R v Jones & Ors (No10)

[2007] NSWSC 1161

CITATION:	R v Jones & Ors (No10) [2007] NSWSC 1161
JUDGMENT DATE :	16 November 2007
JUDGMENT OF:	Buddin J
DECISION:	Applications refused.
CATCHWORDS:	Applications for discharge of the jury - applications made whilst jury deliberating - lengthy period of deliberations - various interruptions to the deliberation process because of illness to jurors
LEGISLATION CITED:	Jury Act 1977
PARTIES:	Regina Adam Samuel Jones Adam Jones Samuel Jones Elizabeth Jean Jones Lydia Jones
FILE NUMBER(S):	SC 2006/2007; 2006/2009; 2006/2010; 2006/2011; 2006/2012
COUNSEL:	J Pickering (Crown) W Terracini SC/J Trevallion (Adam Samuel Jones) (Accused) D Price (Adam Jones) (Accused) D Stewart (Samuel Jones) (Accused) G Whitehead (Elizabeth Jones) (Accused) C Watson (Lydia Jones) (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Director of Public Prosecutions) Adamson Solicitors (Adam Samuel Jones) Conaghan Hunter P/L (Adam Jones) Ross Hill & Co (Samuel Jones) Neil J O'Connor & Associates (Elizabeth Jones) Ian Rolfe Solicitor (Lydia Jones)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 16 NOVEMBER 2007

2006/2007 - Regina v Adam Samuel JONES
2006/2009 - Regina v Adam JONES
2006/2010 - Regina v Samuel JONES
2006/2011 - Regina v Elizabeth Jean JONES
2006/2012 - Regina v Lydia JONES

JUDGMENT – (No 10) Application to discharge the jury

1 HIS HONOUR: Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jones are each charged with the murder of William Smith (the deceased). They are also each charged with having wounded Noah Henry Smith with the intention of killing him, and in the alternative, having wounded him with the intention of doing grievous bodily harm to him. Upon being arraigned, Adam Samuel Jones and Adam Jones each pleaded guilty to the manslaughter of William Smith and to the malicious wounding of Noah Smith. Those pleas were not accepted by the Crown. Lydia Jones is charged with being an accessory after the fact to the murder of William Smith by her husband Adam Samuel Jones. Adam Jones is also charged with assaulting Mary Rose Smith.

2 On 27 June 2007 Mr Trevallion, who appeared on behalf of the accused Adam Samuel Jones, made application for the discharge of the jury. Counsel who appeared on behalf of each of the other four accused supported the application and relied upon the submissions of Mr Trevallion in contending that that course be taken. The Crown opposed the application. I indicated at the time that I would not accede to the application but said that I would give reasons for so doing in due course. What follows are my reasons for refusing that application and two subsequent applications of a similar kind which were made on 28 June and 29 June respectively.

3 In order to place the present application in some sort of context, it is necessary to refer briefly to the evidence which was advanced during the trial. The fatal incident occurred at Tuggerah Village caravan park on the Central Coast at which several of the accused, as well as the deceased and members of his family, were then residing. Adam Samuel Jones and his wife Lydia Jones occupied site 55. Their son, Adam Jones, who was married at the time to Ellen Smith, occupied a site a short distance away. The deceased and Noah Smith, are Ellen Smith’s uncles. They also resided at the caravan park, albeit on sites at the other end of the park near the amenities block.

4 During the evening of 8 October 2005 Adam Samuel Jones, Adam Jones and Lydia Jones were socialising at the caravan park with members of the Smith family. The deceased was part of that group. An argument developed. Adam Jones produced a knife and threatened to stab the deceased with it. The deceased and Adam Samuel Jones agreed that the dispute should be resolved between the two of them the following morning. At that point the respective families parted company.

5 The Crown case is that Adam Samuel Jones contacted his parents, Samuel and Elizabeth Jones, by mobile phone at about 11.30 pm. At the time they were living at the Parklea caravan park. In any event, the Crown case is that Samuel Jones and Elizabeth Jones travelled to Tuggerah Village caravan park from Parklea arriving there at about 12.30 am. Adam Samuel Jones’ brother, Samuel Mark Jones, also travelled to the Central Coast from Parklea. A number of other persons arrived at the park for what was anticipated to be a fight. The Crown case is that mobile phone records demonstrate that Samuel Mark Jones was responsible for recruiting those other persons.

6 Prior to the arrival of these people, Ellen Smith said that she observed her husband Adam Jones and Adam Samuel Jones gather together various weapons, including a baseball bat. Ellen Smith said that Lydia Jones told her that “it will be a fair fight”. Ellen Smith gave evidence that she asked Samuel Jones to intervene but he told her, she said, that it was “out of [my] hands”.

7 At approximately 1.20 am a group of between 8 to 10 people were observed by members of the Smith family to attack the deceased and Noah Smith in the vicinity of the amenities block. Those persons were armed with various weapons which included axes, machetes, swords, knives and metal bars. All of the accused, apart from Lydia Jones, were identified as being part of the group which participated in the fatal attack.

