R v CN (No 3)

[2020] ACTSC 266

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v CN (No 3)

Citation:

[2020] ACTSC 266

Hearing Date:

18 March 2020

DecisionDate:

18 March 2020

Before:

Burns J

Decision:

See [5]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by jury – application to discharge jury – consideration of government response to COVID-19 pandemic

Parties:

The Queen (Crown)

CN (Accused)

Representation:

Counsel

S Naidu (Crown)

S McLaughlin (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Numbers:

SCC 211 of 2018; SCC 215 of 2018

BURNS J:

1. Mr McLaughlin, as counsel for the accused, made an application for a stay on the third day of the accused’s jury trial. The application for stay was based on concern for the accused’s prospects of a fair trial, in light of restrictions resulting from the government response to the COVID-19 pandemic. Mr McLaughlin said his ultimate concern was that the “preoccupation by the public as to hoarding essentials and not contacting other people, that the chance of a jury sitting down and deliberating properly for multiple hours on end … is not sufficient to allow [CN] a fair trial”.

1. The gravamen of the submission that was made was that it was too much to expect the jury to focus on the issues in the trial in the present circumstances. The issues of social distancing and ability to deliberate are interconnected in that the jury are more likely to be concerned about viral contamination if the appropriate separations are not maintained.

1. Legal requirements are one thing and one might not expect the jury to be aware of whatever legal requirements might be. On the other hand, we do have pronouncements that are made by the government and one might expect that jurors would be concerned with the pronouncements that have been made by the government, but my understanding of the pronouncements that have been made to date is to the effect that the arrangements that are currently in place in this court are appropriate that there is nothing that has been said by the government which would make the arrangements in this court at this time inappropriate.

1. That is only relevant, of course, because one might expect jurors to be concerned that the court is maintaining the arrangements that the government says are permissible or safe and that would have some effect upon their ability to concentrate upon the material before the court. But so far, on my understanding of what has been said by the government, there is nothing in the arrangements that have been put in place for this trial which are contrary to any recommendations that have been made by government.

1. I do not propose to discharge the jury. The trial will continue. 

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: