R v Al Batat (No 32) - [2020] NSWSC 1557

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 32) [2020] NSWSC 1557
Hearing dates: 3 November 2020
Date of orders: 3 November 2020
Decision date: 03 November 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Pursuant to s 53B(d) of the Jury Act 1977 (NSW), juror number 9 from call number 707 at the Downing Centre, Sydney, is 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 LAW – somnolence - discretionary discharge of individual juror - juror observed sleeping during important evidence for the accused and prosecutor’s address - application by one accused - joined by some, opposed by others - whether situation should be monitored further - whether juror should be examined - sleeping judge case - sleeping juror - discretionary factors - expanded jury of 15 still intact -juror discharged

Legislation Cited:
Jury Act 1977 (NSW), ss 53B, 53C

Cases Cited:
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
R v Rogerson; R v McNamara (No 27) [2016] NSWSC 152
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52

Category: Procedural and other rulings
Parties: Regina
Abdallah Hassan Al Batat
Ying Cheng Luo
Ian Fan
Jaiyu Liu
Jacob Blake Bayliss
Nai An Li
Representation:
Counsel:
P Hogan (Crown)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)
Solicitors:
Solicitor for the NSW DPP (Crown)
TS Law Firm (Al Batat)
Voros Lawyers (Luo)
Zahr & Partners (Fan)
George Sten & Co (Liu)
Ross Hill Lawyers (Bayliss)
Younes & Espiner (Li)

File Number(s): 2018/214586 (Al Batat)
2017/170943 (Luo)
2017/168582 (Fan)
2017/168476 (Liu)
2017/321618 (Bayliss)
2018/214894 (Li)
Publication restriction: No publication until conclusion of trial

Ex TEMPORE Judgment (REVISED)

This is the 45th day of the trial by jury of Abdallah Hassan Al Batat, Ying Cheng Luo, Ian Fan, Jacob Bayliss, Jaiyu Liu and Nai An Li who are charged with, amongst other things, murder and attempted murder. The trial has proceeded with an expanded jury of 15 and despite a couple of days of absence due to particular jurors taking a COVID-19 test the jury has attended every day of the trial. Any interruptions to their attendance or delays in the trial have been caused either by legal arguments that needed to be undertaken in the jury's absence, or because of the unfortunate and reasonably consistent tardiness of the Department of Corrective Services getting the accused in court on time. Today, for example, we started 45 minutes late.
In any event, throughout the trial, the jury, as a collective, has appeared to be generally attentive and engaged in the process. Given the length of the trial, it is perhaps surprising we have not lost a juror at any stage. There was one very minor incident when one of the police witnesses appeared to wave…

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 Al Batat (No 32)

Details

AGLC: R v Al Batat (No 32) [2020] NSWSC 1557
Case: [2020] NSWSC 1557
Decision Date: 03 November 2020

CaseChat Overview and Summary

The case of R v Al Batat (No 32) involved a group of defendants charged with various criminal offences. During the trial, a juror was observed sleeping while the accused's evidence was being presented and during the prosecutor's address. One of the defendants subsequently applied for the discharge of this individual juror, a motion that was joined by some but opposed by others. The primary legal issue before the court was whether the situation warranted further monitoring or whether the juror should be examined and potentially discharged.

The court considered the matter in light of the principles established in the "sleeping judge" case. It noted that while the juror was observed sleeping during critical parts of the trial, the expanded jury of 15 members was still intact. The court weighed the discretionary factors relevant to discharging a juror, including the importance of the evidence being presented at the time of the observed somnolence, the potential impact on the fairness of the trial, and the overall context of the juror's conduct. Ultimately, the court determined that the situation did not necessitate further monitoring but instead warranted the examination and subsequent discharge of the juror in question.

The court's decision was grounded in the need to ensure the fairness and integrity of the trial process. Given the juror's conduct, the court concluded that the juror's ability to fairly participate in the proceedings was compromised. As a result, the court discharged the juror, thereby maintaining the trial's fairness and ensuring the defendants received a just hearing. The final orders included the discharge of the juror in question and instructions for the jury to continue with the remaining 14 members.

Orders