R v Chalabian (No 5)

[2022] NSWSC 174

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Chalabian (No. 5) [2022] NSWSC 174

Hearing dates:

23 February 2022

Date of orders:

23 February 2022

Decision date:

23 February 2022

Jurisdiction:

Common Law - Criminal

Before:

Johnson J

Decision:

1. Juror C discharged under s.53B(a) Jury Act 1977.

2. Juror R discharge under s.53B(d) Jury Act 1977.

3. The trial of the Accused is to continue with a jury of 13.

Catchwords:

CRIME – jury trial – jury of 15 empanelled – juror raises mental health issue on second day of trial – juror discharged under s.53B(a) Jury Act 1977 – another juror tested positive for COVID-19 on rapid antigen testing – juror discharged under s.53B(d) Jury Act 1977 – order that trial continue with jury of 13 persons

Legislation Cited:

Jury Act 1977

Cases Cited:

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Texts Cited:

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Category:

Procedural rulings

Parties:

Regina (Crown)
Sevag Chalabian (Accused)

Representation:

Counsel:
Ms T McDonald SC; Ms G Wright SC (Crown)
Mr GA Brady SC; Mr A Williams (Accused)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Streeton Lawyers (Accused)

File Number(s):

2018/216206

Publication restriction:

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Judgment

1. JOHNSON J: The trial of the Accused, Sevag Chalabian, commenced on Monday of this week when a jury of 15 was empanelled. Yesterday, the Crown commenced to open to the jury, with that process still on foot at the end of the day.

2. This morning, there have been two developments with respect to the jury.

3. The first development is that one of the jury did not attend Court. The juror contacted the Sheriff and has furnished a medical certificate dated today. That medical certificate indicates that the juror suffers from generalised anxiety disorder and has found that jury duty has exacerbated her disorder and is struggling to cope as a result. The medical practitioner who has issued the certificate seeks that the juror be “medically exempt” from completing jury duty. Accordingly, there is an application, in that way, for discharge from the jury.

4. Both the Crown and Senior Counsel for the Accused support the discharge of the juror. Section 53B(a) Jury Act 1977 permits the Court, in the exercise of discretion, to discharge an individual juror if the juror, although able to discharge the duties of a juror, has, in the Court’s opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the verdict is delivered.

5. The medical certificate indicates that the juror's health problem has developed and become exacerbated quite quickly. Whatever the position may have been on Monday when the jury was empanelled, it is quite clear that the juror is not coping and, therefore, the juror clearly is unable to serve on the jury and seeks to be discharged.

6. I am satisfied that there is a proper basis, in the exercise of discretion, to discharge the juror and I make an order discharging Juror C from the jury of this trial.

7. A second development occurred with respect to the trial this morning. The jury was subject to rapid antigen testing, in accordance with the established procedures operating during the COVID-19 pandemic. One member of the jury, although asymptomatic, tested positive. The other 13 members of the jury who were present tested negative.

8. In accordance with the Supreme Court Protocol for Criminal Proceedings issued in January 2022, the juror who tested positive was not permitted to join the balance of the jury. The juror, in accordance with applicable procedures, remained with the nursing staff and was collected by a family member who took the juror home, with a direction that the juror should isolate for seven days and report the positive test to Service NSW. The juror has in fact departed on that basis. Accordingly, the juror will be absent for at least seven days.

9. Once again, both the Crown and Senior Counsel for the Accused submit that it is appropriate to discharge that juror. The applicable provision appears to be s.53B(d) Jury Act 1977, which allows discretionary discharge if it appears to the Court that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.

10. There is no evidence that the juror is unwell or unable to perform duties as a juror. Rather, the problem is that the juror, having tested positive on the rapid antigen testing, must be separated from the balance of the jury (and, indeed, the rest of the community) and isolate at home for a period of seven days. Accordingly, the juror, for reasons beyond the juror's control, is unable to perform the functions of a juror.

11. It is at least theoretically open to consider adjourning the trial for seven days to allow the juror to return. Having raised that prospect, however, I immediately put it to one side. Neither party submits that this course should be taken. The fact is that the trial is at an early stage. The trial still has a jury of 13. What has developed today emphasises the wisdom of empanelling additional jurors in the COVID-19 pandemic because of a possibility, which has become the reality, of a positive rapid antigen test.

12. Accordingly, I make an order that Juror R be discharged from the jury and the juror should be informed that this order has been made. At the same time, I request that the Court's best wishes for a speedy recovery be conveyed to that juror.

13. The remaining question is that posed by s.53C Jury Act 2007; namely, the Court having discharged two members of the 15-person jury, whether the Court should proceed with the trial with the remaining 13 members of the jury. Section 53C would require discharge of the balance of the jury if the Court was of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice.

14. The fact is that we have 13 jurors remaining. We do not have a reduced number so as to attract application of s.22 Jury Act 1977, where the number drops below 12 in the trial.

15. Counsel for the Crown and the Accused both submit that it is appropriate to continue with the trial with a jury of 13. I am well satisfied that that is the appropriate course to take.

16. The remaining jurors were excused today. They will return tomorrow. For the time being at least, the Court will employ a daily process of rapid antigen testing in the interests of the balance of the jury and other trial participants.

17. I direct that the trial continue tomorrow with a reduced jury comprising 13 jurors.

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Amendments

21 March 2023 - Publication restriction lifted - judgment published.

Decision last updated: 21 March 2023