Supreme Court New South Wales Medium Neutral Citation: R v Fesus (No 7) [2015] NSWSC 1975 Hearing dates: 18 December 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Common Law Before: Wilson J Decision: Juror discharged; trial to continue with jury of 11. Catchwords: CRIMINAL LAW - jury trial – discharge of one juror - s 53B(d) Jury Act – inadequacy of medical certificate Cases Cited: BG v R [2012] NSWCCA 139 Le v R [2012] NSWCCA 202 Category: Procedural rulings Parties: Regina Steve Frank Fesus Representation: Counsel: J Crespo (Crown) N Carroll (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Miralis (Accused) File Number(s): 2013/207336 ex tempore Judgment 1. A situation has arisen this morning in which the Court has been obliged to consider the desirability or necessity of discharging one member of the jury in the accused's trial. 2. The accused's trial commenced on 13 October 2015, and has continued (with some loss of sitting time due to juror illness) generally in a consistent fashion until the present point. 3. We have had during the course of the trial some five weeks or so of evidence. We have heard from a significant number of witnesses and there have been over 100 objects or documents tendered in evidence before the jury. 4. As with any murder trial involving the death of a member of the community and an allegation against another member of the community of such a serious nature, the trial has heard, and the evidence has dealt with serious matters which have a significant impact on the lives of all of those concerned, the accused, Mr Fesus and his family, and those who loved the deceased, Jodie Fesus, her family and friends. 5. In the wider sense, of course, any murder trial is a very serious matter and is a matter which in the interests of justice ordinarily require proceedings to be expeditiously heard and determined. 6. On the 27 November 2015, some five or so weeks into the trial, having heard all of the evidence adduced and having heard the submissions of counsel and the summing-up to them, the jury were sent out to deliberate on their verdict. 7. They have during the course of their deliberations requested transcripts and recordings of aspects of the evidence and we have replayed in court the evidence of one witness, the forensic pathologist, Dr Botterill. The jury has requested transcript of counsels' final addresses to them, and also of the summing-up, and they have been provided with all of the material which they have requested in the time during which they have been out on verdict. 8. Over the course of the three weeks during which the jury has been on verdict we have lost four days due to illness of a juror. Today would have been the fifth day lost due to illness had I not determined that the trial would proceed. 9. Of these four days, excluding today, that we have lost due to illness, one of the days lost have been because of the illness of juror 77. Juror 77 has been previously ill on two days, 26 November 2015, that being a fairly critical point during the trial proceedings proper and subsequent to going out on verdict the juror was again ill on 9 December 2015. Today marks a second date of asserted illness today. 10. On 9 December 2015 juror 77 provided a medical certificate issued from a suburban medical practice. The medical certificate provided on that date is in the nature of what I would describe as a "tick-a-box certificate", that is, it provides no details specific to the individual, it simply selects an opinion, which is expressed by means of a tick against that particular option. For 9 December 2015 a doctor from this suburban practice certified that he or she had examined juror 77 and the selected portion of the certificate was, that the juror, "in my opinion, will be unfit for work". Another option of school was scored through. 11. Although I would suggest it is always desirable that further information than that be provided on medical certificates to be used in any court proceedings, at that stage there had been no direction to jurors requiring them to provide a greater level of detail on any medical certificate. 12. This morning the Juror 77 contacted the Office of the Sheriff at 8.10am. By reference to a document marked MFI 162, being a verbatim account recorded by the Sheriff's officer, Inspector Brown, the juror, having made telephone contact, said, "I don't feel well today and I won't be in". He was asked if he was a juror and responded that he was a juror in court 6. He identified himself by his jury number and his name. 13. He was asked, "What is the problem?" and told the Sheriff's officer, "I am not well". He was then told by the Sheriff's officer that he would need to see a doctor and fax a medical certificate to the Court. The juror then said, "It's only one day and the doctor may not be open". He was asked what he meant and referred to living in the Kurnell area. 14. I interpose there that Kurnell was subject to a what has been described in the media as a tornado two days ago and there was significant damage to residential houses in that area. 15. The juror was told that the judge would expect a medical certificate as the jury was on verdict. The juror responded, "Okay, I'll have to go out of my area to see a doctor". He was told again that the Court expected and required a medical certificate and that it was to be faxed through as soon as possible with the fax number offered to the juror. He indicated he already had that fax number and would send it through. 16. After the Court convened and the question of the juror's illness was raised with the parties, at my request Inspector Brown had a further conversation with Juror 77 to emphasise the importance of the certificate being received quickly. 