in respect of counts 3 and 4. [3], [52], [55].

K Mythen of Counsel