R (Cth) v Petroulias (No. 27)

[2007] NSWSC 838

CITATION:	R (Cth) v Petroulias (No. 27) [2007] NSWSC 838
HEARING DATE(S):	1 August 2007, 2 August 2007
JUDGMENT DATE :	2 August 2007
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	2 August 2007
DECISION:	1. The application by the applicant juror to be discharged from the jury is granted; 2. An order is made under s.22 (a) Jury Act 1977, that the remaining eleven jurors be considered as remaining for all purposes of the trial, to be properly constituted as the jury.
CATCHWORDS:	CRIMINAL LAW - jury trial - application by juror to be discharged from jury during trial - mental illness of juror affecting ability to serve as juror - if juror discharged, whether trial should proceed before jury of eleven under s.22 Jury Act 1977 - juror discharged - trial to proceed before jury of eleven
LEGISLATION CITED:	Jury Act 1977
CASES CITED:	R (Cth) v Petroulias (No. 26) [2007] NSWSC 819 Wu v The Queen [1999] 199 CLR 99 R (Cth) v Petroulias (No. 22) [2007] NSWSC 692
PARTIES:	Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr P Hastings QC (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JOHNSON J

2 August 2007

2002/93 Regina (Commonwealth) v Nikytas Nicholas Petroulias (No 27)

JUDGMENT - (On further application by a juror to be discharged from the jury - see T1665)

1 JOHNSON J: On 26 July 2007, I refused an application by a juror (“the applicant juror”) to be discharged from the jury: R (Cth) v Petroulias (No. 26) [2007] NSWSC 819. Following that decision, the applicant juror was informed orally that her application had been considered and refused (T1495.11).

2 On the morning of 30 July 2007, I made a number of observations to the jury concerning the progress of the trial, including reference to inconvenience and hardship flowing from jury service on a long criminal trial (T1498-1500). Whilst these observations were directed to the jury as a whole, it was intended that they provide some explanation to the applicant juror for the Court declining her application. The balance of the jury was not informed that an unsuccessful application had been made by one of its members for discharge from the jury.

A Further Application

3 Before 10.00 am on 1 August 2007, I was handed an envelope which, shortly before, had been furnished to the court officer by the applicant juror. It contained a very short report dated 31 July 2007 from a consultant psychiatrist (MFI59). The report stated:

“ [The applicant juror] suffers from serious mental illness and she is not in a fit condition to perform jury duties due to her impaired stress tolerance and judgement.”

4 Given the extreme brevity of the report and following discussions with counsel, I took the view that more information was required from the consultant psychiatrist with respect to the application. A letter was prepared dated 1 August 2007 from my Associate directed to the applicant juror (MFI60) setting out the nature of the information sought by way of a further report or oral evidence from the consultant psychiatrist. I explained to the applicant juror in open court what was required to allow her application to be heard and determined today, 2 August 2007 (T1658-1660).

5 The consultant psychiatrist provided a more detailed report dated 1 August 2007 (MFI61). He stated that the applicant juror had approached his surgery on 31 July 2007 and informed him “of her distress from being on the jury duty”, a fact about which the doctor was previously unaware. The consultant psychiatrist stated that the applicant juror had been his patient since March 2004 for treatment of chronic schizophrenia, and was currently continuing on antipsychotic medication, Seroquel, and an antidepressant, Lexapro. The doctor continued:

“She has over the years persistently experienced psychotic symptoms including auditory hallucinations, delusions of harm and persecution even despite relocations and medication therapies.

She has been able to continue basic domestic care but her stress tolerance and judgement are significantly impaired by her illness.

It would be quite inappropriate for [sic] to continue her jury duties because of her mental illness and for harm toward her own mental health as she appears already quite agitated by the case that she is involved in.”

6 In addition to the reports of the consultant psychiatrist, Senior Counsel for the Accused has informed me of observations of the applicant juror’s behaviour made by members of the defence legal team in Court, especially on 30 and 31 July 2007, including repetitive hand movements and other unusual features (T1663.26-1664.10). Those making the observations considered that other members of the jury may have been distracted in Court by the movements of the applicant juror. For myself, I observed what appeared to be repetitive hand movements on the part of the applicant juror at one point during the course of evidence on 31 July 2007 (T1663.10).

7 I should observe that the applicant juror made no application when the jury was empanelled on 13 June 2007 to be excused from jury service on medical grounds.

Submissions of the Parties

8 Counsel for the Crown and the Accused did not submit that oral evidence ought be given by the applicant juror, nor that the consultant psychiatrist ought be required to attend Court to give evidence concerning the contents of his reports. It remains, of course, a matter for the Court whether evidence ought be given on an application such as this. I am satisfied that oral evidence is not required in this case, fortified in that conclusion by the submissions of counsel.

9 In the light of the reports and the observations of the applicant juror referred to in paragraph 6, the Crown Prosecutor submits that the applicant juror ought be discharged. Likewise, Senior Counsel for the Accused submits that the appropriate course is to discharge the applicant juror.

Should the Applicant Juror be Discharged?

10 The relevant principles upon an application for discharge of a juror during the trial are clear: R (Cth) v Petroulias(No. 26) at [8]-[10]. It remains a matter for the Court to determine whether the applicant juror ought be discharged. Her previous application was based upon suggested financial hardship and associated domestic stress which was said to have affected her sleep and ability to concentrate. As I observed in my earlier judgment, at [17], no medical evidence was advanced by the applicant juror in support of that application.

11 The basis for the application has changed markedly. Not only, is there medical evidence now before the Court, but that medical evidence states expressly that the applicant juror is, through illness, incapable of continuing to act as a juror.

12 I am satisfied that the applicant juror should be discharged.

Should the Trial Continue with a Jury of Eleven?

13 Having reached that point, there is the second and separate step as to whether the trial ought to continue with a jury of eleven: Wu v The Queen [1999] 199 CLR 99 at 103 [8], 107 [26]; R (Cth) v Petroulias (No. 26) at [8] (c).

14 The Crown submits that the appropriate course is to make an order under s22 (a) Jury Act 1977 that the trial continues before a jury of eleven. Senior Counsel for the Accused submits likewise that an order should be made under s.22 that the trial continue with a jury of eleven.

15 It remains a matter for the Court to determine whether such an order should be made in the circumstances of this case.

16 As I observed in R (Cth) v Petroulias(No. 26) at [16], the Crown case is well advanced, with the fifteenth witness now giving evidence. The present trial should be viewed against the earlier history of the proceedings set out in my judgment, R (Cth) v Petroulias (No. 22) [2007] NSWSC 692 at [13]-[18].

17 I have regard to the fact that a number of Crown witnesses have now given lengthy evidence on several occasions at committal proceedings or earlier trials, including the trial which aborted on 16 May 2007. Trial before a jury of twelve persons is the statutory ideal, but the ideal may be departed from by operation of s22 of the Act. The whole purpose of s22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. There can be a fair and lawful trial of an Accused despite the discharge of a juror in the course of the proceedings: Wu v The Queen at 106-107 [21].

18 I am satisfied that the appropriate course in this case is to direct that the trial of the Accused proceed with the jury constituted by the remaining eleven jury members.

Orders

19 I make the following orders:

(a) the juror, whom I have described as the applicant juror, is discharged;

(b) I order, under s.22 (a) Jury Act 1977 , that the remaining eleven jurors be considered as remaining for all purposes of the trial, to be properly constituted as the jury.

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