Supreme Court New South Wales Medium Neutral Citation: R v Finley [2016] NSWSC 327 Hearing dates: 22 March 2016 Date of orders: 22 March 2016 Decision date: 22 March 2016 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) An individual juror is discharged. (2) The remainder of the jury is discharged. Catchwords: CRIMINAL LAW – juror knowledge of victim and individuals associated with case – application to discharge individual juror – contamination of jury - application to discharge remainder of jury Legislation Cited: Evidence Act 1995 (NSW), s 65 Jury Act 1977 (NSW), ss 53B, 53C Cases Cited: Wu v R [1999] HCA 52; (1999) 199 CLR 99 Category: Procedural and other rulings Parties: Regina Laurence Charles Finley Representation: Counsel: C Todd (Crown) A Webb (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Herring & Associates (Accused) File Number(s): 2014/7593 Publication restriction: Not to be published until the completion of the trial. Judgment 1. Earlier today I discharged the entire jury that had been empanelled in this trial. These are my reasons for doing so. 2. Before the arraignment of the accused on the charge of murder (and in the alternative manslaughter and dangerous driving causing death), I was informed that the jury panel available today consisted of only 22 citizens. I was further informed that four of them were seeking to be excused. I raised those facts with counsel, along with the fact that, due to a number of logistical problems that do not need to be detailed, there were no other panels available later in the sittings. Having taken time to reflect and obtain instructions, each counsel was content to at least try to empanel a jury. 3. In the event, sixteen members of the jury panel were available to be empanelled after a number of them were excused by me. The parties saw no need to exercise their full number of challenges, and a jury of twelve was empanelled before morning tea. 4. Before that process occurred, the Crown prosecutor had, in accordance with my usual invitation, read out in the presence of the panel a précis of the Crown case, along with a list of Crown witnesses and of persons who would be mentioned in the evidence. A number of panel members applied to be excused on the basis of their connections with the persons involved in the trial, and at least one of those applications was granted by me. 5. During morning tea, I received a note from a juror to the effect that she knew, or knew of, four persons involved in the trial. They included the deceased and his mother. Upon resumption, and in the absence of the jury, I provided the parties with copies of that note and read aloud the majority of its contents in open court (some details were omitted in order to protect the privacy of the juror). That note was marked Jury Note 1 and remains on the court file. 6. Thereafter, with the concurrence of counsel, I examined the juror on oath. She gave evidence that she had formed an assessment (whether positive or negative) of at least the deceased and his mother. Although I did not explicitly ask her to detail whether those assessments were in fact either positive or negative, she gave evidence that her assessment of the deceased (who was two years below her at high school) was a positive one. 7. Furthermore, she gave evidence that, in the short period that passed between the commencement of morning tea and its end, she had provided her assessments of persons involved in the trial to other members of the jury. 8. By way of background to the trial itself, the Crown case statement is before me as Voir Dire Exhibit A. It shows that the Crown case is that there was an ill-tempered interaction between the accused and the deceased that culminated in a collision between a motor vehicle driven by the accused and the person of the deceased. Some days later, the deceased died as a result of the injuries inflicted by that collision. The Crown case is that the accused drove the car deliberately at the deceased with an intention to inflict grievous bodily harm upon him. The defence case as foreshadowed to me is that the accused did not have that intention; in any event, whatever he did on the evening in question was done in self-defence. 9. The accused engaged in at least one recorded interview with police. The deceased also gave a version of what occurred before he died, and I understand that there is no dispute that it is admissible pursuant to s 65 of the Evidence Act 1995 (NSW). 10. In other words, there will need to be an assessment by the jury of what actually occurred in the moments before the collision. More generally, there will need to be an ascribing of responsibility for what happened, in the sense of who was the aggressor against whom. Furthermore, there will need to be some assessment of the credibility of the versions of events given by the accused and the deceased. 11. In those circumstances, the parties jointly submitted that the individual juror should be discharged. In accordance with what was said in Wu v R [1999] HCA 52; (1999) 199 CLR 99, the parties accepted that the question of whether the remaining eleven jurors should be discharged is an entirely separate one. I understood their joint position to be that, if it had not been the case that the juror had passed on her positive assessment of (at least) the character of the deceased, they would have been content for the trial to continue with eleven jurors. But in light of the sworn evidence that she had indeed done so, combined with the gravity of the primary count against the accused, and the particular circumstances of this case, there was no alternative to discharging the remainder of the jury and commencing the trial again as soon as reasonably practicable. They eschewed the possibility that a direction to the remaining jurors that they should focus only upon the evidence presented in court would be a sufficient remedy. 12. I accepted the joint position of the parties. 13. As for the initial question of whether the individual juror should be discharged, I agree that, in the circumstances, despite her confidence that she could serve as a fair and impartial juror, nevertheless she should be excused from further service. I came to that view based upon the gravity of the charge; the fact that she had had some contact not only with the deceased but also with his mother; the fact that she had made a positive assessment of at least one of them; and the fact that the trial will involve a process of assessing the credibility of two men and, to some degree, ascribing responsibility for what occurred between the two of them. In those circumstances, I felt it appropriate to exercise my discretion pursuant to s 53B of the Jury Act 1977 (NSW) to discharge the individual juror. 14. As for the second, separate question as to whether the entirety of the jury should be discharged, I took the view that, if it had not been the case that the juror had passed on her assessments to the other members of the jury, there would be no need for that to occur. But in light of the clear evidence that that had occurred (even, regrettably, in the time that it takes to have morning tea), combined with all of the other facets of the trial to which I have referred, I came to the view that the entirety of the jury should be discharged as well, pursuant to s 53C of the Jury Act, because to continue would give rise to a risk of a substantial miscarriage of justice. And I took that view even though, at least at that stage, I believed that logistical difficulties stood in the way of recommencing the trial in a timely manner. 15. It is for those reasons that earlier today I ordered: 1. An individual juror is discharged. 2. The remainder of the jury is discharged. ********** 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: 15 April 2016