17. MFI 163 is an account recorded by Inspector Brown in an email to my Associate of her telephone discussion with Juror 77 this morning at 10.30am. 18. Inspector Brown advised the juror that she had instructions from the judge that the Court required a medical certificate immediately, and that the Court was waiting for the certificate. The juror advised the Sheriff he would go to the doctor now. He was advised by the Sheriff that the medical certificate must detail why he was unfit to attend court and deliberate, and it must detail the nature of the medical condition that rendered him unable to attend. The juror's response was "But it's only one day". Inspector Brown told the juror that the Judge had requested the certificate and it must be provided. The juror then said, "I had to attend a community meeting." He said he would go to the doctor's now. 19. He apparently has, although there has been significant to some premises in the Kurnell area, it is understood from the information provided by the sheriff that the individual juror has not had damage, or at least damage of any significant nature, to his residence but there is reported concern, apparently, about asbestos in his street. The community meeting the juror attended dealt with that subject. 20. That information from the Sheriff's office gives at least some cause for concern as to whether or not the juror is giving sufficient importance and priority to his obligations as a juror. 21. Subsequent to that conversation between Inspector Brown and the juror the Court received a medical certificate sent through by facsimile relevant from juror 77. It comes from the same suburban medical practice as have the previous two certificates relevant to this juror and it is apparently under the hand of the same doctor, although since it is no more than a squiggle it is difficult to be certain. The certificate provided today is in precisely the same terms as is the certificate provided for 9 December 2015 and the certificate provided for 26 November 2015, that is, the certificate does not provide the detail that the juror was specifically asked to provide; it does no more than certify that on today's date a doctor examined juror 77 and formed the opinion that he would be unfit for work. The certificate is in the same "tick-a-box" format as the previous two certificates and the options available for selection are "unfit for work" and "unfit for school." "Unfit for work" has been selected. 22. The doctor has endorsed that opinion as being current from 18 December 2015 only, scoring out the words "to and inclusive". There is no further detail either from the certificate or from the juror as to the nature of the juror's illness. 23. Having regard to that information I have raised with both parties this morning the question of whether the Court should discharge that juror as being unavailable for jury service. I have heard submissions from the Crown and from Ms Carroll for the accused. The Crown submits that the juror should be discharged, that the information and evidence that the Court has with respect to the juror's attendance establishes, at the least, that the juror's attendance has been irregular, including and non-attendance or arguably the most critical periods of the trial. The juror was not in attendance during the Court's summing up and he has not been in attendance now during two days of deliberations. The Crown submitted that the Court could not be confident having regard to the available information that the juror would in fact continue to be available, and could not be confident that the juror was giving sufficient attention and priority to his duties as a juror, such that he can properly continue. 24. The Crown gave attention to the question of whether or not, if the Court decided to discharge the juror, it would be appropriate to continue with eleven jurors or whether that could lead to a substantial risk of a miscarriage of justice. It was the Crown's submission that there would be no such risk; in the context of a lengthy trial where there has been approaching three weeks of deliberation relevant to five weeks of evidence, the Crown's submission is that the eleven jurors who remain should be given the opportunity, and can continue with their deliberations, to return a verdict. 25. Ms Carroll for the accused submits that the juror should not be discharged, that the Court should simply adjourn today and await his attendance on Monday at which time the Court could make some inquiries of the juror personally, perhaps under oath, in an effort to identify any difficulty that he may have and then further consider the issue of discharge. Ms Carroll submits that if the Court in fact discharges the juror that the trial should not continue but that the balance of the jury should also be discharged, because of the risk of a miscarriage of justice occurring, adverse to the accused's interests. 26. Ms Carroll refers to the fact that it may be that the accused would be deprived of a vote from the discharged juror which could have been in his favour. She referred to the ordinary expectation of the community, the Court and accused persons that they will have all twelve minds as representative of the community will be available to determine a verdict, and she submits that, if the trial proceeds in the absence of juror 77, it may be that the accused would lose the benefit of a vote in his favour, or, at the very least, lose the benefit of that juror's influence and input into the discussions of the remaining jurors. 27. Having considered all of those submissions and the information that is available pertaining to the juror, I decided this morning to discharge the juror, pursuant to s 53B(d) of the Jury Act 1977 over the accused's objection. 28. Having made that determination I then gave consideration to the issue of whether pursuant to s 53C the Court should continue to hear the trial or discharge the whole jury. Section 53C sets out the relevant provisions that the Court must have regard to and I have had regard to those provisions, I am of the opinion that there is no risk of a substantial miscarriage of justice in proceeding with a reduced number of jurors and on that basis I determined that the trial should continue. I reserved this judgment for those minutes that it took to reassemble the balance of the jury and advise them of the discharge of their fellow juror, answer their question from yesterday with respect to provocation and send them back out deliberating on their verdict. That delay was advisable in my view simply because of the fact that the jury had already been kept waiting for a significant period of time and it is, I think, unfair to them to keep them any longer. 