Supreme Court New South Wales Medium Neutral Citation: R v Turnbull (No. 7) [2016] NSWSC 517 Hearing dates: 22 April 2016 Date of orders: 22 April 2016 Decision date: 22 April 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: 1. Pursuant to s.53B Jury Act 1977, the individual juror who has made application to be discharged is discharged. 2. The balance of the jury is discharged. 3. New trial to commence on Tuesday, 26 April 2016. Catchwords: CRIMINAL TRIAL – jury - juror raises family health issue after empanelment of jury - no application by juror to be excused from jury panel - juror applies to be discharged - juror discharged - s.53B(d) Jury Act 1977 - whether trial should proceed with a jury of 11 - factors under s.53C - balance of jury discharged Legislation Cited: Jury Act 1977 Cases Cited: Le v R [2012] NSWCCA 202 R v Karimi; R v Khoury; R v Mir (No. 2) [2013] NSWSC 199 R v Jacobs [2013] NSWSC 942 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Ian Robert Turnbull (Accused) Representation: Counsel: Mr PE Barrett (Crown) Mr T Alexis SC; Ms C O'Neill (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Cole & Butler (Accused) File Number(s): 2014/223920 Publication restriction: --- Judgment 1. JOHNSON J: Yesterday, the Accused, Ian Robert Turnbull, was arraigned upon a charge of murder, to which he pleaded not guilty, and a jury was empanelled for his trial. 2. Following introductory comments from me to the jury, both the Crown and senior counsel for the Accused made opening addresses to the jury. The trial was adjourned until today, with the taking of evidence to commence this morning. 3. This morning, the Sheriff's Officer brought to my attention a note provided by a member of the jury. The juror in question has indicated in the note (MFI4) that a close relative is receiving treatment for cancer with surgery expected to take place in early May. The juror indicates that she is the primary carer for the relative. The juror indicates in the note: "Due to this circumstance, I'm afraid that I won't be able to serve my duty as a juror". A medical certificate is attached to the note which confirms the illness of the close relative. 4. It is most unfortunate that the juror in question did not reveal these matters yesterday by way of an application to be excused from jury service. I went to considerable lengths to explain to the panel the importance of potential problems being identified before empanelment. The health difficulties of the juror's relative represent a state of affairs which existed yesterday. This is not a sudden development overnight. However, the juror has raised this matter this morning and the Court must deal with it. 5. Section 53B Jury Act 1977 permits the Court to exercise discretion to discharge an individual juror in certain circumstances. It does not seem to me that any of the circumstances referred to in s.53B(a), (b) or (c) presently operate. 6. Section 53B(d) states that the Court may discharge a juror if it appears to the Court that, for any other reason affecting the juror's ability to perform the functions of a juror, a juror should not continue to act as a juror. This is a broad category which clearly picks up a range of circumstances not otherwise identified in the section. 7. Both the Crown and senior counsel for the Accused submit that a proper basis has been demonstrated to discharge the individual juror. At the least, it can be said that, if this juror remains on the jury, she is likely to be distracted and, for practical purposes, reluctant. I am satisfied in the circumstances that the appropriate course is to discharge the juror who has made application to be discharged from the jury. 8. A second and separate question which must be considered is whether the trial of the Accused should continue with a jury of 11. Section 53C Jury Act 1977 states, relevantly, that if the Court discharges a juror in the course of a trial, the Court must discharge the jury 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. If the Court is of the opinion that there is no such risk, and, subject to s.22 of the Act, the Court may order that the trial continue with a reduced number of jurors. 9. 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 should proceed with a jury of 11. 10. Apart from the terms of s.53C, the Court of Criminal Appeal has made clear that there are other discretionary factors to be taken into account in this, the second phase of decision-making: Le v R [2012] NSWCCA 202. 11. The Crown has submitted that the trial should proceed with a jury of 11. In support of this, the Crown submits that this is a relatively short trial of three-to-four weeks' duration and that the concerns that might arise about the risk of losing another juror (to go from 11 to ten jurors) are of limited application in the circumstances of a short trial. It is submitted, as well, that there are witnesses who are anxious that the matter proceed, given some delays which have occurred as a result of certain pretrial issues which required resolution. 12. It has been submitted for the Accused that, if the trial was to continue with a jury of 11, there would be a risk of a substantial miscarriage of justice which would flow from the suggested gender imbalance that would result. The jury, as presently constituted, contains eight men and four women. The juror whom I have discharged is a woman, so a jury of 11 would be constituted by eight men and three women. 13. I do not think that this factor is capable of giving rise to a risk of a substantial miscarriage of justice. The very process of selection of a jury from randomly gathered members of a community means that the gender balance of a jury is always uncertain. In some cases, there may be a significantly larger number of one sex to the other. I do not think this factor is relevant to the exercise of discretion. 