R v Khayat (No 13) [2019] NSWSC 1322

Supreme Court New South Wales

Medium Neutral Citation: R v Khayat (No 13) [2019] NSWSC 1322 Hearing dates: 12 – 19 August 2019 Date of orders: 20 August 2019 Decision date: 19 August 2019 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [24] Catchwords: CRIMINAL PROCEDURE – trial – jury – application by accused for discharge – jury question answered informally by contact between the court officer and the Crown's solicitor – undermined directions given – potential to create false impression that Crown in favoured position – prejudice to the accused could not be remedied by directions – application consented to by Crown Category: Procedural and other rulings Parties: Regina Mahmoud Khayat (Accused) Representation: Counsel: L Crowley QC (Crown) B Walmsley QC (Accused)

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

Judgment

Introduction 1. I received a jury note this morning, 19 August 2019, being the sixth day of the trial of the accused Mahmoud Khayat, to the effect that a juror was indisposed. Accordingly, the trial could not continue today. Before adjourning the trial for a day, I enquired whether either of the parties wished to raise any matter for my consideration. 2. At this point, the Crown disclosed that there had been an interchange between his solicitor's personal partner and a juror outside the courtroom. This interchange had been disclosed to Mr Walmsley QC, senior counsel for the accused, by email at 9.32pm on Friday 16 August 2019, which is set out below. Mr Walmsley applied for the jury to be discharged. After initially opposing the application, the Crown, in the course of the luncheon adjournment, obtained instructions to consent to the discharge of the jury. I indicated that I would discharge the jury when it returns in the morning.