29. My reasons however for the decision to, firstly, discharge the juror and having done so, the basis on which I formed the opinion that there is no risk of a substantial miscarriage of justice of continuing with eleven jurors are these: the trial has been a relatively lengthy one with five weeks of evidence and three weeks over which the jury has been deliberating, subject to the loss of some days as noted due to illness. 30. In terms of the question relating to the individual juror the discretionary discharge of an individual juror pursuant to s 53B, the Jury Act provides the Court with a power to discharge a juror if it appears to the Court that there is a reason affecting the juror's ability to perform the functions of a juror such that the juror should not continue to act in that capacity. 31. It does appear to me that there are reasons that affect the juror's ability to perform his functions as a juror. I am firstly concerned by the history of periodic illness of juror 77. As noted he was absent due to illness on 26 November during the course of the summing-up. He was absent due to illness during the course of the jury's deliberations on 9 December 2015 and he is absent today. 32. The medical certificates provided for each of those three occasions are inadequate. It is the sort of medical certificate easily obtained with no detail to suggest that the doctor issuing the certificate has given any consideration to the capacity of the juror to deliberate on a verdict in a criminal trial. 33. Whilst it would be unfair to draw any conclusions adverse to the juror with respect to the certificates provided for 26 November 2015 and 9 December 2015, in that, at that stage, there had been no instruction that a detailed certificate was to be obtained, that is not the position with respect to the certificate of this morning. 34. The certificate provided by Juror 77 this morning fails to comply in any way with the direction that he was given as to the sort of information the Court required detailing both the nature of his condition and the way in which that condition rendered him unfit for jury service. I regard the medical certificate as wholly inadequate. It does not, in my view establish that the juror is unavailable due to illness because the certificate does no more than select an option of "unfit for work". 35. There is in my view a significant difference between what is required of a person attending their place of work and what is required of an individual attending Court for jury service. As a starting point, jury service, whilst a matter of great responsibility and no doubt carrying a burden on individual jurors in that regard, is not something which is, for example, physically arduous. 36. The jurors are invited to assemble in a reasonably comfortable room where they are provided with all of their daily necessities and the period during which they assemble is confined to six hours. This jury has not been sequestered. They have not been detained beyond 4 o'clock on any day and the circumstances that apply to their deliberations are not arduous in any way other than that which I have already noted/ 37. The certificate provided today for Juror 77 says nothing to me about the capacity of the juror to undertake his obligations as a juror. That with the history of three days of illness during the course of the trial, each of which has been at a critical time in the trial, is a matter for significant concern. 38. Of itself it may well be that it is a sufficient indication that the juror is not taking his responsibilities with the high degree of seriousness that is required given the onerous nature of the obligation jurors perform. 39. But that is not all the information the Court has. The Court additionally has information from Inspector Brown, the officer-in-charge of the Office of the Sheriffs' at Darlinghurst as to two conversations that she had with Juror 77 during the course of today. 40. MFI 162 contains a record of the conversation between Inspector Brown and Juror 77 commencing at 8.10am today, when the juror rang to say, "I don't feel well today and I won't be in." The juror, when he was queried as to what is the problem, said no more than, "I am not well". There was no information provided as to the nature of his illness and how that illness impacted upon his capacity to travel to the court and to deliberate with his fellow jurors. 41. Inspector Brown emphasised to the juror the importance of attending a doctor immediately and sending a medical certificate to the court. The juror's response was to say, "It's only one day." He referred to his doctor not being open and when asked about that he indicated to Inspector Brown that he lives in the Kurnell area. It was nevertheless made plain to the juror how important it was that the Court receives the medical certificate, and to receive it quickly. 42. At 10.30 this morning a document marked for identification 163 records a second telephone conversation between Inspector Brown and the juror. It transpired from that conversation that, notwithstanding his asserted illness, the juror had not, in fact, taken any steps to go to a doctor as at 10.30 this morning, but had instead attended a community meeting. The juror made no reference this morning in his conversation with Inspector Brown to his intention or desire to attend a community meeting. It may be, as Ms Carroll submits, that he did not feel comfortable in raising his wish to attend that meeting as a reason for his non-attendance, but that to me, if it is so, is problematic. For a juror to claim illness so that he could, in fact, attend some other event is, in my view, a matter of potential misconduct. 43. Jurors have a very serious obligation, they have a duty to this Court and to the parties; those duties are significant, and they should be so regarded by jurors. Whether the juror always intended to attend the community meeting or whether he decided to attend it given that he was feeling unwell we cannot know, but what the information establishes to my mind is that the juror gave priority to attending a community meeting, presumably about the storm damage in the Kurnell area, over and above his obligation to either attend a medical centre and obtain a certificate for this Court as required, or attend this Court and continue his work as a juror. 