R v Andrakakos

[2002] VSC 482

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1465 of 2002

THE QUEEN

v

PETER ANDRAKAKOS

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2002
DATE OF RULING:	8 November 2002
CASE MAY BE CITED AS:	R v Andrakakos
MEDIUM NEUTRAL CITATION:	[2002] VSC 482

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Leckie with Miss G. Cannon	Solicitor for Public Prosecutions
For the Accused	Mr J. Montgomery	Theo Magazis & Associate

HIS HONOUR:

1. We are at the morning of the second day of this trial, the first day having been devoted wholly to the empanelment of the jury, the Crown's opening address and the response by counsel for the accused.  Before resuming the trial this morning I received from the Juries Commissioner a message that one of the jurors had reported to him that she was so distressed by what had been said and done in the course of yesterday's hearing that she felt that she should not be required to continue to serve as juror.

1. She reported that she had dreams or nightmares last night and that somehow she connected those with the horrific events which recently occurred in Bali. 

1. Having reported that message in turn to counsel and received from them their submissions, I am of the view that the juror should be excused from further service, either because she is incapable of continuing to act as a juror within the meaning of paragraph (b) of s. 43;  or because I judge that, given her emotional condition and the possible effect which it would have upon her ability impartially and dispassionately to judge the matters in issue, she should not continue to act as a juror, as is contemplated by paragraph (d) of s. 43.

1. She having been excused, a more difficult question arises as to whether I ought direct that the trial continue with 11 jurors, pursuant to s. 44 of the Act. 

1. Plainly, Parliament has provided that a criminal trial, even a trial upon a charge of murder, may continue with less than 12 jurors provided that there are at least 10 and, seemingly, the provision which it has made for that possibility in s. 44 is allied with the ability to excuse a juror provided for in s. 43.  Logically it is to be supposed that if a judge in the position in which I find myself excuses a juror, there should be a direction that the trial continue. 

1. Nevertheless it is a matter for discretion, to be exercised having regard to all of the circumstances of the particular case, and in opposition to a direction that the trial continue with a jury of 11, Mr Montgomery, on behalf of the accused, has pointed to a number of factors which suggest that it would be inappropriate to direct that the trial so continue. 

1. First, he poses the question rhetorically, of what discussions might have taken place between the juror and the other jurors about the effects upon her of what she has seen and heard, and how might they affect the objectivity of the other jurors?

1. Secondly, even if it is to be assumed that there were no such discussions, he asks how will it affect the objectivity of the remaining jury, men and women, if the juror is discharged, either with some excuse which necessarily will have to be less than complete, or with none?

1. Thirdly, and perhaps most importantly, this is a trial for murder, and he submits that other things being equal it is highly desirable that a trial of murder should be judged by a jury of 12.

1. Finally, although we have used up a day of trial, we have thus far proceeded no further than opening addresses, and the original estimate of a trial lasting two weeks has now been reduced to an estimate of probably no more than one.  It follows that even if I discharge the jury and empanel a new jury, the matter can still be completed within the sort of time originally envisaged.

1. Mr Leckie, on behalf of the Crown, has acknowledged the weight of the considerations to which Mr Montgomery has referred, and whilst as he does not submit that I should discharge the jury, he acknowledges that we have gone only so far as the addresses and that the matter can still be completed within the sort of time allowed. 

1. But for what has been said by counsel, I would have been loath to discharge the jury.  It appears to me that provision has been made for the continuation of a trial with less than 12 jurors for the reason that it is possible, if not likely, that circumstances of the kind which have arisen in this case will arise from time to time.

1. Nevertheless, because we are only at the first day of this trial and no evidence has yet been adduced, I am persuaded by the submissions made by Mr Montgomery on behalf of the accused, that I should exercise my discretion against directing that the trial continue with a jury of less than 12.  I propose therefore to order that the jury be discharged.

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