Area of Law – Evidence

An Article about Basis for discharge of jury in criminal case

Jury – discharge in criminal case – high degree of need
The test for the discharge of a jury is one of necessity or a high degree of need.

There are many examples of when discharge might occur, for example a Prosecutor talking to a jury member or Jurors undertaking their own investigations or not following directions of the Judge.

We have handled hundreds of criminal trials and there have been many discharged juries. It is a necessary application to make to protect the interests of our clients.

It all comes back to the need to provide a fair trial to the accused.
As the Court of Criminal Appeal stated in Boland:

“The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v. R. The principle is really one of necessity. There must be evidence ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’.”

R. v. Boland [1974] V.R. 849 at 866 per Adam, Little and McInerney, JJ. See also Crofts v. R


Date: 01/09/2009