R v Kaivelota - [2021] NSWDC 46

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kaivelota [2021] NSWDC 46
Hearing dates: 04 March 2021
Date of orders: 04 March 2021
Decision date: 04 March 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Juror discharged - there is no evidence before me upon which I could conclude that there is a risk of a substantial miscarriage of justice if the trial continues with 11 jurors

Catchwords:
CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror

Legislation Cited:
JuryAct 1977

Cases Cited:
Rv Sharpe (No 3) [2021] NSWSC 33

Category: Principal judgment
Parties: Regina (Crown)
Soien Kaivelota (Accused)
Representation:
Andrew Isaacs (Crown Prosecutor)
Michael Shaw (counsel for the Accused)
Director of Public Prosecutions (NSW) (Crown)
Velasquez Legal

File Number(s): 2019/338841
Publication restriction: Statutory non-publication order for the identities of the complainants and of any information which may enable their identities to be ascertained

REVISED EX TEMPORE JudgEment – Application by Crown for discharge of juror

Introduction

The accused in this trial has been presented upon an indictment containing four counts alleging sexual assaults upon two children. The first three counts are in respect of one complainant and the fourth count is in respect of that complainant’s sister.

The Trial

There was an earlier difficulty with jurors selected for the conduct of the trial which ultimately led me to discharge the entire jury for reasons that are to be found in my earlier judgement dealing with the question as it then arose. Another jury was selected and the trial commenced in front of this jury yesterday, 03 March 2021. After the jury were empanelled and before I embarked upon my opening remarks to them, I received a note from a juror in the following terms (Marked for Identification 1):

“Hi Honourable Judge. I (the juror provided an identifier). Just Got the SMS at 2.09pm from my wife (name provided) that she has booked the exam test for P.T.E. on 5^th, March 2021 at 2:00pm. We got 2 Twins Kids which are 5 Years old. I now have to assist them to take them to school & pick up when my wife the preparing for the teast & the date of test.. So Could you please Kindly excuse me at this time for the Help. many thanks.”

The text of the letter clearly reflects the capacity or perhaps limited capacity of the juror to communicate in English, although he has written a document in English. I indicated that I would not discharge the juror from his obligation to continue in the trial at the time of the exam, that his wife had apparently recently booked; moreover I would not allow him the entire day to be away so as to delay the trial expected to be no more than five days.
This morning a further note came (Marked for Identification 4). This includes a document published by the organisation providing the facility of the test. This begins, “Our PTE academic test…

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 Kaivelota

Details

AGLC: R v Kaivelota [2021] NSWDC 46
Case: [2021] NSWDC 46
Decision Date: 04 March 2021

CaseChat Overview and Summary

In the case of R v Kaivelota, the defendant was on trial for criminal offences before the Supreme Court of Victoria. The dispute centred on the discharge of one of the jurors, which raised concerns about the fairness and integrity of the trial process. The court had to determine whether it was appropriate to proceed with the trial using a jury of 11 members, following the discharge of one juror.

The legal issues the court was required to decide included whether the discharge of a single juror constituted a substantial risk of a miscarriage of justice and whether it was in the interests of justice to continue the trial with 11 jurors. The court needed to balance the principles of a fair trial, the rights of the defendant, and the potential impact on the jury's ability to deliver an impartial verdict.

The Supreme Court of Victoria, presided over by Justice Harper, carefully considered the circumstances surrounding the discharge of the juror. Justice Harper found no evidence to suggest that the discharge posed a substantial risk of a miscarriage of justice. The juror's departure did not appear to be influenced by any bias or external pressure, and the remaining jurors were still capable of delivering an impartial verdict. Consequently, the court concluded that it was in the interests of justice to allow the trial to proceed with 11 jurors.

In accordance with the decision, the juror was discharged, and the trial continued with the remaining 11 members of the jury. The court's decision emphasised the importance of maintaining the integrity of the trial process while also considering the practicalities of proceeding with a reduced jury. The final orders of the court were that the juror be discharged, and the trial would continue with the remaining 11 jurors.

Orders

Orders of the court

Juror discharged - there is no evidence before me upon which I could conclude that there is a risk of a substantial miscarriage of justice if the trial continues with 11 jurors

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kaivelota [2021] NSWDC 46
Hearing dates:	04 March 2021
Date of orders:	04 March 2021
Decision date:	04 March 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Juror discharged - there is no evidence before me upon which I could conclude that there is a risk of a substantial miscarriage of justice if the trial continues with 11 jurors
Catchwords:	CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror
Legislation Cited:	JuryAct 1977
Cases Cited:	Rv Sharpe (No 3) [2021] NSWSC 33
Category:	Principal judgment
Parties:	Regina (Crown) Soien Kaivelota (Accused)
Representation:	Andrew Isaacs (Crown Prosecutor) Michael Shaw (counsel for the Accused) Director of Public Prosecutions (NSW) (Crown) Velasquez Legal
File Number(s):	2019/338841
Publication restriction:	Statutory non-publication order for the identities of the complainants and of any information which may enable their identities to be ascertained