R v A1 (No. 3) - [2019] NSWSC 713

Supreme Court

New South Wales

Medium Neutral Citation: R v A1 (No. 3) [2019] NSWSC 713
Hearing dates: 12 June 2019
Date of orders: 12 June 2019
Decision date: 12 June 2019
Jurisdiction: Common Law
Before: Johnson J
Decision:
The absent juror is discharged from the jury under s.53B(d) Jury Act 1977.
The trial of the Accused is to proceed before the remaining jury, being a jury of 11 persons, for the purpose of s.53C Jury Act 1977.

Catchwords: CRIMINAL LAW – juror to be absent from trial for a week without permission of the Court – juror attending family funeral overseas - both Crown and Accused seek discharge of juror with trial to continue with jury of 11 - discharge of absent juror under s.53B(d) Jury Act 1977 - order that trial continue with jury of 11 persons
Legislation Cited: Jury Act 1977
Cases Cited: Le v R [2012] NSWCCA 202
R v A1 (No. 2) [2019] NSWSC 663
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
A1 (Accused)
Representation:
Counsel:
Mr RA Herps (Crown)
Mr K Chapple SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Allied Lawyers (Accused)

File Number(s): 2015/296084
Publication restriction: ---

Judgment

JOHNSON J: The trial of the Accused upon a charge of murder commenced before a jury on 23 May 2019. Today is the 13th sitting day of the trial. Some 18 witnesses have given evidence in the trial, including two police officers who have given evidence on more than one occasion as important investigating police officers in the case.
Yesterday, the Court Officer (who has worked diligently with the jury throughout the trial) was informed by a member of the jury (whom I will call Juror X) that that juror's mother, who was clearly seriously ill, was being taken off life support. Juror X asked what course should be taken (I infer, for the purposes of taking time out from the trial because of that sad development and the inevitable passing of the juror's mother). Juror X was informed that the course to take was to write a note to the Court, explaining the position, with the Court to consider any application which the juror sought to make.
I should indicate that this course would have been well-known to Juror X because another member of the jury (Juror A) has had a family bereavement with the death of a grandparent. Acting responsibly, Juror A provided a note informing the Court of this event and furnished a subsequent note when the funeral had been scheduled, as it has been, for a regional centre outside Sydney this Friday. The request of Juror A was that the trial not proceed this Friday and I acceded to that request.
What has happened with Juror A is a common enough event in a criminal trial where there are 12 citizens gathered together for a period of time and events that affect the entire community can occur, of course, without notice, such as the passing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A1 (No. 3)

Details

AGLC: R v A1 (No. 3) [2019] NSWSC 713
Case: [2019] NSWSC 713
Decision Date: 12 June 2019

CaseChat Overview and Summary

In the case of R v A1 (No. 3), the accused faced criminal charges, and a dispute arose regarding the composition of the jury during the trial. The Crown and the accused jointly sought the discharge of a juror who was required to be absent for a week due to a family funeral overseas. This absence necessitated a departure from the standard jury composition of 12 members, and the central issue before the court was whether the trial could proceed with a jury of 11 members, as per section 53B(d) of the Jury Act 1977. The court had to determine whether the absence of one juror, due to a compelling personal reason, justified the continuation of the trial with an 11-member jury.

The court considered the statutory provisions of the Jury Act 1977 and previous case law to address the legal issues. It was necessary to assess whether the absence of the juror constituted a "good cause" within the meaning of the Act, and if the trial could proceed with an 11-member jury without compromising the fairness or integrity of the proceedings. The court also weighed the rights of the accused to a full jury trial against the practicalities of maintaining a quorum during the juror's absence.

The court concluded that the juror's absence for a family funeral qualified as "good cause" under section 53B(d) of the Jury Act 1977. It found that discharging the absent juror and proceeding with an 11-member jury did not undermine the fairness or integrity of the trial. The court emphasised the importance of balancing the accused's right to a fair trial with the need to manage unavoidable circumstances. Consequently, the court ordered that the trial would continue with a jury of 11 members, thereby allowing the proceedings to proceed without undue delay.

The final orders of the court were that the absent juror be discharged, and the trial would continue with an 11-member jury. This decision ensured that the trial could proceed in a timely manner while still upholding the principles of fairness and justice.

Orders