R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 4)

[2016] NSWSC 1865

Supreme Court

New South Wales

Medium Neutral Citation:	R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 4) [2016] NSWSC 1865
Hearing dates:	7 October 2016
Date of orders:	07 October 2016
Decision date:	07 October 2016
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	(1) Pursuant to s 53B(b) of the Jury Act 1977, the Court discharges the juror because that juror may not be able to give impartial consideration to the case because of his familiarity with a witness; (2) Pursuant to s 53C(1)(b) of the Jury Act 1977, the Court, being of opinion that there is no risk of a substantial miscarriage of justice by so doing, orders that the trial continue with 11 jurors; (3) The Court notes, in accordance with s 22 of the Jury Act 1977, that the jury is not reduced below 10 in number.
Catchwords:	CRIMINAL LAW – juror discovers witness, CL, known to him as work colleague – at commencement of trial witness’ name not recognised – witness a work colleague – on witness’ entry into Court juror informs Sheriff that he works with witness – juror separated from remaining jurors – Court satisfied that reasonable apprehension of not bringing unbiased or unprejudiced mind to the trial and that juror should be discharged – jury should continue with 11 jurors – witness was the last witness in Crown case and relevant only to third accused (accessory after the fact) – application to separate trial and continue with 12 jurors in relation to two accused charged with murder – application to separate trial, at this stage in the proceedings, refused – trial continued with 11 jurors.
Legislation Cited:	Jury Act 1977
Category:	Procedural and other rulings
Parties:	Regina (Crown) Azam Charbaji (Co-accused) Haysem Charbaji (Co-accused) Lexy May Jamieson (Co-accused)
Representation:	Counsel: M Cunneen SC (Crown) K Chapple SC (Co-accused, Azam Charbaji) M Austin (Co-accused, Haysem Charbaji) M Shaw (Co-accused, Jamieson)     Solicitors: Office of the Director of Public Prosecutions (Crown) Alexander Lawyers (Co-accused, Azam Charbaji) Oxford Lawyers (Co-accused, Haysem Charbaji) Blair Lawyers (Co-accused, Jamieson)
File Number(s):	2015/5665; 2015/5907; 2015/26215
Publication restriction:	NON PUBLICATION ORDER IN RELATION TO WITNESS CL: THE NAME OF THE WITNESS TO BE CALLED BY THE CROWN, THE ADDRESS OF THE WITNESS TO BE CALLED BY THE CROWN, OR ANY FAMILY OF THE WITNESS OR ANY MATTER THAT WOULD IDENTIFY THE NAME, ADDRESS OR PHONE NUMBER OF THE WITNESS OR HIS FAMILY, WILL NOT BE PUBLISHED AND THE WITNESS SHALL BE REFERRED TO AS CL.

EX TEMPORE Judgment (UNREVISED)

1. HIS HONOUR: Before the Court is an application in various alternatives. It arises under these circumstances: a juror who has been sworn in and involved in the trial up until now (and continues at this point), advised the Sheriff’s officer when the juror saw the witness in the court room, that he, the witness, being in the presence of the jury for the first time during the course of this trial, was a work colleague of the juror. The juror, having drawn that to the attention of the Sheriff, steps were taken to deal with the matter in the absence of the jury and immediately to separate out the juror in question. I assume in dealing with this matter that the remainder of the jury are aware of the bare fact that this particular juror and the witness know each other or work together or something of that kind (although that is unclear).

2. The reasons for the mandatory discharge of an individual juror do not apply to the juror in question and the matter is not one, it seems to me, governed by the terms of s 53A of the Jury Act 1977 (“the Act”). The Court, however, has a discretion to discharge a juror if the juror, though able to discharge the duties, in the judge’s opinion, or from his or her own statements, may not be able to give impartial consideration to the case, because of the juror’s familiarity with the witnesses, parties, or legal representatives in the trial.

3. I am not satisfied that the juror would not give impartial consideration, but I am satisfied that there would be a reasonable apprehension of bias in relation to the juror, because of his knowledge of the witness about to be called, who is the juror’s work colleague. As a consequence it seems to me that it is appropriate for the Court to discharge the juror at the very least.

