R v Martin (No 3) [2024] NSWSC 970

Supreme Court New South Wales

Medium Neutral Citation: R v Martin (No 3) [2024] NSWSC 970 Hearing dates: 26 July 2024 Date of orders: 29 July 2024 Decision date: 29 July 2024 Jurisdiction: Common Law Before: Chen J Decision: (1) Order that, pursuant to s 53B of the Jury Act 1977 (NSW), juror number 290-1 is discharged. (2) Direct the sheriff to inform that member of the jury of my order forthwith. (3) Order that, pursuant to s 53C of the Jury Act 1977 (NSW), the trial continue with the remaining members of the jury. Catchwords: CRIMINAL PROCEDURE – Trial – Jury – Discharge of individual juror – Where juror has requested to be discharged on the basis of personal commitments – Juror discharged Legislation Cited: Jury Act 1977 (NSW) Category: Procedural rulings Parties: Rex (Crown) Nicholas Luke Martin (Accused) Representation: Counsel: L Shaw (Crown) A Evers (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Sydney Criminal Defence & Traffic Lawyers (Accused) File Number(s): 2022/00103442 Publication restriction: Nil

JUDGMENT 1. HIS HONOUR: The accused, Nicholas Luke Martin, stands trial for the murder of Shahn Baker allegedly committed on 3 February 2022 at Erina, New South Wales. 2. The trial commenced on 15 July 2024. The evidence has completed. The Crown and the accused are to commence their addresses today. 3. Last Friday, the jury were excused from attending so that submissions could be made in connection with particular legal directions. Prior to coming onto the bench, I was advised by the sheriff's officer that a male juror had made contact requesting that they be excused, essentially on the basis that the trial is taking longer than expected. I should add that the trial is proceeding well within the estimate provided by counsel. 4. Counsel was informed of the above, and that I had directed the sheriff's officer to advise the juror in question that they would need to attend on Monday, write a note and that it would be dealt with at that time. 5. I pause to note the following. That juror had, on 22 July 2024, provided a note expressing a concern if the matter proceeded beyond the fourth week, given that the juror had a number of commitments from that time. The note from the juror was to the effect that they did not wish to be discharged. At that time, after raising the matter with counsel, the jury was assured that the trial was proceeding in accordance with the estimate the Crown had provided and there was no reason to think that the trial would significantly depart from the estimate. 6. Returning now to the events of 26 July 2024, later in the day, the sheriff's officer received a further note from the juror, the content of which is MFI 23. Put simply, the juror requested "no further engagement" with the trial, and that the juror proposed to "absent myself on the Monday morning" and that he should be registered as "sick" and unable to attend. 7. The Crown and the accused submitted that the circumstances were such that the Court should discharge that individual juror. I am satisfied that the juror should be discharged by reason of ss 53B(c) and 53B(d) of the Jury Act 1977 (NSW): I accept and find that the juror has, by their note and the content of it, in substance refused to take further part in the trial and, further, that the juror's ability to perform the functions of a juror are substantially affected by their unwillingness to participate further and concern about when the trial will finish such that they should not continue to act as a juror. 8. The Crown and the accused accepted that, having discharged that juror, there was no basis upon which to discharge the whole jury under s 53C of the Jury Act. 9. For those reasons, I make the following orders: 1. Order that, pursuant to s 53B of the Jury Act 1977 (NSW), juror number 290-1 is discharged. 2. Direct the sheriff to inform that member of the jury of my order forthwith. 3. Order that, pursuant to s 53C of the Jury Act 1977 (NSW), the trial continue with the remaining members of the jury.