8 Whilst the attack was taking place, Samuel Mark Jones, is alleged to have had a handgun which he used in order to keep members of the Smith family at bay. The Crown case is that Noah Smith was attacked when he went to the deceased’s assistance. A post-mortem examination revealed that the deceased had sustained 18 sharp force injuries to his head and body, including the fatal blow which penetrated his lung. The pathologist who conducted the post-mortem, expressed the opinion that the injuries were caused by a variety of sharp instruments and blunt objects. Noah Smith sustained a 20 cm laceration, which ran from his neck and down his back, as well as other injuries.

9 After the attack, Ellen Smith observed Adam Samuel Jones run back to his caravan. He was carrying a machete and was covered in blood. Her husband, who was with him, was carrying a Samurai sword which had blood on the blade. Ellen Smith then observed Lydia Jones wipe blood from the weapons which her husband and father in law had been carrying. She then saw her remove those items and leave them outside the caravan. They were subsequently found in that location by police. The four persons accused of murder left the scene and returned to Parklea.

10 Later that day Adam Samuel Jones handed himself into police. He gave a version of events in which he suggested that he had been set upon by the deceased and members of his family and that he had struck the deceased in self-defence. He maintained that no other member of his family had been involved in the altercation with the Smith family. The following day, Elizabeth Jones told police that she had not been at the caravan park on the night in question. She was arrested on 15 October. Samuel Jones and Adam Jones fled to Queensland where they were arrested on 26 October. Adam Jones also raised the issue of self-defence. He told police, amongst other things, that he had gone to the assistance of his father who had been attacked by members of the Smith family. Lydia Jones was arrested in December 2005.

11 In essence, the Crown case is that the four persons accused of murder together with Samuel Mark Jones, who eluded police and remained at large until 27 June 2007, and a number of unidentified persons, participated in a joint criminal enterprise, the purpose of which was to attack the deceased intending thereby to kill him or to inflict grievous bodily harm upon him, and also to attack Noah Smith with the intention of wounding him. Lydia Jones, as I have said, is alleged to have acted as an accessory after the fact to the murder of William Smith by her husband.

12 The case advanced on behalf of each of the accused can also be briefly stated. Adam Samuel Jones and Adam Jones admit by their pleas of guilty to manslaughter that they were not only present at the time of the fatal incident, but also that they participated in the events which preceded it. They maintained that they had been acting in self-defence at the relevant time. Nevertheless, they acknowledged that their actions were not reasonable and indeed that they were excessive in all the circumstances. They also contended that they were acting under provocation. Similarly they accepted some responsibility for having inflicted injuries upon Noah Smith and accordingly they pleaded guilty to an offence of malicious wounding.

13 So far as Samuel Jones is concerned, he admits that he was present at the scene of the fatal incident but his case is that he was not in any way involved in striking the deceased. His case, which essentially emerges from the evidence given by his friend Michael Bennett of conversations which he had with Samuel Jones, is that his participation was limited to an altercation with Noah Smith by whom he said he was assaulted. In respect of that incident he relies upon self-defence. The case advanced on behalf of Elizabeth Jones, which emerges from her record of interview, is that she was not present at the scene of the fatal incident and accordingly bears no responsibility whatsoever for what occurred to either the deceased or to Noah Smith.

14 It is now necessary to say something about the proceedings themselves. Following a lengthy trial which occupied about 3½ months of hearing time, the jury retired to consider its verdicts on 6 June. At the point at which Mr Trevallion made his application, the jury had been deliberating for exactly three weeks. That was one of the factors that counsel relied upon in support of his application. It is pertinent to observe however that the jury was not deliberating for the entirety of that three-week period. No fewer than five days, namely 7 June, 15 June, 18 June, 25 June and 26 June, were lost because one or other of the jurors were ill. Nor did the jury sit on 11 June, which was a public holiday, or on 22 June, because a juror had an exam. It can be thus seen that almost half of that three-week period was lost because of illness or other factors.

15 Indeed Mr Trevallion also relied, in support of his application, upon the disruption which had been thus occasioned to the process of deliberation by the jury. In respect of this aspect of the matter, he submitted, that “the amount of time that has been lost…. is beginning to reach a point where it is undermining, or potentially undermining the community’s confidence not only in any verdicts that they may return but also in the jury system as a whole”.

16 There are other features of the deliberation process to which it is necessary to make reference. On 14 June, a note in the following terms, was received from the jury:

The jury has considered all verdicts and is unable to reach unanimous agreement on a number of them. We seek your further direction please.

17 With the concurrence of counsel, I then gave the jury what is known as a Black direction.

18 On 21 June two further notes were received. The first was in the following terms:

A few jurors have reached there (sic) decisions and it is not unanimous. Therefore we feel that we are not achieving anything by further deliberating, as firm decisions have been made.

