R v Villalon [No. 2] [2013] NSWSC 1568

Supreme Court New South Wales

Medium Neutral Citation: R v Villalon [No. 2] [2013] NSWSC 1568 Hearing dates: 22 October 2013 Decision date: 22 October 2013 Before: Bellew J Decision: 1.The application to discharge the jury is refused. Catchwords: CRIMINAL LAW - trial - where juror identified as a previous member of Court Reporting Branch - where application made to discharge the jury - application based upon juror having particular knowledge of Court processes - application to discharge the jury refused Cases Cited: R v Glennon (1992) 173 CLR 592 R v Lodhi [2007] NSWCCA 360; (2007) 179 A Crim R 470 Category: Principal judgment Parties: Regina - Crown Michael Villalon - Defendant Representation: Mr G Tabuteau - Crown Mr P Winch – Accused S Kavanagh Solicitor for Public Prosecutions - Crown Legal Aid New South Wales – Accused File Number(s): 2012 / 679960

Judgment 1On the first day of the trial, in the latter stages of empanelment of the jury, the court reporter who was present in court at the time drew my attention to the fact that one of the jurors who had been empanelled was known to her as a former member of the Court Reporting Branch. That information was confirmed by a second court reporter who came into court shortly thereafter and who also recognised the person in question also as a former colleague. 2This information was conveyed to counsel immediately upon the conclusion of my opening remarks to the jury, at the time of the luncheon adjournment. I indicated to counsel what had been reported to me at that point and asked them to give it such consideration as they thought fit during the course of the adjournment. 3Upon resumption of the proceedings counsel for the accused, Mr Winch, sought clarification of whether or not the identity of the juror as a former court reporter had in fact been confirmed. I informed him that the information had been provided to me by the two court reporters independently of each other, and that in these circumstances I saw no reason to undertake any further enquiry for the purposes of confirming it. 4Mr Winch then made an application that the entire jury be discharged. In advancing that application, he made three submissions. 5The first was that the juror in question had, as a consequence of her former employment, an intimate knowledge of courtroom procedure and what was described as "court craft". 6The second submission, which appeared to arise from the first, was that the juror's previous experience and knowledge placed her in a different position from that of her eleven colleagues. 7The third submission was that the juror in question may have knowledge of matters which were germane to these proceedings, which, but for her former employment, she would not otherwise have had. 8The application to discharge the jury was not supported by the Crown Prosecutor, who essentially advanced two submissions. 9The first was that nature of work undertaken by a court reporter was such that she would only have been in court for intermittent periods of a trial. As I understood it, the Crown sought to draw a comparison between that position, and that of, for example, a member of the public who is generally at liberty to be present in court through the entirety of the proceedings. 10The second, and more substantive, submission advanced by the Crown was that nothing arising from the fact of the juror's former employment gave rise to an assumption that the juror in question would do anything other than properly discharge her responsibilities in accordance with her oath. 11It is a fundamental principle of the system of criminal justice that jurors will take heed of, and act in accordance with, directions which are given to them by a trial Judge (see for example R v Glennon (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J, applied in Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 per Barr J at [153] (Spigelman CJ and Price J agreeing). Criminal trials necessarily proceed in accordance with this general principle. 12It may well be that as a consequence of her former employment the juror in question has knowledge of court procedures and proceedings which the other members of the jury do not have. As a consequence, that may place this particular member of the jury in a different position to that of her colleagues. Neither of those matters, in my view, forms a proper basis on which to conclude that the juror in question will act irrationally, will not follow directions which are given, or will otherwise act contrary to the oath or affirmation that she took at the time of her empanelment. 13Further, there is nothing before me which suggests, in any way, that as a consequence of her former employment, the juror in question possesses any knowledge at all of matters which are germane to these particular proceedings. It might also be added that prior to the empanelment of the jury, I addressed the panel in waiting at length about various matters and provided each of them with an opportunity to make application to be excused. The juror in question made no such application. 14In those circumstances, I am not of the view that the jury should be discharged. 15Accordingly the application is refused.