R v Khayat (No 12) [2019] NSWSC 1321

Supreme Court New South Wales

Medium Neutral Citation: R v Khayat (No 12) [2019] NSWSC 1321 Hearing dates: 5 – 9 August 2019 Decision date: 09 August 2019 Jurisdiction: Common Law Before: Adamson J Decision: (1) Discharge the whole jury. Catchwords: CRIMINAL PROCEDURE – trial – jury – discharge of whole jury in exercise of inherent jurisdiction – high degree of necessity to discharge jury where disharmony and fear of potential recrimination among jurors distracting from complex circumstantial case brought against accused – accused's application not opposed by Crown Category: Principal judgment Parties: Regina Mahmoud Khayat (Accused) Representation: Counsel: L Crowley QC/Y Shariff (Crown) B Walmsley QC (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Birchgrove Legal (Accused) File Number(s): 2017/236835

Judgment – ex tempore

Introduction 1. This trial has reached its fifth day and is estimated to have a duration in the order of four weeks. An issue has arisen amongst the jurors, which gives rise to the inference that there is some difficulty with at least one member of the jury and the relationship between that juror and other members of the jury.

Factual background 1. The issue came to light in a very oblique way yesterday afternoon when I received a jury note, MFI 5, which asked questions about the occupation of the accused and his brother. 2. A further jury note, MFI 6, came this morning, which indicated there were further difficulties between the jury and indeed that one member of the jury had acted in a way which was distressing to the other juries and vociferously expressed opinions in the course of the break. 3. Following the receipt of MFI 6 and after consultation with counsel, I reminded the jury of their role and responsibilities and encouraged them to act courteously towards each other and to maintain impartiality in the course of the performance of their important role. As I gave those directions I noted that some jurors appeared to be apprehensive. In the adjournment, which next followed those directions, there were, according to the court officer, abusive remarks made by one juror to at least one other juror. Such remarks might amount to recrimination. 4. Before court resumed after the adjournment, I received a further note, which I marked MFI 7, which asked me to provide clarity about the roles and responsibilities of the jury: when they might discuss issues; how and with whom; and also a statement that some of the members preferred not to speak during the breaks.