R v Ronald Edward Medich (No. 37) [2018] NSWSC 313

Supreme Court New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 37) [2018] NSWSC 313 Hearing dates: 13 March 2018 Date of orders: 13 March 2018 Decision date: 13 March 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [26] Catchwords: CRIMINAL LAW – Juries – Discretionary discharge of juror following irregularity – Principles to be applied Legislation Cited: Jury Act 1977 (NSW) Cases Cited: Elomar v R [2014] NSWCCA 303; 316 ALR 208 R v Petroulias (No 26) [2007] NSWSC 819 R v Petroulias (No 27) [2007] NSWSC 838 Webb v R (1994) 181 CLR 41; [1994] HCA 30 Wu v R (1999) 199 CLR 99; [1999] HCA 52 Category: Procedural and other rulings Parties: Regina (Crown) Ronald Edward Medich (Accused) Representation: Counsel: Ms S Harris and Ms G Wright (Crown) Mr W Terracini SC and Ms M Curry (Accused)

Solicitors: Director of Public Prosecutions (NSW) (Crown) Colin Daley Quinn (Accused) File Number(s): 2010/356916 Publication restriction: Nil

Judgment – ex tempore (revised) 1. In the course of the morning adjournment today I was informed by the Sheriff that when he attended the jury room for the purposes of delivering the lunches for the members of the jury, he was approached by one juror who had expressed some concern that she thought that somebody may have attempted to take a photograph of her when she was travelling by train into the city. At that stage, that was the entirety of the information that was provided to me. I asked the Sheriff to confirm that the incident had occurred this morning and I also asked him to inquire as to whether or not the juror in question had discussed the incident with the other members of the jury. 2. I was subsequently informed that the incident had happened this morning. I was also informed that having reported the matter in the terms outlined above, the juror then appeared to express some doubt about whether or not her photo was actually taken. She said that she had told the other members of the jury of the incident, and that they had effectively told her that she should not be concerned about it. 3. The juror also told the Sheriff that she was unconcerned for her safety. However she also indicated to him that she would be taking precautions in terms of travelling to and from court from this point onwards, including having her husband drive her to and from court, and also including the possibility of altering her hair style and/or wearing dark glasses for the purposes of disguising her identity. 4. The juror also informed the Sheriff that she had drawn the matter to his attention because of the fact that on the first day of the trial I had directed the jury, in specific terms, that any incident which might occur in the course of the trial which caused any concern whatsoever should be immediately drawn to my attention. 5. A note was subsequently obtained by the Sheriff at my direction. That note is now MFI 88. Because it contains information which may disclose the suburb in which the member of the jury resides, I have not had it made available to counsel but have read out the remainder of its contents of the note but for that particular portion of it. 6. It is in the following terms: "About 0850 on the 13th of March 2018 I was travelling via train from (suburb). At this time I was speaking on my mobile phone to a friend in Greek. While this was happening, I observed a male person who I would describe as being of Caucasian appearance, tall, thin build, grey hair, short, and was wearing a blue business shirt. He was aged in his 50s. I was sitting in the vestibule area of the train and the male person was standing directly in front of me. About this time the male was speaking on a mobile phone and I heard him say something like, "She's Greek." The male then said something about Central, but I did not hear the rest. After the male finished speaking on his phone, I observed him to grab his phone on the ends with both hands and raise it to chest height as if he was about to take a photograph. I'm not sure if he took a photo or not. I don't think he took a photo as there was no flash. I raised both hands to cover my face and moved to another part of the train. As the train reached St James station, I left the train. As far as I am aware, the male stayed on the train. I have never seen this male person before. Despite this incident, I'm not fearful for my safety. My husband will take me to and pick me up from the train station. I'm also willing to wear different clothes in order to change my appearance. I also travel with other jurors. I mentioned this incident to the other jurors and they said it was all probably my imagination. At lunchtime I noticed the Sheriff's officer bringing in the lunches and I then told him what had occurred. The Sheriff told me not to talk about this while he went to get his sergeant. A short time later two Sheriff officers returned and spoke to me about this matter." 1. The contents of MFI 88 are broadly consistent with what I was originally told had occurred. Two brief observations may be made. Firstly, to the extent that the note makes reference to travelling with other jurors, there is no suggestion whatsoever that any other juror was present when the incident described in the note took place. The knowledge of any other juror or jurors about this incident is derived solely from what they were told by the juror who drew the matter to my attention. 2. Secondly, the reference made in the note to the juror possibly disguising her appearance by wearing different clothes is slightly different from what was initially reported to me. However on either account, the member of the jury has expressed at least a willingness, if not (by inference) an intention, to change her appearance in the future. 3. It is against the background of those matters that senior counsel for the accused has made an application that the juror in question be discharged. I should emphasise that no application has been made for the discharge of the entire jury. The essence of the application is that despite the juror's reassurances, it is evident that she does have some concern. Senior counsel submitted that in all of the circumstances of this case, the only person whom the juror might speculate was responsible for what had occurred on the train was the accused. That, in senior counsel's submission, would necessarily have the capacity to impact adversely on the accused's right to a fair trial. 