R v Rogerson; R v McNamara (No 27) [2016] NSWSC 152

Supreme Court New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 27) [2016] NSWSC 152 Hearing dates: 29 February 2016 Date of orders: 29 February 2016 Decision date: 29 February 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [16] Catchwords: CRIMINAL LAW – Practice and Procedure – Member of the jury falling asleep during the evidence – Risk of substantial miscarriage of justice – Juror discharged Legislation Cited: Jury Act 1977 (NSW) Category: Procedural and other rulings Parties: Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused Representation: Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Ms K Shead – Accused McNamara

Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara File Number(s): 2014/157408; 2014/156921 Publication restriction: Nil

Judgment EX-TEMPORE (REVISED) 1. Today marks the commencement of week five of this trial. Following commencement of proceedings this morning, and in accordance with my customary practice, I made periodic observations of the members of the jury as evidence was being given. In the course of doing so, I observed that one of the members of the jury, a male who was then seated adjacent to the foreperson, appeared to be closing his eyes and falling asleep on a regular basis. 2. I proceeded to pay particular attention to that member of the jury as the evidence led up to the morning tea adjournment. It was evident to me from those observations that he was struggling to stay awake, and was clearly asleep for broken periods over that time. 3. During the course of the morning tea adjournment, I spoke with the Crown and counsel for each of the accused in chambers, at which time I appraised them of my observations. I invited each of them to undertake their own observations when proceedings resumed after morning tea and indicated that I would do the same. 4. When I did so, the pattern of the juror's behaviour was much the same as it had been earlier that morning. There were numerous periods in which the juror was clearly asleep. When an adjournment was taken shortly before lunch the Crown indicated that he (understandably) had not had the opportunity to make any sustained observations but did say that he had briefly noticed the juror apparently closing his eyes. 5. Ms Shead, who appears for the accused McNamara indicated to me that following the morning tea adjournment she had made her own observations of the juror in question. Those observations, to use her words, were that the juror had his "eyes closed and head down". Ms Shead also said this was not the first occasion in which she, and those who instruct her, had noted this to be the case. She cited an instance a couple of weeks ago where a similar situation had arisen, albeit though one that was brief compared to what had occurred this morning. 6. Mr Thomas of counsel who appears for the accused Rogerson indicated he had noted last week that the juror "appeared to have his eyes closed for a short period". He raised the question of whether or not it would be appropriate for me, in the absence of counsel, to make a specific inquiry of the juror to ascertain, amongst other things, whether or not he might be suffering from some medical condition that served to explain what had occurred. As to that suggested course I observed at the time, and I observe again, that even if the juror in question is suffering from some medical condition, it does not alter the fact that he has been asleep for periods during this trial, not only today but before today, and as such could not possibly have been paying attention to the evidence. 7. I then gave all parties an opportunity to consider their respective positions and, in the case of counsel for each of the accused, an opportunity to obtain instructions. Upon resumption this afternoon Ms Shead has made an application that the juror be discharged. Mr Thomas made no formal application and did not seek to add to the submissions that he had made to me earlier today. The Crown did not make a formal application but at the same time made it clear that, accepting the accuracy of the observations that I have summarised, it seemed not only appropriate but mandatory that the juror be discharged. 8. The Jury Act 1977 (NSW) (the "Act") contains two particular provisions which govern the power of the Court to make an order discharging an individual juror. Section 53A makes provision for the mandatory discharge of an individual juror and is in the following terms: 53A Mandatory discharge of individual juror (1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest: (a) it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or (b) the juror has become excluded from jury service, or (c) the juror has engaged in misconduct in relation to the trial or coronial inquest. (2) In this section: "misconduct" , in relation to a trial or coronial inquest, means: (a) conduct that constitutes an offence against this Act, or Note : For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror. (b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest. 1. Section 53B of the Act confers an additional, and wide, discretion on the Court to discharge an individual juror in particular defined circumstances, 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. 1. The definition of the word "misconduct" as it appears in s. 53A of the Act is a wide one. In particular, s. 53A(2)(b) makes it clear that misconduct includes any conduct falling short of conduct constituting an offence which, in the opinion of the Court, gives rise to the risk of a substantial miscarriage of justice. 2. The inability of a member of a jury to stay awake and listen to the evidence as it is being given, and the propensity of that inability to give rise to the risk of a substantial miscarriage of justice, needs no further comment. 3. Fundamental to the right of an accused person, and indeed the Crown, to a fair trial, is the proposition that all members of the jury should be alert, attentive, and in a position to follow and comprehend the evidence as it is being given. It is impossible for a juror to discharge that function if he or she is asleep. Any further observation in relation to that would be superfluous. 4. I should also emphasise that my observations of the juror are specifically consistent with those of Ms Shead, and generally consistent with those of Mr Thomas and the Crown Prosecutor. 5. In those circumstances, it is not necessary for me to consider the provisions of s. 53B of the Act although I should say that had I been required to do so I would have come to the view that the member of the jury was not able to perform his functions and should not continue to act as a juror. 6. For those reasons, I propose to make an order discharging the juror in question. I will have the juror come into court by himself, at which time I will explain to him, in brief terms, why I have taken the course that I have. I will then ask the officer to ensure that he is taken from the court, following which we will resume with the remaining 13 jurors. It is appropriate that the remaining 13 jurors be informed, again in general terms, of why this course has been taken. In explaining that, I propose to take the opportunity to remind the members of the jury of the necessity to listen carefully at all times to the evidence as it is given. 7. For those reasons, I make the following orders: 1. Pursuant to s. 53A of the Jury Act 1977 (NSW), juror number 01453654 from call number 650-8 is discharged. 2. Pursuant to s. 53C(1)(b) of the Jury Act 1977 (NSW) the trial is to continue with a reduced number of jurors, namely 13 jurors.