R v Fakhreddine (No. 5)

[2024] NSWSC 1218

Supreme Court

New South Wales

Medium Neutral Citation:

R v Fakhreddine (No. 5) [2024] NSWSC 1218

Hearing dates:

24 September 2024

Date of orders:

24 September 2024

Decision date:

24 September 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to 53B of the Jury Act 1977 (NSW), Juror E 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 – murder – discharge of a juror where unwell and unable to perform duties as a juror

Legislation Cited:

Jury Act 1977 (NSW)

Cases Cited:

R v Rogerson; R v McNamara (No 27) [2016] NSWSC 152

Category:

Procedural rulings

Parties:

Rex (Crown)
Naji Fakhreddine (Accused)

Representation:

Counsel:
S Traynor (Crown)
J Layani Ellis (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
One Group Legal (Accused)

File Number(s):

2024/00058931

Publication restriction:

Consult the Non-publication Register for non-publication orders that apply to these proceedings.

JUDGMENT – revised ex tempore

1. On day 11 of this murder trial, Monday 23 September 2024, very shortly before 10:00am, a message was provided to the Sheriff regarding a particular juror, advising that that juror was unable to attend due to illness. Despite a request being made that the juror pursue a medical appointment and provide an estimate as to how long that juror would be incapacitated as soon as possible, no further information was provided until a follow-up call was made by the Sheriff at about 3:00pm. At that point, the juror did not answer the phone and the Sheriff had to pursue the juror’s emergency contact person for the necessary information. That information was that the juror was sick, had an appointment later that day at 4:45pm and it was likely the juror would be unable to attend the next day - that is, today - due to still being unwell. A medical certificate was forwarded to the Sheriff at about 5:30pm yesterday and I have reviewed that this morning. It indicates that the condition that the juror has, has incapacitated that juror for yesterday and today.

2. Following consultation with counsel for the parties, I accept their position that it is appropriate for me to consider exercising my discretion under s 53B of the Jury Act 1977 (NSW) (“the Act”), which provides for discretionary discharge of an individual juror. I am now concerned that this juror is unable to serve yesterday and today because she is ill, and that is a matter under subs (a) that I can take into account.

3. Combined with the information I have set out above are further matters conveyed to me by the court officer regarding this particular juror often arriving just before court is due to start, is working at night, and that there is a concern expressed by other jurors that the juror appears to be very tired and sleeps or dozes on occasion during the evidence. My associate and tipstaff have also observed this on occasion. On one day, the juror wore a very large wig, which was to my observation pulled down low over her eyes. As a result I was unable to see whether the juror was paying attention or had her eyes closed or not. Because that particular exercise was not repeated, I made no comment about it.

4. It appears to me that these comprise other reasons affecting the juror's ability to perform her functions as a juror (s 53B(d)) and so that juror should not continue to act, namely: the tendency to doze during the evidence; the concern expressed as to the close-to-late arrival most days; the slightly cavalier attitude in the provision of the medical certificate; the very late notice to the Court yesterday morning about the juror's inability to attend; and other information received that suggests that the juror is working at night, which would provide a reason why the juror is having difficulty concentrating on the evidence.

5. As stated by Bellew J in R v Rogerson; R v McNamara (No 27) [2016] NSWSC 152 at [11] to [12]:

“[11] The inability of a member of a jury to stay awake and listen to the evidence as it is being given, and the propensity of that inability to give rise to the risk of a substantial miscarriage of justice, needs no further comment.

[12] Fundamental to the right of an accused person, and indeed the Crown, to a fair trial is the proposition that all members of the jury should be alert, attentive and in a position to follow and comprehend the evidence as it is being given. It is impossible for a juror to discharge that function if he or she is asleep. Any further observation in relation to that would be superfluous."

6. Significantly, in a trial that is entering its third week, we cannot afford to lose another day due to the absence of the juror. I note that there is no guarantee that this particular juror will necessarily attend punctually and be well enough tomorrow, due to the pattern of conduct observed as set out in the preceding paragraphs of this judgment.

7. For those reasons, I make the following orders:

1. Pursuant to 53B of the Jury Act 1977 (NSW), Juror E 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.

8. It is 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 being that there are still 13 jurors available following the discharge of this particular juror.

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Decision last updated: 25 February 2025