Supreme Court New South Wales Medium Neutral Citation: R v Sateki Siale [2017] NSWSC 1030 Hearing dates: 26 July 2017, 27 July 2017 Date of orders: 26 July 2017 Decision date: 26 July 2017 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Order that the trial continue with the jurors presently empanelled. Catchwords: JURY – in criminal proceedings – juror's ability to perform the functions of a juror Legislation Cited: Jury Act 1977 (NSW) Cases Cited: Not applicable Texts Cited: Not applicable Category: Procedural and other rulings Parties: The Crown Sateki Siale (Accused) Representation: Counsel: J Crespo (Crown) B Hughes SC / B Longville (Accused) Solicitors: Crown Solicitors (Crown) Danny Eid Lawyers (Accused) File Number(s): 2015/00297019 Publication restriction: Not Applicable EX TEMPORE Judgment 1. Today is the morning of the second day of the trial of Mr Siale who is charged with the offence of murder. The jury was empanelled yesterday. 2. The principal, although not the only, issue in the trial will be the capacity of the accused to have formed a specific intent of the kind required for the offence of murder at the time of the events in question. The issue arises because the Court anticipates that there will be evidence that the accused had consumed a significant amount of alcohol, and the Court and the jury have been informed in the course of opening addresses that there will be expert evidence addressing the issue of whether that degree of alcohol intoxication, and perhaps intoxication with other illicit drugs, meant that the accused was not capable of forming the requisite intention. 3. Last night, after the jury was released for the day, Juror 110-72, telephoned the contact number provided by the Office of the Sheriff and informed the recorded message that he was concerned about his English language skills and his ability to continue as a juror in light of his limited English language skills. The juror came to Court this morning and seemed apparently confused as to where he might go, but was directed to the Sheriff's Officer who escorted him inside. He has been kept separate from the jury this morning. 4. I raised with counsel four possible options with respect to the course which the Court might follow having regard to the provisions of Pt 7A of the Jury Act 1977 (NSW). Having taken time to consider their positions, Senior Counsel for the accused informed the Court that it was his submission that the juror and the jury should be discharged and the trial should proceed with a new panel of jurors. The Crown submitted that, before any decision was made, it was appropriate for the Court to inquire of the juror as to the state of his capacity to speak and understand the English language by having the juror give evidence. Counsel for the accused did not oppose that as a first step. The juror was called and took an affirmation to tell the truth. 5. In evidence, the juror informed the Court that, although born in an Asian country, he came to Australia at the age of fourteen and, although interrupted by trips back to his country of birth, he completed the High School Certificate in Australia, including sitting for and achieving a pass in the subject English. His secondary schooling was conducted in the English language. 6. Upon concluding his HSC, the juror obtained admission to a University in Sydney where he attended and successfully completed university courses leading to his obtaining two degrees: a Bachelor of Commerce and a Bachelor of Law. Those courses were taught in the English language and examined in the English language. 7. The juror presently works in an occupation in commerce, which requires him to speak both in his native language and in English and accordingly is used to speaking in English during the course of the day. When asked to explain his difficulty with the English language, the juror expressed concern that, particularly over long periods of time, or towards the end of longer periods of time, he may have some difficulty in following the evidence. 8. It is important to note that, to me, as I observed the juror, he had no difficulty in understanding the questions I asked of him and he gave answers which were entirely appropriate to those questions. His answers did not exhibit to me any difficulty in understanding and responding appropriately to those questions. 9. I am conscious that there will be at least one expert, a pharmacologist, who will give evidence of an opinion about the capacity of the accused to form a specific intent and I am conscious that an expert report will be tendered dealing with the same subject matter. 10. The requisite test for the discharge of a juror is that contained in s 53B(d) of the Jury Act, namely that the Court may, in the course of any trial, discharge a juror if: "… it appears to the Court … 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. I have given careful and earnest consideration to this issue. The accused, through his Senior Counsel, rightly submits that, if the juror was sufficiently concerned about his language skills to have contacted the sheriff's officer, then the Court ought not readily conclude that the juror should not remain as part of the jury. He also submitted that, as the juror had expressed concern about his ability to follow the trial, that was, so far as the accused was concerned, sufficient reason for the accused to be concerned that he would not obtain a fair trial. 2. In my view, a juror's ability to perform the functions of a juror, as that phrase is used in s 53B(d) of the Jury Act, includes a juror's capacity to understand the English language, to understand the evidence as it is given, to be able to follow counsel's addresses when they are delivered, and to understand and be able to apply the Judge's directions of law. 3. Having listened to the juror's evidence, having observed him giving the evidence and having regard to the fact that he obtained his High School Certificate in Australia, including obtaining a pass in the English language, and that he has qualified in two tertiary degrees, both of which were taught and examined in English, and both of which have complex issues as a part of them, I am not satisfied that the juror's ability to perform the functions of a juror is impaired to an extent which would impact upon his satisfactory discharge of the performance of his functions as a juror. 4. I decline to discharge the juror. I order that the trial continue with the jurors presently empanelled. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2017