R v Kelu; R v Millner (No 5)

[2023] NSWSC 1541

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kelu; R v Millner (No 5) [2023] NSWSC 1541
Hearing dates:	11 July 2023
Date of orders:	11 July 2023
Decision date:	11 July 2023
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	The application to discharge the jury is refused.
Catchwords:	CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury – where jury inadvertently had access to folder containing MFIs from trial – where foreperson gave evidence that folder had not been opened by any jury member – whether substantial miscarriage of justice – application refused
Category:	Procedural rulings
Parties:	Rex Jonatan Kelu Cedric Adrian Millner
Representation:	Counsel: G Craddock SC with B Stevens (Crown) M Avenell SC (Mr Kelu) S Hall SC (Mr Millner) Solicitors: Commonwealth Director of Public Prosecutions Bannisters Lawyers (Mr Kelu) KPW Lawyers (Mr Millner)
File Number(s):	2018/32462 and 2018/67357
Publication restriction:	None

REVISED EX TEMPORE Judgment

1. At approximately 12.30 pm, I received a jury note indicating that the jury was ready to deliver its verdicts. I reconvened the Court. Upon reconvening the Court, I asked for a copy of the indictment. After a search was made for the indictment, it appeared that it was no longer on the bench. In fact, the folder of documents “Marked For Identification” (“MFIs”) was no longer on the bench.

2. I then discovered that, in the process of delivering the exhibits to the jury (after the jury had been asked to consider their verdicts), the folder of MFIs had been mixed up with the two folders of exhibits.

3. The jury already had copies of a number of other folders, but the particular folders which were placed in the box for delivery by the court officer to the jury room were exhibits. It seems that after I left the bench last Thursday 6 July 2023, the court officer asked for the exhibits and was provided with a box labelled “Exhibits”. Unfortunately (and inadvertently), the folder of MFIs was also placed in that box. This was only discovered by me when I asked for the indictment so that I could have it in front of me as the verdicts were being delivered today.

4. Upon discovering that the folder of MFIs was in the jury room, I informed Counsel of what I had discovered so that they were aware of the error.

5. Ms Avenell and Ms Hall then asked to see the folder of MFIs and sought time to obtain instructions. After they did so, I reconvened and Ms Avenell (on behalf of Mr Kelu) supported by Ms Hall (on behalf of Mr Millner) applied for a discharge of the jury. Ms Avenell identified some particular documents in the MFI list, including the full statement of Robert Parrott and the material which had been put before me, such as the submissions regarding an earlier application to discharge the jury.

6. Having heard Ms Avenell’s submissions, I indicated that I would need to review the material to consider whether there was a substantial miscarriage of justice. I also indicated that I considered the appropriate procedure was to ask some questions of the foreman and, perhaps, other jurors. The parties agreed with the approach of asking questions of the foreman, although the Crown prosecutor said that it would be unnecessary to ask any questions of additional jury members (although, that must depend upon the evidence of the foreman).

7. I then asked for the foreman to enter the witness box and I asked him a number of questions. The transcript will speak for itself but, in my view, it is plain from the foreman’s evidence that the jury did not open, consider or look at the white folder titled “MFIs” contained in the box.

8. Indeed, the foreman said, to his observation, that the folders in the box were not opened. Someone apparently reached in to obtain a USB without actually pulling out any folder or looking at anything in the MFIs folder.

9. Based on that evidence, I am satisfied that the folder of MFIs was not looked at or considered by the jury in coming to its verdicts, and in those circumstances, the application to discharge the jury is refused.

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Decision last updated: 15 December 2023