Rees, Neil --- "R v Smith (Criminal trial- receiving stolen goods- selection of jury- trial judge's power to discharge jury)" [1982] AboriginalLawB 8; (1982) 1(3) Aboriginal Law Bulletin 11

• R V Smith
• Criminal Trial – Receiving Stolen Goods – Selection Of Jury – Trial Judge’s Power To Discharge Jury.

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R v Smith

Criminal trial – receiving stolen goods – selection of jury – trial judge’s power to discharge jury.

R v Smith

District Court of NSW at Bourke (Martin J)

19 October 1981

Casenote by Neil Rees

The accused was charged with receiving stolen goods, namely four spanners and three guages. Following a plea of not guilty a jury was slected from the assembled panel. The prosecutor challenged the three Aboriginal members of the jury panel. The trial judge, Judge Martin, then discharged the jury. He gave the following reasons:

Mr Crown, Mr Parker, Members of the Jury, something has happened in this case which has caused me to delay the hearing and I am sorry for that delay but it is something which worries me immensely and continues to worry me. It is the second time that it has happened in a court in which I have had the duty of presiding in the West and it is this: the accused man is obviously of Aboriginal blood, equally obviously there were three members of the jury panel called who were of Aboriginal blood and none of those three remains. The reason why. none of those three remains is because each of them was challenged by the Crown Prosecutor.

The Crown Prosecutor, like the counsel for the accused, has an absolute right of challenge with a certain number of jurors and does not have to give any reason and I have not the power to ask the Crown Prosecutor for his reasons and I think, for a number of reasons, it would not be proper for me to do so.

The fact remains that theCrown Prosecutor is a person well known to you as an honourable citizen, an honourable Crown Prosecutor and I am not in the slightest criticising his action nor impugning it in any way whatsoever; but whilst that fact remains the other fact remains that it is a very important principle of our system of justice that justice must not only be done, it must appear quite clearly to be done.

What has been worrying me for the last one and a half hours is that if I allow the situation to continue some members of our community, of our country, may think that appearances suggest that justice is not being done. I believe that justice will be done, I have every confidence in my fellow citizens whether they are white or black that are called into juries and I have no doubt that justice will be done but I think some citizens, as I say, may feel otherwise.

A judge has heavy responsibilities and one of the judge's powers under those responsibilities is to discharge a jury and to stop a trial and require it to go on another day, or another time with another jury, for any reason which he, in his discretion, thinks proper.

I have given this considerable thought and as I say I am considerably worried but I am quite certain in my own mind that the proper thing for me to do to avoid the possibility that some of the citizens of our beloved country may think that justice will not be done is to discharge you members of the jury from further service and to put an end to the trial for the time being. The trial will go on at some other time and place as the Honourable Attorney General appoints but it will not come on today.

Mr Armitage appeared as Crown Prosecutor.

Mr A. Parker (Western Aboriginal Legal Service Ltd., NSW) appeared for the accused.