R v Dunstall (No 2) [2018] NSWSC 1448

Supreme Court New South Wales

Medium Neutral Citation: R v Dunstall (No 2) [2018] NSWSC 1448 Hearing dates: 10 September 2018 Date of orders: 10 September 2018 Decision date: 26 September 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Excluded juror discharged. (2) Trial to continue with 11 jurors. Catchwords: CRIMINAL LAW – trial by jury – count of murder – uncontroversial discharge of excluded juror – whether to continue trial with fewer than 12 jurors – discussion of relevant considerations – trial to proceed before jury of 11 Legislation Cited: Jury Act 1977 (NSW), ss 22, 53C, Schedule 1 Cases Cited: Wu v the Queen [1999] HCA 52; (1999) 199 CLR 99 Category: Procedural and other rulings Parties: Regina Glen Roland Dunstall Representation: D Scully (Crown) J Stratton SC (Accused)

Solicitors: Director of Public Prosecutions (Crown) Voros Lawyers (Accused) File Number(s): 2015/141328 Publication restriction: Nil

Judgment

Uncontroversial discharge of an excluded juror 1. On Monday 10 September 2018, in the Supreme Court sitting at Wollongong, Mr Glen Roland Dunstall (the accused) was arraigned before a jury panel and me on a count of murder. He pleaded not guilty, a jury of 12 was empanelled, the accused was put in their charge, and the trial commenced by way of my introductory remarks to the jury, and part of the opening address of the Crown prosecutor. 2. On the afternoon of the same day, the sheriffs brought to my attention in Chambers the written application for reimbursement of one of the jurors. In a nutshell, it suggested that that juror might have been an "excluded" person, pursuant to Schedule 1 of the Jury Act 1977 (NSW) (the Act). 3. Having convened the Court and heard from both counsel, I asked that the juror be separated from the rest of the jury. Thereafter, again with the agreement of both counsel, I drafted a series of written questions, and requested the court officer to ask them of the juror away from the courtroom, and to record his responses. 4. Once those answers were to hand, they confirmed that the juror was indeed excluded from service. Yet again with the concurrence of both counsel, I asked that the juror join us in the courtroom, informed him of my determination that he was excluded, thanked him for his readiness to serve, and discharged him.