19 The second note which accompanied the first, relevantly said:

A majority of the jurors do not agree with this note…we have not finished deliberation we have more to discuss…

20 In light of those notes, and having satisfied myself that the pre-requisites of s 55F of the Jury Act had been met, and again with the concurrence of counsel, I directed the jury that I could accept majority verdicts.

21 It was in that context that Mr Trevallion submitted that the jury should be discharged for the reasons which I identified earlier. He also submitted “it is apparent that they cannot make up their mind”. I was not disposed to accept that submission. Although it is true that three days had been lost since the majority verdict direction was given, the jury had done nothing to indicate, during the days whilst they had been deliberating, to suggest that they were having any difficulties of the kind which counsel suggested. Indeed, there was no communication during that period from the jury indicating that they wanted any assistance of any kind. This was a jury which, it might be observed, had not hesitated to seek assistance at any stage of the trial when it was required. Accordingly, there appeared to be no basis to conclude, in the absence of any indication from the jury itself, that it was unable to agree. In my view it would have been inappropriate, in those circumstances, to simply then proceed to discharge them. Moreover, s56 of the Jury Act 1977 speaks against such an approach.

22 That leaves the question of whether a decision to discharge the jury should be made upon the other two bases identified by counsel, that is because of the length of the deliberations themselves and the disruptions to the process of deliberation. Although there is some overlap between these two aspects of the matter, I shall consider each in turn. It would appear that the total period which the jury had spent actually deliberating was in the order of nine full days (that is eight full days and two half days on 6 June and 8 June respectively). In the scheme of things, and for a trial of this length, the actual time spent by the jury deliberating could not be said to be inordinately long. Moreover, not only had the jury heard a great deal of evidence over an extended period of time but there were also, as I have said, five accused on trial who were facing a number of different charges. When all the various alternative counts are taken into consideration, the jury was potentially required to return no fewer than 19 separate verdicts. Furthermore, as would be apparent from the brief summary of the evidence, the issues to be determined in respect of the various accused differed, because their responses to the Crown case were different.

23 The extent of the disruptions, due to illness and other factors in this case, was certainly somewhat unusual. Nevertheless, illness is an unfortunate fact of life particularly during the winter months. Although unusual and frustrating, I am not of the view that the disruptions could, in any sense, be seen as casting doubt upon the integrity of any verdicts that may be returned. I have assumed, for the purposes of argument, that such a consideration may be critical in a particular case. I am unpersuaded however that the discharge of the jury was warranted upon this basis in the present case.

24 In determining the merits of the present application, it was also necessary to weigh in the balance the consequences which would flow were the jury to be discharged. The financial cost to the community of having to run this trial again would be enormous. Quite apart from fees payable to counsel and solicitors, the airfares and accommodation expenses of the 12 witnesses from the Smith family who gave evidence and who now reside in the United Kingdom, would again have to be met. To that may be added the emotional cost which the deceased’s family including the witnesses, as well as the accused and their families, would again be forced to confront.

25 It is now convenient to deal with events which occurred following my decision not to discharge the jury on 27 June 2007. The jury continued deliberating the following day (that is 28 June). Again nothing was heard until a note was received from them indicating that they wished to be released at 4 pm.

26 Mr Trevallion then renewed his application for the discharge of the jury. The only additional submission which he advanced was that another day had passed. That in my view, did nothing to alter the situation and once again I refused the application.

27 The following morning, that is 29 June, information was received that a juror was ill and was unable to attend court. Enquiries revealed that this juror had not been ill on any previous day. On this occasion, Mr Stewart, who appeared on behalf of Samuel Jones, made an application for the discharge of the jury. Mr Trevallion also renewed his application. Mr Stewart expressed his submission in the following terms:

I am very concerned about the continuing delays and the effect that that may have on the integrity of any verdicts that arise at this stage.

28 Although I too expressed concern about the number of delays which had occurred, I nevertheless again refused the application. I was still of the view that the interests of justice did not warrant the discharge of the jury. I did so essentially for the same reasons as those which I have earlier expressed. Nor was I persuaded that the intervening events had tipped the balance in the other direction.

29 There is one further matter to which I should refer. In making his original application, Mr Trevallion submitted that I should take verdicts from the jury upon those matters upon which they had agreed. In making that submission, he was making an assumption which was based upon one or more of the notes to which I referred earlier. It is not entirely clear to me that that is what the jury had been indicating. Nevertheless no one suggested at the time that the note or notes were received, that verdicts should be taken only in relation to the counts on which the jury had apparently reached agreement.

30 In any event, when the court reconvened on 2 July following the weekend break, the juror who had been ill on 29 June had recovered and the jury resumed its deliberations. Given the way in which matters had unfolded, and with the concurrence of counsel, I directed the jury that I had the power, in the event that they could agree on some verdicts but could not agree upon others, to accept verdicts in relation to those counts upon which they could agree and discharge them, without them reaching verdicts, in respect of those counts upon which they could not agree. As it transpired, the jury returned shortly thereafter with verdicts in respect of all counts upon which they were called to make a decision.

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