R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 5)

[2016] NSWSC 1866

Supreme Court

New South Wales

Medium Neutral Citation:	R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 5) [2016] NSWSC 1866
Hearing dates:	17 October 2016
Date of orders:	17 October 2016
Decision date:	20 December 2016
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	The application to discharge the jury is dismissed.
Catchwords:	CRIMINAL LAW – application for discharge of jury – photographs of deceased displayed in Court during summing-up – application refused – reasons issued.
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

Judgment

1. HIS HONOUR: The Court dealt with an application to discharge the jury, in the discretion of the Court, as a result of the conduct of the family of the deceased. The Court refused to discharge the jury and reserved reasons. These are a short statement of the reasons for refusing that discharge application.

2. As made clear during the course of the exchange with counsel, the full facts of the conduct of the family of the deceased are not before the Court, by way of evidence. I accept the statements from the Bar table recounting the observation of solicitors and the observations of the Associate relayed to those at the Bar table.

3. On entering the Court, it is the practice of this Judge to survey the court room and all in it, particularly in the case such as this in which there are some security concerns relating to the relationship between the accused and the relationship between the family and/or friends of the accused and the family and/or friends of the deceased. I repeat that course on the entry of the jury. In fairness, the survey is fleeting. I did not notice on those occasions any display.

4. During the course of the Summing-Up to the jury, my attention was drawn to the jury whom I am addressing. During that Summing-Up, I accept that one or two photographs, the largest of which was an A4 colour photograph were held by the family of the deceased in a manner which displayed them to the front of the Court.

5. It must be said that the jury box is positioned in a way in which there is at least some obstruction to the back of the Court, where the family were seated. Nevertheless, assuming, as I must, that one or more jurors saw the photograph, the question arises as to whether the display of the photograph is a sufficient basis for the Court to exercise its discretion to discharge the whole of the jury.

6. The jury, at this stage, is a jury of 11, one juror being discharged because of an apprehension of bias, based upon the discovery that the last witness in the proceedings was a work colleague of that juror.

7. The judge presiding in a jury trial has a general discretion to discharge the jury and should discharge the jury, whether or not there is application for it, if a mistrial is apprehended or the judge perceives there is a serious risk of a miscarriage of justice.

8. Counsel for the accused submit that the plain intention of the display of the photograph was to influence, by way of sympathy, the determination of the outcome of the trial. Accepting, without deciding, that such was the intention of the family, it seems to me that the intention is not the determinating factor in the exercise of the discretion reposed in the Court. The issue is one based on the effect, or apprehension of effect, on the jury and the impartial determination of the issues.

9. The photograph, or photographs, of themselves, add little to the issues or material in the trial. There are, in evidence, photographs of the deceased. Moreover, it is an unfortunate aspect of some murder trials, including this one, that the jury have before them photographs of the charred body of the deceased. In those circumstances, the display of one or two more photographs is, in my view, hardly likely to affect any more sympathy than might otherwise be the case in a proceeding such as this.

10. Further, it seems to me that given the degree of media publicity that has occurred, including photographs of the deceased, the effect of displaying the photograph is even less significant. While I appreciate the need for counsel to draw to the Court’s attention the display of the photograph (and the Court’s requirement to draw it to the attention of counsel) and do not condone the conduct or any attempt to move the determination of the issues before the jury from an objective assessment of the evidence before it to a determination based, even in part, on sympathy for the deceased or his family, there is nothing in the display of the photographs (which would not have been seen by all of the jurors) that cannot be overcome by an appropriate direction. I intend to give that direction. That direction will build on other directions to the jury which have stressed the importance of dealing with the matter in accordance with the evidence that is before the Court and not otherwise.

11. It is for the foregoing reasons that I dismissed the application to discharge the jury.

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Decision last updated: 20 December 2016