//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] QCA 75
appellant. Appeal allowed; the guilty verdicts on counts 3 and 4 set aside; a new trial ordered on those counts. The application for leave to appeal against sentence was not determined.
A jury cannot decide by voting that one of its members should leave. A judge may remove an individual juror where the evidence shows that the juror is not impartial, but the circumstances must clearly support that step. Here, the jury’s notes showed a disagreement and perceived bias, but did not establish that the juror who was removed was actually or apparently partial. The removal was therefore an error, and the convictions were set aside because the error affected trial fairness. The Court ordered a new trial on the two stalking counts and did not decide the sentence appeal application.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,610 words · generated 07/10/2026
In R v Schulz [2025] QCA 75, the Queensland Court of Appeal considered whether a trial judge had lawfully discharged an individual juror during a lengthy criminal trial. The appellant, Judith Ann Schulz, had been tried on three counts. A jury found her guilty of two counts of unlawful stalking and not guilty of an extortion count. She was sentenced to 18 months’ imprisonment, with a parole release date of 9 July 2025 (paragraphs 4–5).
1 cited instrument linked from this judgment.
The jury issue arose on the fourteenth day of the trial, while the judge was partway through summing up. The trial had involved 29 witnesses and 29 tendered documents and recordings. Before day 14, the jury had sent 16 notes (paragraph 12). The morning’s first note, from Juror 12, raised “concerns regarding a juror’s bias & behaviour” (paragraph 13). Further notes asked for an outside break and sought clarification about proof beyond reasonable doubt and the presumption of innocence (paragraphs 14–15).
The jury’s later notes made clear there was disagreement within the jury. The speaker described “perceived biases through life experiences” and said other jurors considered one person biased (paragraph 23). Another note said a juror felt uncomfortable making a verdict because of the possibility of finding the defendant guilty (paragraph 21). After the trial judge reminded the jury of their oaths or affirmations and their duty to assess the evidence fairly and impartially, the speaker said that juror was now willing to make a decision (paragraph 23).
The seventh note, written by the juror later identified as Juror 2, said that other jurors had “voted I should go”. The writer said she felt there were other jurors who were not impartial, described herself as neurodivergent and said she found it hard to communicate with them. She also said the jury should disband, but that she was leaving the matter to them (paragraph 26).
The defence applied to discharge the whole jury under s 60 of the Jury Act 1995 (Qld). The judge refused that application, reasoning in part that the trial was already on day 14, that earlier jury notes suggested the jury was performing its task, that the summing up was incomplete, and that she was not satisfied the whole jury was not impartial (paragraphs 28–29). The judge then decided that Juror 2 was “not impartial and ought not to be allowed to act as a juror” and discharged her. A reserve juror took her place (paragraphs 31–36).
On appeal, the Court held that the evidence did not support the finding that Juror 2 was not impartial. It allowed the conviction appeal, set aside the guilty verdicts and ordered a new trial on counts 3 and 4. It did not decide the application for leave to appeal sentence because that was unnecessary after the conviction appeal succeeded (paragraphs 50–52).
The central legal provision was s 56(1)(a) of the Jury Act. It states that, after a juror has been sworn, a judge may discharge the juror if it appears from the juror’s own statements or evidence before the judge that the juror is not impartial (paragraph 38).
Bradley JA explained that the power has a history connected to the common-law requirement for necessity. Statutory provisions later allowed trials to continue with the remaining members of a jury after an individual juror was discharged, but the common-law test of necessity continued to inform the exercise of that power (paragraph 39). In this case, the power was not to be used unless the circumstances clearly called for it.
The focus was not simply whether a juror was unpopular with colleagues, disagreed with them, or communicated differently. The question was whether proven circumstances affected the juror’s ability to fulfil the task required by the oath or affirmation. The Court described the relevant inquiry in terms of whether a fair-minded observer might think the juror’s conduct could influence the juror’s final assessment of guilt. A reasonable apprehension of bias would call for discharge unless directions could with certainty cure the concern; if the evidence did not raise such an apprehension, the power should not be used (paragraph 40).
The Court considered the information actually before the trial judge. The jury speaker’s description of “perceived biases through life experiences” did not identify a particular fact, interest or circumstance suggesting partiality. Bradley JA characterised it as a conclusionary statement of opinion, not a demonstrated ground for reasonable apprehension of bias (paragraph 42). The discharged juror had no apparent connection with the appellant, witnesses or legal representatives, and had not made outside inquiries or discussed the trial with a non-juror (paragraph 43).
Nor did Juror 2’s own note establish that she was partial between the Crown and the appellant. It showed that she perceived conflict with other jurors, and that she had difficulty communicating. It did not say she had refused to participate in the jury’s functions (paragraph 44). The other notes were also relevant: the earlier notes were consistent with a jury attending to its task, and the concern about another juror’s ability to decide had apparently been resolved after the judge’s direction (paragraphs 29, 44).
The timing mattered to the Court’s assessment. The summing up was not complete, and the jury had not yet received the judge’s directions on the elements of the offences and the Crown’s burden of proof (paragraph 45). The jurors’ views of each other had therefore developed before the full directions that would guide their deliberations.
Bradley JA concluded that the materials did not establish reasonable apprehension of bias and did not support a finding of actual bias. The circumstances did not clearly call for Juror 2’s discharge, so the trial judge erred in law (paragraphs 46–47). The error concerned an important element of a fair trial, and the Court held a miscarriage of justice had occurred. It said there was no scope to consider whether that miscarriage was not substantial (paragraph 50).
The judgment describes the statutory power against a historical background. Before statutory provisions addressed discharge of jurors, the common law permitted a judge to discharge a jury before verdict where necessity was made evident by ascertained facts. That approach contemplated discharging the whole jury and placing the accused before a new jury. From the 1920s, legislation began to permit trials to continue with the remaining jurors after one or more jurors were discharged (paragraph 39).
The judgment explains that the test of necessity derived from the common law continued to apply to the statutory power to discharge an individual juror. It cited R v Roberts in support of the proposition that the power should be exercised only where it can be clearly concluded that the circumstances call for its exercise (paragraph 39). The operative statutory text in this appeal was s 56(1)(a) of the Jury Act 1995 (Qld), not the former s 615 of the Criminal Code (Qld), which the catchwords identify as repealed.
The Court also relied on Wu v The Queen in discussing the difficulty of deciding whether an incident gives rise to reasonable apprehension or suspicion that a juror will not act impartially. The judgment reproduces the High Court’s warning that applying the test to other jurors may be even harder (paragraph 41). Bradley JA also cited Wu for the point that, if the relevant apprehension or suspicion exists, discharge may be required rather than being a matter of broad discretion (paragraph 48).
The decision applies those principles to a particular record. It does not replace the statutory language with a rule that a juror can never be discharged because of internal disagreement, or that directions will always cure a concern. Rather, it holds that the evidence in this case did not establish the necessary basis to find this juror was not impartial. Bowskill CJ’s comments describe a different course that should have been taken on these facts: tell the jury it could not vote one of its members out, remind all jurors of their duties, and continue with the sworn jury (paragraph 2).
The judgment also clarifies that the appellate court assessed the grounds actually given by the trial judge. Bowskill CJ rejected the Crown’s attempt to justify the discharge on a different basis, such as the juror’s desire to leave or communication difficulties, because that basis had not been canvassed by the trial judge (paragraph 1). That point is confined to the circumstances and reasoning recorded in this appeal.
At paragraph 39, Bradley JA says the statutory power “should be exercised only where it can be clearly concluded that the circumstances call for its exercise.” In plain English, removal is not justified simply because a jury is experiencing tension. There must be a sufficiently established reason connected to the juror’s ability to perform the required task.
At paragraph 40, the Court frames the inquiry by asking whether the evidence could lead a fair-minded observer to think the juror might be influenced in their final assessment of guilt. This makes the assessment evidence-based: the court must identify what happened and consider whether it bears on impartiality. The passage also recognises that directions may matter, but only if they can with certainty cure the apprehension.
At paragraph 42, Bradley JA says the description “perceived biases through life experiences” was a conclusionary opinion rather than a fact or circumstance giving rise to reasonable apprehension of bias. The practical significance is that a label or generalised description does not, by itself, establish why a juror cannot decide impartially.
At paragraph 46, the Court says the juror’s note, the other jury notes and the speaker’s answers did not establish a basis for reasonable apprehension of bias. It could not be clearly concluded that discharge was called for. This applies the statutory test to the full record, rather than isolating the seventh note from the context in which it was written.
At paragraph 49, Bradley JA notes the appearance risk: discharge could be perceived as removing a potentially dissenting voice before she could change her own view or influence others. The passage explains why the appearance of impartial justice matters alongside its substance. It was an additional reason against discharge if the decision were treated as involving discretion.
At paragraph 54, Callaghan J states that jury composition is settled through a process involving the defendant, and jurors cannot themselves decide by vote that one member should leave. In plain terms, a jury can discuss the case and reach verdicts through the applicable process, but it does not have authority to remove a fellow juror by internal vote.
The decision is most directly relevant where a trial judge is considering discharging an individual juror after the juror has been sworn, and the proposed basis is alleged partiality arising from disagreements within the jury. The statutory reference in the judgment is s 56(1)(a) of the Jury Act 1995 (Qld), which permits discharge where it appears from the juror’s own statements or evidence before the judge that the juror is not impartial (paragraph 38).
The case is especially pertinent where the information consists of jury notes describing perceived bias, conflict, communication difficulties, or a juror’s view that colleagues want them removed. Schulz shows that those matters must be assessed against the evidence of the juror’s ability to decide according to the evidence and law. In this case, the Court found that the general description of perceived bias based on life experiences did not establish a relevant circumstance (paragraph 42), and that the discharged juror’s own note did not demonstrate refusal to participate or partiality between the parties (paragraph 44).