4. Before the Court are a number of applications, as earlier stated. The Crown submits that the appropriate course is that the juror be excluded or discharged and that the trial proceed with a number less than 12 in accordance with s 53C(1)(b) of the Act, that is if the Court was of the opinion that there is no risk of a substantial miscarriage of justice in continuing the trial with a number less than 12 but, I hasten to add, equal to or greater than 10.

5. The proceedings before the Court involve three accused. Two of the accused are charged with murder. One of the accused is charged with accessory after the fact. The witness about to be called is expected to give evidence only in relation to the charge against the accused charged with accessorial liability. As a consequence of those circumstances counsel for the two accused charged with murder respectively submit that the Court should forthwith sever the trial as against the accused charged with accessory after the fact to murder and continue with the 12 jurors. As a consequence of such a course, none of the jurors would be affected by the work relationship with the witness (the witness not being relevant to or giving evidence relevant to the trial against the two accused for murder) the accused charged with accessory supports that course of conduct.

6. In the alternative to the primary submission, at least one of the accused charged with murder accepts that the appropriate course is that proposed by the Crown. We do not decide these matters on the basis of numbers. What is important is the question of the justice and substantial fairness of the trial that is before the Court.

7. The legislature has allowed for circumstances in which a juror may be discharged and a trial continue with at least 11 jurors. That can occur in a number of ways. It can occur, for example, if a juror were empanelled inappropriately or invalidly or if a juror becomes sick or indeed, in the worst case scenario, were to die or any circumstance which would render a juror physically incapable of continuing on the jury.

8. The fundamental question is: am I satisfied that there is, to use the words of the Act, “no such risk”; no such risk referring to the risk of a substantial miscarriage of justice?

9. The first and fundamental starting point from which such an assessment should be made is that, prima facie, an accused offender is entitled to a verdict of 12 jurors; that is the way in which the system is designed and it is supposed to operate in the optimal circumstance. Indeed, so much is that encouraged that in long trials courts are entitled to empanel more than 12 jurors for the sake of ensuring that, ultimately, there will be 12 jurors who are able to continue to verdict.

10. Nevertheless, the legislature has also, under strict conditions, which in effect have already been outlined, allowed for trials to continue with less than 12. Up until this point in time, with the exception of a circumstance which led to an adjournment relating to instructions that had been received, there was no possibility or no application, as far as I am aware, that the trial should be severed. The accused have been content to deal with the matter in one trial.

11. The jury system works and it works on the basis of the collective view of a number of persons selected randomly from the community, exercising community standards and their common sense.

12. Nothing of which I am aware suggests that the remainder of the jury is in any way coloured in relation to the evidence that is about to be adduced because of the knowledge, assuming there is knowledge, that one of their number has a work relationship with the witness to be called.

13. Further, everything of which I am aware suggests that there is no such colouring. It is plain from the circumstances of the information relayed to the sheriff, that is, immediately upon sighting the witness as he walked in the courtroom, that the juror in question was unaware that the witness was to have been called, and, if he were aware of the circumstance, would have made that clear when the witness list was read by the Crown at the outset of the trial and before the empanelling of the jury.

14. It is an unfortunate aspect. Nevertheless, while I am very much of the view that it is the collective that makes the jury system work, and that often it does not work in circumstances where there is a number significantly less than 12, without being critical of the civil jury system, the fact is the legislature is, in essence, of the same view as I am; that is, that where there is at least 10 or 11, and if I were to be satisfied that there is no risk of a substantial miscarriage of justice, that the collective will still work.

15. I am satisfied that there is no risk of a substantial miscarriage of justice. I am not satisfied that, as we now deal with the last Crown witness, I should sever the trial in the manner suggested. While I am sympathetic to the issue of the desirability of having 12 jurors continue with the matter, I am not satisfied that any of the accused are disadvantaged by the exclusion of this juror, and I am satisfied that the continuation of the trial with 11 jurors would not involve or risk a substantial miscarriage of justice.

16. As a consequence, I have formed the view that it is appropriate to discharge the juror and it is appropriate to make an order pursuant to the terms of s 53C(i)(b), that the trial continue with the reduced number of 11 jurors, which order on its face satisfies the terms of s 22 of the Jury Act as well.

**********

Decision last updated: 20 December 2016