R v El-Kahil (No. 2) [2022] NSWDC 607

District Court New South Wales

Medium Neutral Citation: R v El-Kahil (No. 2) [2022] NSWDC 607 Hearing dates: 15 November 2022 Date of orders: 15 November 2022 Decision date: 15 November 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) Discharge the individual juror (2) Note accused is content to continue with the jury of 11 and makes no application for the discharge of the entire jury Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror Legislation Cited: Jury Act 1977 Category: Procedural rulings Parties: Rex (Crown) Robert El-Kahil (Accused) Representation: David Phillips (Crown Prosecutor) Leah Rowan (Counsel for the Accused)

Director of Public Prosecutions (NSW) (Crown) George Sten & Co Criminal Lawyers (Accused) File Number(s): 2020/00331724

REVISED EX TEMPORE JUDGEMENT ON THE DISCHARGE OF AN INDIVIDUAL JUROR 1. As the jury were leaving the courtroom today after I had finished my opening remarks, a juror gave indication that she was struggling with understanding all that I had to say in that delivery. This was detected by counsel who brought it to my attention a moment ago. 2. During short adjournment, we received a note from the juror in the following terms, "My English is not good." 3. A further aspect of this arose when the Court officer informed that, when the juror handed him the note, she expressed difficulty and appeared to be having difficulty with English. 4. In those circumstances, with the consent of both parties, I shall discharge that juror from further service in the exercise of my discretion provided in s 53B(c) Jury Act 1977. This states, "53B Discretionary discharge of individual juror The court … may, in the course of any trial …, discharge a juror if— (a) …, or (b) …, or (c) a juror refuses to take part in the jury's deliberations, or (d) 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. It is impossible for a juror who has not a good command of English to follow evidence, particularly in such a case as this case where there is a great deal of video and audio recording from body cameras worn by police officers in what was a confrontational interaction with the accused. This is a trial in which the jurors should have a command of English sufficient for them to be able to follow the evidence as it is played to them. 2. I shall discharge that juror. 3. The accused is content to continue with the jury of 11 and makes no application for the discharge of the entire jury.