The decision also matters where another juror appears to have difficulty accepting the responsibility of returning a verdict. Here, the fifth note raised that concern, but after the judge’s direction the speaker said the juror was willing to make a decision (paragraphs 21–23). The Court treated that context as part of the record, rather than as a reason to infer that Juror 2 was partial.
The case does not establish that every internal disagreement is immaterial, or that a judge can never discharge a juror in response to jury communications. Its reasoning turns on the specific evidence and the trial judge’s stated basis. Nor does it decide the consequences of a juror communicating with outsiders, having a connection to a party or witness, or expressing an unequivocal inability to be impartial. The judgment refers to such contrasting matters through its discussion of Wu and Tarasiuk, but does not decide those hypothetical situations in this appeal.
The judgment was published on 20 May 2025. The text supplied for this analysis does not include any subsequent decisions considering R v Schulz, so later judicial treatment cannot be established from this source alone.
The judgment itself explains how the Court of Appeal used earlier authorities. It applied Black v The Queen to describe the judge’s reminder to the jury about impartial consideration and discussion of the evidence (paragraph 23 and footnote 5). It followed Wu v The Queen on the reasonable apprehension or suspicion test and the difficulty of assessing the effect of a juror incident on the jury (paragraphs 41, 48). It cited Roberts and Orgles in explaining the necessity approach and the focus on the juror’s task (paragraph 39).
It distinguished R v Tarasiuk in Bowskill CJ’s reasons. There, as described in the footnote, a juror had indicated unequivocally to the trial judge that he was unable to be impartial. Bowskill CJ said the appeal court could not set aside the actual basis for the trial judge’s decision and uphold discharge on a different basis that had not been considered below (paragraph 1 and footnote 1).
Those are the relationships stated in Schulz itself. Whether later courts have adopted, limited or distinguished its reasoning requires sources beyond the judgment provided.
The judgment leaves fact-sensitive questions about when evidence of juror conduct is enough to raise a reasonable apprehension of bias. It states the general test and applies it to this record, but does not define an exhaustive list of conduct that would satisfy it. It also notes the difficulty of assessing effects on the other jurors, reflecting the concern described in Wu (paragraph 41).
Another question is when judicial directions can cure a concern. Bradley JA’s formulation recognises that directions may avert discharge if they can with certainty cure the apprehension, but the appeal did not require the Court to decide the limits of that possibility across different circumstances (paragraph 40). Bowskill CJ’s view that the jury should have been directed as a whole and continued with also arises from the specific notes and the trial judge’s assessment in this case (paragraph 2).
The decision does not determine whether a juror’s stated wish to leave, or a communication difficulty, could independently amount to “other” proper reason for discharge under the provisions applicable in another case. Bowskill CJ said that alternative basis was not canvassed by the trial judge and therefore could not justify the decision on appeal; the judgment does not decide its general legal status (paragraph 1).
Nor did the Court decide the appellant’s application for leave to appeal against sentence. It expressly left that application unresolved because the conviction appeal succeeded and a new trial was ordered (paragraph 51). Any discussion of the merits of the sentence application would therefore go beyond the judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Schulz [2025] QCA 75
PARTIES: R / v / SCHULZ, Judith Ann / (appellant)
FILE NO/S: CA No 274 of 2024 / DC No 2113 of 2022
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 9 December 2024 (Loury KC DCJ)
DELIVERED ON: Date of Orders: 16 May 2025 / Date of Publication of Reasons: 20 May 2025
DELIVERED AT: Brisbane
HEARING DATE: 12 May 2025
JUDGES: Bowskill CJ, Bradley JA and Callaghan J
ORDERS: Date of Orders: 16 May 2025
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – COMPOSITION OF JURY – where the appellant was convicted by jury of two counts of unlawful stalking – where the appellant was sentenced to 18 months’ imprisonment with a parole release date of 9 July 2025 – where a series of notes from the jury were brought to the attention of the trial judge – where, based on the contents of those notes, there was an application to discharge the whole of the jury by defence counsel at trial – where the application was refused and the trial judge discharged a single juror – whether the trial judge erred in law and a miscarriage of justice occurred because of the discharge of the juror / Criminal Code (Qld), s 615 (repealed) / Jury Act 1995 (Qld), s 56, s 60 / Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, applied / Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72, cited / R v Orgles [1994] 1 WLR 108, cited / R v PAR [2015] 1 Qd R 15; [2014] QCA 248, cited / R v Pearce (2022) 10 QR 369; [2022] QCA 43, cited / R v Roberts [2005] 1 Qd R 408; [2004] QCA 366, cited / R v Tarasiuk [2019] QCA 165, distinguished / Winsor v The Queen [1866] LR 1 QB 390, cited / Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, followed
COUNSEL: P J Wilson for the appellant / C W Wallis for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: I agree, for the reasons given by Bradley JA, that it was not open on the evidence before the learned trial judge, including the juror’s own statements, to have found that the discharged juror “is not impartial” for the purposes of s 56(1)(a) of the Jury Act 1995 (Qld). There were troubling aspects to that juror’s seventh note, including her apparent perception that it was within the power of the jury to “vote” that she “should go”. But the seventh note did not reveal a basis to conclude the juror herself was not, or appeared not to be, impartial. Nor could any lack of impartiality on the part of this juror be inferred, as the respondent submitted on the appeal, from the earlier jury notes. That submission involves an unacceptable degree of speculation, and is inconsistent with the trial judge’s observation, that the earlier jury notes were consistent with a jury which was doing its job properly. The decision to discharge the juror is also not capable of being justified, as the respondent sought to do, on some other basis than was decided by the trial judge, for example, that there was some “other reason” the juror ought not be allowed or required to continue to act as a juror, namely, their desire to leave and difficulties communicating with the other jurors. That was simply not canvassed by the trial judge.1 And, as Bradley JA observes in paragraph [49] below, if, hypothetically, that had been the basis for deciding to discharge the juror, there were powerful reasons not to do so in the circumstances of this case.
