R v Dunstall (No 2) - [2018] NSWSC 1448

Supreme Court

New South Wales

Medium Neutral Citation: R v Dunstall (No 2) [2018] NSWSC 1448
Hearing dates: 10 September 2018
Date of orders: 10 September 2018
Decision date: 26 September 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Excluded juror discharged.
(2) Trial to continue with 11 jurors.

Catchwords: CRIMINAL LAW – trial by jury – count of murder – uncontroversial discharge of excluded juror – whether to continue trial with fewer than 12 jurors – discussion of relevant considerations – trial to proceed before jury of 11
Legislation Cited: Jury Act 1977 (NSW), ss 22, 53C, Schedule 1
Cases Cited: Wu v the Queen [1999] HCA 52; (1999) 199 CLR 99
Category: Procedural and other rulings
Parties: Regina
Glen Roland Dunstall
Representation:
D Scully (Crown)
J Stratton SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Voros Lawyers (Accused)

File Number(s): 2015/141328
Publication restriction: Nil

Judgment

Uncontroversial discharge of an excluded juror

On Monday 10 September 2018, in the Supreme Court sitting at Wollongong, Mr Glen Roland Dunstall (the accused) was arraigned before a jury panel and me on a count of murder. He pleaded not guilty, a jury of 12 was empanelled, the accused was put in their charge, and the trial commenced by way of my introductory remarks to the jury, and part of the opening address of the Crown prosecutor.
On the afternoon of the same day, the sheriffs brought to my attention in Chambers the written application for reimbursement of one of the jurors. In a nutshell, it suggested that that juror might have been an “excluded” person, pursuant to Schedule 1 of the Jury Act 1977 (NSW) (the Act).
Having convened the Court and heard from both counsel, I asked that the juror be separated from the rest of the jury. Thereafter, again with the agreement of both counsel, I drafted a series of written questions, and requested the court officer to ask them of the juror away from the courtroom, and to record his responses.
Once those answers were to hand, they confirmed that the juror was indeed excluded from service. Yet again with the concurrence of both counsel, I asked that the juror join us in the courtroom, informed him of my determination that he was excluded, thanked him for his readiness to serve, and discharged him.

A separate, disputed question

All of that was uncontroversial; indeed, in my opinion, inevitable. The more difficult and contentious question was whether to proceed with a jury of 11, pursuant to ss 22 and 53C of the Act.
The Crown prosecutor submitted that I should. Senior counsel for the accused submitted that, for a number of separate reasons, I should discharge the remaining 11 jurors, and recommence on another day with a fresh jury of 12.
As it happened, the members of the jury panel who had not been empanelled on Monday 10 September 2018 had been requested to be on standby for the morning of Thursday 13 September 2018. In other words,…

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 Dunstall (No 2)

Details

AGLC: R v Dunstall (No 2) [2018] NSWSC 1448
Case: [2018] NSWSC 1448
Decision Date: 26 September 2018

CaseChat Overview and Summary

In the case of R v Dunstall (No 2), the defendant, Dunstall, was on trial for a count of murder. The trial was being held before a jury, but during the proceedings, one of the jurors was found to be ineligible to serve and was discharged. This left the jury with only 11 members. The court was required to determine whether it was appropriate to continue the trial with fewer than the statutory requirement of 12 jurors. The High Court of Australia was tasked with examining the relevant legal considerations and deciding on the appropriate course of action.

The central legal issue before the court was whether it was permissible to proceed with a jury of 11 members after the uncontroversial discharge of an ineligible juror. The court considered the statutory framework, case law, and principles of a fair trial. The court had to balance the defendant's right to be tried by a jury of their peers against the practicalities and potential consequences of continuing the trial with an incomplete jury. The court examined precedents and statutory provisions to determine the appropriate course of action in this unique circumstance.

The court determined that in this instance, it was appropriate to proceed with the trial before a jury of 11. The court found that the discharge of the ineligible juror was uncontroversial and did not prejudice the defendant's right to a fair trial. The court considered the practicalities of the situation, the defendant's rights, and the principles of justice. The court concluded that proceeding with an 11-member jury was in the interests of justice and did not violate any fundamental legal principles. Therefore, the trial continued with the jury of 11.

The final orders of the court were to proceed with the trial before the jury of 11, ensuring that the defendant received a fair trial and that the principles of justice were upheld. The court found that the circumstances justified continuing the trial with an incomplete jury and that the defendant's rights were not compromised. The trial proceeded, and the jury of 11 was instructed to deliver a verdict in accordance with the law.

Orders