R v JH (No 4) [2014] NSWSC 1967

Supreme Court New South Wales

Medium Neutral Citation: R v JH (No 4) [2014] NSWSC 1967 Hearing dates: 25-28 August 2014 Decision date: 28 August 2014 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Pursuant to s 53C of the Jury Act 1977, order made that the trial continue with eleven jurors Catchwords: CRIMINAL LAW – juries - application that the whole jury be discharged following the discharge of a juror in accordance with s 53A of the Jury Act 1977 – no risk of a substantial miscarriage of justice – trial to continue with remaining eleven jurors Legislation Cited: Jury Act 1977 Cases Cited: Crofts v The Queen (1996) 186 CLR 427 R v JH (No 3) [2014] NSWSC 1966 R v K [2003] NSWCCA 406; 59 NSWLR 431 R v Rinaldi & Kessey (1993) 30 NSWLR 605 Wu v The Queen (1999) 199 CLR 99 Category: Procedural and other rulings Parties: Regina (Crown) JH (Accused) Representation: Counsel: P Leask (Crown) J Hickleton (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Uther Webster & Evans (Accused) File Number(s): 2011/190145 Publication restriction: Non-publication order made in respect of the name of the Accused and all witnesses who were underage at the time of the offence

JUDGMENT 1. On 28 August 2014 I made an order pursuant to s 53A(1)(c) of the Jury Act 1977 ("the Act") discharging a juror on the basis of "misconduct" within the meaning of s 53A(2) of the Act. 2. Following the making of that order an application was made by Ms Hickleton, counsel for the accused, for an order discharging the whole jury pursuant to s 53C(1)(a) of the Act. 3. After hearing submissions on behalf of the accused and the Crown, I determined that there did not exist a risk of a substantial miscarriage of justice were the trial to continue with a jury of eleven. I accordingly formed the view that the trial should continue before the jury of eleven. I indicated that I would publish my reasons at a later date.