The observations at the start of Bradley JA’s reasons, as to the inherent difficulty involved in conducting a criminal trial, are entirely apt. 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. 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.
I agree with the orders proposed by Bradley JA.
BRADLEY JA: On 9 December 2024, a jury found the appellant guilty of two unlawful stalking counts, and not guilty of an extortion count. The appellant was sentenced to 18 months’ imprisonment with a parole release date of 9 July 2025.
The appellant appeals the two convictions, contending 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.
Appeal against conviction
“the central question which the trial judge had to determine which was how best the trial of the appellant should proceed. That required attention to the fair and lawful trial of the appellant by a properly constituted jury and it also required attention to how best that trial might be conducted promptly and without delay.”2
One can empathise with the trial judge. Her Honour was faced with an issue that arises rarely. This unexpected issue emerged on the fourteenth day of the trial, in a flurry of jury questions, submitted when her Honour was part way through summing up. The trial judge identified the decision of R v Pearce3 as a relevant authority on the procedure that might be adopted to navigate the issue. Her Honour adopted that procedure, with the agreement of counsel. However, counsel could not assist with an agreed submission on the discharge of the jury or the juror.
As Fraser JA observed in R v PAR:
“In effect, trial judges are obliged to expect the unexpected in this as in other aspects of criminal trials. The trial judge must decide upon the appropriate response on the run and in circumstances in which the trial judge has the onerous duty of ensuring that the trial is in that and all respects conducted fairly and in accordance with law. … It is also necessary to bear in mind that an appeal court cannot fully capture the atmosphere at the trial. … Acknowledging all of those difficulties, this Court nevertheless may be obliged to intervene if the fairness of the trial was put at risk by the course adopted by the trial judge.”4
The events at the trial
The transcript of proceedings and the jury questions marked for identification explain the circumstances in which the juror in question was discharged. Neither party sought to supplement the transcript by other evidence. There were no additional agreed facts. The Court was to decide the appeal on that record, including any inferences that may properly be drawn from it.
Over the first 13 days of the trial, the jury had heard the evidence of 29 witnesses (including the appellant), and 29 documents and recordings had been tendered as exhibits. The jury had submitted 16 jury notes to the trial judge. On the 13th day, after the appellant had finished giving evidence, Counsel had addressed the jury, and at about 3.06 pm, the trial judge had commenced summing up the case for the jury. The jury retired at about 3.27 pm, with her Honour telling them the summing up would continue at 9.30 am the next day.
At 9.30 am on the 14th day of the trial, the trial judge had resumed without the jury and informed Counsel that a jury note had been received (the first note). It read:
“I have concerns regarding a juror’s bias & behaviour I wish to discuss in person.
Juror 12.”
“Would it be possible for a morning tea break outside the building please?”
“Please clarify the logic of ‘beyond reasonable doubt’ as distinct from ‘on the balance of probability’ in more detail, along with the logic of ‘innocent until proven guilty’. I specifically want to understand whether it is correct to commence the examination of evidence from the premise of the defendant’s innocence, as compared to the assumption of guilt - one seems to work forward from the defence position to test the veracity of the evidence provided by the defendant as to whether or not one finds it substantiated (in full or part); whereas the other (guilty until proven innocent) seems to cast doubt on the defendant as tacitly accept they have indeed committed an offence.”
The trial judge discussed these three jury notes with Counsel. Counsel agreed that the answer to the second note should be “Yes”, and that the third note was “probably not difficult to deal with” when the summing up continued.
