R v Patel [2018] NSWSC 144

Supreme Court New South Wales

Medium Neutral Citation: R v Patel [2018] NSWSC 144 Hearing dates: 12 February 2018 Date of orders: 12 February 2018 Decision date: 12 February 2018 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: (1) Pursuant to s 53B of the Jury Act 1977 (NSW) that Juror C, who is the subject of Jury notes MFIs 7, 8, 9 and 10 is discharged. (2) Pursuant to s 53C(a)(b) of the Jury Act 1977 NSW, that the trial continue with a reduced number of jurors, being 11. Legislation Cited: Jury Act 1977 (NSW) s22, s53B and s53C Category: Procedural and other rulings Parties: Regina (Crown) Manisha Patel (Accused) Representation: Counsel: H Baker (Crown) J Manuell (Accused)

Solicitors: Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2013/247888 Publication restriction: Nil

ex tempore Judgment 1. On Friday 9 February 2018, day 3 of this murder trial before a jury of twelve, three notes were received from or about Juror C. By the time I adjourned on Friday afternoon, the Crown had opened its case, the defence had opened and there had been one and a half days of evidence regarding crime scene analysis and collection by the Senior Constable in charge of the physical investigation. An hour of cross-examination had ensued and was incomplete. 2. Shortly before 10am on Friday, MFI 7 informed me that a juror was suffering from a particular medical condition and was on a disability pension associated with it and that she was unwell that morning although present at court and was seeking assistance regarding parking and access. The content of the note was raised with counsel and some preliminary enquiries and arrangements were furthered. 3. At shortly before 2pm a further note was received expressed to be from "The Jury Courtroom 5" and read as a joint position that there was concern for a juror who had fallen ill and was in "quite a serious amount of discomfort and needed to get home to their doctor". (This was Juror C as later became clear). 4. This note too was discussed with counsel and it was determined that the proper way forward was to adjourn early to enable the juror to secure medical assistance, but to clarify the condition and any other anticipated difficulties associated with it by way of clear medical evidence addressing diagnosis, symptoms and associated disabilities. 5. The jury were brought back in and informed accordingly and were told that counsel and I would remain for a further short period to address any further queries or requests for clarification. 6. What followed was a further note from Juror C, in which Juror C insisted that she was "fine to continue", but within that note, which became MFI 9, there was identification of anticipated difficulties with heat management and exertion and that there would be days where the juror anticipated he or she would be feeling "bad". 7. The jury were reassembled and Juror C was formally requested to produce medical certificates and information in her possession on the following Monday, (today), that deals with the diagnosis, symptoms and disabilities associated with her condition. 8. This morning a bundle of medical records and information was provided to me in chambers. I have marked that bundle MFI 10 and it will remain a confidential MFI. In that material is a number of GP reports dated 2012 and 2016 which, amongst other things, confirm Juror C suffers from a condition called Postural Orthostatic Tachycardia Syndrome. As noted by the Crown, MFI 10 shows that that condition has a number of symptoms that are relevantly problematic for serving as a juror in this trial, in particular, difficulties with thinking, poor concentration and poor memory, anxiety and shaking and problems with vision. Also problematic is the fact that the symptoms are likely to be worsened by excessive heat or getting up quickly or lack of fluid and that associated with the condition is a need to keep a particular watch on posture, including avoiding prolonged sitting. There is also notation of the risk of fainting and difficulties overall with temperature regulation. 9. Having consulted Counsel for the parties, both accept that it is appropriate for Juror C to be discharged. I am of the view that the situation outlined in MFI 10, as well as what was evidenced by the jury notes received on Friday at shortly before 10am, during the luncheon adjournment and just before 3pm (respectively MFIs 7, 8 and 9), evidence that serving on the jury and the physical demands associated with it have exacerbated the condition suffered by Juror C. 10. I am of the view that in those circumstances, it is appropriate to discharge Juror C pursuant to section 53B(a) of the Jury Act because, although able to discharge the duties of a juror, in my view, the juror has become "so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict". 11. I bear in mind that at this stage there is still at least three and possibly four weeks of evidence yet to be heard and that that evidence is likely to include the need to look at distressing photographs, keep in mind many details, remember witnesses and evidence and to attend daily and be able to sit for long periods so that the evidence can be progressed as quickly and conveniently as appropriate. 12. Alternatively and in addition to section 53B(a), I am of the view that Juror C ought to be discharged because it appears to me that there is a "reason affecting the juror's ability to perform the functions of a juror", and accordingly that juror should not continue to act (s53B(d)). I observe those reasons to be the underlying condition, the apparent aggravation of it as evidenced by the Jury notes on Friday, and the potential physical demands that will continue to be placed upon juror C in order to carry this matter to completion. 13. Accordingly I have determined that Juror C should be discharged pursuant to section 53B(a) of the Jury Act. 14. I consider it is appropriate to continue the trial with the balance of jurors, numbering eleven, pursuant to section 22 of the Jury Act. 15. I am satisfied that to continue the trial with the remaining jurors there is no risk of a substantial miscarriage of justice and I order that the trial continue with the reduced number of jurors, being eleven, pursuant to section 53C(1)(b) of the Jury Act.