Barber v R; Zraika v R [2016] NSWCCA 125

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Barber v R; Zraika v R [2016] NSWCCA 125 Hearing dates: 14 June 2016 Date of orders: 14 June 2016 Decision date: 23 June 2016 Before: Bathurst CJ, Basten JA, Button J Decision: (1) Grant applicants leave to appeal, but dismiss the appeal.

(2) Vacate the stay.

(3) Direct the Sheriff to advise jurors that they have been finally discharged, as ordered by the trial judge on Thursday 9 June 2016. Catchwords: CRIMINAL LAW – appeal – application for leave – discharge of jury by trial judge – jury unable to agree as to one accused – jury not invited to consider charges against applicants – whether decision to discharge erroneous – whether relief available after discharge took effect and jury released – s 5G Criminal Appeal Act 1912 (NSW)

JURIES – discharge before judge summed up charges against accused – refusal to stay decision to discharge – whether decision to discharge erroneous – whether stay of decision effective to protect against prejudice Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5F, 5G, 11 Jury Act 1977 (NSW), ss 22, 53C, 55D, 55DA, 55F, 68C Cases Cited: Dietz v Bouldin 579 US _ (2016); Slip opinion House v The King (1936) 55 CLR 499 R v Abdul-Razzak [2006] NSWCCA 195 R v Cheng (1999) 48 NSWLR 616 Remmer v United States 347 US 227, 229 (1954) Smith v The Queen (1970) 121 CLR 572 Smith v Massachusetts, 543 US 462, 473-474 (2005) Texts Cited: NSW Law Reform Commission, Jury Selection – Report 117, pars 11.52-11.55 Category: Principal judgment Parties: In matter 2014/180279: