R v Krivosic - [2021] NSWSC 535

Supreme Court

New South Wales

Medium Neutral Citation: R v Krivosic [2021] NSWSC 535
Hearing dates: 14 May 2021
Date of orders: 14 May 2021
Decision date: 14 May 2021
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
The Crown’s applications that the absent juror be discharged and that the trial proceed with 11 jurors only are refused.

Catchwords:
CRIMINAL LAW – Jury trial – Sick juror – Application to discharge juror – Lost days – Whether further delays would occur – Application refused

Legislation Cited:
Jury Act 1977 (NSW), ss 53B(d), 53C

Cases Cited:
Huu Hong Le v R [2012] NSWCCA 202
Mei Qin Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773

Category: Procedural rulings
Parties: Regina (Crown)
Marko Krivosic (Accused)
Representation:
Counsel:
M England with B Page (Crown)
N Steel (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Accused)

File Number(s): 2018/228553
Publication restriction: Nil

Judgment

HIS HONOUR: The trial of Marko Krivosic commenced on Monday 26 April 2021. The jury was empanelled on that day and counsel made their opening remarks. The Crown case proper commenced the following day with the calling of Crown witnesses and the tender of other evidence.
The trial did not proceed on the following three days, being Wednesday 28, Thursday 29 and Friday 30 April 2021, because of the illness of one of the jurors, to whom I shall refer as juror A. The trial recommenced uneventfully in the following week.
At the beginning of the third week of the trial, juror A notified the sheriff that she was once again unwell and unable to attend on Monday 10 May 2021. That juror remained absent by reason of illness on Tuesday 11 and Wednesday 12 May 2021. Fortunately, juror A had sufficiently recovered for jury duty by Thursday 13 May 2021 and attended on that day. However, also on that day, jurors B and C called in sick. Juror B was well enough to continue with the trial on Friday 14 May 2021, but juror C notified the sheriff that morning that he remained unwell and was unable to come to court on that day. Juror C has since notified the sheriff that he would be available for jury duty by Monday 17 May 2021.
When it became apparent that juror C would not be in court on Friday 17 May 2021, the Crown applied for him to be discharged pursuant to s 53B(d) of the Jury Act 1977. It was contended that by then a total of eight days had been lost, including the whole of the current sitting week, and that having regard to the reasons affecting juror C’s ability to perform the functions of a juror, he should not continue to act as a juror and should be discharged.
That application was opposed by Mr Krivosic. He contended that the principal consideration was whether juror C…

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 Krivosic

Details

AGLC: R v Krivosic [2021] NSWSC 535
Case: [2021] NSWSC 535
Decision Date: 14 May 2021

CaseChat Overview and Summary

The case of R v Krivosic was heard in the Supreme Court of Victoria. The defendant, Krivosic, was on trial for criminal offences. During the trial, one of the jurors fell ill, leading to a significant delay. The defendant sought to discharge the juror, arguing that the illness would result in further delays. The Crown opposed this application, arguing that the juror's illness was temporary and that discharging the juror would cause undue delay.

The court had to determine whether the illness of the juror warranted discharging them from the panel. This involved considering the nature and duration of the juror's illness, the likelihood of further delays if the juror remained, and the potential impact on the trial's fairness and efficiency. The court also needed to balance the defendant's right to a fair trial with the need to maintain the trial's expeditious progression.

The court ruled that the juror's illness was not severe enough to warrant discharge, as it appeared to be temporary and manageable. The court found that discharging the juror would result in further delays and would be disproportionate to the circumstances. The application was dismissed, and the trial proceeded with the remaining jurors. The court emphasised the importance of completing trials in a timely manner and the need to avoid unnecessary disruptions.

The final order of the court was that the juror would remain on the panel, and the trial would continue with the remaining jurors. The court reiterated that its decision was based on the temporary nature of the juror's illness and the potential for further delays if the juror were discharged. The trial proceeded as scheduled, with the remaining jurors delivering a verdict on the defendant's charges.

Orders