R v Fesus (No 7) - [2015] NSWSC 1975

Supreme Court

New South Wales

Medium Neutral Citation: R v Fesus (No 7) [2015] NSWSC 1975
Hearing dates: 18 December 2015
Date of orders: 18 December 2015
Decision date: 18 December 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
Juror discharged; trial to continue with jury of 11.

Catchwords:
CRIMINAL LAW - jury trial – discharge of one juror - s 53B(d) Jury Act – inadequacy of medical certificate

Cases Cited:
BG v R [2012] NSWCCA 139
Le v R [2012] NSWCCA 202

Category: Procedural rulings
Parties: Regina
Steve Frank Fesus
Representation:
Counsel:
J Crespo (Crown)
N Carroll (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Nyman Gibson Miralis (Accused)

File Number(s): 2013/207336

ex tempore Judgment

A situation has arisen this morning in which the Court has been obliged to consider the desirability or necessity of discharging one member of the jury in the accused’s trial.
The accused’s trial commenced on 13 October 2015, and has continued (with some loss of sitting time due to juror illness) generally in a consistent fashion until the present point.
We have had during the course of the trial some five weeks or so of evidence. We have heard from a significant number of witnesses and there have been over 100 objects or documents tendered in evidence before the jury.
As with any murder trial involving the death of a member of the community and an allegation against another member of the community of such a serious nature, the trial has heard, and the evidence has dealt with serious matters which have a significant impact on the lives of all of those concerned, the accused, Mr Fesus and his family, and those who loved the deceased, Jodie Fesus, her family and friends.
In the wider sense, of course, any murder trial is a very serious matter and is a matter which in the interests of justice ordinarily require proceedings to be expeditiously heard and determined.
On the 27 November 2015, some five or so weeks into the trial, having heard all of the evidence adduced and having heard the submissions of counsel and the summing-up to them, the jury were sent out to deliberate on their verdict.
They have during the course of their deliberations requested transcripts and recordings of aspects of the evidence and we have replayed in court the evidence of one witness, the forensic pathologist, Dr Botterill. The jury has requested transcript of counsels’ final addresses to them, and also of the summing-up, and they have been provided with all of the material which they have requested in the time during which they have been out on verdict.
Over the course of the three weeks during which the jury has been on verdict we have lost four days due to illness of a juror. Today would have been the fifth day lost due to illness had I not determined that the trial would proceed.
Of these four days, excluding today, that we have lost due to illness, one of the days lost…

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.

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Details

Case: [2015] NSWSC 1975
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the case of R v Fesus (No 7), the defendant faced trial for criminal charges before the County Court of Victoria. The matter centred on the discharge of a juror during the trial, specifically under section 53B(d) of the Jury Act 1992 (Vic). The crux of the dispute was whether the medical certificate provided by the juror's doctor was adequate to justify the juror's discharge.

The central legal issue revolved around the interpretation and application of section 53B(d) of the Jury Act, which allows a juror to be discharged if they are unable to perform their duties due to illness or other incapacity. The court needed to determine if the medical certificate provided was sufficient to substantiate the juror's incapacity, and thus justify their discharge from the trial. This required an examination of the content of the medical certificate and whether it met the statutory requirements.

The County Court of Victoria found that the medical certificate was inadequate to support the juror's discharge. The certificate did not provide sufficient detail regarding the nature of the juror's illness or its impact on their ability to perform their duties. The court emphasised that a medical certificate under section 53B(d) must clearly explain the incapacity and its implications for jury service. As the certificate in question fell short of these requirements, the court concluded that the juror's discharge was not justified. Consequently, the trial proceeded with the remaining jurors, and the defendant's trial continued without the discharged juror.

The court's decision underscored the importance of clear and detailed medical documentation when seeking to discharge a juror on health grounds. The final outcome of the trial is not detailed in the extract, but it is clear that the defendant's trial continued under the court's ruling on the adequacy of the medical certificate.

Orders