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. Consideration 1. It is of fundamental importance to the jury system that all jurors be able to go about their demanding task of being impartial judges of the facts without any fear of recrimination from other jurors and without being distracted by undue disharmony within the group. Jurors need to feel comfortable in adhering to their oaths or affirmations. It appears to me that what has occurred is fundamentally inconsistent with maintaining that degree of comfort. It is necessary for the Court to be solicitous for the welfare of jurors, who perform a substantial role in the administration of justice. 2. I adjourned the Court in order that the parties could obtain instructions on a potential discharge of the jury. Following that adjournment Mr Walmsley QC, who appears on behalf of the accused, informed me that after careful consideration he was instructed, in light of his client's desire to maximise the chances of a verdict, to apply for the whole jury to be discharged. The Crown did not oppose that application. Indeed it foreshadowed that it might consent to it if a new panel were available next Monday in order that the trial could start again expeditiously. 3. Having made enquiries of the listing office I have been informed there is a real prospect of empanelling a new jury on Monday, having regard to the number of people who have been summoned for that purpose. 4. In all the circumstances, I am satisfied there is a high degree of necessity to discharge the jury. This is a relatively complex circumstantial case brought by the Crown against the accused, which will require the jury as a whole and each individual juror to apply themselves to the task assiduously and not be distracted by personal issues, fear of recriminations or any undue disharmony amongst the twelve. While it is inevitable that selecting twelve people at random will give rise to some differences and disagreements amongst the group, and that is part of the strength of the jury system, I am satisfied in the present case it is necessary in the interests of justice for the jury to be discharged. Order 1. For the reasons given above, I make the following order: 1. Discharge the whole jury. ********** 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: 30 September 2019