44. I understand completely how people living in that area of Sydney could be distressed and concerned by what has happened, but if that is the juror's concern it was his obligation and his duty to advise the Court of that. If a juror acts to assert illness as a means of avoiding jury service when what is really intended is attendance at some community function, that would be quite improper, the course of events here, that series of circumstances, to me indicates that the juror is not treating his role as a juror with the gravity that is necessary and which is required. 45. The accused submits through Ms Carroll that the juror's unavailability today does not mean that he is unavailable on Monday, and that is certainly the case. The medical certificate provided covers the juror only for today and would not provide him with a basis upon which to fail to attend on Monday. However, given that the juror has now failed to attend jury service on three days there must be at least a reasonable prospect, particularly if he is concerned with events in his local community, particularly if he wishes to be present in his local community, either to show support to his neighbours or to gain information about the clean-up effort, or things of that nature, there is every reason to conclude that the juror may not be available during the course of further deliberations. 46. The jury has already had what I regard as a very lengthy period of time to determine the charge against the accused. They have had on verdict almost three-fifths of the amount of time spent in the courtroom hearing evidence. It is important that nothing occurs that distracts the jury from completing their task in deliberating on the evidence and returning a verdict. This delay today from the juror is such that it would have diverted the jury from attending to their very important functions and another day would have been lost of deliberations. Particularly at a time of year when Christmas is rapidly approaching it is important the jury devote their efforts to their role here in this Court rather than to other things which they may wish to attend. 47. For those reasons I determined that pursuant to s 53B(d) the juror should not continue to act as a juror and I have discharged him. Section 22 of the Jury Act provides for the continuation of a trial after the discharge of a juror. Section 53C relates to the discretion to continue the trial or to discharge the whole of the jury. Having determined to discharge Juror 77 I have given consideration to the provisions in s 22 and given that the number of the jury members is not reduced below ten I have turned to the provisions in s 53C and given consideration to those provisions. 48. In relation to the question of whether there is a risk of a substantial miscarriage of justice to the accused, or, indeed, to the Crown, in proceeding with 11 jurors I have heard submissions from the Crown and Ms Carroll. The Crown submits that there is no relevant risk of substantial miscarriage justice. Ms Carroll submits, as I outlined earlier, that there is such a risk in that the accused is deprived of one vote and possibly a vote in his favour. 49. The Court was referred to the decision of BG v R [2012] NSWCCA 139, but the circumstances in BG were very different to the circumstances that pertain here. The Court has received no information from the jury that would suggest that they are in dispute. There is no information that would suggest that they are or may soon be deadlocked. There is no information before the Court to indicate whether some jurors favour a particular verdict and some jurors favour the contrary verdict. There is no information at all upon which the Court or anyone else could speculate about the views of the discharged juror. He may be undecided given that the deliberations are ongoing; he may have a view in favour of conviction, he may have a view to the effect that the Crown has failed to prove its case beyond reasonable doubt, we simply cannot know. It is purely speculative to have regard to the possibility that his verdict would favour the accused as a basis upon which to conclude that there is a risk of a substantial miscarriage of justice. 50. In my view, the risk of injustice comes from needlessly prolonging these proceedings. The closer the proceedings get to Christmas there may be a possibility of the jury feeling some pressure, simply due to their own commitments if they have any. It is important that the jury work diligently each and every day unless there is truly some reason which incapacitates one or more individual jurors and I am not satisfied, as indicated, that there is such a reason with respect to Juror 77. 51. The remaining jurors have at all times demonstrated a level of attention to the evidence, the submissions, the summing-up, which is demonstrative of a cognisance of the importance of their function and cognisance of the importance of attendance to their task. There is no reason to conclude that the jury absent Juror 77 will be compromised in the return of any verdict that they reach. There is also no reason to conclude 11 jurors are incapable of returning a verdict which is sound in law and which is acceptable to the community. That must be the case given that the legislature has provided for majority verdicts, that being a verdict of either 11 in a 12 person jury or ten in an 11 person jury. 52. I have had regard to all of those features of the matter and to ss 22 to 53B to 53C. I have had regard to the length of this trial, the number of witnesses who have been obliged to come and give evidence and be cross-examined, the length over time at which the accused has been obliged to travel from the south coast to Sydney each day, the importance to the community as a whole of a verdict being returned in this matter with due expedition. I have also had regard to what was said by the Court of Criminal Appeal in Le v R [2012] NSWCCA 202. Having considered all of those matters, I have formed the view, which grounded the orders I made this morning discharging Juror 77 pursuant to s 53B(d), and then determining that the trial will continue with 11 jurors. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2024