As to the first note, Counsel agreed on the course the trial judge should adopt. Her Honour followed that course, calling the jury into the court room and addressing them in these terms:
“Good morning, members of the jury. I have received your notes. I am going to deal with one of them first, and then I will deal with the others a little later. One of you has sent a note to me raising concerns about the behaviour of one of your number which might display a bias. If there are any problems or concerns of that nature about behaviour or bias, that needs to be aired in open court with all present.
Who is your speaker? You are. I am going to pose a question for you, which I will ask you to answer on behalf of the whole of the jury, but I will give you an opportunity to go and discuss what I have said. I will ask you whether, as a body, as a jury, you think you will be able to bring in a true verdict according to the evidence. So I will let you go and have a discussion amongst yourselves about when you will be able to do that, but if there are questions or concerns or problems that you are experiencing with behaviour or bias, then you, sir, will have to inform me with everyone present. So if you would like to go to the jury room, you can have a discussion amongst yourselves.”
“Is your Honour willing to discuss the concerns with one member of the jury - This is the member who the concerns have been raised with.”
“What I will do is get the jury in and ask them whether it is only one person who is having – who has any difficulties or problems. I can then send them away and speak to her alone. She can express her difficulties. Assumedly, they are only her difficulties, clearly enough.
…
It might be something that is personal to her … and will not have any impact on deliberations, but, you know, makes her uncomfortable with what is going on, and in which case I could form the view that she is not able to complete her service and I can discharge her.”
“All right. Well, I will bring them in and I will ask the speaker whether, after their discussions, the concerns that have been raised are – are only that of one member of the jury, and that nobody else has any difficulties and he otherwise [thinks] that, as a body, that they are able to bring in a true verdict according to the evidence. And if he says yes, then I will say I will answer that question and I will speak to the juror alone. And I will just see what – we will just see what comes of it … one step at a time.”
“One juror is feeling uncomfortable in making a verdict on the cases, they feel unable to accept the burden of knowing they may find the defendant guilty.
In the event of the jury not comfortable with one juror and one not comfortable to make a decision what is the process moving forward”.
The trial judge discussed the fifth note with Counsel. Counsel agreed that her Honour should deal first, through the speaker, with the jury’s response to the question her Honour had posed, namely whether, as a body, the jury thought they would be able to bring in a true verdict according to the evidence.
The jury returned and the following exchange between the trial judge and the jury speaker occurred:
“HER HONOUR: Thank you for your next note. I will deal with one issue at a time. So I want to go back to the issue that was raised first in time, which regards one juror’s concerns about the bias and behaviour of another. Now, I have received your note asking if I will speak to that person – I assume it is that person – alone. And before I answer that, can I ask you this, Mr Speaker: is it only one person on the jury who has that concern?
SPEAKER: No, your Honour.
HER HONOUR: It is not. All right. Can you reveal it – the problems that you are having? … Because this is a problem internal to the jury, I ought not separate you. You, as the speaker, need to disclose the problems to us.
SPEAKER: There’s perceived biases through life experiences and how that will influence decision-making and discussions in the group.
HER HONOUR: Right. Are – are they personal life experiences that different people might have that might impact upon them?
SPEAKER: So the life experiences of one person ‑ ‑ ‑
HER HONOUR: Yes.
SPEAKER: ‑ ‑ ‑ who they’ve – who’s – other members of the jury feel have a biased opinion.
HER HONOUR: I see. I see. Is that the same or a different person to the person who thinks that they might not be able to ‑ ‑ ‑
SPEAKER: Different.
HER HONOUR: A different person, all right, to the person they do not think will be able to reach a verdict. …
Can I – can I say this to you and ask you to think about this, you are 12 – 13, currently, people who have been randomly selected from the community to perform an important duty as one body. Each of you has sworn to conscientiously try the charges and decide them according to the evidence and the law. You are expected to judge the evidence fairly and impartially, despite whatever life experiences you have. You all have different life experiences that you bring with you to whatever you do, but you are expected to judge the evidence fairly and impartially. That requires you to listen carefully and objectively to the views of every one of your fellow jurors. The process of considering your verdict should involve weighing up one another’s opinions about the evidence and testing them by discussion.5 So I am going to ask you whether, as a body, taking into account those things that I have just told you, you think you will be able to bring in a true verdict according to the evidence. Now, would you like to go and have a think about that and a discussion about that?
SPEAKER: Yes, your Honour.
HER HONOUR: And – and I will then ask the counsel for some submissions about speaking to the one person that you have – that has the concerns.
SPEAKER: That one person has indicated she is able to proceed, your Honour.
HER HONOUR: I see. All right. So is there anyone else who has concerns about behaviour at all? There’s not? Yes, there is? There is some disagreement amongst you.
SPEAKER: So the one person – your Honour, the one person that indicated she was uncomfortable making the decision ‑ ‑ ‑
HER HONOUR: Yes.
