R v LF (No. 1) [2022] NSWDC 91

District Court New South Wales

Medium Neutral Citation: R v LF (No. 1) [2022] NSWDC 91 Hearing dates: 30 March 2022 Date of orders: 30 March 2022 Decision date: 30 March 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) Grant the application to discharge the members of the panel selected to serve on this jury Catchwords: CRIMINAL PROCEDURE — Trial — Empanelment CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury Legislation Cited: Jury Act 1977 Category: Principal judgment Parties: Regina (Crown) LF (Accused) Representation: Jane Krippner (Solicitor Advocate) Matthew Johnston SC (senior counsel for the Accused)

Director of Public Prosecutions (NSW) (Crown) Braye Cragg Solicitors (Accused) File Number(s): 2019/00356030 Publication restriction: No publication of the name of the accused or complainants or of any information which may enable their identities to be ascertained

REVISED EX TEMPORE JudgEment on the application to discharge the jury 1. The accused in this trial, LF, appeared on Monday, 28 March 2022 for the commencement of the trial. The first day was consumed with submissions made regarding the admissibility of and exclusion of evidence. In those applications I indicated my decision in response to the three issues raised this morning before the process of jury selection was undertaken. 2. Many members of the community were summoned to attend court for purposes of serving on the jury if they were selected, but approximately only half of them responded, and ultimately upon the application of two of them, including one man, they were discharged leaving only six men in the available panel with the remaining 13 women. There was an imbalance therefore between the number of men and number of women who were available; that notwithstanding the jury selection process commenced with the result that there were four men selected with eight women. 3. In the selection process the Crown challenged two and the accused challenged three. After the jury were selected and before the next phase in the trial with the swearing or affirming of the members of the jury and the accused being put into their charge, Mr Johnston SC, for the accused, rose to announce challenges for cause. His opportunity to do so is available by force of s 47A Jury Act 1977 which provides: "The judge presiding of the trial of any criminal proceedings may discharge the jury that has been selected if, in the opinion of that judge, the exercise of the rights to make peremptory challenges has resulted in a jury whose composition is such that the trial might be or might appear to be unfair." 1. The accused faces five charges, count 3 is in the alternative to count 2. Thus there are four episodes of alleged misconduct involving the sexual abuse of his step‑granddaughter, that is in respect of counts 1, 2, 3 and 4, and in count 5 an allegation that he incited another step‑granddaughter to enter into an agreement with him to produce child abuse material. 2. The submission made is that by the virtue of the nature of the trial and the offences upon which the accused is presented, fairness requires that the accused have the opportunity so far as is possible to have a balanced jury with equal, if possible, distribution between the genders. Of course that is not often the outcome from my experience over decades. It is rarely the case that one has a jury which is composed equally of men and women. Much depends upon the sequence in which the numbers are selected from the ballot undertaken for the jury's selection. 3. However, as the Crown concedes, in this case the very much smaller number of men in contrast to the number of women on the panel of jurors in waiting, who did respond to their summons, has meant that the accused began with a disadvantage, and, having exercised all the peremptory challenges available to him, was left with a jury the composition of which is such that it might appear to be unfair to him in his trial upon these serious allegations of child sexual abuse. 4. This is not to say that it is the experience of the Court or indeed the law generally that one gender or the other is likely to be more biased for or against an accused in respect of allegations such as this. But the trial must not only be conducted fairly for both parties but it also must be conducted so as to obviate the risk that the trial might be seen to be unfair, and thus the wisdom of Parliament including s 47A in the Jury Act. 5. There is nothing to suggest that there has been any omission or conduct on the part of the Sheriff leading to this difficulty; it is simply that of those who were summoned, for whatever reason, not all responded to the call, and unfortunately the Court is now left in a position that it either accepts this application and gets underway tomorrow when a larger panel will be available, or proceeds forthwith notwithstanding the imbalance the subject of complaint. 6. The Crown's submission is that the accused ought to have the opportunity to exercise his peremptory challenges to strike as much as possible a jury with an appropriate number of female and male members in its composition. It might be that circumstances will militate against that in any event, regardless of the number on the panel, but at least with a greater number from which to draw at random there can be no criticism such as has been made at this point. 7. I note there are two panels available tomorrow. The trial has not yet started; indeed the jury has not yet been sworn or affirmed, and there is little disadvantage in simply discharging this jury panel and resuming tomorrow with the fresh and greater number of the community from whom to select a jury for the trial. 8. It is with some reservation that I grant the application, but at this early stage I do not see it as inappropriate to do so. 9. Accordingly, I shall discharge the members of the panel selected to serve on this jury.