R v Diallo (No 9) - [2024] NSWSC 1084

Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 9) [2024] NSWSC 1084
Hearing dates: 13, 19 and 21 August 2024
Date of orders: 21 August 2024
Decision date: 21 August 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Pursuant to s 53B(a) and (d) of the Jury Act 1977 (NSW), juror 5J, from panel number 03448909, at Sydney West Trial Courts, is discharged.
(2) Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) the trial is to continue with a reduced number of jurors, namely 13 jurors.

Catchwords:
CRIMINAL LAW – criminal trial – discretionary discharge of individual juror – notice of surgery provided to the Court in week three of trial proper – no fault of juror – day surgery – medical advice provided to the Court after surgery – juror likely to be incapacitated as to be unable to serve until the jury returns its verdicts – likely further delay of trial – discharge of individual juror not opposed – discretionary factors – jury reduced to 13 in lengthy trial – trial to continue

Legislation Cited:
Bail Act 2013 (NSW)
Criminal Procedure Act 1986 (NSW), ss 311 and 312
Jury Act 1977 (NSW), ss 53B, 53B(a), 53B(d), 53C

Cases Cited:
Sun v R (2023) 112 NSWLR 52; [2023] NSWCCA 147

Category: Procedural rulings
Parties: Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)
Representation:
Counsel:
E Balodis (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
B Robinson (AD)
M Smith (Karise)
Solicitors:
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)

File Number(s): 2022/00052005; 2022/00051961; 2022/00052239; 2022/00091174
Publication restriction: Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

EX TEMPORE JUDGMENT (REVISED)

On 13 August 2024 a juror with a designated number 5J and panel number 03448909 (“the juror”) sent a note in the following terms:

“I am writing to formally bring to your attention a matter of significance regarding my current civic duty as a juror and an upcoming medical procedure. I have recently been informed that I am scheduled to undergo an ACL Reconstruction Surgery of my right knee on Tuesday 20^th of August at Campbelltown Public hospital. While the surgery is classified as day surgery, there is a possibility of an overnight stay.
I initially injured my knee in May of 2022 and was placed on the waiting list for surgery, but unfortunately due to unforeseen insurance complications, I was removed from the waiting list and then recently reinstated in April 2024 and have now received a surgery date.
I understand the importance of my role as a juror and I am keen to continue my service. However, I anticipate requiring the use of a moonboot and crutches post surgery, which will present…

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 Diallo (No 9)

Details

AGLC: R v Diallo (No 9) [2024] NSWSC 1084
Case: [2024] NSWSC 1084
Decision Date: 21 August 2024

CaseChat Overview and Summary

The case of R v Diallo (No 9) involved a criminal trial where an issue arose concerning the discretionary discharge of a juror. During the third week of the trial, the Court was informed that one of the jurors had scheduled day surgery and was likely to be incapacitated until the jury reached its verdicts. This situation created the potential for further delays in the trial, which had already been lengthy. The Court considered the matter of discharging the individual juror, a step that was not opposed by the parties involved.

The primary legal issue before the Court was whether the discharge of a juror was warranted under the circumstances. The Court had to balance the discretionary factors involved in such a decision, particularly given the trial's duration and the reduction of the jury to 13 members. The Court was mindful of the necessity to maintain the integrity and efficiency of the trial process while also considering the health and well-being of the juror.

In determining the matter, the Court weighed the potential for further delay against the need to conclude the trial in a timely manner. Given that the juror's surgery was not of their own making and the medical advice indicated that the juror would be incapacitated until the jury returned its verdicts, the Court exercised its discretion to discharge the juror. This decision allowed the trial to continue with the remaining 13 jurors. The Court's ruling was made in the interest of ensuring the trial proceeded without undue and unnecessary delay.

The final orders of the Court were to discharge the juror who was scheduled for surgery, thereby reducing the jury to 13 members. The trial continued as scheduled, with the remaining jurors tasked with reaching a verdict in the case.

Orders