Supreme Court New South Wales Medium Neutral Citation: R v Newson (No 2) [2020] NSWSC 463 Hearing dates: 28 April 2021 Date of orders: 28 April 2021 Decision date: 28 April 2021 Jurisdiction: Common Law Before: Ierace J Decision: (1) Pursuant to s 53B(d) of the Jury Act 1977 (NSW), juror discharged. (2) Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), the trial is to continue with a reduced number of jurors, namely 14 jurors. Catchwords: CRIMINAL PROCEDURE – Trial – Jury – Discharge of individual juror – Juror observed sleeping during evidence – Juror questioned on oath – Whether juror unable to perform functions of juror Legislation Cited: Jury Act 1977 (NSW), s 53B Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 R v Newson; R v Cunneen (No 2) [2020] NSWSC 462 Category: Procedural rulings Parties: Regina Sayle Kenneth Newson (Accused) Representation: Counsel: L Carr SC (Crown) C Watson (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Ramsland Laidler Solicitors (Accused) File Number(s): 2017/183274 Judgment 1. HIS HONOUR: This is the thirteenth day of the trial of Sayle Newson on a count of murder. This afternoon, I received a note from the jury, part of which was in these terms: "Your Honour, I have been approached by some other jury members concerned about one jury member who is struggling to stay awake during court time. This juror has not discussed any issue but the other members of the jury are concerned." 1. I invited the foreperson into the witness box. The foreperson confirmed that the jury note, which was marked MFI 25, was written by him. I asked the foreperson to identify the juror concerned by reference to the seats in the courtroom, which have been occupied by the same jurors consistently throughout the trial. The foreperson indicated the seat usually occupied by a female member of the jury. 2. The foreperson returned to the jury room and I had the court officer bring into court the juror who was the subject of the note. The juror was sworn and questioned by me as to whether she was having any difficulty staying awake and if she had been sleeping at any point during the deliberations. The juror indicated, effectively, that she had not been sleeping at any stage, even though it may appear from her looking down that she might be. 3. I determined that, in view of her explanation on oath, it would be inappropriate for her to be discharged. 4. The trial resumed. During the course of the afternoon's evidence, I observed the juror in question with her head bowed, seemingly looking at a document that she was holding on her lap. However, on closer observation, it seemed to me that her head was rising and falling with her breathing. In other words, she appeared to be asleep. 5. I asked the jury to return to the jury room and indicated to the Bar table my observations. Earlier, I had noted that one of the solicitors assisting the Crown Prosecutor was seated approximately 2-3m from the juror in question and requested that the Crown Prosecutor invite the solicitor to keep the juror under observation. The Crown Prosecutor indicated to me that his solicitor had also observed that the juror appeared to be asleep. 6. I also note that counsel for the accused has indicated that, from his end of the bar table, the juror appeared to be asleep. That being so, I asked the juror to return to the courtroom and informed her that she was discharged from the jury. 7. My decision was made pursuant to s 53B(d) of the Jury Act 1977 (NSW); namely, that the Court may, in the course of any trial, discharge a juror if it appears to the Court that, for any reason other than matters covered by subs (a), (b) and (c) affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 8. The trial has continued with 14 jurors, there having been 15 jurors sworn due to the anticipated length of the trial. ********** 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: 23 March 2023