R v Karaali (No 9) [2023] NSWSC 240

Supreme Court New South Wales

Medium Neutral Citation: R v Karaali (No 9) [2023] NSWSC 240 Hearing dates: 16 March 2023 Date of orders: 16 March 2023 Decision date: 16 March 2023 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: The juror referred to as Juror O is discharged and the trial continue with 11 jurors Catchwords: CRIMINAL PROCEDURE — jury trial — murder — sick juror discharged – whether risk of substantial miscarriage with 11 jurors Legislation Cited: Jury Act 1977 (NSW), ss 53B(a), 53C, 22 Category: Procedural rulings Parties: Rex (Crown) Abdul Karaali (Accused) Representation: Counsel: P Hogan (Crown) IH Wallach (Accused)

Solicitors: Director of Public Prosecutions (NSW) (Crown) TNL Law (Accused) File Number(s): 2020/61211

EX TEMPORE JUDGMENT (Revised) 1. Mr Karaali is standing trial for the murder of Mr Houllis. He has pleaded not guilty. On Monday of this week (13 March 2023) at about 12:46 pm, the jury retired to consider its verdict. 2. For reasons I gave in an earlier judgment ([2023 NSWSC 232), the commencement of the trial was adjourned to enable the defence to finalise the qualification of Dr Watt, a telecommunications expert, to give expert evidence at the trial. Because of that delayed start, there have been other unavoidable interruptions, and it is the situation, as I discussed with counsel this morning, that the jury last heard evidence in the case on 1 March, two weeks ago. They have, in the meantime, heard closing addresses from counsel and received my summing-up. 3. On Tuesday (14 March 2023), at about 3:15 pm, I received a message from the officer in charge of the sheriffs here at the King Street complex, that a juror referred to as juror O, had complained of severe abdominal pain and felt unable to continue deliberating at that time. She was attended by a female sheriff's officer, and although reporting some improvement in her condition, still felt unable to continue, and it was necessary to permit her to go home and to dismiss the whole jury early. 4. She reported to the sheriffs that she felt unwell and unable to continue yesterday, Wednesday, 15 March, and it was necessary again to adjourn the trial because of her illness. Later yesterday afternoon, the Sheriff's office received and relayed to me, a report that the condition from which she was suffering was in the nature of gastroenteritis. I think I am entitled to know from my general knowledge of life, that is a bacterial infection, an infectious condition and often of uncertain course and duration. 5. The juror consulted a doctor yesterday and received a medical certificate. In accordance with what seems to be modern medical practice, the certificate is in completely anodyne terms, simply certifying her unfit for "work" yesterday and today. Without any guidance from the medical practitioner about the nature of the illness diagnosed and its prognosis, I am left to my own devices in terms of determining the correct approach for me to take. 6. As the transcript will disclose, after discussion with counsel and a short adjournment to give Mr Wallach, of counsel, the opportunity to take instructions directly from Mr Karaali, neither side opposed a discharge of the juror. Indeed, Mr Wallach made that application. I made clear at that time, that I had formed the opinion referred to in s 53B(a) of the Jury Act 1977 (NSW), that juror O had become so ill as to be likely to become unable to serve as a juror before the jury delivers their verdict. Given the nature of the illness, on the limited information I had received I was also of the opinion that she had become so ill as to constitute a health risk to other jurors should she return to court, even as soon as tomorrow. In those circumstances, I decided that the proper exercise of my discretion in the matter was to discharge juror O, and I made that order at that time. 7. That of course, gives rise to the question posed by s 53C of the Jury Act about whether continuing the trial with eleven jurors, as permitted by s 22, would give rise to a risk of a substantial miscarriage of justice. Neither counsel submitted that such a risk had arisen and having considered the matter earnestly and carefully for myself, I am of the view that continuing the trial with eleven jurors does not give rise to a substantial miscarriage of justice. Accordingly, it was unnecessary to give consideration to the discharge of the whole jury. These are the reasons for the orders I have pronounced earlier today.