Watson v R [2022] NSWCCA 208

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Watson v R [2022] NSWCCA 208 Hearing dates: 21 September 2022 Date of orders: 21 September 2022 Decision date: 23 September 2022 Before: Bell CJ; Price J; Yehia J Decision: 1. Grant leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW). 2. Allow the appeal. 3. Set aside orders 2 and 3 made by Walton J on 15 September 2022. 4. In lieu thereof, dismiss the application by the Crown to discharge the whole of the jury pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW). 5. List the matter for directions at 4.00pm on 21 September 2022 in King Street Court Room No 5 before Walton J. Catchwords: APPEAL – criminal appeal – application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from decision pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) to discharge whole of a jury following discharge of a single juror – where discharge of jury occurred following the close of evidence – where discharge of jury opposed by the accused in a murder trial – whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge's directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches CRIME – murder trial – where Crown applied to discharge the whole of the jury after close of the evidence – where accused opposed application for discharge – where jury nevertheless discharged - whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge's directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5G Evidence Act 1995 (NSW), s 55 Jury Act 1977 (NSW), ss 53A, 53C(1)(a), 68C, Pt 9 Supreme Court Act 1970 (NSW), s 75A(10) Cases Cited: Barber v R; Zraika v R [2016] NSWCCA 125 Browne v Dunn (1893) 6 R 67 Clark v R [2010] NSWCCA 94 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Curran v R [2017] NSWCCA 123 GAR v R (No 2) [2010] NSWCCA 164 Haile v R [2022] NSWCCA 71 Hamide v R [2019] 101 NSWLR 455; [2019] NSWCCA 219 Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453 House v The King (1936) 55 CLR 499; [1936] HCA 40 Libdy v R [2021] NSWCCA 34 Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 Mikael v R [2015] NSWCCA 294 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Pratten v R [2021] NSWCCA 251 R v Ahola (No 6) [2013] NSWSC 703 R v Edwards [2009] HCA 20; (2009) 255 ALR 399 R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 Trieu v R [2012] NSWCCA 169 Vella v R [2022] NSWCCA 204 Winsor v R (1866) LR 1 QB 390 Younan v R [2016] NSWCCA 248 Zheng v R; Li v R; Pan v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 Category: Principal judgment Parties: Paul Anthony Watson (Applicant) The Crown (Respondent) Representation: Counsel: