R v A1 (No. 3) [2019] NSWSC 713

Supreme Court New South Wales

Medium Neutral Citation: R v A1 (No. 3) [2019] NSWSC 713 Hearing dates: 12 June 2019 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Common Law Before: Johnson J Decision: The absent juror is discharged from the jury under s.53B(d) Jury Act 1977. The trial of the Accused is to proceed before the remaining jury, being a jury of 11 persons, for the purpose of s.53C Jury Act 1977. Catchwords: CRIMINAL LAW – juror to be absent from trial for a week without permission of the Court – juror attending family funeral overseas - both Crown and Accused seek discharge of juror with trial to continue with jury of 11 - discharge of absent juror under s.53B(d) Jury Act 1977 - order that trial continue with jury of 11 persons Legislation Cited: Jury Act 1977 Cases Cited: Le v R [2012] NSWCCA 202 R v A1 (No. 2) [2019] NSWSC 663 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) A1 (Accused) Representation: Counsel: Mr RA Herps (Crown) Mr K Chapple SC (Accused)

Solicitors: Director of Public Prosecutions (Crown) Allied Lawyers (Accused) File Number(s): 2015/296084 Publication restriction: ---

Judgment 1. JOHNSON J: The trial of the Accused upon a charge of murder commenced before a jury on 23 May 2019. Today is the 13th sitting day of the trial. Some 18 witnesses have given evidence in the trial, including two police officers who have given evidence on more than one occasion as important investigating police officers in the case. 2. Yesterday, the Court Officer (who has worked diligently with the jury throughout the trial) was informed by a member of the jury (whom I will call Juror X) that that juror's mother, who was clearly seriously ill, was being taken off life support. Juror X asked what course should be taken (I infer, for the purposes of taking time out from the trial because of that sad development and the inevitable passing of the juror's mother). Juror X was informed that the course to take was to write a note to the Court, explaining the position, with the Court to consider any application which the juror sought to make. 3. I should indicate that this course would have been well-known to Juror X because another member of the jury (Juror A) has had a family bereavement with the death of a grandparent. Acting responsibly, Juror A provided a note informing the Court of this event and furnished a subsequent note when the funeral had been scheduled, as it has been, for a regional centre outside Sydney this Friday. The request of Juror A was that the trial not proceed this Friday and I acceded to that request. 4. What has happened with Juror A is a common enough event in a criminal trial where there are 12 citizens gathered together for a period of time and events that affect the entire community can occur, of course, without notice, such as the passing of a member of the family. 5. Juror X, who raised this issue with the Court Officer yesterday, has not attended Court today. Juror X did not cause any note to be sent to the Court yesterday, nor raise with the Court Officer again the course which the juror sought to pursue because of his mother's health situation. 6. Another juror yesterday informed the Court Officer that it was understood that the mother of Juror X was in fact in South America. 7. At the close of the proceedings yesterday at 4.00 pm, the jury departed. As I have said, there was no communication from Juror X with respect to the issue he had raised earlier in the day with the Court Officer. 8. The Court has been informed that, at about 9.00 pm last night, Juror X rang the Sheriff's Office telephone line and left a message indicating that he wished to seek some advice from someone. Of course, seeking advice on that line at 9 o'clock at night was of little assistance to that juror. It is not reasonable to expect that someone would be manning that phone for the purpose of giving after-hours advice to a juror, in particular a juror who had not sought to raise the matter with the Court earlier that day. 9. The Court Officer telephoned Juror X this morning, as a result of the recorded message left last night. Juror X indicated that he was at Sydney Airport for the purpose of boarding a flight for South America. As a result of a number of discussions that took place between the Court Officer and Juror X and then the Court Officer and my Associate and with me, the end result is that Juror X indicated that he is departing Australia, that he would not be returning until next Monday evening, that he was not seeking to be discharged from the jury and that he would like to return to the jury next Tuesday. Juror X was told that that position would be communicated to the Court which would consider the matter today. 10. I have raised the position with respect to Juror X with counsel. Having had an opportunity to take instructions, the Crown submits that Juror X should be discharged under s.53B(d) Jury Act 1977 ('the Act"). The Crown then submits that it is appropriate that the trial proceed with a jury of 11 under s.53C of the Act. 11. Senior Counsel for the Accused has taken instructions from his client. He is instructed by the Accused to support the discharge of the absent juror and to support the continuation of the trial with a jury of 11. 12. Accordingly, there is a common position between the parties as to the course which the Court should take. Of course, it remains a matter for the Court under the relevant provisions of the Act. 13. This trial has been on foot for three weeks - more than 18 witnesses have passed through the witness box. The Crown case is a circumstantial one. The prospect of a delay of a week would be, to say the least, disruptive to the flow of the evidence, contrary to the interests of the parties and to the administration of justice in the trial and not fair to the remaining jurors. Of course, a delay of a week would still depend on the reliability of Juror X, that he would be back on Monday night and in a fit state to rejoin the jury next Tuesday. 14. Having regard to the approach which Juror X has taken to this issue (which, in my view, is not a responsible one), the Court would be taking a risk in relying upon that juror to do what has been communicated by him to the Court Officer, namely, to return to the trial next Tuesday. 15. I am well satisfied for the purpose of s.53B(d) of the Act that Juror X's ability to perform the functions of a juror is affected by his absence for a week (this being a unilateral course undertaken by him without the authority of the Court) and that, in those circumstances, he should not continue to act as a juror. Accordingly, I will, in due course, make an order discharging Juror X. 16. It is necessary for the Court to consider the separate question under s.53C of the Act. If the Court discharges a juror in the course of a trial, the Court must discharge the balance of the jury if the Court is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. If the Court is of the opinion that there is no such risk then, subject to s.22 of the Act, the Court is to order that the trial continue with the reduced number of jurors. 17. I note that s.22 of the Act provides for the number of jurors not to drop below 10 without the consent of the parties. There is no issue with respect to s.22 arising in the present circumstances. 18. It may be noted immediately that the position of the Accused is that he seeks that the trial continue with a jury of 11. That position is supported by the Crown. There is no submission that to continue the trial with a jury of 11 would give rise to the risk of a substantial miscarriage of justice. In my opinion, there is no such risk in this case so that, prima facie, it is appropriate to order that the trial continue with a reduced number of jurors. 19. In considering the separate step under s.53C, it is necessary for the Court to have regard to other discretionary factors, in accordance with what was said in Le v R [2012] NSWCCA 202 at [55]-[64]. Having regard to these considerations, the trial is well advanced. There has been a view undertaken by the jury. Amongst the witnesses who have been completed is the wife of the Accused, C1, whose evidence is in a special category (see R v A1 (No. 2) [2019] NSWSC 663). In addition, an interstate witness, Mr Simon Humphries, has given evidence. 20. In my view, all discretionary factors point strongly in favour of the continuation of the trial with the remaining 11 jurors. 21. Accordingly, I make the following orders: 1. The absent juror is discharged from the jury under s.53B(d) Jury Act 1977. 2. I direct that the trial of the Accused proceed before the remaining jury, being a jury of 11 persons, for the purpose of s.53C Jury Act 1977.