Supreme Court New South Wales Medium Neutral Citation: R v Khan (No 5) [2019] NSWSC 56 Hearing dates: 7 February 2019 Date of orders: 07 February 2019 Decision date: 07 February 2019 Jurisdiction: Common Law Before: Bellew J Decision: See [10] Catchwords: CRIMINAL LAW – Jury – Where juror certified unfit to continue – Whether whole jury should be discharged – Early stage of trial – Undesirable to continue with a jury of 11 – Recognition of right of an accused to be tried by a jury of 12 – Jury discharged Legislation Cited: Jury Act 1977 (NSW) Cases Cited: R v Wu (1998) 103 A Crim R 416 Category: Procedural and other rulings Parties: Regina (Crown) Ihsas Khan (Accused) Representation: Counsel: C Davenport SC and K Curry (Crown) T Anderson (Accused) Solicitors: Director of Public Prosecutions (Cth) (Crown) Legal Aid (NSW) (Accused) File Number(s): 2016/272232 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. On 6 February 2018 the accused pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. Following his arraignment, and in accordance with my general practice, I addressed the jury panel for the purposes of providing them with further information in an effort to assist them in their understanding of the process of selecting a jury. Amongst other things, I said (commencing at T5.41): "The second thing I want you to give some thought to is whether or not you have any health issue which might impact on your ability to carry out the functions of a member of the jury. The Court, subject to a couple of matters to which I will come later, will sit every day. You will be required to sit in court every day for several hours and to listen to and to concentrate on the evidence as it is being given. If you have any health issue at all which is likely to impact on your ability to do that, you must tell me about it so that I can then determine whether or not you can be excused from serving in this trial." 1. Having then dealt with a number of other matters, I returned to this general subject (at T7.28): "Could I also say this to you: You should err on the side of caution in bringing matters to my attention and, in particular, you should not, under any circumstances, say to yourselves, 'Well, there is something that causes me concern but there are so many people here that my number won't be drawn out of the box'. I can tell you from experience that that has happened before. People have taken that view and their number has been drawn out of the box. On one occasion we had proceeded to empanel an entire jury. A member of the jury then drew a matter to my attention which ought to have been drawn to my attention a long time before that. The result was that the entire process was aborted and we had to start with a new panel. That costs time; it also costs public money and you will appreciate that I am not a fan of wasting either. So, please, if there is something that you think should be drawn to my attention, please do so, so that I can determine whether or not you ought be excused." 1. I then proceeded to empanel a jury. 2. This morning, to my astonishment, I was handed a document by the Sheriff which is now MFI3. It is a medical certificate under the hand of Dr Saiful Choudhury. It certifies that a member of the jury, to whom I shall refer as Juror R, "has been (sic) from anxiety and depression from the recent loss of her father. She is unfit for jury duty." 3. When the matter was drawn to the attention of counsel, it was the Crown's position that the entire jury should be discharged and that we should start afresh with a new panel. The basis of that submission was that it was, to say the least, undesirable to commence a trial with only eleven members of the jury. Mr Anderson, who appears on behalf of the accused, was instructed to proceed, notwithstanding the fact that we would be starting a trial of several weeks duration with a jury of eleven, not twelve. However, in making that submission, Mr Anderson acknowledged the general undesirability of commencing a trial in those circumstances. 4. The provisions of the Jury Act 1977 (NSW) ("the Act") recognise the important right of a person to be tried by a jury of twelve persons. In R v Wu (1998) 103 A Crim R 416, the Court of Criminal Appeal made a number of observations to the effect that an accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons, and that the discharge of a single member deprives an accused of the voice of one juror in the consideration of the verdict. 5. Section 53B of the Act confers a power to discharge an individual juror. In particular, s 53B(a) confers a power to discharge a juror if the juror has, in the Judge's opinion, become so ill, infirmed 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. The contents of MFI 3, although expressed in language which might be described as imperfect, satisfy me that the discretionary power in s 53B(a) ought be exercised. Why it was that Juror R did not draw this matter to my attention when given the opportunity to do so, and when reminded of the importance of doing so, remains a mystery. 6. That then gives rise to whether I should exercise the power under s 53C of the Act to discharge the remainder of the jury. Bearing in mind the observations made in Wu, it is my view that the entire jury should be discharged. I am informed that a panel can be assembled quickly and a new jury selected almost immediately. 7. In those circumstances, I make the following orders: 1. Juror R is discharged; 2. The balance of the jury is also discharged. 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: 10 May 2019