R v Hunter (No 3) [2014] NSWSC 1146

Supreme Court New South Wales

Medium Neutral Citation: R v Hunter (No 3) [2014] NSWSC 1146 Hearing dates: 30 June 2014 Decision date: 30 June 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: 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 and Crown entitled to trial by jury of twelve Legislation Cited: Jury Act 1977 (NSW), ss 22, 53B, 53C Cases Cited: Wu v The Queen [1999] HCA 52; 199 CLR 99 Category: Interlocutory applications Parties: Regina Paul Andrew Hunter Representation: Counsel: M Cinque (Crown) D Carroll (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused) File Number(s): 2011/397367

EX TEMPORE Judgment 1The jury was empanelled at approximately 12 midday today after a problem that arose during arraignment with regard to earlier panels. That does not require further discussion. 2Shortly before 2 PM I was handed the following note, which became jury note 1: "I felt intimidated and scared as I was chosen to be in the jury. It has all made me feel very emotional as I've had the break to think about it. I'm not sure how emotional I would get during the actual trial and didn't realise it would effect me like it has. I would please like to be excused from this jury." 3In short, the juror has indicated that, even at this early stage, not having heard a skerrick of evidence or indeed the Crown's opening, he or she has become too distressed and too weighed down by his or her responsibility to continue with it comfortably. Furthermore, he or she has foreshadowed that that situation could become worse. 4The question arises whether the juror should be discharged in accordance with his or her request, pursuant to s 53B of the Jury Act 1977 (NSW). 5Section 53B of the Jury Act is as follows: 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if: (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. Note. Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror. 6It can be seen that s 53B(a) speaks of a juror being discharged, or rather a judge having discretion to discharge a juror, if that juror has become so "incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict". 7In more general terms, s 53B(d) speaks in short of it appearing to the Court that, for any other reason that affects the juror's ability to perform his or her functions, the juror should not continue. 8As I have indicated, this trial for murder has just begun. Sitting as a judge of the facts on such a count carries with it a heavy, and no doubt emotionally burdensome, responsibility. 9As the learned Crown Prosecutor foreshadowed to the jury panel, no doubt there will be some evidence that will be of a distressing flavour. I refer in particular to medical evidence, quite apart from the generally distressing thought that a fellow member of the community died a violent death. 10It seems that the juror, having had an extended lunch to reflect upon his or her position, simply feels incapable of continuing. 11Both parties have submitted that the appropriate course is to discharge that juror. I respectfully accept that joint submission. 12Accordingly, when the whole jury returns to court I propose to indicate that that juror is discharged. 13I turn to the entirely separate question of whether or not the whole jury should be discharged pursuant to s 53C of the Jury Act: Wu v The Queen [1999] HCA 52; 199 CLR 99. 14Section 53C of the Jury Act is as follows: 53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must: (a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors. (2) A court or coroner that discharges a jury under subsection (1)(a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912. (3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order. 15It can be seen that, pursuant to s 53C(1)(a), I must discharge the jury if I am of the opinion that continuing with the remaining jurors "would give rise to the risk of a substantial miscarriage of justice". Section 53C also refers to s 22 of the Jury Act which, as things stand, has no application. 16Both parties have submitted with regard to this entirely separate question that it would be better to discharge the whole jury, and to commence afresh as soon as reasonably practicable with a new panel. 17Again, I respectfully agree with that joint submission. That is so for a number of reasons. 18First, generally speaking, the accused and the Crown have a right to a verdict of 12 jurors and no fewer. 19Secondly, the count that the accused is facing is exceptionally serious. 20Thirdly, in truth, no time will be lost by empanelling a fresh jury as soon as practicable. 21Fourthly, there will not be a requirement for there to be repetition of evidence that would be logistically disadvantageous to the Court, or personally disadvantageous to any witness. 22Fifthly, the trial is estimated to take in the vicinity of three weeks. And yet it has not yet begun. 23Sixthly, to continue with only 11 jurors permits of less margin for error down the track, if I may express it that way. 24In short, in all of the circumstances that I have outlined, I respectfully accept what the parties have submitted; namely, that to continue with 11 jurors from this very early stage of the trial could give rise to a risk of a substantial miscarriage of justice. 25In the circumstances, when the jury returns to us, I propose to discharge the whole jury, and thereafter discuss with the parties the logistical way forward.