R v Jenkins; R v Clayton

District Court

New South Wales

Medium Neutral Citation:	R v Jenkins; R v Clayton [2013] NSWDC 208
Decision date:	26 September 2013
Before:	Marien SC DCJ
Decision:	The application to discharge the jury is refused.
Catchwords:	CRIMINAL LAW - procedure - juries - application to discharge the jury - jury separation - jury separated without an order being made under s 54(1)(b) of the Jury Act 1977 - whether separation without an order is an irregularity going to the root of the trial process
Legislation Cited:	Jury Act 1977
Cases Cited:	Maher v The Queen (1987) 163 CLR 221 R v Ketteridge [1915] 1 KB 467 R v Phan [2001] NSWCCA 29 R v Radju (2001) 53 NSWLR 471 Tennant v R [2006] NSWCCA 208 Wilde v The Queen (1988) 164 CLR 365
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Christopher Jenkins (Accused) Luke Clayton (Accused)
Representation:	Mr D Woodbury (Christopher Jenkins) Ms D Hawkins (Luke Clayton) Mr R Kimbell (ODPP)
File Number(s):	2012/00129210 2012/00129297

Judgment

1. HIS HONOUR: Yesterday at 11:25am the jury in the trial retired to commence its deliberations after a trial which has lasted some four weeks. During the course of the day yesterday I received no communication from the jury and accordingly at about 3:45pm I requested that arrangements be made for the court to be reconvened so that I could advise the jury that they could either sit on to deliberate or, if they wished, go home.

1. Evidence has been led this morning that I came onto the bench and first spoke at 4:02pm yesterday afternoon. The evidence from Sheriff's Officer Hart establishes that four seconds before I uttered a word on the bench the jury was recorded on CCTV exiting the Court from the Castlereagh Street exit. There is no issue, as we played back what I said when I came on the bench, and that was that I informed counsel that I proposed to tell the jury that they could either sit on deliberating or go home.

1. I asked the court officer who has been with this jury almost entirely for the four week trial to bring the jury to the courtroom. Some minutes later the court officer returned to the court to inform me that the jury had left. Enquiries revealed and evidence was called from another court officer this morning that when the court officer who has been with the jury for the trial had actually left the area where juries are accommodated in the jury rooms to come down to the Court for the purpose of me coming on the bench at 4pm that he saw a member of the jury come out of the jury room and request his phone. He said he believed it was a man and that the juror said words to the effect "We want our phones, we are ready to go or we can go now."

1. I accept that there was a misunderstanding by that court officer that…