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: ---

Judgment

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.
This morning, there have been two developments with respect to the jury.
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.
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.
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.
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.
A second development occurred with respect…

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 Chalabian (No 5)

Details

AGLC: R v Chalabian (No 5) [2022] NSWSC 174
Case: [2022] NSWSC 174
Decision Date: 23 February 2022

CaseChat Overview and Summary

The case of R v Chalabian (No 5) was heard in the Supreme Court of Victoria, where the defendant was on trial for a serious criminal offence. The court had to navigate challenges related to the composition of the jury. A juror raised a mental health issue on the second day of the trial, prompting the court to discharge the juror under section 53B(a) of the Jury Act 1977. Subsequently, another juror tested positive for COVID-19 on rapid antigen testing, leading to the discharge of this juror under section 53B(d) of the same Act. The court was required to decide whether the trial could proceed with a jury of 13 persons, rather than the traditional 12, given the two discharges.

The central legal issue was whether the trial could continue with a jury of 13, given that the two jurors were discharged under specific provisions of the Jury Act 1977. The court had to consider whether discharging the jurors under these provisions rendered the jury incapable of proceeding with the trial, or if it was permissible to continue with fewer jurors. This involved interpreting sections 53B(a) and 53B(d) of the Act and assessing their implications on the jury's ability to function.

The Supreme Court found that the jury could continue with 13 jurors, as the discharges were made in accordance with the provisions of the Act. The court reasoned that the Act allowed for the discharge of jurors under certain circumstances and did not explicitly state that the jury must consist of exactly 12 jurors. Therefore, the trial could proceed with the remaining 13 jurors. The court emphasised that the integrity of the trial could be maintained with a jury of 13, provided all legal standards were adhered to.

The final orders of the court were that the trial would proceed with the remaining 13 jurors. The court issued an order under section 53B(a) and section 53B(d) of the Jury Act 1977, confirming that the jury could continue to deliberate and deliver a verdict with 13 members. The defendant's trial thus continued with the amended jury composition.

Orders