R v Fakhreddine
[2023] NSWSC 1425
•21 November 2023
Supreme Court
New South Wales
Medium Neutral Citation: R v Fakhreddine [2023] NSWSC 1425 Hearing dates: 21 November 2023 Date of orders: 21 November 2023 Decision date: 21 November 2023 Jurisdiction: Common Law - Criminal Before: Harrison CJ at CL Decision: Juror discharged
Catchwords: CRIMINAL LAW – murder – discharge of a juror – where unwell and unable to perform duties as a juror – where jury otherwise ready to retire, subject to ballot
Legislation Cited: Jury Act 1977 (NSW) ss 53B, 53C
Category: Procedural rulings Parties: Rex (Crown)
Naji Fakhreddine (Accused)Representation: Counsel:
Solicitors:
S Traynor (Crown)
J Ellis (Accused)
Office of the Director of Public Prosecutions (Crown)
One Group Legal (Accused)
File Number(s): 2021/75628 Publication restriction: Nil
jUDGMENT
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HIS HONOUR: I concluded my summing up to the jury yesterday, and anticipated directing the jury this morning to retire to consider their verdict. A ballot to determine the makeup of the jury was also scheduled to take place before that occurred. However, shortly before resumption at 10am I was notified by the Sheriff’s officer that one of the jurors had phoned to say that she was at her doctor’s rooms and that a medical certificate concerning her condition would soon be sent to the court. That certificate arrived shortly thereafter and was in these terms:
“I have examined [juror’s name] who in my opinion is suffering from a medical condition adjustment disorder with anxiety with atypical chest pain and will be unfit for court from 21 November 2023 to 24 November 2023 inclusive.”
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Following consultation with counsel for the parties, I concluded that it would not be in the interests of justice to adjourn the proceedings until Monday of next week by which time it appears the juror in question may be fit to return. I note in passing the Sheriff’s officer has informed me that this is the same juror who raised concerns in a lengthy jury note yesterday, complaining that the jury room was, in effect, claustrophobic and that she was having difficulty coping in the confines of a small room with her fellow jurors. I have some doubt that the juror’s ability to return next week can be assumed with any confidence.
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Sections 53B and 53C of the Jury Act 1977 provide relevantly as follows:
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
…
(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.
53C Discretion to continue trial or coronial inquest or discharge whole jury
(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must--
(a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or
(b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.
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In my opinion the juror should be discharged. My reasons for that opinion are as follows.
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The juror’s incapacity appears to me to be such that, although she is theoretically able with difficulty to discharge the duties of a juror, her condition for all practical purposes renders her unable to do so. Even if the formation of that opinion were to be considered premature, I am satisfied that it is highly likely that she will become unable to serve as a juror before the jury delivers their verdict.
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It is also my opinion that to continue the trial with the remaining jurors would not give rise to the risk of a substantial miscarriage of justice. The most obvious reason for that is that twelve jurors will still remain following the discharge of this juror.
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Decision last updated: 21 March 2025
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