R v Ronald Edward Medich (No. 10) [2017] NSWSC 32

Supreme Court New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 10) [2017] NSWSC 32 Hearing dates: 3 February 2017 Date of orders: 03 February 2017 Decision date: 03 February 2017 Jurisdiction: Common Law Before: Bellew J Decision: 1. Juror 192-88 is discharged.

2. I direct that the trial continue with a jury of 14. Catchwords: CRIMINAL LAW – Procedure – Discharge of member of the jury – Where jury given an estimate of 3 months for the trial – Where note received from a member of the jury – Where that member's employer was said to be seeking "legal advice" about the juror's continued participation in the trial – Where the note expressed the juror's concerns about potential ramifications upon his employment if he were required to continue to serve – Juror discharged Legislation Cited: Jury Act 1977 (NSW) Category: Principal judgment Parties: Regina – Crown Ronald Medich – Accused Representation: Counsel: Ms G O'Rourke SC and Ms J Harris – Crown Mr W Terracini SC, Ms M Curry and Mr T Quilter – Accused

Solicitors: Director of Public Prosecutions, New South Wales – Crown

Colin Daley Quinn – Accused File Number(s): 2010/356916 Publication restriction: Nil

Judgment

INTRODUCTION 1. In the course of an adjournment of these proceedings this morning I was approached by the officer who has the day-to-day responsibility of caring for the members of the jury. The officer informed me that one of the members of the jury had asserted that his employer was "seeking legal advice" regarding his continued attendance as a member of the jury in this trial. I immediately directed the officer to have the juror provide me with a formal note so I could raise the matter with counsel. 2. A note was subsequently received, which is now MFI 12, in the following terms: "Dear sir, I have few (sic) messages from my boss, he said that he is getting some legal advice (sic) me beeng (sic) here. I am woried (sic) that he might give me (sic) hard time when I go back to work." 1. The note bears the name of the juror. For that reason I have not provided it to counsel. 2. Both senior counsel for the Crown and senior counsel for the accused have submitted that the note raises a serious question of the juror's capacity to continue to participate in the trial. It has been submitted, in particular, that it is plainly evident from the note that whatever has been said by the employer has caused the member of the jury concern and, in particular, has caused him concern as to both ongoing security of his employment and what may occur on his eventual return. The problems which arise from that will be obvious. Principally amongst them is the clear danger that the concerns expressed by the member of the jury will distract him and, as a result, interfere with his capacity to concentrate upon, and follow, the evidence as it is given in the trial. 3. Section 53B of the Jury Act 1977 (NSW) ("the Act") confers a discretionary power on the Court to discharge an individual juror in a number of given circumstances. That section is in the following terms: 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if: (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill or infirm as to be likely to become ineligible to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 1. It is common ground between the parties that in the present circumstances there is a clear power under either ss. 53B(b) or (d) to exercise the discretion to discharge the juror in question. 2. I accept the submissions made on behalf of the Crown, and the accused, regarding the danger in allowing the member of the jury to continue to participate in the trial. There is, in particular, a clear danger that his obvious concerns about his employment will have the effect of pre-occupying, or distracting him, to the point that his ability to concentrate upon, and follow, the evidence as it is given may be compromised. In those circumstances there is, in my view, no alternative other than to make an order discharging the juror. 3. It is appropriate that I have the juror brought into Court, that I explain the decision that has been taken, and that I caution him against having any discussions for the duration of the trial with the remaining members of the jury. When those remaining members return to Court, I propose to direct them that the circumstances giving rise to the discharge of the member of the jury were personal to him, that they should not speculate in any way about those circumstances, and importantly, that they are to have no communication at all with that member of the jury during the course of the trial. 4. Over and above that, the terms of the note cause me considerable concern. Whilst it is not a matter for me to determine, the note carries a distinct suggestion that the juror's employer has placed pressure on him as a consequence of being selected as a member of the jury in this trial. The terms of the note are, in my view, of sufficient concern to warrant an immediate investigation being conducted by the Sheriff into the employer's alleged conduct. I propose to provide a copy of MFI 12, and a copy of this judgment, to the Sheriff, with a strong recommendation that such an investigation be carried out. 5. For those reasons I make the following orders: 1. Juror 192-88 is discharged. 2. I direct that the trial continue with a jury of 14.