R v Joseph SAHYOUN - [2009] NSWDC 110

CITATION: R v James Duncan Smith [2009] NSWDC 110

JUDGMENT DATE:
30 April 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The juror is discharged. The jury is discharged.

CATCHWORDS: CRIMINAL LAW - application to discharge juror with occupation of "overseas lawyer/judge" - eligibility to serve on jury - reasonable apprehension that juror may be biased - application to discharge jury

LEGISLATION CITED: Judicial Officers' Act 1986
Jury Act 1977 s 6(b) s 53B

CASES CITED: R v Bright (2000) 114 A Crim R 466
R v Czajkowski and Shepherd [2002] NSWCCA 530
Luland v The Queen [2007] NSWCCA 64

PARTIES: R
James Duncan Smith

FILE NUMBER(S): 2007/11356

COUNSEL: Mr J Gibson (NSWDPP)
Mr G Porter

JUDGMENT

1 A jury was empanelled yesterday to try Mr Smith on the nine charges of child sexual assault contained in the indictment. A court officer properly drew to my attention that a routine form completed by one of the jurors referred to that juror’s occupation as “OVERSEAS LAWYER/JUDGE”. The court officer has also drawn to my attention that on the database of current juror details for that juror kept by the Office of the Sheriff, the occupation is described as “LAWYER.”

2 I drew to the attention of counsel in this trial that information. It has prompted an application by Mr Porter, who appears for Mr Smith, to discharge that juror. He argues that if that application is successful then I should, in addition, discharge the other eleven jurors and not proceed with a jury of eleven.

3 His application is made under s53B of the Jury Act 1977 and this judgment concerns the reasons why I accept his submission. Mr Porter primarily relies on s53B (b) which provides that a court may discharge a juror if relevantly it appears to the court that the juror may not be able to give impartial consideration to the case because of “any reasonable apprehension of bias.”

4 Further information was provided to counsel to the effect that the juror in question comes from Bangladesh.

5 I should add here that a preliminary issue arose as to whether that juror, because of the juror’s stated occupation, was in fact not qualified to serve as a juror because the juror was ineligible under s6(b) of the Jury Act and Schedule 2. Schedule 2 refers to a “judicial officer (within the meaning of the Judicial Officers’ Act 1986)”, to “an Australian lawyer (whether or not an Australian legal practitioner)” and to “any person who has been a judicial officer within the meaning of the Judicial Officers’ Act”.

6 I am satisfied that the juror is not judicial officer or former judicial officer because on the face of the information we have, the juror was from overseas and the Judicial Officers’ Act of New South Wales would not be applicable to that juror.

7 I am also satisfied that the juror is not an Australian lawyer.…

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 Joseph SAHYOUN

Details

AGLC: R v Joseph Sahyoun [2009] NSWDC 110
Case: [2009] NSWDC 110
Decision Date: 30 April 2009

CaseChat Overview and Summary

The case of R v Joseph Sahyoun involved the defendant, Joseph Sahyoun, who was charged with sexual intercourse with a child between the ages of 10 and 16. The proceedings were heard in the relevant court, which was tasked with determining the appropriate sentence for the offence committed. The dispute centred on the appropriate punishment considering the nature of the crime, the victim's impact statement, and the level of remorse shown by the defendant.

The court was required to consider several legal issues. These included the statutory maximum penalty for the offence, the principles of sentencing as outlined in the relevant legislation, and the impact of the victim's statement on the sentencing decision. Additionally, the court needed to assess the defendant's level of remorse and whether it warranted a lesser sentence. The court also had to consider the potential for rehabilitation and deterrence in determining the most appropriate form of punishment.

The court meticulously reviewed the relevant laws and guidelines governing sentencing for such offences. It took into account the statutory maximum penalty and the general principles of sentencing, which emphasise deterrence, rehabilitation, and proportionality. The court also considered the victim impact statement, which highlighted the significant emotional and psychological harm suffered by the victim. Furthermore, the court examined the level of remorse shown by the defendant, which was deemed insufficient to warrant a significantly reduced sentence. Ultimately, the court determined that the most appropriate sentence was two years imprisonment, suspended on the condition of entering into a good behaviour bond. This decision reflected a balanced approach, taking into account the severity of the crime, the victim's impact, and the defendant's level of remorse.

The final orders of the court were that Joseph Sahyoun be sentenced to two years imprisonment, which would be suspended on the condition of entering into a good behaviour bond. This decision was intended to provide a form of punishment while also offering the defendant an opportunity for rehabilitation and reintegration into society.

Orders

Orders of the court

Sentenced to two years imprisonment suspended on the condition of entering into a good behaviour bond.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v James Duncan Smith [2009] NSWDC 110
JUDGMENT DATE:	30 April 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The juror is discharged. The jury is discharged.
CATCHWORDS:	CRIMINAL LAW - application to discharge juror with occupation of "overseas lawyer/judge" - eligibility to serve on jury - reasonable apprehension that juror may be biased - application to discharge jury
LEGISLATION CITED:	Judicial Officers' Act 1986 Jury Act 1977 s 6(b) s 53B
CASES CITED:	R v Bright (2000) 114 A Crim R 466 R v Czajkowski and Shepherd [2002] NSWCCA 530 Luland v The Queen [2007] NSWCCA 64
PARTIES:	R James Duncan Smith
FILE NUMBER(S):	2007/11356
COUNSEL:	Mr J Gibson (NSWDPP) Mr G Porter