New South Wales Supreme Court Regina v Ronen & Ors [2005] NSWSC 319 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. JUDGMENT DATE : 20 January 2005 JUDGMENT OF : Whealy J at 1 DECISION : I discharge the Juror CATCHWORDS : Jury Act s 22 - Discharge of Juror - Reasons continuation of trial with less than 12 Jurors LEGISLATION CITED : Jury Act CASES CITED : Regina v Wu (1999) 199 CLR 99 at 106 Regina v Ida Ronen PARTIES : Regina v Nitzen Ronen Regina v Izhar Ronen FILE NUMBER(S) : SC 70222/03; 70032/03; 70223/03 Mr T. Game SC; Ms S. McNaughton - Crown Mr R. Richter QC; Mr N. Rosenbaum - Accused Ida Ronen COUNSEL : Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr P. Jones - Accused Izhar Ronen Ms P. Musgrave - Cth DPP SOLICITORS : Watsons Solicitors - Accused LOWER COURT JURISDICTION : Local Court IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J THURSDAY 20 January 2005 70222/03 - REGINA v Ida RONEN 70032/03 - REGINA v Nitzan RONEN 70223/03 - REGINA v Izhar RONEN JUDGMENT - On application for discharge of juror (088) - see p 632 of summing-up transcript. 1 HIS HONOUR: There is before the Court an application for discharge of a juror under s 22 of the Jury Act. During the course of the discussions regarding the application I outlined briefly the circumstances I believe that have led to the application. 2 This is an extempore judgment so there is no need for me to state all the facts in detail. The factual circumstances include a number of problems that the juror has encountered. They go back a considerable time. An examination of the relevant documents marked for identification will show that a considerable time ago she drew these problems to the Court's attention. Notwithstanding her original understanding that the trial would finish in about four months, she found herself in the difficult position, that after some seven and a half months she realised that a booking she had made a considerable time ago for an overseas trip to Canada, in order to be with her fiancee and meet his family, would be jeopardised by her remaining as a jury member. She was originally to leave Australia in the first week of January 2005 and reciprocal arrangements had been made for her arrival in Canada. The juror was exhorted at the time to see whether other arrangements could be made and she very willingly undertook that task, and later informed the Court that she had made arrangements to change her flights. The new bookings involved the juror's departure on or about 14 January 2005. Contingent plans were also put in train for an alternative "last minute" departure on 22 January 2005 if the estimates again proved to be inaccurate. 3 There were further notes from the juror regarding difficulties she encountered with cancellation fees and the like, and the Court put into train through the Sheriff's Office an application for reimbursement from the Attorney-General's Department. 4 The next in this series of events occurred a short while ago, when it became apparent there was a possibility, although at that stage it was no more than an outside possibility, that the new travel arrangements the juror had made would be jeopardised if the trial were not to be concluded by 22 January 2005. This again was complicated by the fact that the various travel arrangements that had been made related not only to the juror but to other members of her family. In addition to that, a celebration had been arranged for her, as I understand it, in Canada for both the juror and her fiancée. That occasion was set for later this coming week-end, Canada time. 5 The juror quite properly raised with the Court the problem this would cause for her, and she indicated that if there were any real possibility of the trial not finishing by 22 January 2005, this would place her in a very difficult position with her family, friends and fiancee, and would involve further expense for all of them. In those circumstances she then asked whether she might be discharged. 6 With the consent of counsel for the accused and the Crown, and after consultation with those counsel, I sent a note to the juror. I asked her to see whether she could possibly postpone the 14 January departure date and make final arrangements for a flight on the 22nd, and also to examine whether it would be possible for her in those circumstances to remain as a juror in the trial. Again, I think commendably, the juror indicated that she had changed her tickets now until the 22nd. She had also put in train all her final arrangements but agreed to stay on as a juror on the basis that the trial would conclude by that date. 7 The final events in this history are that the juror, as the next few days went by, became quite concerned that the 22nd January 2005 was looming. She sent a note asking whether she might be discharged either shortly before or after the jury had commenced deliberations. Again, after consultation with counsel, I informed her that such a step would be possible, as I understood it, in terms of the requirements of the Jury Act or that, at least it would not be prohibited. So it is we arrive at today's date. I am still in the course of summing up, and as it is quite clear, I will not finish the summing up in the defence case until tomorrow, if I am able to finish tomorrow. In a practical sense, this reveals the position, although the jury will not go out until Monday for their deliberations in all likelihood, that the situation of this juror has now become, in my view, completely unsatisfactory in relation to all the commitments that she has made, altered and remade on a number of occasions. 8 The section of the Act under which the application for discharge is brought is s 22. 9 It is in the following terms: - "22. Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the Court or coroner whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if: (a) in the cases of criminal proceedings, the number of its members: (i) is not reduced below 10; (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused; or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least two months; (b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8; or (c) in the case of a coronial inquest, the number of its members is not reduced below 4, and if the Court or the coroner, as the case may be, so orders." 10 I have asked counsel their attitude to the application. The Crown has said that it does not oppose the application for discharge of the juror, but it has also submitted that the court should have an eye to the next application that will inevitably follow, although that application would be of course a completely separate process involving a completely separate discretion, that is an application for the trial to continue with 10 jurors. That would be the practical situation to arise if I were to grant this juror's discharge application. 11 In other words, the Crown said to me that the Court should always have an eye to that next application as one relevant matter in determining whether it should discharge a juror. 12 In support of that submission the Crown has referred me to the remarks of McHugh J in Wu against the Queen, (1999) 199 CLR 99 at 106. I have also asked counsel for the accused to state their attitude to the discharge application. Mr Richter QC has indicated he cannot consent to the application. He is unable to say that the section permits a discharge in the circumstances that I have outlined; nor is he able to concede whether the section does permit a discharge; or whether there has been shown sufficient grounds for the discharge application at this stage. 13 However, Mr Richter made one thing quite clear: if the juror is discharged then he would not oppose an application for the trial to continue with 10 jurors. I think it is fair to say the same response to the application has now been made by Mr Hill, Queen's Counsel, on behalf of his client and Mr Van de Wiel, Queen's Counsel, on behalf of his client. Those are the submissions that have been made in relation to this application for discharge. 14 In my view, in the wholly unusual circumstances that this juror finds herself in, and having regard to the personal sacrifices she has made, and no doubt in which her family and fiancee have shared, I am drawn to the conclusion that every basis for the exercise of discretion in her favour has been demonstrated. Members of the Jury were informed that the trial would last between three and four months. They have now been empanelled for nearly nine months. This juror's travel arrangement, as I understand it, were well in place before the jury were empanelled. 15 I do have an eye to the next application to be made, and I do note that there will be no opposition to the trial continuing, even though the number of jurors will have come down to 10. I think that also is a proper factor to take into account. But in so far as the personal circumstances of the juror are concerned, while I accept that she is not ill, and that she does not have a physical incapacity, but I consider, for my part, that it would be intolerable and completely unreasonable to keep her as a member of the jury in the circumstances I have outlined. In my view she should be discharged, and I propose to make that order. I discharge the juror accordingly. ********** 18/04/2005 - Crown Counsels' names omitted - Paragraph(s) No paragraph nos on Cover Sheet 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.