R v Hunter (No 10) [2014] NSWSC 1153

Supreme Court New South Wales

Medium Neutral Citation: R v Hunter (No 10) [2014] NSWSC 1153 Hearing dates: 14 July 2014 Decision date: 14 July 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The trial will continue with 11 jurors. Catchwords: CRIMINAL LAW - juror unavailable because of unexpected commitment - juror discharged - whether to discharge whole jury Legislation Cited: Jury Act 1977 (NSW), ss 53B, 53C(1)(a) 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 1One of the jurors this morning, by way of jury notes 3 and 4, has sought to be discharged. 2To state the basis simply, the juror has received a sporting invitation at the elite level that would involve one week's training, commencing this afternoon, away from Sydney. Apparently it was not expected by the juror that the juror would receive such an invitation. 3Jury note 4, in particular, provides personal details about the juror. I did not read that note out to the parties. I simply provided a short précis of it. As I indicated during discussion, it was proposed that that note be endorsed at a convenient time by me "Not to be opened except on the order of a judge of this Court", and sealed to that effect. 4Jury note 3 does provide the details of the sport in question but, in the circumstances, I do not consider that the same steps need to be taken with regard to jury note 3. 5The joint position of the parties is that that juror should indeed be discharged pursuant to s 53B of the Jury Act 1977 (NSW), a position with which I respectfully agree. 6I consider that it would be in the interests of no-one to have sitting on the jury for the next week, and possibly past this week, a juror who is distracted, disgruntled, and disappointed. 7It is regrettable that the possibility, however remote, was not reflected upon by the juror, and brought to my attention when the jury was empanelled last Tuesday. 8As I indicated to the parties during discussion, there is no question of the trial being adjourned for a week to suit the convenience of that juror. 9Accordingly, when the jury returns to Court, I propose to discharge that juror without asking for any indication of the identity of that person. 10The second and entirely separate question that arises is whether the trial should continue with 11 jurors: Wu v The Queen [1999] HCA 52; 199 CLR 99. Both parties have submitted that should take place. Again, I respectfully agree with the position of the parties. 11To my mind, there is no question of the test contained in s 53C(1)(a) of the Jury Act 1977 (NSW) having been made out; namely, that continuing with "the remaining jurors would give rise to the risk of a substantial miscarriage of justice". 12The jury was empanelled last Tuesday, and the trial has been proceeding smoothly. To my understanding, half of the Crown witnesses have been dealt with, it could very well be the case that there will be no defence case, and one can expect that the jury will be deliberating perhaps late this week or early next week at the latest. To my mind, in those circumstances, it is most unlikely that the number of jurors, by the time the jury is sent out to consider their verdict, will have gone below the statutory requirement. 13Separately, there is no suggestion whatsoever that anything untoward has occurred in the jury room. Indeed, the jury appears focused and relaxed in the jury box. 14In the circumstances, I order that the trial will continue with 11 jurors.