R v Fesus (No. 1)

[2017] NSWSC 1085

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fesus (No. 1) [2017] NSWSC 1085
Hearing dates:	14 August 2017
Date of orders:	14 August 2017
Decision date:	14 August 2017
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	1. Absent juror discharged under s.53B Jury Act 1977. 2. Order made under s.53C Jury Act 1977 that trial proceed with a jury of 11.
Catchwords:	CRIMINAL LAW - murder trial - sick juror - medical certificate that juror until for jury service for one week - whether juror ought be discharged - whether trial should proceed with jury of 11 - sick juror discharged - order that trial proceed with jury of 11
Legislation Cited:	Jury Act 1977
Cases Cited:	---
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Steve Frank Fesus (Accused)
Representation:	Counsel: Mr G Smith SC (Crown) Mr K Chapple SC (Accused)   Solicitors: Director of Public Prosecutions (Crown) Nyman Gibson Miralis (Accused)
File Number(s):	2013/207336
Publication restriction:	---

Judgment

1. JOHNSON J: On Monday last, 7 August 2017, the trial of the Accused, Steve Frank Fesus, commenced before a jury. The trial proceeded for four days last week, the Court not being in a position to sit on Friday because of a commitment in another criminal matter.

2. This morning the Court was informed that a member of the jury was absent and was ill. A medical certificate was furnished with respect to the absent juror (MFI27). The medical certificate states that the absent juror has a medical condition being a "respiratory tract infection and will be unfit for any type of work or jury from Sunday 13 August 2017 to Friday 18 August 2017".

3. The medical certificate in fact included the juror's jury number. The certificate makes clear that the certifying doctor was aware that the certificate related to jury service and not just absence from employment.

4. Today, the remaining 11 members of the jury are present. The question has arisen as to what course should be taken given the contents of the medical certificate.

5. After hearing initial submissions from counsel, I took the view it was appropriate that the Sheriff contact the certifying doctor to obtain some further information about the absent juror. That step was taken and the certifying doctor had a conversation over the telephone with the Sheriff.

6. The certifying doctor indicated that the absent juror has a very bad chest infection, is on antibiotics, is considered contagious and that there is a follow-up examination which will take place on either Thursday 17 or Friday 18 August 2017. It was indicated that the nature of the absent juror's illness may be such that he will be absent for a longer period than that contained in the certificate.

7. It is certainly clear that the absent juror will not be available to return to jury service at an earlier time than next Monday, 21 August 2017. Indeed, that date may be considered somewhat provisional in the light of the conversation that the certifying doctor had with the Sheriff.

8. The further information contained in the conversation with the certifying doctor has been provided to counsel who have considered the position and have had an opportunity to take instructions and make further submissions.

9. I should, at this point, say a number of things about this trial. The Accused is on trial for the murder of his then wife some 20 years ago. The Accused stood trial in late 2015 and the jury at that trial was unable to agree and was discharged. A second trial commenced in late 2016 but the Accused developed a serious health condition which led to the discharge of that jury.

10. The present trial, namely the third trial of the Accused, commenced, as I said, last Monday.

11. The Crown witness list contains some 83 names. That list includes not just witnesses who will be called, but the authors of statements who are not to be called. Because of the passage of time, some of the persons who made statements are deceased or unwell or otherwise not required to give oral evidence.

12. In the four days when the trial proceeded last week, some 18 witnesses gave oral evidence and about nine statements of persons who were not to be called to give oral evidence were read.

13. Of the witnesses who gave oral evidence, some of them were doing so for the third time - others, certainly, for the second time. These witnesses included a number of persons who, in one way or another, had contact with the Accused and his then wife in the period leading up to 1997 and with the Accused after his wife’s disappearance in August of that year. It may be said that the evidence of a number of these witnesses was sensitive in nature, and the process of their giving evidence, I apprehend, was not easy. To do so for what was the second or the third time would, no doubt, have made the process more difficult again.

14. The trial had an estimate, initially, of eight weeks. That estimate was set in light of what happened at the first trial. It should be noted that, at the first trial, the jury which was unable to agree were deliberating for at least two weeks. So, one must be guarded in using the estimate of the first trial as a measuring stick although, of course, one never knows how long a jury may require to consider its verdict.

15. It may be said that, with a starting list of some 83 names, there has been considerable progress in the four days of the trial so far. I should also indicate that of the witnesses who have given evidence in the trial so far, five of them came from interstate for that purpose.

16. Before turning to the statutory provisions to be considered on this application, I note that the Crown application is that the absent juror be discharged and that the trial proceed with a jury of 11. The submission on behalf of the Accused is that he wishes to have a jury of 12, hopefully for the entire duration of the trial. Two possibilities are put forward by Senior Counsel for the Accused. One is to wait for the absent juror to return and to resume the trial with the expectation that that would be not before sometime next week - alternatively, to discharge the entire jury and to start the trial again at the earliest possible time.

17. In that regard, I should indicate that the Court would be in a position to provide a panel without any significant delay. The practical issue may be the Crown's capacity to regather witnesses to give evidence in what would be a coherent order to allow the Crown to fairly and properly present its case.

