23 As I have stated, the trial judge did not accept defence counsel's contention that the juror was not impartial. His Honour, one of the state's most experienced trial judges, probably considered that the juror was unfit to continue or incapable of concentrating on the evidence given his emotional state and that asking the juror to continue would have exposed him to undue hardship.[10] That these could constitute proper grounds for discharge of a juror or that they were properly open to the trial judge was not challenged by counsel for the applicant.
24 Any notion of actual bias may be put to one side. The record reveals only that the juror became upset and that this was caused, at least in part, by his own experience as a victim of abuse. There was no factual basis upon which to suggest that the discharged juror was actually prejudiced against the accused, nor was any suggested. The question is whether a reasonable apprehension of bias arises because a juror is a victim of the same or a similar crime to that upon which the accused is being tried. Putting to one side what might have been the trial judge's reasons for discharging the juror, this Court must now assess for itself whether a reasonable apprehension of bias existed with respect to that juror and, if so, whether the remainder of the jury were also tainted by that apprehension of bias and should have been discharged.
25 Jurors will frequently suffer emotional stress during a trial and for many reasons.[11] For example, jurors will often experience, and may even betray, sympathy for the victim of a crime, but this will not necessarily render them unfit for service in the eyes of the fair-minded observer.[12] The jury are generally instructed by the trial judge to assess the evidence dispassionately and to reject any feelings of prejudice, bias or sympathy for anyone involved in the case. This is part of any juror's task, whether or not they have been victims of crime. I refer to the salutary observations of Brenann J in R v Glennon that "of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that this reliance is not misplaced."[13]
26 Counsel for the applicant argued that the fact that the matters which led to the juror being discharged were discussed with the other jurors necessarily led to the contamination of the jury. In support of this argument, counsel drew attention to the particular circumstances surrounding the discharge of the juror. In particular, he focussed on what the prosecutor had been saying at the time the juror became distressed. The prosecutor was inviting the jury to draw on their own life experiences in order to assess the credibility of the complainant. The fact that the juror broke down at this point, it was submitted, indicated that his own experience of abuse was intruding, illegitmately, into his assessment of the evidence. Counsel emphasised that the difficulties being experienced by the juror would inevitably have been discussed with the other jurors when they retired. He invited the Court to consider some hypothetical scenarios to indicate how the remainder of the jury might have been 'infected'. He hypothesised that the juror may have said that the same thing happened to him as a child, and that the complainant had behaved just like a victim of abusive behaviour.
27 In my view, the possibility, speculative as it is, that the juror reasoned with the other jurors as counsel hypothesised, would not provide grounds for the discharge of the juror or the balance of the jury. There would be nothing impermissible or inappropriate about such a reasoning process had it taken place. Juries are routinely told to evaluate evidence, particularly viva voce evidence, against the background of their own life experience. The prosecutor's invitation to the jury to use their own knowledge and common sense, quoted above, is one which is extended to juries, in similar terms, every day. The value of consultation is enhanced not merely by the presence of more than one mind, but also by the presence of more than one vantage point.[14] The experience of a member of the jury, shared with other members of the jury, may be accepted or rejected by them as something which may or may not assist their deliberations. The special virtue of the institution of the jury is the collective deliberation process of a fair cross-section of the larger community with the capacity to temper the dangers of irrational, unfair or ignorant reasoning.
28 Counsel argued that the juror's use of his own personal experience of abuse in evaluating the evidence would have been illegitimate because it was a matter extraneous to the trial which could not have been subject to any scrutiny by the parties. I do not accept that submission. This was not a case of an experiment conducted by a juror becoming a form of new evidence,[15] or of the jury inadavertently receiving information which was not part of the evidence at trial.[16] Rather, what is raised in this case is the possibility, albeit a speculative one, of a juror evaluating existing evidence by reference to a particular experience they have had. In my view this is something the juror would have been entitled to do.
29 The process of jury selection that is followed in most common law jurisdictions and the integrity of the jury system rest upon the rationale that a juror's life experiences or the use that a juror may make of such experience in evaluating the evidence does not give rise to a reasonable apprehension of bias in that juror. As a general rule it is assumed that jurors, who have had an experience such as the present juror, are able to give effect to their obligation to act impartially so that a reasonable apprehension of bias does not arise.
30 Potential jurors who have had such an experience do not need to be excused from the jury panel from which the jury is to be selected.[17] Infrequently, as the cases reveal, something may occur in the trial process which leads to the conclusion that a juror's or potential juror's ability to decide a case impartially is compromised or that there is a reasonable apprehension that this is so.[18] The trial judge has the discretion to excuse a person from the jury panel if satisfied that "the person will be unable to consider the case impartially" or "is unable to serve for any other reason".[19] The practice of informing the jury panel of the nature of the crime charged before taking excuses provides adequate opportunity for any potential juror to seek to be excused if he or she considers that they will be unable to be impartial for any reason. Once empanelled, the trial judge may discharge jurors who fall into this category.[20]
31 I do not accept the premise, which underlies much of the applicant's argument, that a fair-minded observor would form a reasonable suspicion that a juror was not able to act impartially on the basis that the juror had been the victim of a crime of the kind with which the accused stood charged.
The 'contamination' point
32 Even if there was a reasonable perception of bias against the applicant because of the juror's personal experience, I am not persuaded that there was any risk of contamination of the balance of the jury, let alone one which created a high degree of necessity to discharge the remainder of the jury.
33 The applicant places reliance on R v Stretton & Storey[21] as authority for the proposition that the discharge of the one juror in these circumstances necessarily required the discharge of the remaining jurors. In a passage relied upon by the applicant from that case, Starke J observed that: