A judge caused a miscarriage of justice when they discharged a juror after a flurry of jury notes late in a trial, the Court of Appeal has found.
In December last year, South Burnett resident Judith Ann Schulz was convicted in the District Court in Brisbane on two counts of unlawful stalking, and was sentenced to 18 months’ imprisonment.
A series of seven jury notes on the 14th day of the trial had prompted an application by defence counsel to discharge the whole jury. The trial judge refused the application and instead discharged a single juror.
In her appeal, Ms Schulz contended 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.
On May 16, Chief Justice Bowskill, Justice Bradley and Justice Callaghan allowed the appeal, set aside the verdicts of guilty, and ordered a new trial.
Their 14 pages of reasons, published on Tuesday, described how over the first 13 days of the appeal, the jury had heard the evidence of 29 witnesses, and that 29 documents and recordings had been tendered as evidence.
On the morning of the 14th day, a juror note had expressed “concerns regarding a juror’s bias and behaviour I wish to discuss in person”, then another had requested “a morning tea break outside the building”, then another had sought clarification on differences in the standard of proof.
After addressing the jury in relation to the third note, the trial judge had received a fourth note requesting a discussion with the juror whose conduct had been questioned, then a fifth note asking the process in the event the jury was “not comfortable with one juror, and there was one juror “not comfortable to make a decision”.
After addressing the jury again, a sixth note was received requesting a morning tea break, then a seventh note from a juror requesting to be discharged.
The seventh note read:
“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 favour 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.”
After the granted morning tea break, Ms Schulz asked the trial judge to discharge the jury, under Section 60 of the Jury Act 1995 (Qld).
The trial judge refused, citing reasons including that the trial was well advanced, the jury was fulfilling its task, and that she was not satisfied that the whole of the jury was not impartial.
The individual juror who authored the seventh note was discharged, after the trial judge found they were “not impartial and ought not to be allowed to act as a juror at the trial”, under s 56(1)(a) of the Act.
A reserve juror replaced them and the jury returned verdicts on the sixteenth day of the trial.
Justice Bradley said he had empathy with the trial judge, who was “faced with an issue that arises rarely”.
However, the trial judge’s finding of actual bias was not open on the evidence, he said.
“The jury speaker had described the differences between the juror who was discharged and the other jurors as ‘perceived biases through life experiences’,” he said.
“This was not a recognised category of bias, interest or partiality. Nor did it disclose any fact, matter or circumstance that would give rise to a reasonable apprehension of bias. It was simply a conclusionary statement of opinion.
“The juror who would be discharged had no familiarity with the appellant, any witness or legal representative in the case.
“The juror had not made inquiries outside the courtroom or discussed the trial with a non-juror. There was no apparent ground to suspect bias on those accounts.”
Justice Bradley said the seventh note identified a characteristic of the juror that could affect interactions with other jury members, but it did not indicate that the juror had refused to participate in the jury’s functions.
“A fair-minded observer might have perceived the discharge of this particular juror as the removal of a potentially dissenting voice before she had a chance to change her view, or before she had a chance to change the view of the other members of the jury,” he said.
“The discharge of this juror was not consistent with the need to maintain ‘the appearance, as well as the substance, of impartial justice’ in a criminal case,” he said.
Chief Justice Bowskill agreed with Justice Bradley’s observations about the inherent difficulty involved in conducting a criminal trial.
“In this case, there was the added pressure of the jury issues arising on day 14 of the trial, when the summing up had just commenced, and the understandable desire to do what was most efficient to keep the trial going,” she said.
“This court has the benefit of calm hindsight, which a trial judge does not have.
“However, 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.”
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