R v Paterson (No 2) [2014] NSWSC 52

Supreme Court New South Wales

Medium Neutral Citation: R v Paterson (No 2) [2014] NSWSC 52 Hearing dates: 10 February 2014 Decision date: 10 February 2014 Before: Bellew J Decision: 1.The jury is discharged. Catchwords: JURY - Application by juror to be discharged following empanelment - first day of trial estimated to be of 4 weeks duration - whether jury should be discharged in its entirety Category: Procedural and other rulings Parties: Regina - Crown Rodney Paterson - Accused Representation: Counsel: Mr K McKay - Crown Mr J Stratton SC and Ms B O'Reilly - Accused Solicitors: Solicitor for Public Prosecutions (NSW) - Crown Peter Murphy - Accused File Number(s): 2011/248808 Publication restriction: NIL

Judgment 1In the course of my opening remarks to the jury panel earlier today, and as the transcript will reflect, I emphasized on more than one occasion the necessity for any person who wished to make application to be excused from service as a juror in this trial, to make such application. There were several applications made, at the conclusion of which I proceeded to empanel the jury. 2Immediately after my Associate addressed the jury following empanelment, and whilst those member of the panel who had not been selected were still leaving the court room, I observed a female member of the jury, who was sitting in the seat normally occupied normally by the foreperson, to seek the attention of the Court Officer. I indicated to the Court Officer he should not engage in any further discussion until such time as the remaining members of the jury panel had left. Having asked the entirety of the jury to retire, I made enquiry with the officer who informed me that the juror in question now wished to make an "application to be excused". The foreshadowed application was, in the circumstances, an application to be discharged. 3With the consent of both the Crown and senior counsel for the accused, I brought the juror back into the court room and enquired of her as to why it was that she now wished to make such an application. She indicated to me that she "could not handle a rape case" (in circumstances where the second count against the accused is one of sexual assault). When I enquired why it was that she did not make an application to be excused when I invited such applications to be made, she responded by saying words to the effect , "I honestly did not think I would be chosen". 4I observed that in making those statements she was clearly upset, to the point of tears. She then left the court room so that I could hear submissions from counsel. 5Both the Crown and senior counsel for the accused have agreed that I have no alternative, in the circumstances, other than to discharge the juror in question. There is, however, the additional issue of whether or not the remaining eleven jurors should also be discharged. 6I have been informed by both counsel, and I informed the members of the jury panel, that this trial is expected to take 4 weeks. There is necessarily a danger in proceeding from the outset with only eleven jurors. In those circumstances both counsel have submitted that the safest course is to discharge the jury in its entirety and commence the empanelment process again. I agree with that assessment and I will proceed to do so, albeit with some degree of reluctance. ORDER 7I therefore make the following order: 1.The jury is discharged.