Supreme Court New South Wales Medium Neutral Citation: R v Papanicolaou (No 5) [2022] NSWSC 28 Hearing dates: 25 January 2022 Date of orders: 25 January 2022 Decision date: 25 January 2022 Jurisdiction: Common Law Before: Wright J Decision: (1) Under s 53B(b) of the Jury Act 1977 (NSW) the juror who provided the note marked MFI 3 is discharged. (2) Under s 53C(1)(a) of the Jury Act the jury is discharged. Catchwords: CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — jury — discharge of individual juror — discharge of whole jury Legislation Cited: Crimes Act 1900 (NSW) Jury Act 1977 (NSW) Cases Cited: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 R v Hunter (No 3) [2014] NSWSC 1146 Category: Procedural rulings Parties: Regina (Crown) Hanny Papanicolaou (Accused) Representation: Counsel: C Taylor (Crown) T Quilter with J Brock (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Hugo Law Group Pty Ltd (Accused) File Number(s): 2019/00001994 Publication restriction: This judgment is not to be published until after the conclusion of the trial. Judgment 1. The accused has been charged on indictment with one count that on 19 February 2019, in Sydney in the State of New South Wales, she did murder Marjorie Jane Welsh. The accused pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900 (NSW). This plea was not accepted by the Crown in satisfaction of the indictment. 2. A jury was empanelled on 24 January 2022 and, by the end of that day, the Crown had completed part of his opening address. Before the trial resumed on the next day, 25 January 2022, I received a note from one of the jurors, which was marked MFI 3. That note was in the following terms: "Your Honor I found myself struggling in the hearing yesterday & thought it best to explain why as I do not want to be a distraction from the case. – While I was taking care of my parents as they battled cancer at home, we had a palliative cleaner who came to help them with cleaning etc. In the day after my father passed, 2 months after my mother – we realised she had been stealing from them – Letting herself in at night after my mother died & dad was hospitalised. We found empty envelopes my mum had left money in, her jewellry boxes emptied etc. I will continue but felt I had to explain my distress in the first day." 1. The significance of this note is to be understood in the light of the nature of the Crown case which relevantly involves allegations as set out in the following paragraphs. 2. The accused was a self-employed cleaner who worked for the deceased, a 92 year old lady who lived alone. She cleaned the deceased's house approximately once per week. The accused and the deceased had discussed the fact that the deceased had sold her previous home for $8 million relatively recently to move closer to her daughter, for whom the accused also cleaned. 3. On the morning of 2 January 2019, a day on which she was not scheduled to clean, after losing money gambling on poker machines at an RSL club, the accused left the club and drove to the park behind the deceased's house. The accused gained access to the deceased's backyard over the fence at the corner of the property. The deceased had been in her yard but, by the time she entered her house through the backdoor, the accused was inside and this is where the deceased first saw the accused that day. 4. The deceased was surprised to see the accused in the house as she usually worked on Fridays, not Wednesdays. Immediately after, the accused began to attack the deceased with the deceased's walking sticks, beating her and breaking two of the sticks in so doing. The accused also hit the deceased in the head, face, chest and arms with decorative, ceramic plates belonging to the deceased. At some stage, the accused removed a kitchen knife from the cutlery drawer and stabbed the deceased in the chest and abdomen about six times. 5. The deceased was badly injured but crawled towards the backdoor where she activated an emergency pendant around her neck at 10:39 am. The accused switched off the emergency call unit and removed the cordless telephone with which it was connected. She took the cordless telephone and the knife and left. The deceased reached the backdoor, called for help and reactivated the pendant. The accused jumped over the back fence and ran back to her car. The deceased identified her attacker as "the cleaner" to the police and ambulance officers who attended soon after. 6. The accused drove home, discarding the cordless telephone and the knife in a bin and the shirt she was wearing near her home. She spoke to her husband but was upset and left soon after. The accused was located and arrested. She informed police where she had discarded the knife and clothing, which were located along with the telephone. 7. The accused was interviewed by police and she gave a relatively detailed account of what she said occurred, including that the deceased accused her of stealing $50 and that it was the deceased who attacked her with a walking stick and had the knife in her hand. It was also said that the ceramic plates had fallen off the table during the struggle. 8. The deceased died on 19 February 2019 due to complications of blunt force head injury and stab wounds to the chest and abdomen. 9. The note MFI 3 was disclosed to the parties in the absence of the jury. Mr Quilter, who appears with Mr Brock for the accused, applied for the juror to be discharged under s 53B of the Jury Act 1977 (NSW) and for the jury to be discharged under s 53C of that Act. 10. After receiving submissions from the parties and on the basis of the evidence of the juror's circumstances in MFI 3, I made orders as follows: 1. Under s 53B(b) of the Jury Act 1977 (NSW) the juror who provided the note marked MFI 3 is discharged. 2. Under s 53C(1)(a) of the Jury Act the jury is discharged. 1. My reasons for making those orders are as follows. 2. Section 53B of the Jury Act relevantly provides: 53B Discretionary discharge of individual juror The court … may, in the course of any trial …, discharge a juror if: … (b) it appears to the court … (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 … any reasonable apprehension of bias … on the part of the juror or any similar reason, or ... (d) it appears to the court … 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. Note – Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror." 1. Section 53C of the Jury Act deals with some of the consequences of the discharge of a juror, including under s 53B. Section 53C includes the following: "53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If … the court … discharges a juror in the course of a trial …, the court … must— (a) discharge the jury if the court … is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors. ...". 