SPEAKER: ‑ ‑ ‑ has since discussing of the things that she is willing to make a decision.
HER HONOUR: And is able to make a decision? All right.
SPEAKER: Yeah.
HER HONOUR: Well, that is that. That is that.
…
HER HONOUR: So your other note – well, the first note was one person raising concerns about bias and behaviour. From what I understand that you have said, is that there is multiple people who think one person might be biased and displaying it. All right. Well, having said what I have just said about the oath or the affirmation you have each taken to conscientiously try the charges according to the law, and to put aside any sympathies or prejudices that you might have and to judge the evidence fairly and impartially and listen carefully and objectively to the views of others, I am going to ask you to have a conversation amongst yourselves as to whether you think that, as a jury, you will be able to bring in a true verdict according to the evidence and put aside biases and prejudices. If there is someone who cannot do that, then you should tell me who that person is and then we can make further decisions about where we go to from there. So I will ask you to go to the jury room and consider those things.”
Shortly after the jury withdrew to the jury room, her Honour observed the fact that a juror had displayed what some other jurors had described as bias, in discussions to that point, did not mean the juror could not put that aside and objectively view the evidence as their oath or affirmation required, with the benefit of her Honour’s directions.
About 15 minutes after the jury withdrew, two further jury notes were received (the sixth note and the seventh note). The sixth note read:
“Your Honour is it possible to take a morning tea break so people can go and grab a coffee outside? Then resume feeling calmer and re-energised”.
“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.”
With Counsel’s agreement, the trial judge instructed the bailiff to tell the jury, in response to the sixth note, that they could leave the courthouse and go out for half an hour. The court adjourned briefly to allow the defence counsel to obtain instructions.
When the court resumed, the defendant asked the trial judge to discharge the jury. The application was made under s 60 of the Jury Act 1995 (Qld) (the Jury Act). It relevantly provides that a judge may do so if the judge “considers there are other proper reasons” for discharging the jury without giving a verdict. The Crown prosecutor opposed the discharge of the jury.
The trial judge refused to discharge the jury. This decision was not challenged in the appeal. Her Honour gave reasons for the refusal, namely:It was day 14 of the trial;The many jury notes sent during the trial indicated the jury was doing as was requested of them, which is to try the appellant on the counts according to the law;After her Honour’s further directions that morning (reminding the jury of their oaths and the requirement to judge the evidence fairly and impartially and to listen objectively to others), by the seventh note one juror had asked to be removed because they felt the rest of the jury thought they were biased when, in fact, they thought the rest of the jury was not impartial;The seventh note did not tend to suggest that the jury as a whole was not able to perform their duty;The summing up was not complete, with the jury yet to be directed on the elements of each offence and what the Crown must prove; andHer Honour was not satisfied that the whole of the jury was not impartial.6
Defence counsel then proposed that the trial continue with the balance of the summing up, enhanced by a reiteration of the *Black-*style direction given earlier that morning, and with a specific direction about the standard of proof in answer to the third note. The Crown prosecutor proposed the discharge of the individual juror who had sought that outcome in the seventh note.
The trial judge identified that it was not yet known whether the author of the seventh note was the person who was the subject of the first note. Subject to clarification of that point, her Honour gave a “tentative ruling” that:
“Based on all of the evidence before me, including the person’s own statements, which have only come in response to the other complaints, I am satisfied that the juror is not impartial and ought not to be allowed to act as a juror at the trial, and I would discharge them.”
“on the whole of the evidence that is before me, which is the – the way the trial has occurred, and the numerous notes that have been sent – which are all indicative of a jury doing the right thing, that give absolutely no suggestion of any improper reasoning processes or impartiality – the first time there has been any concern raised this morning is by a person who is not the speaker; another person on the jury. That has led to the speaker then having a discussion with everyone and informing me that there is a number of jurors who consider that one person is not impartial. And that is sufficient for me, given the background to this trial, to form the view, even if it is not a majority decision, even if it is not a unanimous decision, that the juror is – is not impartial and should not be allowed to continue to act.
… This is all very difficult. But my – my primary consideration is that this is a jury who have been doing the right thing throughout the whole of this trial, and sending sensible notes that are focused upon the evidence and the requirements that they have to comply with and the directions that they have to comply with.”
“I will ask the speaker again, after I have given them the earlier directions, whether they still have concerns, having now had a – had a rest and a break – whether they still have concerns that one juror is not impartial. And if they do have concerns that – that there is a juror who is not impartial, I will ask them if that juror has sent the note requesting to be discharged. And if it is that person, then I will discharge that person.
… Having given them the direction, having given them a reminder of the – of the oaths that they took … I will ask, from the point of view of the speaker, does the speaker consider that there are – does the speaker consider that – beyond the one person that they have expressed earlier, are they – do they have any other concerns that there are people on the jury who are not impartial or will not be able to bring an impartial mind to the evidence.”
