New South Wales Supreme Court CITATION : R v Lamb and Thurston [2002] NSWSC 322 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70209/01; 70066/01 HEARING DATE(S) : 5 April 2002 JUDGMENT DATE : 8 April 2002 Regina (NSW) PARTIES : Stanley Joseph Lamb - Accused Edward George Thurston - Accused JUDGMENT OF : Dunford J M.A. Macadam QC - Crown COUNSEL : P.M. Paish - Lamb A.I. Parker - Thurston S.E. O'Connor - Crown SOLICITORS : Ross Hill & Associates - Lamb Legal Aid Commission of NSW - Thurston CATCHWORDS : CRIMINAL LAW & PROCEDURE - jury - application to discharge juror - distant relative of victim - whether trial to continue with 11 jurors - early stage of trial - availability of fresh jury panel - jury discharged - CRIMININAL LAW & PROCEDURE - application for change of venue - Tamworth to Sydney - murder trial - victim killed locally - lay witnesses all local - victim's family local - application refused. LEGISLATION CITED : Jury Act 1977, s 26(3) CASES CITED : Wu v The Queen (1999) 108 A Crim R 252 DECISION : Jury discharged. Application for change of venue refused. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J TAMWORTH: Monday, 8 APRIL 2002 70209/01 R v Stanley Joseph LAMB 70066/01 R v Edward George THURSTON JUDGMENT - Re Application to discharge jury and change of venue; see T 168. 1 HIS HONOUR: This trial commenced last Wednesday when the jury was empanelled and the accused put in their charge and a voir dire was then commenced. The jury was excused until Thursday, then to Friday, and now they have been excused until Tuesday. The voir dire has not yet been completed, and the Crown prosecutor has not yet opened the case to the jury. 2 On Friday I saw fit to discharge one of the jurors who it turned out was a distant relation of the deceased. There is now an application on behalf of the accused Lamb to discharge the whole jury, and also for a change of venue to Sydney. 3 Initially the Crown opposed the application to discharge the jury and submitted that the trial should continue with the remaining eleven jurors. This morning the learned Crown prosecutor has indicated that he no longer adheres to that submission, as he has ascertained that steps are in train to summon a new jury panel for next Monday. That, I might add, has been done as a result of steps instigated by me on Friday when the question first arose; and I might add that it has required almost superhuman efforts on the part of the Sheriff's Office to arrange a new jury panel and deliver the jury notices to Tamworth by courier, so that most of them can be hand delivered, as the jurors are required to have reasonable notice. Actually the Jury Act 1977 s 26(3) requires that they have at least seven days notice, but I have power to reduce the length of notice if occasion arises. 4 There is also the problem of rearranging the Judges' roster, as it is not easy to organise the listing of other cases when cases are delayed or run over time, but I am assured by the List Judge that if this trial extends an extra week or two because of starting again next week, it will be difficult, but not impossible, to rearrange the roster to cope with commitments that have been planned for me. 5 The voir dire that has not yet been completed can continue this week so the time will not be entirely wasted. 6 My initial view was to continue with the remaining eleven jurors, and I do not believe that the verdicts, whether verdicts of guilty or not guilty, would be any different whether there was a jury of eleven or of twelve. But having regard to the fact that it is a very early stage of the trial, that the Crown has not yet opened, that the Crown no longer opposes the discharge of the remaining jurors, that the time spent on the voir dire will not be wasted, that we can have a new jury panel here by next Monday, and having regard also to the remarks of McHugh and Kirby JJ in Wu v The Queen (1999) 108 A Crim R 252 (although the latter's judgment was a dissenting judgment) I consider that the wiser course is to discharge the remainder of the jury, and I will do so. 7 As I say, persons summoned for jury service are normally entitled to seven days notice unless the judge otherwise orders. In view of the circumstances that have arisen I order otherwise, and I reduce the time so that the jury summonses delivered by Wednesday of this week will be valid for next Monday, although I understand most of them will be delivered today or tomorrow. 8 There is also an application on behalf of the accused Lamb to change the venue to Sydney. This is on the ground that there is strong feeling, and there have been threats of reprisals, against the accused by members of the deceased's family. In particular, reference was made to an incident in court last week during the voir dire when it was alleged that some of the deceased's family in the public gallery were making gestures towards the accused Lamb and then, on Friday, I discharged a juror because a member of the deceased's family made an approach to the juror's mother at the juror's place of business. The approach, as I said when discharging the juror, may have been entirely innocent, and I am not suggesting otherwise, and I discharged the juror not because of the approach, but because of the underlying relationship. 9 I was also referred to Exhibit L2 on the voir dire where, shortly after the death of the deceased, members of his family threatened reprisals and were counselled by Detective Coe to desist. 10 Attention was drawn to the fact that there is the likelihood of the deceased's family attending the trial every day, that Tamworth is a comparatively small city and there is a real chance that members of the family will, or may, come into conduct with jurors from this area or the city, and accordingly application is made for a change of venue to Sydney. 11 The Crown opposes the change of venue and refers to the longstanding tradition and practice that trials should be conducted where the alleged offence was committed, subject to the obvious exception if there is the risk of an unfair trial. 12 In this case the Crown will be calling a large number of lay witnesses, mostly of aboriginal background who have never been to Sydney. To arrange transport and accommodation for all these witnesses will create logistical and expense problems and, indeed, there will probably be a need to provide someone to look after them, because a large number of them would not be familiar with a metropolitan city. It would also be of considerable hardship for the witnesses, or at least some of them, to be transported to a strange place and an unfamiliar environment and kept there for a number of days whilst they are waiting to give evidence. 13 The Crown also submits that it would be almost impossible to ensure the attendance of all of them to give evidence. 14 The family is entitled to attend the trial, and this is conceded but, although not expressed, the underlying suggestion in defence counsel's submission appears to be that a number of the deceased's family would be deterred by cost and other commitments from attending a three week trial in Sydney, or elsewhere, other than Tamworth. 15 The possible problems of jurors coming into contact with members of the deceased's family can be overcome in a number of ways. It has already been overcome in respect of the existing juror by discharging that juror, and similar steps could be taken, if necessary, again, although I do not anticipate such steps would again be necessary. 16 Moreover, before the jury is empanelled in the next trial, in addition to having the Crown read out the names of the witnesses intended to be called by the Crown, I shall also ask the Crown to read out the names of the deceased's family who may be living in or visiting Tamworth during the course of the trial and inviting any jurors who know them to apply to be stood aside. 17 In addition, I had, last Friday at the end of the day's proceedings, given a strong warning in what I regard as clear and unmistakable terms, to the members of the deceased's family that they must not engage in any sort of threatening conduct, or attempt to approach jurors in any way, and that if they do the trial will again be aborted and this will happen as often as is necessary to ensure that the accused get a fair trial. 18 The alleged threats made of reprisals shortly after the death of the deceased were probably made in the heat of the moment and no doubt cooler counsel has since prevailed and, in any event, both accused are in custody, bail refused, and so they are protected from any attempts of physical violence that may otherwise be visited on them. 19 For these reasons the application to change the venue to Sydney is refused. ********** Last Modified: 04/29/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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