R v Issakidis [2016] NSWSC 1102

Supreme Court New South Wales

Medium Neutral Citation: R v Issakidis [2016] NSWSC 1102 Hearing dates: On papers Date of orders: 11 August 2016 Decision date: 11 August 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: Consent to jury investigation refused. Catchwords: JURY – the jury in criminal proceedings – request for jury investigation – Jury Act, s 73A – consent of Supreme Court required – consent declined – no power to conduct investigation as no "verdict" – jury unable to reach a verdict – no reasonable basis to suspect jury irregularity Legislation Cited: Criminal Code 1995 (Cth) Jury Act 1977 (NSW) Cases Cited: Anderson v Ntzounas [1988] VR 748 Lodhi v Attorney General of New South Wales [2013] NSWCA 433 Category: Procedural and other rulings Parties: Crown (Commonwealth Prosecutor) Michael John Issakidis (Accused) Representation: Solicitors: Peter Shields (Accused) File Number(s): 2012/128506 Publication restriction: Nil

Re: R v issakidis and request for consent under s 73A of the Jury Act 1977 (NSW) 1. On 16 March 2016, Michael John Issakidis was arraigned before a jury panel on an indictment that charged him with two counts under the Criminal Code Act 1995 (Cth). 2. After a number of days of deliberations, on 7 June 2016, I discharged the jury. To that point the jury had been unable to reach a unanimous verdict. After the foreperson was examined on oath, I was satisfied that it was unlikely that the jury would reach a unanimous verdict (Jury Act 1977, s 56(1)). 3. On 14 June 2016 the solicitors for the accused wrote to the sheriff seeking the conduct of an investigation under s 73A of the Jury Act 1977 into the trial that was conducted from "7 March 2016 to 7 June 2016". In fact, the trial took place from 16 March 2016 to 7 June 2016. Mr Issakidis was arraigned on 7 March 2016 but the jury in that trial was discharged on 14 March 2016. 4. Section 73A provides: "73A Investigation by sheriff of jury irregularities (1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation. (2) Section 68A (1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation. (3) Section 68B (1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation. (4) Section 139 (2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official). (5) The sheriff may, despite sections 29 and 68, include a juror's name or other matter that identifies a juror in a report to the court under this section." 1. Section 75C defines an irregularity in relation to performance of a juror's function as a jury to mean inter alia: "(c) the refusal of the juror to take part in the jury's deliberations, … (e) the juror's inability to be impartial … any reasonable apprehension of bias … on the part of the juror, or any similar reason." 1. The basis for the application arises out of the evidence given by the foreperson at the time the jury were discharged. The foreperson referred to divisions between the jurors. He was not asked to and did not identify the nature of those divisions. In his answer to a question from the Court as to how long the divisions had been evident the foreperson stated that "the best way I can put is that within about two weeks to the case starting there was definitely …". Although the rest of the answer was cut off, it is likely the foreperson was about to indicate something to the effect that there were strong views within the jury from an early point in the trail. In concluding that the jury should be discharged, I stated the effect of that evidence was "that the divisions of the jury were fundamental and longstanding and appeared in fact to predate both the closing addresses and the summing up". 2. In support of the application for an inquiry, the solicitors for Mr Issakidis state that, having regard to the complexity of the Crown case and the amount of material relied on, "it is quite evident that a reasonable, unbiased juror could not have a formed a strong, let alone a concluded, opinion prior to hearing the totality of the evidence and being instructed as to the law which must be applied." It was asserted that the foreperson's evidence indicated that it was apparent that "one or more jurors have, in terms of s 75C(4) improperly refused to take part in deliberations and have demonstrated, for whatever reason, a reasonable apprehension of bias." 3. Upon the sheriff receiving the request for an investigation the matter was referred to me as the trial judge for the purpose of determining whether the Supreme Court would give the "consent" referred to subsection 73A(1). I advised the sheriff that no such consent would be given. The solicitors for Mr Issakidis were advised accordingly. There being no form of appeal or review on foot in relation to the outcome of that trial it follows that the giving of the consent by the Court is purely an administrative function (Lodhi v Attorney General of New South Wales (2013) NSWCA 433 at [19]). In such circumstances where there is no request for any reasons for the failing to give consent there is no obligation on the judge who does so to provide reasons although the position is less clear if a request is made (cf Lodhi at [30]). Nevertheless, I considered it appropriate that reasons be provided. 4. I refused to provide consent for two reasons. The first is that s 73A is simply not engaged in the circumstances that occurred. Sub-section 73A(1) only allows for an investigation following a "verdict" of a jury in a trial on any criminal proceedings". Sub-section 4(1) of the Jury Act defines verdict "as including on assessment in civil proceedings". It is unnecessary to exhaustively state what is encompassed by a "verdict" (see Anderson v Ntzounas [1988] VR 748), but it does not include a failure to reach a verdict. There was no verdict in the trial referred in the letter from Mr Issakidis' solicitor, only a non-verdict. It follows that the power to conduct an investigation conferred by s 73A is not engaged. 5. Second, I do not consider that the matters raised by Mr Issakidis' solicitor gives rise to reasonable basis for a suspicion that there was any jury irregularity of the kind suggested. The fact that there may have been a division of opinion between the jurors from an early stage of a trial does not indicate that any of the jurors reached a state of mind whereby they were unprepared to be persuaded by the evidence and the arguments that were to follow. By an early stage of the trial the jury had the benefit of the Crown opening and the outline of the defence case. The jury were instructed from the outset that they needed to engage with and absorb the evidence as it unfolded. The fact that in doing so they had different opinions, which they expressed to each other, is unremarkable. In these circumstances to accede to this request would substantially "intrude upon or reveal the deliberations of the jury" (cf Lohdi at [75])).