R v Haines (No.2)

[2016] NSWSC 1825

Supreme Court

New South Wales

Medium Neutral Citation:	R v Haines (No.2) [2016] NSWSC 1825
Hearing dates:	13 October 2016
Date of orders:	13 October 2016
Decision date:	13 October 2016
Jurisdiction:	Common Law
Before:	Garling J
Decision:	It is expedient, pursuant to s 30(2) of the Criminal Procedure Act 1986 that this trial should be fixed to take place in Sydney  Direct that the trial commence on Monday 17 October 2016 at 10am in Court 5 King Street Sydney
Catchwords:	PRACTICE AND PROCEDURE – criminal – where two juries discharged in the first week of criminal trial – where many of the witnesses to be called reside in the area where the trial is to take place – whether it is expedient to change the venue of the trial
Legislation Cited:	Criminal Procedure Act 1986 Jury Act 1977
Cases Cited:	Not applicable
Texts Cited:	Not applicable
Category:	Procedural and other rulings
Parties:	The Crown Megan Jean Haines (Accused)
Representation:	Counsel: B Campbell (Crown) T Edwards (Accused)       Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2014/197832
Publication restriction:	Not Applicable

Judgment (ex tempore)

1. The accused Megan Haines stands charged with two counts of murder. It is alleged that the events giving rise to the charges occurred in Ballina at an aged care facility called St Andrews.

2. Her trial was scheduled to commence on Monday 10 October 2016. On that day a jury was empanelled. The trial commenced. At the end of the day the trial had reached a stage where counsel were still opening the case. Witnesses had not yet been called.

3. The Court received two notes from separate jurors who each indicated a concern that had not been apparent at the start of the trial, namely that they had personal knowledge of either the witnesses likely to be called, or St Andrews itself. In the case of one of the jurors, it became apparent to her only after hearing from the Crown, and counsel for the defence, that her grandmother was a resident of St Andrews and, accordingly, I concluded, having heard submissions from counsel, that it was a circumstance which was likely to result in a miscarriage of justice if that jury continued. Accordingly, on the application of counsel for the accused, and without opposition from the Crown, I discharged that jury.

4. A further jury panel was summoned on Wednesday 12 October 2016. After the Crown described the events in question, the location of the events and the identity of the witnesses, I received fifteen applications from the jury panel‑in‑waiting for individual members of the panel to be discharged. I granted twelve of those applications.

5. The reasons surrounding the applications that I granted were almost entirely associated with members of the jury panel knowing one or other of the witnesses, being a patient or attending the practice of one or other of the general practitioners who are to be called to give evidence, and working for or with a business conducted by the family of one of the deceased. These applications, which were entirely proper to grant, demonstrated to me that it is likely that any further jury panel summoned to hear this trial in Lismore will result in a similar number of applications. That is inevitable given the large number of witnesses who are to be called by the Crown (the present estimate is 66), the vast majority of whom will come from the local region.

6. The additional effect of having to excuse members of the jury panel-in-waiting prior to empanelling the jury is that there remains a real risk that insufficient jurors will be available to be empanelled. On Wednesday morning, the panel initially summoned comprised over a hundred potential jurors and by the time the jury came to be selected there were twenty remaining jurors. After the five challenges were exercised in accordance with the Jury Act 1977, there were very few spare jurors-in-waiting. Although the Jury Act limits each party to three challenges, it also provides that in some circumstances, where both parties agree, further challenges can be made. In those circumstances, if what happened on yesterday morning with respect to empanelling the jury were to be repeated, a very real question arises as to whether a jury could be constituted from panels summoned in Lismore.

7. One of the issues which arose and which remains a real risk for a jury empanelled locally is that, although a juror may not recognise the name of an individual witness identified by the Crown, the juror may recognise the witness by their facial and physical features when they are called. Alternatively, some of the names of the witnesses to be called are not uncommon names and it may only become apparent to a juror when the witness is called that they know that person.

8. In addition, this morning, as a consequence of receiving a jury note and another note from a court officer, which have been marked, it was necessary to discharge the second jury. It is not appropriate for me to indicate at length the particular contents of those notes. However, I am able to say that at least one of the matters raised with the Court related to the particular locality in which the trial is to be heard, and would be unlikely to have arisen if the trial was not conducted in the present locality.

9. It is always desirable, where it is consistent with the interests of justice and the administration of justice generally, for trials to be held in the region where offences are committed. There are a number of good reasons for this. Those reasons include the importance for the administration of justice that members of the local community who have an interest in the proceedings are able to attend and observe the proceedings. Another reason is that witnesses are likely to come from the local region and calling them to give evidence is less disruptive to them if the Court can sit locally to hear the trial. Finally, jurors summoned from the local region are familiar, in a common-sense way, with the habits and practices, traditions and community expectations of the local community. A local jury may be used to hearing witnesses speak in a particular way or use particular expressions which are not common in other places.

10. Accordingly, it is always best and in the interests of the administration of justice that a trial, where practicable, be heard locally. All of these matters tell strongly in favour of the trial continuing next week in Lismore.

11. On the other hand, the difficulties which have been experienced in empanelling two juries, which have led to the discharge of two juries, are likely to be present in respect of any further jury which is to be empanelled in this area. The cost and expense to the community of summoning, discharging, and re-empanelling juries are very significant. As well, from the perspective of the accused, it is of real importance that any trial commence as soon as is practicable and continue, uninterrupted, through to a conclusion. Any delay in the administration of justice is to be avoided where possible. Delay can, and often will be, an instrument of injustice.

12. Accordingly, in receiving the application from counsel for the accused that the venue of the trial be moved from Lismore to Sydney, I am confronted with having to make a decision which weighs up competing interests and competing considerations. They are in tension. They cannot all be fully accommodated. I am obliged to take them into account, weigh them up and make a determination which, in all of the circumstances, best serves the interests of justice.

13. It is not uncommon that Judges in this jurisdiction have to make decisions involving competing considerations. Such decisions are evaluative and therefore not amenable to a single correct answer. But the Court needs to seek, as best it can, to do justice in the circumstances and to ensure that the administration of justice is furthered in the most efficient and effective manner.

14. The decision as to where this trial should take place has caused me a great deal of concern. The possibility of an application being made for a change of venue was first made known to me earlier this morning. Accordingly, I have had a good deal of time to think about and take into account all of the considerations which the Court needs to bear in mind.

15. Ultimately, it seems to me that the matter which is of greatest significance in the weighing up and balancing of the issues in this case is that the accused, having been in custody for a very lengthy period of time, is entitled to have a trial which will start and move through to a conclusion in the most efficient manner, consistent with the Court’s ordinary practice and procedure. That is a very weighty matter which the Court simply cannot set to one side in the circumstances of this case.

16. Taking all relevant matters into consideration, I have determined that it is expedient that, pursuant to s 30(2) of the Criminal Procedure Act 1986, this trial should be fixed to take place in Sydney. I direct that the trial commence on Monday 17 October 2016 at 10am in Court 5 King Street Sydney. Administrative arrangements will need to be made with respect to ensuring that the accused is transported to Court for the trial.

17. I invite counsel to consider whether, in respect of a number of the witnesses who work at St Andrews and whose evidence I anticipate will be largely uncontroversial, the better course would be for those witnesses to give evidence by audio visual link from a location in this area, such as from this Court House, to the Court room in Sydney.

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Decision last updated: 15 December 2016