Supreme Court New South Wales Medium Neutral Citation: R v Diallo & Ors (No 9) [2024] NSWSC 1084 Hearing dates: 13, 19 and 21 August 2024 Date of orders: 21 August 2024 Decision date: 21 August 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Pursuant to s 53B(a) and (d) of the Jury Act 1977 (NSW), juror 5J, from panel number 03448909, at Sydney West Trial Courts, is discharged. (2) Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) the trial is to continue with a reduced number of jurors, namely 13 jurors. Catchwords: CRIMINAL LAW – criminal trial – discretionary discharge of individual juror – notice of surgery provided to the Court in week three of trial proper – no fault of juror – day surgery – medical advice provided to the Court after surgery – juror likely to be incapacitated as to be unable to serve until the jury returns its verdicts – likely further delay of trial – discharge of individual juror not opposed – discretionary factors – jury reduced to 13 in lengthy trial – trial to continue Legislation Cited: Bail Act 2013 (NSW) Criminal Procedure Act 1986 (NSW), ss 311 and 312 Jury Act 1977 (NSW), ss 53B, 53B(a), 53B(d), 53C Cases Cited: Sun v R (2023) 112 NSWLR 52; [2023] NSWCCA 147 Category: Procedural rulings Parties: Rex (Prosecution) Ibrahima Diallo (Defendant) AG (Defendant) AD (Defendant) Panashe Morgan Ryan Karise (Defendant) Representation: Counsel: E Balodis (Rex) R Wilson SC (Diallo) M Avenell SC (AG) B Robinson (AD) M Smith (Karise) Solicitors: Office of the Director of Public Prosecutions (Rex) Crimcorp Defence Lawyers (Diallo) Sydney Criminal Law Specialists (AG) Wiltshire & Wroughton Legal (AD) McGirr & Associates (Karise) File Number(s): 2022/00052005; 2022/00051961; 2022/00052239; 2022/00091174 Publication restriction: Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW). EX TEMPORE JUDGMENT (REVISED) 1. On 13 August 2024 a juror with a designated number 5J and panel number 03448909 ("the juror") sent a note in the following terms: "I am writing to formally bring to your attention a matter of significance regarding my current civic duty as a juror and an upcoming medical procedure. I have recently been informed that I am scheduled to undergo an ACL Reconstruction Surgery of my right knee on Tuesday 20th of August at Campbelltown Public hospital. While the surgery is classified as day surgery, there is a possibility of an overnight stay. I initially injured my knee in May of 2022 and was placed on the waiting list for surgery, but unfortunately due to unforeseen insurance complications, I was removed from the waiting list and then recently reinstated in April 2024 and have now received a surgery date. I understand the importance of my role as a juror and I am keen to continue my service. However, I anticipate requiring the use of a moonboot and crutches post surgery, which will present challenges in my mobility. I respectfully request your Honour's consideration of my situation and any potential accommodations that may be available to enable me to continue my jury service. I am open to any possibility of compromise if deemed appropriate and necessary to ensure minimal disturbances and inconvenience to the case. Juror No: 5J (03448909)." [1] 1. Following discussions with counsel, I spoke with the jury as a whole and in the presence of the parties. [2] I indicated there was insufficient information to make a decision about the progress of the trial and asked whether further information could be obtained concerning the likely recovery time, whether any medication may impact on the juror's ability to concentrate, and whether transport to and from the Court could be arranged. I also indicated I would make inquiries as to what assistance the Court or the Sheriff could offer. 2. After I made those inquiries, I indicated that parking could be offered to the juror in the court complex or, alternatively, they could be dropped off in the immediate proximity of the Court. [3] 3. Over the following days, I mentioned the issue a few more times, stressing that we needed as much information as possible, within the limits of the juror's privacy, so that a decision could be made. On 16 August 2024 I received a second note which provided additional information: "Dear your Honour, I am writing to you concerning my upcoming medical procedure on Tuesday 20th August, regarding transport, medication and focus during trial. Unfortunately, I was unable to attain the relevant information of medication from the surgeon and hospital as it is largely dependant on my pain tolerance and management. I do expect to be on usual painkillers such as Panadol etc. due to my limitations with medications because of Allergies & Asthma. So concerning my focus during trial it will be dependant on my own pain tolerance. In terms of transport, that can be arranged by a family member to park near the court as suggested by the Court. I do expect to recover on Wednesday as well to rest after surgery and clear out any medication left in my body that may hinder my mental focus and physical mobility. Thank you for your consideration and any inconvenience it will cause to all parties involved." [4] 1. I interpolate that this trial has, or commenced with, an estimate of three months and an expanded jury of 15 was empanelled on Wednesday 31 July 2024. That followed a four-week pre-trial hearing for which the Court had an estimate of one to two weeks. The day