New South Wales Supreme Court CITATION : R (Cth) v Petroulias (No. 31) [2007] NSWSC 1213 HEARING DATE(S) : 25 October 2007 JUDGMENT DATE : 29 October 2007 JUDGMENT OF : Johnson J at 1 DECISION : The application by the Accused to discharge a juror is refused. CATCHWORDS : CRIMINAL LAW - trial by jury - juror excused temporarily for surgery - trial adjourned - application by juror to be excused for additional day to permit recovery - Accused seeks discharge of juror - application refused LEGISLATION CITED : Jury Act 1977 CASES CITED : R (Cth) v Petroulias (No. 26) [2007] NSWSC 819 R (Cth) v Petroulias (No. 27) [2007] NSWSC 838 PARTIES : Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused) FILE NUMBER(S) : SC 2002/93 COUNSEL : Mr P Hastings QC (Crown) Mr R Sutherland SC; Mr G Walsh (Accused) SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused) LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST JOHNSON J 29 October 2007 2002/93 Regina (Cth) v Nikytas Nicholas Petroulias (No. 31) JUDGMENT (On application by Accused for the discharge of a juror - see T3869) 1 JOHNSON J: On 25 October 2007, Mr Sutherland SC for the Accused, made application for discharge of a juror (T3859-3860). The Crown opposed the application for discharge. I refused the application and stated that my reasons would be given at a later time. 2 The application for the Accused was brief and my reasons for refusing it may likewise be stated briefly. 3 The present trial of the Accused commenced on 13 June 2007. On 2 August 2007, I discharged a juror and directed, under s.22 Jury Act 1977, that the trial proceed before a jury of eleven: R (Cth) v Petroulias (No. 27) [2007] NSWSC 838. 4 Since about 9 August 2007, a member of the jury has been affected by an eye problem which has required surgery for a blocked tear duct (lacrimal surgery) (MFI69). I should mention that the information provided to the Court is that the eye problem does not affect the juror's ability to read documents or otherwise perform her duties as a juror in the trial. 5 A number of notes and certificates were provided concerning arrangements for the juror's lacrimal surgery. The juror requested to be excused from jury service between 24 and 26 September 2007 to permit lacrimal surgery to be undertaken (MFIs 74 and 92). 6 In accordance with usual practice, this request was brought to the attention of the parties. Neither the Crown nor the Accused submitted that the Court should refuse the juror's application to be excused in that period and for that purpose. No application was made for the discharge of the juror. I acceded to the juror's application. 7 Late on the afternoon of Friday, 21 September 2007, the Sheriff's Office was informed that the lacrimal surgery scheduled to be undertaken on Monday, 24 September 2007 had been cancelled. Information provided to the Court by the hospital on 4 October 2007 stated that the cancellation was due to the urgent clinical requirements of another patient (MFI109). 8 As a result of representations made thereafter by the Sheriff's Office, on behalf of the Court, with the relevant hospital, arrangements were then made for surgery to be undertaken on Monday, 22 October 2007 (MFIs 104, 109). The date of 22 October 2007 was proposed to the relevant hospital with the agreement of counsel, given the scheduled absence of another juror in that period (T3299-3300, 3303, 3332-3333). Once again, no application was made by the Crown or the Accused that the relevant juror ought be discharged. 9 On 25 October 2007, I sat without the jury to hear submissions on issues concerning directions to the jury, and materials to be provided to the jury as part of my summing up. The jury was to attend next at 9.30 am on Friday, 26 October 2007. The Crown's closing address would then continue until the Court adjourned for the day at 1.00 pm. 10 The events that triggered the present application occurred on the morning of 25 October 2007. I was informed that the juror who had undergone lacrimal surgery on 22 October 2007, would be unfit to attend on 26 October 2007 because of continuing recuperation from the surgery. A certificate dated 25 October 2007 from the relevant medical practitioner was provided certifying that the juror was unfit to attend before 27 October 2007 (MFI116). 11 In light of the certificate, I invited submissions from counsel concerning the juror's application to be excused on 26 October 2007. After obtaining instructions, Mr Sutherland SC made application that the juror be discharged and that the trial proceed at 9.30 am on 26 October 2007 with a jury of ten. The Crown submitted that the appropriate course, in all the circumstances, was to adjourn the trial until 10.00 am on 29 October 2007 for the trial to continue before the existing jury of eleven. 12 No application has been made at any time by the relevant juror to be discharged from jury service. The juror remains willing to continue service as a juror on and after 29 October 2007. 13 The principles to be applied on an application for discharge of a juror were set out in R (Cth) v Petroulias (No. 26) [2007] NSWSC 819 at [8]-[10]. The trial has proceeded since 13 June 2007 and, since 2 August 2007, the jury has comprised eleven persons. The Crown has addressed for several days and will continue to address when the trial resumes. Accordingly, the trial is well advanced. The present application by the juror involves a request not to sit for half a sitting day to enable the juror to recover from surgery. 14 As will be apparent from the history set out earlier in this judgment, substantial steps have been taken to accommodate the juror so as to permit her to continue to serve as a member of the jury in the trial. As it happens, it appears that a longer period of recuperation than was expected is now required. The nett loss of sitting time, if the discharge application is refused, is half a sitting day. 15 I have regard to the fact that the jury has already been reduced to eleven persons. There have been a number of disruptions to the trial as a result of jury illness and for other reasons. However, no application has been made (until now) by the Crown or the Accused to discharge one of the eleven remaining jurors. The discharge of an additional juror should not occur without good and substantial reason. The saving of half a sitting day falls far short of that requirement. In my view, the appropriate exercise of discretion on the present application leads to a refusal of the application and adjournment of the trial until 10.00 am on 29 October 2007 to continue at that time before the jury of eleven. 16 It was for these reasons that I declined the application by the Accused to discharge the juror on 25 October 2007. ********** 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.