R v A2; R v KM; R v Vaziri (No. 17) [2015] NSWSC 1601

Supreme Court New South Wales

Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 17) [2015] NSWSC 1601 Hearing dates: 27 October 2015 Date of orders: 27 October 2015 Decision date: 27 October 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Juror discharged; trial to continue with jury of 11. Catchwords: CRIMINAL LAW - jury trial - juror experiencing persistent illness - whether juror should be discharged - s.53B(a) and (d) Jury Act 1977 applied - juror discharged - whether trial to continue with jury of 11 - s.53C applied - order that trial continue with jury of 11 Legislation Cited: Jury Act 1977 Cases Cited: Le v R [2012] NSWCCA 202 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) A2 (Accused) KM (Accused) Shabbir Mohammedbhai Vaziri (Accused) Representation: Counsel: Ms NL Williams (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused KM)

Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused) File Number(s): 2012/280081 (A2)2012/285455 (KM)2012/285639 (Vaziri) Publication restriction: ---

Judgment (on APPLICATION TO DISCHARGE ILL JUROR - T1771) 1. JOHNSON J: The present trial has entered its seventh week. A member of the jury is absent today and was absent yesterday. The particular juror has had ongoing health problems of different types which have given rise to jury notes and lost parts of sitting days on 24 September 2015 (MFI21), 7 October 2015 (MFI50) and 15 October 2015 (MFI67). In addition, a medical certificate was provided with respect to this juror dated 15 October 2015 (MFI71) and today, a certificate dated 26 October 2015 (MFI 103). 2. It is not necessary to outline in any detail the health issues which have affected this juror during the course of the trial. There is material indicating that he is a type 1 diabetic. He is said now to have acute gastroenteritis which would see him unavailable to attend until tomorrow. What happens thereafter, of course, would be a matter of speculation in the light of experiences with the juror so far in the trial. 3. I recorded yesterday (T1754-1755) some factors relevant to this juror, and the history of his participation in the trial. 4. The position has been reached, in my view, where the Court should consider the discretionary discharge of the absent juror under s.53B Jury Act 1977. In my view, s.53B(a) is activated in this case because there is a pattern of illness affecting this juror, with the prospect of continuation of illness of one form or another, so that it would be open to the Court to form the opinion that the juror has become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror for the balance of the trial. 5. In any event, even if there was some question about the capacity to form that opinion, s.53B(d) allows the Court to discharge a juror if it appears to the Court that, for any other reason affecting the juror's ability to perform the function of a juror, the juror should not continue to act as a juror. 6. The history of this juror during the trial and his continuing unfitness today points strongly in favour of the exercise of discretion to discharge the juror. 7. I note that the Crown and counsel for all Accused persons support that course of action. 8. I should observe, as well, that the other 11 members of the jury are urging the Court to take that course, even though it has not been revealed by me to the balance of the jury that discharge is an available option. There is a note from the jury today (MFI104) which asks the Court to continue with a jury comprising 11 members. 9. The jury note states that: "Many of us have commitments as we were originally told this would be a 6 week trial." And: "We would hope that a frequently absent jury member doesn't have to slow down the progression of the trial." 1. I have to say that the jury note summarises quite neatly the position that has now been reached and the appropriate decision which will be made. 2. Accordingly, for the purpose of s.53B Jury Act 1977, I discharge the absent juror who has been identified for the purpose of this trial as Juror H. 3. It is necessary then for the Court to move to the second issue. Section 53C Jury Act 1977 requires the Court, if it has discharged a juror in the course of the trial, to consider what should happen next. If the Court is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, the Court is obliged to discharge the balance of the jury: s.53C(1)(a). 4. The Court is of the opinion there is no such risk and, subject to s.22 of the Act, the Court is empowered to order that the trial continue with a reduced number of jurors: s.53C(1)(b). 5. Section 22 of the Act provides relevantly that a criminal jury cannot drop below a number of 10 persons without consent. That provision is not presently relevant as the question is whether the trial proceed with a jury of 11. 6. For the purpose of s.53C(1), I am of the opinion that there is no risk of a substantial miscarriage of justice if the trial proceeds with a jury of 11. 7. I have also considered other discretionary factors which are to be taken into account in the second phase of the decision-making process concerning the continuation of the trial. In this regard, I have kept in mind what was said by the Court of Criminal Appeal in Le v R [2012] NSWCCA 202. 8. This trial is in its seventh week. The evidence is likely to finish today. Closing addresses will commence, if not later today, certainly tomorrow. All parties seek that the trial continue with a jury of 11. 9. In these circumstances, the discretion weighs very strongly in favour of the continuation of the trial with a jury of 11. 10. Accordingly, I direct that the trial continue with a reduced number of jurors, being a jury of 11 persons.