R v Cranston (No 23)

[2023] NSWSC 9

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Cranston (No 23) [2023] NSWSC 9

Hearing dates:

16 January 2023

Date of orders:

16 January 2023

Decision date:

16 January 2023

Jurisdiction:

Common Law - Criminal

Before:

Payne JA

Decision:

Application for discharge of juror refused

Catchwords:

CRIMINAL PROCEDURE – Trial – Jury – Discharge of individual juror

Legislation Cited:

Jury Act 1977 (NSW), ss 53B, 53C

Cases Cited:

R v Cranston (No 14) [2022] NSWSC 860

R v Cranston (No 15) [2022] NSWSC 977

R v Cranston (No 16) [2022] NSWSC 1166

Category:

Procedural rulings

Parties:

Crown
Adam Michael Cranston (Accused)
Lauren Anne Cranston (Accused)
Dev Menon (Accused)
Jason Cornell Onley (Accused)
Patrick Willmott (Accused)

Representation:

Counsel:
P McGuire SC with J Paingakulam and C Tran (Crown)
J Stratton SC with H Blake (Adam Cranston)
TD Anderson SC (Lauren Cranston)
P Bruckner (Dev Menon)
WR Johnson (Jason Onley)
L Brasch (Patrick Willmott)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
One Group Legal (Adam Cranston)
Greg Willis Criminal Defence Lawyer (Lauren Cranston)
Hardinlaw (Dev Menon)
Pure Legal (Jason Onley)
The Defenders (Patrick Willmott)

File Number(s):

2017/148697; 2017/148185; 2017/148776; 2017/149208; 2020/115291

Publication restriction:

Not to be published other than to the parties until after the trials of each of the accused are completed.

JUDGMENT

1. Monday 16 January 2023 was the 139^th day of this trial. The trial commenced on 26 April 2022, on which day a jury of fifteen was empanelled. Since that time, I have made orders on 28 June 2022, 20 July 2022 and 30 August 2022 discharging three individual members of the jury respectively: R v Cranston (No 14) [2022] NSWSC 860; R v Cranston (No 15) [2022] NSWSC 977 and R v Cranston (No 16) [2022] NSWSC 1166. On each occasion, I also determined that the trial should continue with the remaining jurors.

2. Since 30 August 2022, almost five months ago, the trial has proceeded with twelve jurors. The stage the trial had reached was that the Crown and defence cases had closed, closing addresses had been delivered by each party, and I was very near the end of my summing up to the jury.

3. On the morning of 16 January 2023, I received a note from an unidentified juror in the following terms:

“I would like to raise my concern about the ability of a juror to fairly judge matters in this trial, due to the jurors ongoing inability to remain awake and focussed in court.  My own direct observations, and comments from other jurors, indicate that the issue has been ongoing and regular.  The juror in question falls asleep most days, multiple times a day – and sometimes multiple times during even the short 40 min sittings.  Though the issue has been raised in the jury room, the juror in question has not been able to successfully address the issue.  I am submitting this note without the knowledge of the other jurors due to the tension it has caused, but I am now very anxious and concerned about the possible implications of this issue on the outcome of the trial."

4. On Thursday 12 January 2023, the Crown had, for the first time, placed on record observations about a juror apparently having trouble staying awake. For the purpose of these reasons, I assume that the note refers to this same juror identified by the Crown, Juror D.

5. Following the provision of this note, the Crown applied for a discharge of the juror pursuant to s 53B(a) and (d) of the Jury Act 1977 (NSW). That section provides:

53B   Discretionary discharge of individual juror

The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if—

(a)     the juror (though able to discharge the duties of a juror) has, in the judge’s or coroner’s opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or

(b)    it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror 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 or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or

(c)     a juror refuses to take part in the jury’s deliberations, or

(d)     it appears to the court or coroner 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.

6. The Crown further applied for an order pursuant to s 53C of the Jury Act to continue the trial with the remaining 11 jurors.

7. The Crown submitted that over the immediate past week Juror D showed difficulty in staying awake during my giving legal directions to the jury at the commencement of my summing up.

8. Secondly, the Crown submitted that the anonymous jury note demonstrated the potential for discord within the jury room which, at this late stage of the trial, may lead to there being no verdict or a lack of unanimity or some other issue.

9. Thirdly, the Crown submitted that the anonymous jury note at least gives an implied reference to the fact that the juror’s inability to stay awake may make it difficult for that juror to participate in any meaningful way in the jury’s deliberations.

10. Counsel for each of the accused opposed the Crown’s application.

Consideration

11. I am not satisfied that the juror identified by the Crown has “become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict” or “has become so ill as to be a health risk to other jurors or persons present at the trial” within the meaning of s 53B(a). Neither am I satisfied that there is “any other reason affecting the juror’s ability to perform the functions of a juror”, such that the juror should not continue to act as a juror within the meaning of s 53B(d).

12. The principal reason for these conclusions is that after nine months of trial, to my observation the juror in question has been attentive to evidence and submissions. If this issue had been raised six months ago, at the time the jury were reduced to 12, I would have regarded a complaint about an apparent inability to concentrate as a significant issue and would likely have caused investigations to be made. In circumstances where, to my observation, the juror has been attentive over many months and the anonymous note refers to this juror falling asleep during court, given how little court time is remaining, the problem is a remote one.

13. Further, the anonymous note from the jury is different to their usual note in that it is on its face the view of only one juror and I am unsure that the opinion expressed is shared by others. Given that a juror was discharged many months ago for sleeping during the evidence (see R v Cranston (No 15)), the jury are well aware of the potential problems of sleeping jurors. In this regard, it is significant that the first time that a problem with Juror D has been raised by either a jury note or a party is in the last days of my summing up. I do not, in those circumstances, draw the conclusion that the juror’s observed difficulty in staying awake on one day causes any significant problem.

14. I concluded that I should not bring the juror in to be questioned or conduct any further investigation because of the late stage in the trial and the fact that the juror might feel that his performance has been judged or that his removal from the jury was being sought.

15. The fact, if it be that fact, that after a nine month trial involving five co-accused and ten charges there may be some level of disagreement in the jury room does not, of itself, enliven the discretion in either sub-section of s 53B relied upon.

16. Finally, I took the view that I should give a direction to the whole jury reminding them that if they needed explanation of any legal principle or to be reminded about any piece of evidence, they only need ask. I gave that direction.

17. For these reasons, on 16 January 2023 I refused the application by the Crown to discharge Juror D.

**********

Amendments

21 March 2023 - Publication restriction lifted.

Decision last updated: 21 March 2023