R v Alex & Ors (Trial Ruling No 6) - [2024] NSWSC 1130

Supreme Court

New South Wales

Medium Neutral Citation: R v Alex & Ors (Trial Ruling No 6) [2024] NSWSC 1130
Hearing dates: 6 June 2024 and 25 June 2024
Date of orders: 6 June 2024 and 25 June 2024
Decision date: 29 July 2024
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
1 Juror G is discharged pursuant to s 53A(1)(c) of the Jury Act 1977.
2 Juror A is discharged pursuant to s 53B(b) and (d) of the Jury Act 1977.
3 Order pursuant ss 22 and 53C of the Jury Act 1977 that the trial continue with the remaining 12 jurors.

Legislation Cited:
Jury Act 1977 (NSW)

Cases Cited:
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
HCF v The Queen [2023] HCA 35; (2023) 415 ALR 190
Reg v Gough [1993] AC 646
Reg v Spencer [1987] AC 128
Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category: Procedural rulings
Parties: Rex
George Alex
Lindsay Kirschberg
Gordon McAndrew
Pasquale Loccisano
Mark Bryers
Arthur Alex
Representation:
Counsel
C O’Donnell SC with H Mann, B Anniwell and R O’Donnell - Crown
J Agius SC with E Belijic - Accused George Alex
M Breeze with Ms Edwards - Accused Kirschberg
D Price - Accused McAndrew
M Pickin - Accused Loccisano
L Brasch - Accused Bryers
M Burke - Accused Arthur Alex
Solicitors
Solicitor for the Commonwealth DPP
Matouk Joyner Lawyers - Accused George Alex
Birchgrove Legal - Accused Kirschberg
McGirr & Associates - Accused McAndrew
Kingston Fox - Accused Loccisano
Nyman Gibson Miralis - Accused Bryers
Matouk Joyner Lawyers - Accused Arthur Alex

File Number(s): 2020/216740; 2020/213439; 2020/210570; 2020/212593; 2020/210541; 2020/210516

JUDGMENT

On Thursday 6 June 2024, the 73^rd day of the trial before me of George Alex and others, I made an order discharging a juror pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW). I ordered the discharge of an additional juror in the exercise of my discretion pursuant to s 53B(b) and (d) of the Act. Immediately before those orders took effect there were 14 jurors and the trial had reached the commencement of the Crown’s closing address. But for the individual discharges, the trial would have continued with 14 to the completion of the summing up, at which time a ballot would have been conducted to select a verdict jury of 12 in accordance with s 55G of the Jury Act. Under ss 22 and 53C I determined that the trial should continue with a jury constituted by the 12 who remained following the orders for individual discharge. The following are my reasons for the orders made.
At 9:25 am on Wednesday, 5 June 2024 (Day 72) I was informed by the Sheriff, Ms Tracey Hall, by phone that she had been contacted by the Australian Federal Police (AFP) concerning a member of the jury, Juror G. Ms Hall informed me that in the course of an investigation unrelated…

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.

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Details

Case: [2024] NSWSC 1130
Decision Date: 29 July 2024

CaseChat Overview and Summary

This case involved a complex criminal trial before Fagan J in the Supreme Court of New South Wales. The proceedings were complicated by misconduct on the part of two jurors, Juror G and Juror A. Juror G was found to have breached the trial judge's directions by conducting internet searches relating to the case, while Juror A was found to have engaged in inappropriate communications with Juror G, including discussions about illicit drug dealing. Following an investigation by the Sheriff, both jurors were discharged. The trial proceeded with the remaining 12 jurors. The court considered whether continuing the trial with the reduced jury posed a risk of a substantial miscarriage of justice. The court applied the 'reasonable apprehension test', considering whether a fair-minded and informed member of the public might perceive a risk that the jury might not discharge their duty. After reviewing the evidence, the court concluded that there was no such risk and confirmed that the trial would proceed with the remaining jurors.

Orders