R (Commonwealth) v Mark William Standen [2011] NSWSC 1047

Supreme Court New South Wales

Medium Neutral Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1047 Hearing dates: 23 June 2011 Decision date: 23 June 2011 Jurisdiction: Common Law - Criminal Before: James J Decision: Application to discharge jury is refused Catchwords: Criminal Law Category: Interlocutory applications Parties: Regina, Mark William Standen Representation: T Game SC, H Dhanji SC, S Buchen (Crown) M Ierace SC, G Farmer (Accused) Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused) File Number(s): 2009/8922

JUDGMENT - On application by the defence for a discharge of the jury - see page 3553 of the transcript 1HIS HONOUR: Today, on the sixty-eighth day of the trial counsel for the accused has made an application for a discharge of the jury. The application has been opposed by the Crown. 2The application was made as a result of a note received from the jury yesterday, which became MFI 35. The note was in the following terms "Dear Sirs, We write with extreme concerns about our current situations in relation to how the length of this trial is impacting our lives. Prior to being empanelled each of us was given varying time frames of between 8 to 14 weeks. To date we're sitting in the 15th week and have received no communications from the court regarding this time line. As we go through evidence of telecommunication intercepts, some in greater detail than when initially presented over 8 weeks we can only assume at least another 7 weeks will be spent on these documents. This trial is having a serious effects on our lives emotionally, physically and financially, and additional stress is being placed in the current knowledge of being here for an infinite period of time. We have outlined some of the issues we're facing below: Many of us are forced to work nights and weekends to maintain roles that could not be replaced with one day's notice. We understand our rights when it comes to employment however we're sure you can appreciate the reality is another matter. Pressure from employers when we have no end in sight is increasing. Many of us have been denied bonuses, and promotions by not physically being there many of us have been denied bonuses and promotions by not physically being there. One juror is unable to maintain the rent on her apartment on the salary paid by the court and is being forced to move. As with two other jurors, she was made redundant prior to this trial and for 4 months each of them have been denied the opportunity to seek/accept employment, are not applicable for unemployment benefits and are only applicable to the lowest rate paid by the court. Two of the above were unable to accept job offers when empanelled and one was denied the opportunity to attend a second interview, it was not considered a valid excuse at the selection time. One self-employed juror has had to turn down 4 months of work and is now having to cancel work rescheduled for the supposed end of this trial. He is severely financially affected as a result, and is having to support 3 children on the court salary. One juror is having to pay for before and after school care that was not previously required or planned for financially. One juror suffers chronic back injuries that have been inflamed and requires physiotherapy 1 to 2 times weekly. One juror has been denied a vacation booked in 2010 and presented to the court at the time of being summoned but was rejected as an excuse. The commitments involving other family members have meant that the holiday will continue in her absence and faces additional pressure managing her daughter with one less adult. Morale is low among all jurors and concerns are held for holidays booked in August with more information to come. The above concerns have been difficult to maintain for 15 weeks but we have done so without complaint and offered above and beyond support to see this trial conclude as quickly as possible including longer sitting hours and sitting through illness. These issues cannot be sustained for an indefinite period. We do not deny the accused has a right to a fair trial but ask that our rights to earn a living, seek employment, look after our families, go on vacation and plan our lives are taken into equal consideration. This trial should never have been speculated as being completed in 14 weeks and our lives cannot continue to be put on hold. Had we been prepared for a longer period from the beginning we wouldn't feel this way. Our lives would have been adjusted to accommodate. Sincerely The jury" 3In the first paragraph of their note the jurors speak of their "extreme concerns" about how the length of the trial is affecting their lives. They say that individual jurors, before the jury was empanelled, were given varying estimate of the length of the trial, of between 8 and 14 weeks. The trial is now in its fifteenth week so that the maximum estimate of the length of the trial given to any juror has now been exceeded. 4In their note the jury say that they have not received any information from the court about how much longer the trial will last. They say that they assume that the further taking of evidence from the accused concerning the telecommunications intercepts will last at least another 7 weeks. The jury have some basis for making an assessment, because they are aware of the extent of the telecommunications intercepts and can see how much of that material has so far been dealt with and how much remains to be dealt with by the accused in his evidence in chief. 5In the second paragraph of their note the jurors say that serving on the jury at this trial is having a serious effect on their lives, emotionally, physically and financially, and "additional stress is being placed in the current knowledge of being here for an infinite period of time". 6In succeeding paragraphs of the note the jury outline the hardship, and often severe hardship, that individual members of the jury are experiencing from being members of the jury in this trial. 7The note states that morale is low among all jurors. In the note the jurors indicate that they have "maintained" the matters causing them concern without complaint for 15 weeks but "these issues cannot be sustained for an indefinite period." 8In the note the jury acknowledge that the accused is entitled to a fair trial but ask that their own rights to earn a living, seek employment, look after their families, go on holidays and plan their lives be given consideration. 