R v RB (no 7) [2020] NSWDC 859

District Court New South Wales

Medium Neutral Citation: R v RB (no 7) [2020] NSWDC 859 Hearing dates: 01 October 2020 Date of orders: 01 October 2020 Decision date: 01 October 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: The Juror is discharged, the trial will proceed with 11 jurors. Catchwords: Criminal Law- Practice and procedure – Juries – Juror raised issue about capacity to serve following empanelment – Consensus between parties that jury should be discharged– Where court not satisfied that there would be a risk of a substantial miscarriage of justice if the trial proceeded with 11 jurors Legislation Cited: Jury Act 1977 (NSW) Cases Cited: Wu v The Queen (1999) 199 CLR 99 Category: Procedural rulings Parties: Regina (Crown) RB (Accused) Representation: Counsel: Mr Kerr (Crown) Ms Graham (Offender)

Solicitors: Ms Brown (Crown) Ms Gidlow (ALS) File Number(s): 2017/0056625 Publication restriction: Non publication order in relation to the names of the complainant and the accused.

Judgment 1. HIS HONOUR: Pursuant to s 53B(d) of the Jury Act (1977), if it appears to the Court or Coroner that, for any reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 2. I have taken the evidence from the juror, and both parties in these proceedings submit that she is not competent to proceed as a juror in these proceedings because of her lack of the English language. I accept those submissions, and accordingly, it would not be appropriate for this juror to remain on the jury, because she will not be able to follow the process, the evidence, or the legal arguments and final submissions that there may be. 3. Delay in a trial can work hardship to an accused as well as to witnesses. Delay leaves an accused uncertain of his fate. It is a considerable burden upon an accused. Courts must not shut their eyes to the consequences of delay upon others, not only to witnesses and all others who seek access to the Courts and cannot have their cases tried. To discharge the jury will delay the start of all trials listed before the Albury District Court 4. The earliest trial date is currently 9 June 2021. This is particularly significant in the COVID landscape. Jury trials ceased in Albury in February of this year. The first jury trial was held on 14 September 2020 since the cessation of jury trials. One of the purposes of the Jury Act is to provide that a trial can proceed before a jury despite the discharge of one of its members. As Gleeson CJ and Hayne J said in Wu v The Queen [1999] 199 CLR 99 at [106] -[107], "There can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings." 5. There has been considerable delay in this matter getting to where it is now. On 1 April 2016, the complainant made a statement to police. On 8 August 2017, the accused was committed to this Court to stand trial. The indictment is dated 5 December 2017. The accused was arraigned before King SC DCJ and pleaded not guilty, and a jury was empanelled. The following day, the jury were discharged without verdict. The alleged offences occurred over six years ago. The delay to this point raises the maximum "justice delayed is justice denied". 6. Delayed justice serves no purpose for an accused, complainant, witnesses or the community. Litigation between the state and the individual must be conducted in a timely manner to ensure the integrity of the administration of justice. Although it is desirable for there to be a jury of 12, in my view, to continue with a jury of 11 does not occasion a substantial miscarriage of justice. The next panel is not available until 12 October. The trial of Dill and Devlin is listed to commence that week. 7. If this jury was discharged, the next available trial date is not until 9 June 2021. It is too long to enable certainty and finality for the accused, the complainant, witnesses and the community. The Juror is discharged, the trial will proceed with 11 jurors.