R v Batak (No 3) [2022] NSWSC 426

Supreme Court New South Wales

Medium Neutral Citation: R v Batak (No 3) [2022] NSWSC 426 Hearing dates: 8 April 2022 Decision date: 08 April 2022 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Discharge of whole jury Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — discharge of whole jury where prospects of concluding trial with sufficient number of jurors bleak Legislation Cited: Jury Act 1977 (NSW), ss 53B(b),(d), 53C(1)(a) Category: Consequential orders Parties: Regina Cem Batak Representation: Counsel: Mr S Traynor (Crown) Mr T Hughes (Accused)

Solicitors: Solicitor for Public Prosecutions Fahmy Lawyers File Number(s): 2019/260254

EX TEMPORE Judgment 1. HIS HONOUR: I have had one juror call in this morning and report to a court officer or Sheriff's Officer that her partner has tested positive for COVID. Under the current Public Health Orders, she is required to self-isolate for a period of seven days. The arrangements for this trial are not such that I can easily allow for the trial to be adjourned, particularly at this early stage, for a period of seven days to await the juror's completion of that period of self-isolation. I am satisfied that this is a matter that affects the juror's ability to perform her functions as a juror and I discharge that juror, pursuant to s 53B(d) of the Jury Act 1977 (NSW). 2. A second juror has written a note, which has been the subject of further oral elucidation from the juror herself and submissions by counsel. There are two issues; the first is that the juror feels some anxiety about the prospect of being recognised by witnesses in the trial who might come from an area in which she has lived for a considerable time, in circumstances where she might not herself recognise those witnesses. Her note read: "As this case is progressing, I am feeling challenged". I interpret this as meaning she is experiencing an increasing level of anxiety. 3. The second issue is that there is an indirect connection between the juror and a friend of the deceased, whereby an apprehension of partiality might arise. 4. Counsel for the accused has submitted the juror should be discharged. While not positively supporting the application, the Crown Prosecutor said she acknowledged the force of it and did not want to say anything against it. 5. I accept, from what I have heard, that the appropriate course in respect of that juror is to discharge her, pursuant to s 53B(b) and (d) of the Jury Act 1977 (NSW). 6. That leaves us with 13 jurors after two days of a four-week trial. The present situation with the COVID-19 pandemic is such that there is a high risk of losing further jurors, either because they themselves become infected or because they are required to isolate under public health orders due to being categorised as a close contact. The experience of the Court since resuming criminal trials on 10 January 2022 has been that we have been losing jurors all too frequently for those reasons. 7. The prospect of this trial proceeding to a conclusion with sufficient jurors is bleak if it is necessary to proceed from this very early point in a four-week trial with only 13 jurors. It would amount to a substantial miscarriage of justice for the trial to continue and run for a considerable portion of its estimate only to be unable to be completed because of insufficient jurors. The risk of that occurring very real and is not one that I am prepared to take. 8. I am satisfied pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) that I should discharge the entire jury.