R v Kilincer (No. 6) [2022] NSWSC 1733

Supreme Court New South Wales

Medium Neutral Citation: R v Kilincer (No. 6) [2022] NSWSC 1733 Hearing dates: 22 August 2022 Date of orders: 22 August 2022 Decision date: 22 August 2022 Jurisdiction: Common Law Before: Wilson J Decision: 1. Application to discharge jury refused. Catchwords: CRIME – TRIAL – murder – question of whether a jury of 11 should be discharged Legislation Cited: Jury Act 1977 (NSW) Category: Procedural rulings Parties: Regina (Crown) Kubilay Kilincer (Accused) Representation: Counsel: B Hatfield (Crown) E Ozen SC (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Abbas Jacobs Lawyers File Number(s): 2020/30002 Publication restriction: Nil

Ex TEmpore JUDGMENT (revised) 1. HER HONOUR: A short time ago, the Court made a decision discharging a single juror of a jury of 12 who had fallen ill with COVID-19 and is unavailable to attend court for seven days due to the requirement to isolate. Having made that decision, senior counsel for the accused submits that the Court should discharge the balance of the jury such that his client could, with the benefit of a fresh jury, have the opportunity for a jury of 12 to determine the question of whether the Crown has proved his guilt beyond reasonable doubt. For the same reasons as the Court gave in discharging juror S, I refuse that application. 2. Even were the Court to discharge the whole jury, restart the proceedings at some future time, again, with 15 jurors, it might be expected that the very same issues would present in the continuing pandemic as present now: that is, even starting with 15 jurors, there is no guarantee in a state of pandemic that any accused person will receive the benefit of a jury of 12. Many juries in the last two and a half years have proceeded to verdict with less than 12 jurors because jurors have been discharged as too unwell to continue their duties. The Court simply could not guarantee that if this jury was discharged and a fresh jury struck that the same position would not occur in the future. 3. This matter has been subject to considerable delay already simply by the fact that the accused was not charged for some 24 or 25 years after the death of Hasan Dastan. It is in no one's interests to further delay the proceedings, particularly in circumstances where the Court has the benefit of 11 clearly attentive and diligent jurors who will be capable - absent any future misfortune - of returning a verdict or verdicts. Accordingly, I decline to discharge the jury. The trial will continue with 11 jurors.