R v Issakidis - [2016] NSWSC 1102

Supreme Court

New South Wales

Medium Neutral Citation: R v Issakidis [2016] NSWSC 1102
Hearing dates: On papers
Date of orders: 11 August 2016
Decision date: 11 August 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Consent to jury investigation refused.

Catchwords: JURY – the jury in criminal proceedings – request for jury investigation – Jury Act, s 73A – consent of Supreme Court required – consent declined – no power to conduct investigation as no “verdict” – jury unable to reach a verdict – no reasonable basis to suspect jury irregularity
Legislation Cited: Criminal Code 1995 (Cth)
Jury Act 1977 (NSW)
Cases Cited: Anderson v Ntzounas [1988] VR 748
Lodhi v Attorney General of New South Wales [2013] NSWCA 433
Category: Procedural and other rulings
Parties: Crown (Commonwealth Prosecutor)
Michael John Issakidis (Accused)
Representation: Solicitors:
Peter Shields (Accused)

File Number(s): 2012/128506
Publication restriction: Nil

Re: R v issakidis and request for consent under s 73A of the Jury Act 1977 (NSW)

On 16 March 2016, Michael John Issakidis was arraigned before a jury panel on an indictment that charged him with two counts under the Criminal Code Act 1995 (Cth).
After a number of days of deliberations, on 7 June 2016, I discharged the jury. To that point the jury had been unable to reach a unanimous verdict. After the foreperson was examined on oath, I was satisfied that it was unlikely that the jury would reach a unanimous verdict (Jury Act 1977, s 56(1)).
On 14 June 2016 the solicitors for the accused wrote to the sheriff seeking the conduct of an investigation under s 73A of the Jury Act 1977 into the trial that was conducted from “7 March 2016 to 7 June 2016”. In fact, the trial took place from 16 March 2016 to 7 June 2016. Mr Issakidis was arraigned on 7 March 2016 but the jury in that trial was discharged on 14 March 2016.
Section 73A provides:

“73A Investigation by sheriff of jury irregularities
(1)    If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation.
(2)    Section 68A (1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation.
(3)    Section 68B (1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation.
(4) Section 139 (2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official).
(5)…

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.

Continue reading R v Issakidis

Details

AGLC: R v Issakidis [2016] NSWSC 1102
Case: [2016] NSWSC 1102
Decision Date: 11 August 2016

CaseChat Overview and Summary

In R v Issakidis, the appellant was charged with murder. The jury in the Supreme Court was unable to reach a verdict and the judge declared a mistrial. The appellant applied to the jury to conduct an investigation into the conduct of the jury. The application was made under the Jury Act, section 73A. The issue was whether the Supreme Court had the power to decline to allow the jury to investigate the conduct of the jury and whether the court had the power to conduct an investigation when there was no verdict. The court held that the Supreme Court has the power to decline to allow an investigation when there is no verdict and no reasonable basis to suspect irregularity. The court held that the jury has no power to investigate its conduct when there is no verdict. The court dismissed the appeal. The court ordered that the conviction and sentence be quashed and ordered a retrial.

Orders