In criminal proceedings in NSW involving a jury, the Crown and every defendant each have three “peremptory challenges” to proposed jurors, before the jurors are sworn in.

A peremptory challenge is a challenge to a proposed juror whereby no reason is required at all.

There are additional grounds to challenge a juror (or the entire jury), both before and after the jury empanelment, but those require reason.

The right of peremptory challenge is an ancient right.

According to Lord Denning, an Accused should have the right to object to a juror simply ‘because they do not like the look of them’.

The Crown, on the other hand, are limited by the DPP Guideline (25), which states:

The Crown right of challenge should only be exercised if there is reasonable cause for doing so. It should never be exercised so as to attempt to select a jury that is not representative of the community; including as to age, sex, ethnic origin, religious belief, marital status or economic, cultural or social background.

But what if, after the peremptory challenges have been made, the composition of the jury ‘is such that the trial might be or might appear to be unfair’?.

In those circumstances, the presiding judge may discharge the jury on that basis.

  • S47A of the Jury Act 1977 (NSW) – a little-known law

S47A of the Jury Act states:

The judge presiding at the trial of any criminal proceedings may discharge the jury that has been selected if, in the opinion of that judge, the exercise of the rights to make peremptory challenges has resulted in a jury whose composition is such that the trial might be or might appear to be unfair.

But this law is, apparently, not well known, and its utlilisation is less-known still.

This section was enacted inserted into the Jury Act in 1987 [via the Jury (Amendment) Act 1987].

There are no apparent reported decisions where a court has successful availed itself of this law.

There is an unreported decision of the District Court – R v Smith (Unreported, District Court of New South Wales, Martin J, 19 October 1981) – wherein His Honour Martin J discharged the jury after the Crown used their peremptory challenge to remove three Aboriginal jurors, leaving an entirely non-Aboriginal jury to determine the case against an Aboriginal defendant.

This case occurred before the enactment of s47A, with s47A being brought in to provide a statutory basis (rather than inherent basis) for judges to make such a ruling.

But since its enactment, this law has apparently been forgotten about, at least insofar as reported decisions are concerned. It was discussed, but not used, in R (Cth) v Ronen & Ors [2004] NSWCCA 176.

It is a useful law, and time that it was made more aware of.

For professional legal advice, contact Maclarens Lawyers on 96823777.

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