R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773

Supreme Court New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773 Hearing dates: 7 June 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [16] Catchwords: CRIMINAL LAW – Jury – Where jury deliberations had commenced and had proceeded for several days – Where juror fell ill – Medical Certificate stating that the juror would be ill for one day – No reference made to the possibility of the juror's illness extending beyond that – Where Crown sought that the juror be discharged and an order made that the deliberations continue with 11 jurors – Application opposed – Application refused Legislation Cited: Jury Act 1977 (NSW) Cases Cited: R v Wu [1999] HCA 52; (1999) 199 CLR 99 Wu v R (1998) 103 A Crim R 416 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 Mr G Wendler – Accused McNamara

Solicitors: Director of Public Prosecutions – Crown Katsoolis and Co – Accused Rogerson AHA Taylor Lawyers – Accused McNamara File Number(s): 2014/1574082014/156921 Publication restriction: Nil

Judgment EX TEMPORE - REVISED 1. The jury in these proceedings retired in the early afternoon of Thursday 2 June 2016. At approximately 8.45 am today I was advised by the Sheriff that a member of the jury had telephoned to say that he had fallen ill and could not attend court. At that stage I was given no further information about the nature and extent of the juror's illness. I requested the Sheriff to ensure that a medical certificate was provided to me by 2pm today. 2. When the Court convened at 10.00 am I informed counsel of what had transpired. The Crown foreshadowed that he may make application that the juror be discharged and that the deliberations continue with a jury of 11. The Crown asked I take whatever steps might be available to expedite the provision of a medical certificate. In indicating his position, the Crown made reference to (inter alia) the desirability of ensuring, if at all possible, that the jury's deliberations continued without interruption. 3. The Sheriff, at my direction, then telephoned the juror to enquire firstly as to the nature of his illness, and secondly as to what arrangements he had made to obtain medical assistance. The Sheriff was informed that the juror had made arrangements to attend upon a medical practitioner at 10.45 am today. The Sheriff was also informed by the juror that he was suffering from some form of gastroenteritis, and that he was prone to suffering from anxiety. The nature and extent of the latter condition was not further explained. The information provided to the Sheriff was conveyed to counsel. 4. A medical certificate (which is now MFI 217) was subsequently received and provided to me, from which I redacted information which had the potential to identify the juror in question. The Certificate read: "Mr (name of juror) is medically unfit for jury duty today as he has acute viral gastritis today." 1. The certificate is under the hand of Dr Tien Phan. It made no reference to the anxiety to which the juror referred in his earlier conversation with the Sheriff. 2. Appraised of that information, the Crown made an application that I exercise my discretion to discharge the juror and order that the trial continue with eleven members of the jury. The Crown submitted that central to the exercise of my discretion was the necessity to maintain what he described as "the integrity of the trial process". The Crown submitted that the jury were obviously working towards a verdict and had been retired now for some days and that in the circumstances, and even though there had been an intervening weekend since the jury's deliberations commenced, it was undesirable to have the continuity of those deliberations further interrupted. 3. The Crown submitted that even if the discretion was exercised in favour of discharging the juror, there was no danger of the number of the jury descending to anywhere near the minimum number required. The Crown further submitted that, in light of the terms of the certificate, there was a level of uncertainty as to whether the juror would be able to resume tomorrow. The Crown also pointed out that the certificate made no reference to the juror's reported anxiety. The Crown submitted that a combination of all of these factors supported the making of an order that the juror be discharge. 4. Mr Wendler, who appears for McNamara, opposed the Crown's application. Although he made references to the determination being mandatory, he ultimately accepted that it was a matter for the exercise of my discretion, taking into account all relevant factors. He submitted that the operative section was s. 53B(a) of the Jury Act 1977 NSW ("the Act") and that, if I concluded that the discretion should not be exercised under that section, I should then proceed to consider the wider discretion contained in s. 53B(d). Shortly put, Mr Wendler's position was that the evidence established nothing more than the fact that the juror could not attend today. He pointed out, in particular, that there was no evidence before the Court which indicated, one way or the other, what the position might be tomorrow. Although he accepted that if the present situation was to extend into the Crown's position would be stronger, he submitted that to discharge the juror at this point would be premature. 5. Mr Thomas, who appears for Rogerson, also opposed the Crown's application and essentially adopted the submissions made by Mr Wendler. In doing so, he submitted that to the extent that any inference could be drawn from MFI 217, it was that the juror's inability to discharge his functions extended (at least at this point) only to today. He submitted that in light of the length of this trial, the loss of one day would cause no real disruption. Like Mr Wendler, Mr Thomas also appeared to accept that the position might be different if the present situation prevailed tomorrow. 6. Section 53B of the Act is in the following terms: Discretionary discharge of individual juror