9The jury conclude by saying that, if they had been told from the beginning that the trial would last longer than 14 weeks, they would have adjusted their lives to accommodate such a longer period, and "we wouldn't feel this way". 10I accept without reservation the truth of the assertions made by the jury in their note. 11In his submissions in support of the application for a discharge of the jury counsel for the accused referred to the length of the Crown case, which lasted 58 days (ending in the thirteenth week of the trial) and pointed out that only a relatively small amount of that time had been occupied by the cross-examination of Crown witnesses. Counsel for the accused also pointed out that the defence case is now only in its eighth day. 12In his submissions in support of the application counsel for the accused said that his concern arising from the jurors' note was two-fold and he made two principal submissions. These submissions can be summarised as follows. 1. As the trial has reached the stage of the defence case, then, if the trial were to continue, the low morale and hardships being experienced by the jurors would "impact on the intake of evidence in the defence case", that is would adversely affect the reception and consideration by the jury of the evidence in the defence case. This effect would be aggravated because the accused in much of his evidence would be giving evidence about conversations and communications which had already occupied many hours in the Crown case. 2. If the trial were to continue, then when the jury are deliberating, there will be a strong temptation for the jury, consciously or unconsciously, to hasten their deliberations so as to put an end to their hardships. The present trial is a complex one with a large amount of evidence and a proper consideration of the evidence and the submissions of counsel might require a lengthy period of deliberation by the jury. 13It was submitted by counsel for the accused that there were no directions I could give which would adequately address either of counsel's concerns. 14It was submitted by counsel for the accused that, even if the additional stress arising from the jury's apprehension that the trial might continue indefinitely, was put to one side, the matters in the rest of the jury's note would require a discharge of the jury. 15As I have already noted, the application was opposed by the Crown. Among the submissions made by the Crown was a submission that the evidence in chief of the accused was being prolonged by the accused's manner of responding to questions asked by his counsel. 16The note from the jury is a cause of concern. There can be no criticism of the jury. Individual jurors were given estimates of the length of the trial, which have turned out to be under-estimates and are likely to be substantial under-estimates. The matters which the jury say are causing them concern are legitimate matters for concern. 17After taking into account the submissions made by both counsel, I have decided to refuse the application. 18It would, of course, be a serious step to abort a trial which has now been conducted for 68 days. I should, nevertheless, be prepared to take that step, if I considered that, were the trial to continue, the trial would not be a fair trial of the accused. 19I appreciate that in the jury's note the jury's lack of information about how much longer the trial is likely to last and their fear that the trial may continue indefinitely are referred to as sources of "additional" stress and that removing or alleviating this additional stress will not remedy the matters the jury first mention as causing the jury concern. I, nevertheless, consider that, if the jury can be given an estimate, which is a realistic estimate, of how much longer the trial will last and, according to this estimate, the trial is likely to finish much sooner than the jury presently apprehend, this will provide some reassurance for the jury and improve the jury's morale. The jury do not say in their note that because of the "concerns" or "issues" they are no longer able or willing to continue serving as jurors. What they say is that they cannot sustain those issues "for an indefinite period". 20I have not so far provided the jury with an estimate of the likely length of the trial, because it seemed to me to be very difficult to make any such estimate. After receiving the jury's note I had discussions with counsel about the likely further length of the trial. It was suggested by counsel for the Crown, without demur by counsel for the accused, that the further examination-in-chief of the accused could be concluded in a matter of days, rather than taking, as contemplated by the jury, at least another seven weeks, while still permitting the accused to fully make his defence. It was further suggested by the Crown that the Crown's cross-examination of the accused could be conducted in five to seven days and that the addresses of both parties could be concluded by the end of July. 21On the basis of what was said by counsel and notwithstanding the difficulty in making predictions about how much longer a trial is likely to last, I consider that it can reasonably be estimated that, although the trial is likely to continue into the beginning of August, not taking into account any time for deliberation by the jury, the trial generally is likely to conclude by about mid August. 22I can inform the jury of this estimate and I consider that the giving of this estimate will be a substantial relief for the jury. 23In their note the jury recognise the right of the accused to a fair trial. The conduct of the jury so far has been exemplary. Not a single day has been lost through illness of a juror. I have been impressed, from observing the jury in the jury box, by the close attention that jurors have been paying to the proceedings in the courtroom and I consider that it is likely that, if the trial continues, jurors will, notwithstanding any hardship they are experiencing from being on the jury, continue to pay close attention to the proceedings in this courtroom, including the giving of evidence. I consider that, if the trial continues, members of this jury will remain true to their oaths and will deliberate for as long as is required to render true verdicts according to the evidence. 24I consider that I should refuse the application for a discharge of the jury.