R v Kaivelota [2021] NSWDC 46

District Court New South Wales

Medium Neutral Citation: R v Kaivelota [2021] NSWDC 46 Hearing dates: 04 March 2021 Date of orders: 04 March 2021 Decision date: 04 March 2021 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Juror discharged - there is no evidence before me upon which I could conclude that there is a risk of a substantial miscarriage of justice if the trial continues with 11 jurors Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror Legislation Cited: Jury Act 1977 Cases Cited: R v Sharpe (No 3) [2021] NSWSC 33 Category: Principal judgment Parties: Regina (Crown) Soien Kaivelota (Accused) Representation: Andrew Isaacs (Crown Prosecutor) Michael Shaw (counsel for the Accused)

Director of Public Prosecutions (NSW) (Crown) Velasquez Legal File Number(s): 2019/338841 Publication restriction: Statutory non-publication order for the identities of the complainants and of any information which may enable their identities to be ascertained

REVISED EX TEMPORE JudgEment – Application by Crown for discharge of juror

Introduction 1. The accused in this trial has been presented upon an indictment containing four counts alleging sexual assaults upon two children. The first three counts are in respect of one complainant and the fourth count is in respect of that complainant's sister.

The Trial 1. There was an earlier difficulty with jurors selected for the conduct of the trial which ultimately led me to discharge the entire jury for reasons that are to be found in my earlier judgement dealing with the question as it then arose. Another jury was selected and the trial commenced in front of this jury yesterday, 03 March 2021. After the jury were empanelled and before I embarked upon my opening remarks to them, I received a note from a juror in the following terms (Marked for Identification 1): "Hi Honourable Judge. I (the juror provided an identifier). Just Got the SMS at 2.09pm from my wife (name provided) that she has booked the exam test for P.T.E. on 5th, March 2021 at 2:00pm. We got 2 Twins Kids which are 5 Years old. I now have to assist them to take them to school & pick up when my wife the preparing for the teast & the date of test.. So Could you please Kindly excuse me at this time for the Help. many thanks." 1. The text of the letter clearly reflects the capacity or perhaps limited capacity of the juror to communicate in English, although he has written a document in English. I indicated that I would not discharge the juror from his obligation to continue in the trial at the time of the exam, that his wife had apparently recently booked; moreover I would not allow him the entire day to be away so as to delay the trial expected to be no more than five days. 2. This morning a further note came (Marked for Identification 4). This includes a document published by the organisation providing the facility of the test. This begins, "Our PTE academic test has been rescheduled for Friday March 5 2021 2pm AEDT." There are particulars, the number of the registration and identification and the address where the test is to be undertaken here in Parramatta. This printed document was accompanied by the handwritten note from the juror in the following terms: "Respected Honourable Judge, I am (the juror's identifier). As I have mentioned Previously the fact that. My wife has booked the P.T.E test. We tried a lot to book this test and we waited a lot to get this booking. She needs to Sit down in this test as to get her final Certificate for her Bachelor of Nursing. Respected Judge I am in a financial Hardship and If my wife Could not face this test we have to wait for another long time. I also have 2 kids and there is no one expect me & my wife at NSW to look after them. My other family member lives at ACT. As my wife really needs time to get preparation for the test and have to go for test on Friday 5th March 2021. at 2:00pm. I have to look after the kids on the very day. Hope you will Consider the matter. Sincerely, (the jury identifier)." 1. Once again, the perhaps limited capacity to communicate in English is reflected in that letter.