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. The Application to Discharge 1. Pursuant to s 53B Jury Act 1977, I have discretion to discharge an individual juror. The section provides: "The Court or Coroner may, in the course of any trial or coronial inquest, discharge a juror if: 1. the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or 2. it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or 3. a juror refuses to take part in the jury's deliberations, or 4. it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror." 1. I am satisfied that in the circumstances the Crown's application to discharge this individual juror, which is not by consent on behalf of the accused, is appropriate upon the application of s 53B(d). 2. The trial with which the Court is concerned involves offences against children aged eight and seven at the material times. We have heard evidence so far from the complainant who is currently being examined by the Crown. She does not appear to me to be someone who is coping well with the task, notwithstanding the careful and gentle approach the Crown has taken in putting questions to her. Upon my observation, she appeared modestly distressed. She was shedding tears from time to time through the process so far undertaken. Her evidence and that of her sibling ought not to be disrupted by a delay in the trial. 3. To succeed the prosecution must depend upon the credibility and accuracy of the evidence given by the complainants. The issue in the trial is that these episodes of misconduct did not occur and thus careful attention is required to what the witnesses will have to say and also the manner in which they describe the events that they have alleged. 4. I am fearful that this juror, accepting for the purposes of this question that the representations are true and accurate, is not focused upon the task at hand, and should I refuse to discharge the juror from further service in the trial, he would not give or be able to give the necessary close attention to the evidence which is to be adduced. 5. It is at early stages in the trial but the trial is anticipated to run for no more than five days; this is the second day of the trial. The loss of one day in those circumstances causes significant inconvenience to all concerned in the proceedings. 6. I have considered the opposition to this course by Mr Shaw in response on behalf of the accused, and whether simply to require the juror to have his wife make further attempts to re-book this test that she wishes to undertake at the present time booked for Friday this week. I am not satisfied that to do so would not leave the juror concerned distracted from the task at hand even if ultimately the test can be re-appointed in the near future, which in turn might well risk causing some difficulties within the jury room depending on the response the juror might have to my requirements that he continue in the role regardless of his request. Decision 1. Bringing all of those matters to bear, I am satisfied that in the exercise of discretion given by s 53B Jury Act 1977 it is appropriate to discharge that individual juror subject to the requirements of s 22 Jury Act 1977 which provides for the continuation of the proceedings with a reduced number, in this instance to 11 members of the jury. I shall discharge the juror from further service in the trial and I direct that the Sheriff represented by the court officers to remove the juror from the jury and notify him forthwith that he is discharged from further service in the jury. 2. I shall leave the Sheriff to make whatever other inquiries might be required if it is thought that the veracity of these representations is in question. The trial shall proceed with a jury of 11. 3. I note there is no application made for the discharge of the remainder of the jury. I have once again reminded myself of what was said by Bellew J in R v Sharpe (No 3) [2021] NSWSC 33. There is no evidence before me upon which I could conclude that there is a risk of a substantial miscarriage of justice to require the trial to continue in these circumstances. ********** Amendments 05 March 2021 - Minor edit in decision DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2021