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  • Writer's pictureGeoff Harrison

Failure to Discharge a Jury

Updated: Nov 3, 2023

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Published by Geoff Harrison | 25 October 2023

The question of whether a jury should have been discharged or not raises issues within s6 of the Criminal Appeal Act 1912. In Ilievski v R; Nolan v R (N0 2) [2023] NSWCCA 248, the court (Dhanji and Lonergan JJ agreeing, Beech-Jones CJ at CL dissenting) declined to follow Crofts v The Queen as to the relevant test for discharging a jury and allowing a new trial. The court held that the relevant test is a two-step process in terms of identifying if there has been a miscarriage of justice and, if so, whether there has been no substantial miscarriage of justice as per s6 of the Criminal Appeal Act 1912.

As noted by Dhanji J in Ilievski at [84] and [89]:

With unqualified respect for Bathurst CJ, I am not of the view that Crofts v The Queen can be applied in its terms. Nor am I, for the reasons which follow, of the view that it is inappropriate for this Court to consider Crofts v The Queen in light of subsequent authority on the proviso. Indeed, this Court has, in cases subsequent to Hamide v R, approached appeals based on a failure to discharge through the distinct steps of miscarriage and substantial miscarriage, albeit with varying levels of attention having been given to the issues raised in Hamide v R: see Tomlinson v R [2022] NSWCCA 16 at [53]- [59]; Cox v R [2022] NSWCCA 66 at [44]; Dries v R [2022] NSWCCA 33 at [36]- [39]; Xu v R [2023] NSWCCA 93 at [100], [151].


It follows from the above that most matters involving a complaint as to the admission of unfairly prejudicial material will be resolved by consideration of whether the applicant has established a miscarriage of justice, and if so, whether the Court can be satisfied that there has been no substantial miscarriage of justice. This will generally involve the following considerations:

(1) Was there a miscarriage of justice, in the sense that what occurred had “the capacity for practical injustice” or was “capable of affecting the result of the trial”?: Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] per Edelman and Steward JJ. See also Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41], [47] per Kiefel CJ, Keane, and Gleeson JJ, and at [118]-[123] per Gageler J, where what appear to be functionally equivalent tests were stated. Gageler J said (at [123]):

“Except in the case of an error or irregularity so profound as to be characterised as a “failure to observe the requirements of the criminal process in a fundamental respect” (178), an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred.”

Other Sources:



Extracted Legislation:


Appeal against discharge of whole jury

(1) The Attorney General, Director of Public Prosecutions or any other party to a trial of criminal proceedings before a jury may appeal to the Court of Criminal Appeal for review of any decision by the court to discharge the jury, but only with the leave of the Court of Criminal Appeal.

(2) The Court of Criminal Appeal is to deal with an appeal as soon as possible after the application for leave to appeal is lodged.

(3) The Court of Criminal Appeal--

(a) may affirm or vacate the decision appealed against, and

(b) if it vacates the decision, may make some other decision instead of the decision appealed against.

(4) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(5) This section does not apply to the discharge of a jury under section 51, 55E, 56 or 58 of the Jury Act 1977 .


Determination of appeals in ordinary cases

(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

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