R v PAR

Court of Appeal (Fraser JA and Atkinson and Jackson JJ)

3 October 2014

In this recent appeal against conviction, the Court considered the manner in which complaints about jurors should be dealt with and the circumstances which would warrant the discharge of an individual juror.  This question arose by way of an appeal of conviction by PAR (the “applicant”) who argued that, inter alia, there had been a miscarriage of justice during his trial because: (a) there had been a “fundamental irregularity in the conduct of the trial, namely, the way in which a juror was discharged from it,” and (b) “because the information provided to the trial judge about the [the juror in question] was insufficient to support her discharge”.  [40]. The relevant facts of this matter are as follows.  During the initial trial a note was passed up to the judge expressing the concern of a number of jurors about the suitability of juror 4, whom they alleged did “not seem to understand the importance of this task [being a juror] and ha[d] no input with discussions”.  [41].  Following receipt of this note the judge and both counsel questioned a number of the jurors, including the speaker regarding their impressions of juror 4 and (obliquely) her capacity to make a decision.  They also questioned juror 4.  [42]–[49].  The appellant, in the present application, alleged that: (a) the information received by the judge did not justify the subsequent individual interrogation of the jurors; [51], and (b) even if this conduct had been warranted, the information obtained did not justify the discharge of juror 4.  [52].

Though acknowledging the difficulties faced by trial judges when circumstances such as these arise, see [54], the Court ultimately concluded that the “enquiry which preceded the discharge of juror number 4 miscarried”.  The Court reasoned that the initial note received by the judge did not suggest that juror 4 lacked “deliberative capacity”, rather, that it merely expressed an opinion about her attitude to her role, [55], and the fact that at the particular stage of the proceeding she had not engaged in any discussion about the case was not significant given that the evidence had not been completed.  [56], see also R v Roberts.  While some action was required to respond to the note and the concerns of some of the jurors, the Court considered that instructions to the jury as a whole may have been more appropriate, though it did not fault the trial judge for separately questioning the note’s author – this conduct fell within the trial judge’s discretion.  [58]. The trial judge did, however, fall into error when he proceeded to separately question the other jurors as the circumstances giving rise to the risk that a “true verdict” would not be reached and that questioning was confined to the issue of the “deliberative capacity” of a single juror which could have been determined from information supplied by a reliable source, [62], or through precise and careful questioning of juror 4 by the trial judge. See also [67].  Though a trial judge has the discretion to permit counsel to question a juror in relation to the possible discharge of that or another juror, the circumstances in which this would be appropriate are rare.  [63].  Further, the risks associated with individually questioning numerous jurors, for example that the information obtained will be contradictory – as was the case here – mean that it is a very rare situation where multiple jurors are separately interrogated.  [61], [64].  Despite, however, the determination that the process engaged in by the trial judge, with the consent of both counsel, was flawed and the necessity for the order discharging the juror arose from these errors, it concluded that the order was appropriate and lawful.  [68]–[69].  Further, the Court considered that there had not been a miscarriage of justice as there was no “failure to observe a mandatory legislative provision relating to the constitution or authority of the jury”, [73], and despite the errors, the appellant was found guilty by a properly constituted jury following a fair trial. [72]-[75].  For these reasons the appeal was denied.