14. The other matter raised by senior counsel for the Accused is a significant one. It has been said in other trials where, at a very early stage, something happens that leads to a juror being discharged, that the Court should keep firmly in mind the prima facie entitlement of the Accused and the community to have an accused person tried for an alleged serious crime by a jury of 12 persons: R v Karimi; R v Khoury; R v Mir (No. 2) [2013] NSWSC 199 at [23]; R v Jacobs [2013] NSWSC 942 at [13]. That is an important factor in the exercise of discretion. That said, ss.53B and 53C allow the Court to discharge a juror and to proceed with a trial with a reduced number of jurors. So, that proposition is not a controlling factor in the exercise of discretion. 15. There are some other matters which I should mention. The decision which the Court must make involves a choice between a number of options. 16. Firstly, to continue with a jury of 11 being the course proposed by the Crown and opposed by the Accused. 17. Secondly, to discharge the jury but to proceed to empanel another jury today from the balance of the panel used yesterday (26 persons who are in this Court building today) and to utilise, potentially, the remaining 11 jurors who are on the jury at present. That would leave a pool of 37 persons from which a jury could be selected. 18. Both the Crown and the Accused oppose the second option. It is submitted that the trial has reached a point where both opening addresses have been made. This is not a trial where the problem has presented itself before the commencement of opening addresses. It is submitted, as well, that the intermingling of the 11 jurors with the 26 persons from yesterday, in circumstances where the 11 have heard opening addresses and the others have not, may give rise to problems. A further factor which I take into account is that the 26 members of the panel, who were here yesterday and who are back here today, have not been subjected to the embargo which applies to the jury about internet and other researching about the case. I do not think, on balance, that utilising the balance of the panel today, with or without the 11 members of the jury, is the appropriate course to take. 19. That brings me to the third option, which is to discharge the entire jury and to commence again next Tuesday with a fresh panel. That is the course which senior counsel for the Accused submits that I should take. 20. There is a further submission made on behalf of the Accused in that respect. That is, if the Court takes that course, there ought be a non-publication order on what has happened today, including the discharge of the jury. It is submitted that this step would be appropriate in circumstances where there has been overnight very substantial publicity about the commencement of this trial. If there was publicity of the fact that the present jury is discharged and a new jury was to be empanelled on Tuesday, it is submitted that panel members attending this Court on Tuesday would have a potential trigger to conduct internet searching about the trial between now and then. 21. One response to that argument may be to not empanel next Tuesday, but to defer the commencement of the trial for a period of time. I do not think that a delay of that sort would be appropriate. It is true that this trial has come on relatively quickly in this Court. The Accused first appeared in this Court in December 2015 and the trial commenced five months later. The Accused is 81 years old. There are many people affected by this trial, directly and indirectly, who have an interest in the trial proceeding without any further delay. 22. That brings me back then to the critical issue for decision. 23. I have considered whether the process of ending this trial today, so as to commence a new one on Tuesday, involves an unavoidable risk of the jury panel on Tuesday being, in some way, influenced by knowledge of what has happened in this trial and the potential for internet searching by panel members. If I thought that was a very substantial risk, then it would operate in favour of the continuation of the present trial with a jury of 11. 24. I approach the matter, however, upon the basis that the usual expectation of a trial of a person on a serious charge (and murder is the most serious charge of all) is that the trial is to proceed with a jury of 12. 25. In the end, I am satisfied that the appropriate course to take is to discharge the balance of the present jury and to direct that the trial of the Accused commence next Tuesday before a fresh panel. 26. I am satisfied, in the unusual circumstances of this case, that there should be a non-publication order made with respect to everything that has occurred this morning, including the orders that I am making as part of this judgment. I am satisfied that that order is appropriate to protect the administration of justice in the relatively short period between now and Tuesday. 27. Once a panel is here on Tuesday, and the empanelment of a new jury is underway, there would be no impediment to informing that jury panel, who would be under the control of the Court, that the previous jury was discharged. 28. As part of the empanelment process on Tuesday, I will enquire whether any panel member has undertaken any electronic or other searching about this case so that any person can apply to be excused from the panel. 29. I agree with the submission of senior counsel for the Accused that the media publicity about this trial reflects what was said by both the Crown and senior counsel for the Accused in their opening addresses. There has been a balance in the reporting to date. 30. However, I am satisfied that a temporary non-publication order should be made concerning today's events for the reasons I have expressed. 31. Shortly, I will bring in the jury and give them what will no doubt be unhappy news. For the 11 who are in attendance for the purpose of serving on this jury, they will no doubt be disappointed. However, I consider that the administration of justice requires that I take the course which I have indicated. 32. Pursuant to s.53B Jury Act 1977, I discharge the individual juror who has made application to be discharged. 33. I direct that the balance of the jury be discharged. [Further submissions made] 1. The trial of the Accused will commence next Tuesday, 26 April 2016 and an expanded jury panel is required for that purpose. ********** 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: 14 June 2016