Supreme Court New South Wales Medium Neutral Citation: R v Jacobs [2013] NSWSC 942 Hearing dates: 12 June 2013 Decision date: 12 June 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: 1. Pursuant to s 53B(a) and (b) of the Jury Act 1977, the juror in question is discharged. 2. The whole jury is discharged. Catchwords: CRIMINAL LAW - juror anxiety with subject matter of trial - juror discharged - whether to discharge whole jury - trial at very early stage - accused entitled to trial by jury of twelve - whole jury discharged Legislation Cited: Jury Act 1977 Cases Cited: Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 R v Petroulias (No 33) [2007] NSWSC 1447 Category: Procedural and other rulings Parties: Regina Michael Allan Jacobs Representation: Counsel: P Barrett (Crown) T Hoyle SC (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant) File Number(s): 2012/89001 EX TEMPORE Judgment 1Before Court this morning I was handed the following note by the court officer from a juror: "Dear Sir, I would like to request to be excused from this jury duty due to the following reasons: (a) I have high blood pressure and high cholesterol and am currently under medication. After returning home, yesterday, I couldn't get much sleep due to my constant thought about the pressure involved in the court case. I am afraid it might affect my judgement and attention to my duty as a juror. My apologies to all concerned and without causing more inconvenience I hope, you will be able to excuse me from this jury duty". 2The note became Jury Note 1. 3The background is that the jury was empanelled yesterday and sent home at about lunch time to permit resolution of legal issues before the Crown opening, which was proposed to occur this morning. The jury panel was given an estimate of the trial of five weeks, though that was for abundant caution and, realistically, I consider the trial should take no more than three weeks. Each member of the jury panel was requested at two separate stages of the empanelment process to consider whether he or she was capable of serving on the jury. Of course, I asked the jury panel to reflect upon the fact that the count in the indictment is murder and that the allegation against the accused is one of murder of a police officer. 4Each counsel is of the view that the individual juror should be discharged and they are also of the view that, in all of the circumstances, it would be better to discharge the whole jury and start again by empanelling a fresh jury tomorrow morning. 5As the decisions of Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 and R v Petroulias (No 33) [2007] NSWSC 1447 make clear, what is involved is a two step process. The first question is whether the individual juror should be discharged. 6In truth, his or her problem seems to be one of stress about serving on a jury in this trial, rather than a medical issue. It is well known that high cholesterol and high blood pressure are conditions that very often can be controlled long term by medication. On the other hand, one or both of those conditions may be prone to exacerbation by stress. 7Furthermore, I consider that it would be most undesirable to have a reluctant or distracted or distressed juror sitting on a trial as serious as this one. 8It is also true that the trial, whilst not overly lengthy, can be contrasted with a three day trial of a simple issue. 9It is also possible that the juror will, throughout the course of the trial, if not discharged, become more and more distressed, and state in due course that he or she is simply incapable of proceeding further. 10Finally the trial, in truth, has not yet begun, and it is not as if weeks of wasted time need to be weighed up against the position of the juror. 11For all of these reasons I consider that, pursuant to s 53B (a) and (b )of the Jury Act 1977, the juror in question should be discharged. 12I turn to the second and entirely separate question of whether the trial should continue with only 11 jurors. As I have said, each counsel has submitted that that is not a desirable course, and that the whole jury should be discharged and that we should empanel again tomorrow. 13I consider that there is force in the submissions of counsel. Continuing a substantial trial with only eleven jurors, especially from a very early stage, is generally an undesirable course of action. The usual course is that an accused has a right to be tried by a jury of twelve. Separately, continuing with less than 12 jurors may also have indirect consequences with regard to, for example, s 22 and s 55F of the Jury Act. 14I am told that a further jury can be empanelled tomorrow. I would have thought that today could be spent dealing with any legal issues that are able to be dealt with today, and also by the legal teams resolving issues informally between themselves to the benefit of the efficient running of the trial. 15As I have said the trial is at a very early stage and the position may be contrasted with, for example, the situation whereby a juror seeks to be discharged just before the jury, after weeks of evidence, retires to consider its verdict, and the second question as to whether the whole jury should be discharged is being considered at that stage. 16In all the circumstances, with regard to the second question, I propose to accede to the joint submission of the parties and discharge the whole jury and empanel a fresh jury tomorrow. ********** 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. Decision last updated: 16 July 2013