18. Section 53B(a) Jury Act 1977 permits the Court, on a discretionary basis, to discharge a juror if the juror has, in the Court'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 in the trial.

19. If the Court discharged the absent juror exercising that power, it would be necessary to move to the second step, namely consideration of s.53C of the Act. Section 53C(1)(a) states that, if the Court discharges a juror in the course of a trial, the Court must discharge the jury if the Court is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice.

20. Alternatively, s.53C(1)(b) provides that, if the Court is of the opinion that there is no such risk and, subject to s.22 Jury Act 1977, the Court may order that the trial continue with a reduced number of jurors.

21. I note that s.22 of the Act provides that where, in the course of a trial, any member of a jury is discharged by the Court, the jury shall be considered as remaining for all purposes of that trial properly constituted if, in the case of criminal proceedings, the number of its members is not reduced below 10, or is reduced below 10 after approval in writing is given to the reduced number of jurors on behalf of the Crown and the Accused; or is reduced below 10 but not below eight, and the trial has been in progress for at least two months.

22. I consider, firstly, the question of whether the absent juror should be discharged under s.53B of the Act. The absent juror is significantly ill. His absence will be an extended one. It will occupy at least one full sitting week of the trial, if not more. I should note that the Court is aware that the absent juror in fact had some health issue in the course of the trial last week, requiring the need for the Court to adjourn urgently (T188).

23. The concern of the Court is that the absent juror, having had some health issue last week, now has a sustained health issue which not only affects his health but, given his contagious state, may pose a risk to other jurors. The estimated time of his return is not before next Monday, but even that may prove optimistic.

24. I am conscious of the expectation that a criminal trial will commence and continue with a jury of 12. Our system of justice operates on that basis. However, the justice system also takes into account the statutory provisions in the Jury Act 1977 which allow for discharge of a juror in circumstances envisaged by the Act.

25. I do not accept a submission made on behalf of the Accused that the trial should be adjourned until this juror becomes well enough to continue. I am satisfied that, at this point in this trial, it is appropriate to discharge that juror and I will, in due course, take that step. I do so on the basis that there is a significant concern about the capacity of this juror to continue in this trial, even if he returned following his current bout of illness.

26. The next question is whether, if the Court determines to discharge that juror (as I intend to do), the Court should form the view the trial should proceed with a jury of 11.

27. In the course of submissions, Senior Counsel for the Accused did not advance a submission that to take that course would give rise to the risk of a substantial miscarriage of justice. The submissions advanced on behalf of the Accused focussed more upon the risks as to what may happen in the future with an eye on s.22 of the Act. The submission was that the Accused wishes, insofar as it is possible, to be tried from beginning to end by a jury of 12. The concern is that, if the trial drops to 11 jurors today, then in the remaining weeks (which may exceed six and occupy more like eight weeks), there is a risk of dropping another juror or jurors. Thus, the concern is to avoid that risk by, if the juror is discharged, discharging the rest of the jury and starting the trial again at some time in the future.

28. The Crown submitted that the Court should have regard to the history of the matter, including the witnesses called last week and the issues that may arise in requiring the Crown to muster the witnesses again to be called at some time in the future in an order which allows the Crown to coherently and fairly present its case. The Crown emphasised that it is not argued on behalf of the Accused that there is a risk of a substantial miscarriage of justice if the trial proceeds with a jury of 11.

29. I am of the opinion that there is no risk of a substantial miscarriage of justice if the trial proceeds with a jury of 11. No argument has been advanced along those lines, but I express my satisfaction, in any event, that there is no such risk in the circumstances of this trial.

30. What is left is the need to consider s.22 of the Act and its possible application during the balance of this trial.

31. There is always a possibility that another juror may become so unwell that that juror may need to be discharged. That, however, is entirely hypothetical. There is nothing to indicate that such a course is a realistic prediction in this trial. The balance of the jury, to my observation, have been attentive. I do not think that the theoretical risk that the jury may drop to 10 is one that operates, in any significant way, in the exercise of discretion. I note in any event, as s.22 provides, that a criminal jury can drop to 10 without there being any issue of consent or other legal problems.

32. I bear in mind as well, in the exercise of discretion, the history of these proceedings. By that I include not only the vintage of the charge but the proceedings which have now been on foot for a number of years and have proceeded to two trials that have not reached verdicts, together with the fact that what I regard as a large number of lay witnesses gave evidence last week about events many years before which involved sensitive and difficult topics for a number of them.

33. The concept of this trial starting again on a date to be fixed (which, in my view, would be more like weeks and not days away) is not a desirable one in considering the various options.

34. I am conscious of the starting point of our system of trial by jury in this State that trial by a jury of 12 is the most desirable step. However, the Jury Act 1977 provides for circumstances such as those which have come to pass today in this trial. I am satisfied that, firstly, the relevant juror should be discharged and, secondly, that the trial should proceed with a jury of 11.

35. Accordingly, I make an order under s.53B Jury Act 1977 discharging the absent juror. I make an order under s.53C Jury Act 1977 that the trial of the Accused should continue with a jury of 11.

36. I invite the Sheriff's Officer to notify the absent juror that he has been discharged from the jury by order made today.

**********

Decision last updated: 05 October 2017