R v Khan (No 5)

The case of R v Khan (No 5) arose in the Supreme Court of Victoria, where the accused, Khan, faced a criminal trial. The nature of the dispute centred around the circumstances under which a jury member, certified unfit to continue, necessitated a decision on whether the entire jury should be discharged or if the trial could proceed with an incomplete jury. This matter reached a critical point early in the trial, prompting a legal question regarding the procedural fairness and the accused's right to be tried by a full jury of 12.

The primary legal issue before the court was whether the entire jury should be discharged due to the unfitness of one juror, especially considering the early stage of the trial. The court was required to balance the procedural rights of the accused to a fair trial by a full jury with the practicalities and potential unfairness of continuing with a jury of 11. This delicate balance involved recognising the importance of a unanimous jury verdict while also considering the circumstances under which it might be appropriate to discharge the entire jury.

The court, in delivering its judgment, emphasised the fundamental principle that an accused person has the right to be tried by a full jury of 12. Given that the trial had only just commenced and the jury was still in the process of being empanelled, the court found it undesirable to proceed with an incomplete jury. The court concluded that discharging the entire jury was the appropriate course of action to uphold the integrity of the trial process and the accused's right to a fair trial. As a result, the jury was discharged, and the matter was remitted for a new trial with a fully constituted jury.