R v Karaali [2022] NSWSC 1798

Supreme Court New South Wales

Medium Neutral Citation: R v Karaali [2022] NSWSC 1798 Hearing dates: 4 August 2022 Date of orders: 4 August 2022 Decision date: 04 August 2022 Jurisdiction: Common Law Before: Campbell J Decision: Juror No. 03025660 – Juror H is discharged from further service relating to this trial Catchwords: CRIMINAL PROCEDURE — jury trial — expanded jury — discretionary discharge of individual juror — sickness Legislation Cited: Jury Act 1977 (NSW), ss 53B, 53C Jury Regulation 2015 (NSW), cl 4A Texts Cited: Jury Regulation 2015 (NSW), cl 4A Category: Procedural rulings Parties: Abdul Karaali (Accused) Regina (Crown) Representation: Counsel: P Hogan (Crown) IH Wallach (Accused)

Solicitors: Director of Public Prosecutions (NSW) (Crown) TNL Law (Accused) File Number(s): 2020/61211 Publication restriction: Not to be published until the completion of the trial

Judgment 1. Mr Karaali is standing trial for murder. In accordance with the promulgation of clause 4A of the Jury Regulation 2015 (NSW), I empanelled an expanded jury of 15 members yesterday. 2. The jury have been sent home while legal issues are resolved on the voir dire. However, it has come to my attention that one of the jurors who tested negative when screened at the Downing Centre yesterday was feeling unwell at home last night and self-administered a RAT which produced a positive result. 3. I had arranged for the jury to come in at 2 o'clock in the hope that the voir dire might have been concluded by then, but I directed the Sheriff's Officer to inform the person I will refer to as Juror H not to attend and to remain at home. 4. The balance of 14 jurors attended at 2 o'clock. Each took a further RAT and I am pleased to say that, in each case, the result was negative and I am able to continue the trial with 14 jurors if I decide to discharge Juror H. 5. I am told that although there are some closely contested issues in the case, it is likely that the trial ought to be completed within a period of about two weeks, given that Mr Karaali's co-accused, Mr Hamdach, has pleaded guilty and the evidence relevant to him solely need not be led in the present case. 6. Under s 53B of the Jury Act 1977 (NSW), I have the power to discharge an individual juror, inter alia, if the juror has become so ill as to be a health risk to other jurors or persons present at the trial. It seems to me that, given the Juror H reported symptoms and returned a positive test, if that person were to attend it is likely that he or she could be a risk to the health of other persons serving on the jury. I am aware, of course, given the positive RAT, that Juror H will, in any event, have to, or will be directed under the applicable Public Health Order to, self-isolate for a period of seven days. 7. Given that Juror H has not only tested positive but is reporting symptoms and as it is well-known that the coronavirus can take a protracted course in some individuals, I am also of the view that the juror has become so ill as to be likely to become unable to serve as a juror before the jury delivers their verdict and, in both circumstances, I will exercise the power under s 53B of discharging Juror H. 8. Having made that decision, it is necessary for me to consider whether to exercise my discretion under s 53C to continue the trial. As I have said, I have an expanded jury and there are still 14 persons fit and able to serve. 9. Neither the Crown nor the defence make an application for a discharge of the whole jury. Given that the trial is unlikely to be very long, I am of the view that I should continue the trial with the expanded jury of 14. 10. This is quite unlike a case where one of a jury of 12 falls ill and the number of jurors is reduced to 11. In such circumstances where the trial has really yet to begin in any substantive way, one might give serious consideration to discharging the jury and re-empanelling but, as I have said, that is not this case, and I propose to continue the trial with the jury as is. 11. I order that juror number 03025660, referred to as Juror H, is discharged from further service relating to this trial.