1. Section 22 of the Jury Act provides for the continuation of a trial on discharge of a juror in certain circumstances. That section relevantly states: "22 Continuation of trial or inquest on death or discharge of juror Where in the course of any trial … any member of the jury… is discharged by the court … under Part 7A, the jury shall be considered as remaining for all the purposes of that trial … properly constituted if— (a) in the case of criminal proceedings, the number of its members— (i) is not reduced below 10, (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months, … and if the court … orders that the trial … continue with a reduced number of jurors under Part 7A." 1. I accepted the juror's statements contained in MFI 3 and it could be seen that there were significant similarities between the circumstances of the juror's parents and those of the deceased in the present case, in particular, the abuse of elderly persons by cleaners who were trusted by such persons and their families. I was also satisfied that these similarities caused the juror to be distressed and "struggle", during the Crown's opening. This occurred before any evidence, which the Crown Prosecutor foreshadowed to the jury panel might be quite distressing and confronting, had been led. This evidence was likely to include not only the medical evidence concerning the manner and cause of death but also the recorded interviews with the deceased while she was being treated in hospital before she died. 2. I had no doubt that a reasonable person would apprehend that, if the juror struggled during the Crown's opening and found it distressing, the juror, when required to consider and weigh the medical and other evidence in the present case, would be likely to be unable to bring an open mind to, and give impartial consideration to, the issues that the jury is required to address in determining whether the accused is guilty or not guilty of the offence of murder as charged. 3. In these circumstances and without any criticism of the juror, it appeared to me that "the juror may not be able to give impartial consideration to the case because of … reasonable apprehension of bias", within the meaning of s 53B(b) of the Jury Act. I did not understand that the parties submitted to the contrary. 4. This caused me to be of the view that it was reasonably necessary for a fair trial and thus appropriate that the juror who provided the note marked MFI 3 should be discharged. Further, having reached the conclusion that there was such a reasonable apprehension as fell within s 53B(b), I also considered I was bound to discharge the juror and no discretion fell to be exercised in that case: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 (Wu) at [9] (Gleeson CJ and Hayne J). 5. A separate issue then arose as to whether the trial should continue with 11 jurors, as is permitted under s 22 of the Jury Act in light of the provisions of s 53C: Wu at [8] and [26]. 6. In this regard, s 53C(1)(a) required consideration of whether the whole jury was required to be discharged because the Court was "of the opinion that to continue the trial … with the remaining jurors would give rise to the risk of a substantial miscarriage of justice". 7. The circumstances disclosed in the note marked MFI 3, in my view, led to the inference that the juror in question may well have disclosed the existence and cause of the juror's distress and struggle to other members of the jury, either knowingly or unwittingly. In this way, there was a significant risk that the consideration of the case by the remaining jurors would have been affected by the circumstances and reaction of the juror who provided MFI 3. This, by itself, would amount to the risk of a substantial miscarriage of justice, within s 53C(1)(a) of the Jury Act. 8. In addition, the risk of a substantial miscarriage of justice could also be seen to arise out of a combination of circumstances such as occurred in R v Hunter (No 3) [2014] NSWSC 1146 at [16] to [24], noting the comments of McHugh J in Wu at [26] to [29]. In the present case, the relevant risk arose out of the following: 1. generally, the accused and the Crown have a right to a verdict of 12 jurors and no fewer as provided in s 19 of the Jury Act; 2. the accused faced a charge of murder, which is exceptionally serious; 3. a major issue in the trial was whether the accused was so substantially impaired, within the meaning of s 23A of the Crimes Act 1900 (NSW), as to warrant liability for murder being reduced to manslaughter and the accused should not be deprived the vote of a twelfth juror in relation to that very significant issue to be determined by reference to community standards; 4. the trial had not progressed beyond part of the Crown's opening address and a new jury could be empanelled without any significant delay with the trial estimated to take no longer than three weeks; 5. if the trial continued with only 11 jurors, in the current COVID-19 pandemic it was likely that one or more jurors would contract the virus or be a close contact of a person who tested positive for the virus and would be unable to participate in the trial for at least seven days. As a result, there was a real likelihood of the trial not being able to proceed after some days or weeks of evidence, and, perhaps, addresses and deliberation; 6. to require the trial to continue in those circumstances would involve a substantial risk of injustice or unfairness to the accused and the Crown, especially when the risk of the trial not being completed was so significant. 1. Accordingly, I was of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice and, consequently, I was required by the terms of s 53C(1)(a) of the Jury Act to discharge the whole jury and not order that the trial continue with a reduced number of jurors. 2. For these reasons, I made the orders set out above discharging the juror who provided the note marked MFI 3 and the whole jury. ********** 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: 24 August 2022