after the empanelment, a juror was discharged because they were suffering from an episode of anxiety. I determined to continue with a reduced jury of 14. We are now in the fourth week of the trial proper and, as of two days ago, I was told that the prosecution case may close in about two and a half weeks. [5] 2. On Monday 19 August 2024 – that is, the eve of the juror's ACL procedure – I heard submissions as to whether the power to discharge an individual juror (s 53B of the Jury Act 1977 (NSW)) should be exercised. [6] The parties essentially presented a joint position, although the focus of the submissions was different in some respects. The joint position was that the only paragraphs of s 53B that might be engaged were: (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, 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. Based on the information then at hand, I was not of the opinion that the juror was so incapacitated that it was likely they would become unable to serve as a juror before the jury delivered its verdicts. Further, at that stage, it did not appear to me that the juror should not continue to act as a juror based on anything affecting the juror's ability to perform the functions of a juror: cf Sun v R (2023) 112 NSWLR 52; [2023] NSWCCA 147. I formed the view that the better course was to adjourn the trial for two days and obtain an update as to the juror's capacity and well-being after the procedure. 2. This morning, Wednesday 21 August 2024, the court officer spoke to the juror's mother. In an email to my staff (MFI 46), he advised as follows: "I've made contact with Juror J's mother this morning at around 8:20am. She has confirmed that he is still experiencing complications and pain from his surgery yesterday on Tuesday 20th August 24. He's currently taking Endone medication for severe pain relief and is resting in bed. She has also confirmed that there is a medical certificate which states that he may be in a recovery period up until 20th October 24. We are now waiting for that certificate to be provided to us at some stage today, in which we'll provide to the court once received." 1. I invited the court officer to provide a further update later in the day. 2. Meanwhile two seemingly disconnected things happened this morning. First, one of the witnesses for whom an arrest warrant was issued was brought to court. He sought and was granted bail pursuant to the provisions in ss 311 and 312 of the Criminal Procedure Act 1986 (NSW) and the Bail Act 2013 (NSW). Second, another witness for whom an arrest warrant was issued but ordered to lie in the Registry until this morning, came to court under his own steam, presumably having been advised of the existence of the warrant. He promised to appear at court tomorrow and the order that the warrant lie in the Registry was extended for another day, that is until tomorrow. 3. Both of those witnesses were told – and I should say, they were told by me – that their evidence would be taken tomorrow, that is Thursday, and possibly drifting into Friday. Accordingly, it is imperative that the Court will sit with the jury on Thursday and Friday, and it will do so. Those are matters unrelated to the juror's capacity to do the job of a juror. However, they are matters that make it imperative that the Court continues to sit and, in particular, to sit tomorrow and Friday. If it be the case that the juror is unable to attend, that circumstance would be a reason impacting on their capacity to act as a juror. 4. After dealing with those two reluctant witnesses, I received a further email from the court officer: MFI 47. It said: "I've managed to contact Juror J's mother, and she has confirmed that he is still resting from the surgery and won't be able to attend court in any way at this stage. I discussed and reminded her if she can please provide us with the medical certificate as soon as able, and she has our details to achieve that. She also apologises for the delays in communications today." 1. The juror's inability to attend court tomorrow and, possibly, for the remainder of the trial is a reason affecting their ability to perform the function of a juror and it appears to me that they should not continue to serve: s 53B(d). Further, while they are otherwise able to perform the functions of a juror, they appear to be so incapacitated as to be unable to serve until the jury returns its verdicts: s 53B(a). No counsel took a contrary view. 2. I am satisfied the discretion under s 53B(a) and (d) should be exercised and I make a formal order that juror 5J (03448909) is discharged from further service on the jury. 3. I have separately considered the discretion to continue with a jury of 13 jurors. It remains more than 12 although the situation has become a little uncomfortable, not to say precarious. Each of the remaining 13 jurors was randomly selected and each was validly and lawfully able to serve on the jury. 4. I am unable to perceive any risk of a substantial miscarriage of justice occurring if we continued with a reduced number of jurors. 5. Accordingly, pursuant to s 53C(1)(b) of the Jury Act, I order the trial is to continue with a reduced number – which is to say 13 – jurors. ********** Endnotes 1. MFI 24. 2. Tcpt (13/8/24) pp 612-613. 3. Tcpt (13/8/24) p 640. 4. MFI 38. 5. Tcpt (19/8/24) p 1074. 6. Tcpt (19/8/24) pp 1072-1076. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2024