4. Senior counsel further submitted that the circumstances as I have outlined them have added importance arising from the fact that there has been evidence given in the Crown case which, if accepted, would establish that the accused had previously engaged persons on his behalf to carry out surveillance of his former wife. That circumstance, it was submitted, rendered the impact upon the accused's right to a fair trial even more significant. 5. The Crown opposed the application and submitted that the relevant test had not been met. The Crown also emphasised that in drawing the matter to my attention, the juror had done nothing other than act wholly in accordance with the direction I had given on the first day of the trial. 6. The Crown further emphasised that there was no indication that the juror did not wish to continue to carry out her functions and that in the circumstances it was not, as senior counsel of the accused had submitted, inevitable that she would speculate that it was the accused who may be responsible for what had occurred. 7. Section 53B of the Jury Act 1977 (NSW) makes provision for the discretionary discharge of a member of the jury in the following circumstances: 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, infirm or incapacitated as to be likely to become unable 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. In considering the submissions of the parties, I should state at the outset that in drawing the matter to my attention the juror was, as the Crown pointed out, doing precisely what I had directed should be done in circumstances such as these. For that, the juror is to be commended. However, that is not determinative of the present application. 2. The principles governing the exercise of the discretion to discharge a juror or jury following an irregularity in a trial were stated in Webb v R (1994) 181 CLR 41; [1994] HCA 30, (per Mason CJ and McHugh J at 53, Brennan J at 57, Deane J at 67 and 71, and Toohey J at 87) in the following terms: "… whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially." 1. Those principles were applied by the Court of Criminal Appeal in Elomar v R [2014] NSWCCA 303; 316 ALR 208 at [310]. As the Court pointed out on that occasion, the statement of principle per se presents little or no difficulty. However, the Court recognised that in some cases there may be considerable difficulty in its application, depending upon the facts. 2. In my view, there is considerable force in the submission advanced on behalf of the accused that despite the juror's reassurances, she still harbours some concern about what occurred. Without levelling any criticism whatsoever, there is some degree of incongruity between asserting on the one hand, that she has no concerns about what occurred, and asserting on the other that she either proposes (or is willing) to take precautions with a view to disguising her identity and appearance. If she really had no concern, the latter step would not be necessary. 3. Moreover, the relevant test must obviously be applied having regard to the circumstances of the case, and the evidence which has been given. As senior counsel for the accused pointed out, there is evidence in the present case which, if accepted, would establish that the accused engaged other persons to carry out surveillance on his behalf of the movements of his former wife. In all of those circumstances, and as a matter of practicality and common sense, there is a risk that the person to whom the juror may point as being responsible for the incident which has occurred is the accused. 4. I am satisfied that those circumstances are sufficient to give rise to the reasonable suspicion of which the test speaks. I also accept the submission of senior counsel for the accused that there is nothing that I could say by way of a direction which would cure the difficulty which has arisen. I have therefore come to the view that it is appropriate that I discharge the juror concerned. 5. There remains the question whether the trial ought continue with a jury of 11 persons: Wu v R (1999) 199 CLR 99; [1999] HCA 52 at [8] and [26], R v Petroulias (No 26) [2007] NSWSC 819. Neither party submitted that if I came to the view that the juror should be discharged, the trial should not continue with a jury of 11, although it remains a matter for the Court to determine whether that is an appropriate course. In my view, there are a number of factors which support the conclusion that the trial should continue with 11 jurors. 6. Without going into detail, this case has a long, and it might be said tortuous, history. The murder of the deceased, which of itself is not in dispute, occurred almost nine years ago. The committal proceedings proceeded for a lengthy period of time some considerable number of years ago. There have been a number of pre-trial applications, both by the Crown and the accused, which have delayed the matter coming to trial. Perhaps even more importantly, this is the second occasion on which the accused has come to trial, the jury in the previous trial having being unable to agree on a unanimous verdict. 7. What is also important is that there is absolutely no suggestion that any of the remaining 11 jurors hold any of the concerns which might be held by the juror who was the subject of the incident this morning. On the contrary, on the evidence which is available to me, the remaining members of the jury to whom the incident was disclosed appear to have been largely dismissive of it, informing the juror in question, in effect, that it was "probably (her) imagination". 8. All of those matters support a conclusion that the trial should continue with a reduced number of jurors: R v Petroulias (No 27) 2007 NSWSC 838 per Johnson J at [17]. 9. I propose, having made formal orders, to ask the juror who provided the note to come into court, at which time I will explain to her in short form, the conclusion that I have reached. Given that she has acted entirely responsibly, it is important in my view that she be made aware of that, that I express my appreciation for it, and that she does not leave the Court under the impression that she has done anything wrong. 10. I also propose to direct the remaining 11 members of the jury that they must not, under any circumstances, speculate as to why I have taken the action that I have taken, and that they must not, under any circumstances, have any communication with the juror who has been discharged whilst the trial is still proceeding. A direction in similar terms will be given to the juror in question. 11. For those reasons, I make the following orders: 1. Juror number 976-4 is discharged. 2. Pursuant to s 22(a) of the Jury Act 1977 (NSW), I order that the trial continue with a reduced number of jurors.