At defence counsel’s suggestion, her Honour agreed that the jury as a whole should be asked if they all agree with the position articulated by the speaker.7
When the jury returned, her Honour had the following exchanges with the jury speaker and with one other member of the jury identified as the author of the seventh note:
“HER HONOUR: Now, members of the jury, having reminded you of the oaths that you swore to try the charges and decide them according to the law and directed you about the expectations of each of you and giving you a break so that you can think about the things I have said, and noting I have not finished my summing up and have not started to direct you on the law that applies to the actual offences themselves, do you as a jury still have concerns that there is one person or more – one or more people who are not capable of bringing an impartial mind to a consideration of the evidence?
JUROR: Yes, your Honour.
HER HONOUR: You do. Is that one or more people that you as a jury think is not capable of bringing an impartial mind to a consideration of the evidence?
JUROR: One.
HER HONOUR: Just one. Is that one person the same person who has sent a note requesting to be discharged?
JUROR: Yes, your Honour.
HER HONOUR: It is. All right. Well, who is that juror? Juror number 2. All right. Juror number 2, I am going to discharge you. Before you go, though, can I thank you for your service. I know it has been a long trial, but your involvement in this trial has assisted in the administration of justice in this state, and no doubt you have provided a valuable contribution to discussions in the jury room. So you go with the thanks of the court. Enjoy the rest of your day.
JUROR NO 2: Thank you.”
Was there an error of law in discharging the juror?
The trial judge discharged the juror finding that the juror was “not impartial and ought not to be allowed to act as a juror at the trial”.
The power to discharge an individual juror is found in s 56(1)(a) of the Jury Act in these terms:
“56 Discharge or death of individual juror
If, after a juror has been sworn—
it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial …
the judge may, without discharging the whole jury, discharge the juror.”
Prior to 1997, an equivalent provision was in s 615 of the Criminal Code (Qld). Before statutory prescription, the common law assumed that a trial judge of a superior court could discharge a jury before a verdict when the necessity for a discharge was made evident from the ascertained facts.8 The common law contemplated that the trial judge could discharge the whole jury and place the accused in the charge of a new jury. From the 1920s, statutes began to provide for a trial to continue with the remaining members of an existing jury, following the discharge of one or more members.9 Since then, the test of necessity, derived from the common law, has been applied to the discharge of an individual juror.10 This background explains why the statutory power to discharge an individual juror should be exercised only where it can be clearly concluded that the circumstances call for its exercise.11 The consideration of whether a discharge is necessary, is focused on the impact of proven circumstances on the ability of the juror to fulfil their task in accordance with their oath or affirmation to reach a true verdict according to the evidence.12
The question for the trial judge might be framed as whether a fair-minded observer of the proceedings might consider that the evidence of the juror’s conduct was such that the juror might be influenced in their final assessment of whether the accused was guilty. Circumstances giving rise to a reasonable apprehension of bias would call for the discharge of any affected juror, unless directions to the jury could with certainty cure that apprehension. If the evidence did not give rise to a reasonable apprehension of bias, then the statutory power to discharge a juror should not be exercised.
In Wu, Gleeson CJ and Hayne J applied the same test, noting its attendant difficulties:
“The decision to discharge a juror may require consideration of difficult questions of fact and degree. One example may suffice to make the point. Deciding whether an irregular incident involving a juror is such that, notwithstanding any proposed or actual warning by the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror has not discharged or will not discharge the juror's task impartially will often raise difficult questions [See eg, Webb v The Queen (1994) 181 CLR 41]. And applying that test of reasonable apprehension to the other members of the jury may be even harder.”13
The jury speaker had described the differences between the juror who was discharged and the other jurors as “perceived biases through life experiences”. 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.
As the trial judge identified, the jury notes indicated the matter was internal to the jury. 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.14 There was no apparent ground to suspect bias on those accounts.
It did not appear from the juror’s own note (the seventh note) that the juror was not indifferent as between the Crown and the appellant. 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. As noted at [29](b) above, the broader evidence, in the form of the other jury notes during the trial to that point, had indicated that the jury was trying the appellant on the counts according to law. Although the fifth note had indicated another juror may not have been able to fulfil their oath or affirmation to reach a true verdict according to the evidence, after her Honour’s *Black-*style direction was given, the speaker had said that the juror was “willing to make a decision”.
As the trial judge also relevantly noted, the summing up was not complete. Whatever opinions the jurors had of each other’s views were uninformed by the usual directions the trial judge intended to give and any specific directions called for in the case. After the summing up was finished, the jury would begin their deliberations with the benefit of those directions.
In the circumstances, the juror’s own statements in the seventh note, the other material before the Court in the other jury notes and the speaker’s responses to her Honour’s questions, and the prior jury notes, did not establish any basis for a reasonable apprehension of bias on the part of the juror who was discharged. It could not have been clearly concluded that the circumstances called for the discharge of the juror for a lack of impartiality. The trial judge’s finding of actual bias was not open on the evidence.
