R (Commonwealth) v Mark William Standen [2011] NSWSC 1050

Supreme Court New South Wales

Medium Neutral Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1050 Hearing dates: I July 2011 Decision date: 01 July 2011 Jurisdiction: Common Law - Criminal Before: James J Decision: I grant the application to discharge the juror Legislation Cited: Commonwealth Constitution - s 80 Jury Act - s 53B(d) 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 for discharge by a juror - see page 3942 of the transcript 1HIS HONOUR: A juror has applied to be discharged from the jury. The application has been foreshadowed for some time. 2On 15 June 2011 I received from the juror a statutory declaration to which a number of documents were attached. The statutory declaration and the attached documents were later marked for identification 33. Even before 15 June 2011 I had been made aware informally by a sheriffs officer of the juror's planned arrangements. 3On 15 June 2011 I briefly summarised for the parties the juror's planned arrangements. I indicated that I would be unlikely to discharge the juror, if either party opposed the juror being discharged (transcript page 3094). I enquired of the parties whether they would be prepared to consent to the juror being discharged. 4Later on 15 June 2011 I was informed by the Crown Prosecutor that the Crown would be favourably disposed to the juror being discharged, if it became clear that course would have to be taken in order for the juror to keep her commitments (transcript 3121). The Crown Prosecutor suggested that, if the defence was agreeable to the course proposed by the Crown, the juror should have the comfort of being told immediately what was proposed. 5Later again on 15 June 2011 I was informed by counsel for the accused that the defence would be content with the proposal made by the Crown, that is that the juror be informed that in due course, if the trial was not completed, the juror would be discharged (transcript page 3149). 6I then handed down the statutory declaration and the attachments so that both counsel could read them. I offered the parties the opportunity of further considering their positions but was told by both the Crown Prosecutor and counsel for the accused that no further time was required. Counsel for the accused joined the Crown in submitting that I should speak immediately to the jury. 7At transcript page 3153 I said to the jury:- "HIS HONOUR: Ladies and gentlemen, there is something I would like to say to you. The Sheriff's Officer has communicated to me that one of your number has made travel arrangements departing from Australia on 7 July. I will not finally deal with the matter now but, with the consent of counsel, I give that juror the comfort of knowing that if it becomes clear that the trial will not finish by 7 July, I am likely to look favourably on an application that that juror be discharged, which would enable the juror to undertake the trip. If that juror were to be discharged the trial would continue with the remaining 11 jurors. In saying what I just have, I have taken into account that there is a serious purpose in the juror's proposed trip overseas, that it is not simply a holiday. Thank you." 8I was informed yesterday by a sheriff's officer that the juror had enquired with the sheriff's officer when she would be discharged from the jury. I requested that the juror send me a note applying to be discharged and informing me whether there had been any change in the facts stated in the documents marked for identification 33. 9I have now received an application from the juror that she be discharged from the jury, which has been marked for identification 41. I am informed in the application that there has been no change in the facts stated in the documents marked for identification 33. 10The juror did apply to be excused from serving on this jury before the jury was empanelled. However, her application to be excused from serving on the jury was refused on the basis that, according to the estimate of the length of the trial provided by the parties, the trial would finish before the scheduled date for her departure. The trial has now exceeded the estimated length and there is no prospect of the trial finishing by 7 July. 11Under s 53B(d) of the Jury Act I have power to discharge a juror if it appears to the Court that for any other reason - that is, for a reason not stated in paragraphs (a), (b), or (c) of the section - affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. I note that this provision of the Jury Act is not in conflict with s 80 of the Commonwealth Constitution. 12I consider that the juror's ability to perform the functions of a juror is affected by her planned arrangements. I note the juror's planned trip is for more than simply a holiday. She has undertaken solemn obligations to a number of people who are relying on her to fulfil those obligations. 13I note that in her application the juror speaks of her "sensational" fellow jurors. I consider that I can infer that her fellow jurors, who are aware of her application, support the application and recognize that her case is special. 14I consider that I have to take into account and I do take into account the interests of persons other than the juror and the interests of justice generally and in particular the right of an accused person to be tried by a full jury of twelve persons. 15However, having taken all matters into account and particularly in the light of the common position of the parties and the commitment I have already given to the juror, I consider that I should grant the application and discharge the juror.