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

1. 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.

2. 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.

3. 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.

4. 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.

5. That application was opposed by Mr Krivosic. He contended that the principal consideration was whether juror C would be able to attend on Monday 17 May 2021, and that the available information suggested that he would. In those circumstances, the loss of several days by reason of the indisposition of other jurors could not properly inform the question of whether juror C’s non-attendance for health reasons should lead to his discharge. There was also said to be a certain inconsistency between discharging juror C after only two days when juror A had been absent for more days than that.

6. Counsel for the Crown and for Mr Krivosic helpfully referred me to several authorities in which the principles to apply have been clearly considered: see, for example, Mei Qin Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52; Huu Hong Le v R [2012] NSWCCA 202; and R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773. In Wu at [16], Gleeson CJ and Hayne J said this:

“It is not right to assume, as this part of the appellant's argument assumed, that the power to discharge a juror because the juror is ill requires in every case some elaborate factual inquiry about the juror's health. In particular, we do not consider that the trial judge in this case was bound to seek or obtain more information than he had before it was open to him to discharge the juror. It is necessary to bear steadily in mind that the juror was absent. That fact was of critical importance. It meant that the trial could not proceed before the jury constituted as it had been at the start of the trial. It follows that asking why the juror was absent was important only in deciding how long the interruption to proceedings would be.”

7. In the present case, that question appears to have been answered, and the interruption to the trial occasioned by juror C’s absences to date will not continue or extend beyond two days. On the assumption that all jurors are present on Monday 17 May 2021, the trial will resume and proceed to a conclusion.

8. It is completely understandable that the Crown is concerned about the lost days and the extended length of the trial in the circumstances. I accept immediately that the unavailability of a juror at the start of a trial is less a matter of concern than the absence of a juror at a point when several days have already been lost as the result of the illness of a juror or jurors. However, in the present case, the application to discharge juror C has to be considered in light of the circumstances that attend his particular situation, and should not be subverted or unduly influenced by an understandable frustration with the fact that the momentum of the trial has faltered.

9. I also take account of the fact that Mr Krivosic is himself content to await the return of juror C and that he does not want him to be discharged at this stage. A different position may well arise, both from Mr Krivosic’s perspective and from mine, if juror C’s anticipated return after the weekend does not eventuate. Mr Krivosic also emphasised his reasonable desire to retain a jury of twelve, even though his attitude to that would not necessarily be decisive if juror C were discharged and consideration had to be given to the separate question posed by s 53C of the Act.

10. It is understandably disappointing that the trial, originally scheduled to run for no more than 15 days and which has run smoothly and efficiently so far with the considerable assistance and co-operation of experienced counsel, should be delayed by the unavoidable loss of eight of those days. However, an order for the discharge of a juror can and should only be considered and made on a principled basis. It is difficult to accede to an application that effectively cuts across Mr Krivosic’s entitlement to be tried by a jury of twelve, and which Mr Krivosic himself opposes, when the real prospect is that the juror in question has advised the sheriff that he will be well and able to return for duty on the next sitting day.

11. It was for these reasons that I declined to accede to the Crown’s application to discharge juror C.

**********

Decision last updated: 08 December 2021