It follows that the trial judge erred in law in discharging the juror.
In the circumstances of this case, the error was not one within a broad-ranging discretion. As explained by Gleeson CJ and Hayne J in Wu:
“It may be doubted, however, that it is always useful to describe the exercise of the power to discharge a juror or the jury in such a case as the exercise of a discretion by the judge. If satisfied that the incident gives rise to a reasonable apprehension or suspicion, the judge would, it seems to us, be bound to discharge those of whom the apprehension or suspicion would be held (whether that is a single juror or the whole jury). No discretion would fall to be exercised in such a case.”15
If there had been a discretionary element to the decision below, there was a strong countervailing reason not to discharge the juror. The seventh note had disclosed the juror’s view that some of the other jurors had perceived her to be “biased in favour of the defendant.” 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. 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.16
The error in discharging the juror concerned an important element of a fair trial according to law. A miscarriage of justice occurred. As Mr Wallis for the respondent Crown correctly submitted, there is no scope to consider whether the miscarriage was not substantial. The two convictions founded on their verdicts should be set aside.
Leave to appeal against sentence
Final disposition
The appeal be allowed.
The verdicts of guilty below be set aside.
There be a new trial in respect of counts 3 and 4.
CALLAGHAN J: I agree with Bradley JA’s conclusion that the finding made about the discharged juror was not available in the circumstances.
I agree also with the further reasons of Bowskill CJ, who endorses his Honour’s observations about the difficulties faced by the learned trial judge. With the benefit of the hindsight to which her Honour refers, the fifth note invited a response that made some things clear. The methods for dealing with a jury’s disagreement (such as a Black direction, or a majority verdict) may be few, but a jury may not resolve things with a vote that one of them “should go”. The composition of a jury is settled by a process in which the defendant is involved. Any issues about the retention of those chosen cannot be delegated to, nor appropriated by, the jury itself.
The orders should be as proposed by Bradley JA.
Cf R v Tarasiuk [2019] QCA 165 at [167]-[169] and [173], as to the basis on which a juror, who indicated unequivocally to the trial judge he was unable to be impartial, was discharged. The fact that the Court went on, at [174], to suggest there was a further reason that would have warranted the juror’s removal, does not support the proposition that, on an appeal such as this, the Court can effectively put to one side the reasons actually given for a decision to discharge and uphold the decision on a different basis not considered by the trial judge. ↩
Wu v The Queen (1999) 199 CLR 99, 106 at [18] (‘Wu’). ↩
[2022] 10 QR 369, 385 at [45] (Bond JA; McMurdo JA and Flanagan J agreeing) (‘Pearce’), citing with approval the decision of the Court of Appeal for England and Wales in R v Orgles [1994] 1 WLR 108, 112-113 (Nolan LJ, Wright and Holland JJ) (‘Orgles’), also approved in R v Roberts [2005] 1 Qd R 408 (Cullinane J; McPherson JA and White J agreeing). ↩
[2014] QCA 248 at [54]. ↩
This part of the trial judge’s direction to the jury derived from the direction outlined by the High Court in Black v The Queen (1993) 179 CLR 44, 51 at [15]. It is convenient to refer to it as her Honour’s ***Black-***style direction. ↩
This is the logical reading of her Honour’s ex tempore reasons. ↩
This did not occur, and was not the subject of the appeal. ↩
Winsor v The Queen [1866] LR 1 QB 390, 394 (Erle CJ, Pollock CB, Martin, Bramwell and Pigott BB, and Byles and Montague Smith JJ). The Court also described it as “a high degree of need”.
R
Schulz [2025] QCA 75
(1993) 179 CLR 44
(1985) 159 CLR 264
(1999) 199 CLR 99
(1994) 181 CLR 41
Appeal allowed; the guilty verdicts on counts 3 and 4 set aside; a new trial ordered on those counts. The application for leave to appeal against sentence was not determined.
The appellant also sought leave to appeal the sentence imposed, on the ground that it was manifestly excessive. For the following reasons, it was not necessary to consider the application for leave to appeal the sentence.
As Kirby J identified in Wu, 113 at [43], these Acts, including the 1929 amendment to the Jury Act 1977 (NSW), followed s 15 of the Criminal Justice Act 1925 (UK). ↩
Archibold Criminal Pleading, Evidence and Practice (2025 ed), ch 4, 4-307. ↩
R v Roberts [2005] 1 Qd R 408, 413 at [31], [38] (Cullinane J; McPherson JA and White J agreeing). ↩
Orgles, 112, paragraph (b). ↩
(1999) 199 CLR 99, 103-104 at [9]. ↩
cf Wu, 108 at [30] (McHugh J). ↩
(1999) 199 CLR 99, 104 at [9]. ↩
Kingswell v The Queen (1985) 159 CLR 264, 301-302. ↩