R v Lamb and Thurston - [2002] NSWSC 322

CITATION: R v Lamb and Thurston [2002] NSWSC 322

CURRENT JURISDICTION: Common Law Division
Criminal

FILE NUMBER(S): SC 70209/01; 70066/01

HEARING DATE(S): 5 April 2002

JUDGMENT DATE: 8 April 2002

PARTIES :

Regina (NSW)
Stanley Joseph Lamb - Accused
Edward George Thurston - Accused

JUDGMENT OF: Dunford J

COUNSEL : M.A. Macadam QC - Crown
P.M. Paish - Lamb
A.I. Parker - Thurston

SOLICITORS: S.E. O'Connor - Crown
Ross Hill & Associates - Lamb
Legal Aid Commission of NSW - Thurston

CATCHWORDS: CRIMINAL LAW & PROCEDURE - jury - application to discharge juror - distant relative of victim - whether trial to continue with 11 jurors - early stage of trial - availability of fresh jury panel - jury discharged - CRIMININAL LAW & PROCEDURE - application for change of venue - Tamworth to Sydney - murder trial - victim killed locally - lay witnesses all local - victim's family local - application refused.

LEGISLATION CITED: Jury Act 1977, s 26(3)

CASES CITED: Wu v The Queen (1999) 108 A Crim R 252

DECISION: Jury discharged. Application for change of venue refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL

DUNFORD J

TAMWORTH: Monday, 8 APRIL 2002

70209/01 R v Stanley Joseph LAMB
70066/01 R v Edward George THURSTON
JUDGMENT - Re Application to discharge jury and change of venue; see T 168.

1 HIS HONOUR: This trial commenced last Wednesday when the jury was empanelled and the accused put in their charge and a voir dire was then commenced. The jury was excused until Thursday, then to Friday, and now they have been excused until Tuesday. The voir dire has not yet been completed, and the Crown prosecutor has not yet opened the case to the jury.

2 On Friday I saw fit to discharge one of the jurors who it turned out was a distant relation of the deceased. There is now an application on behalf of the accused Lamb to discharge the whole jury, and also for a change of venue to Sydney.

3 Initially the Crown opposed the application to discharge the jury and submitted that the trial should continue with the remaining eleven jurors. This morning the learned Crown prosecutor has indicated that he no longer adheres to that submission, as he has ascertained that steps are in train to summon a new jury panel for next Monday. That, I might add, has been done as a result of steps instigated by me on Friday when the question first arose; and I might add that it has required almost superhuman efforts on the part of the Sheriff's Office to arrange a new jury panel and deliver the jury notices to Tamworth by courier, so that most of them can be hand delivered, as the jurors are required to have reasonable notice. Actually the Jury Act 1977 s 26(3) requires that they have at least seven days notice, but I have power to reduce the length of notice if occasion arises.

4…

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.

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Details

Case: [2002] NSWSC 322
Decision Date: 8 April 2002

CaseChat Overview and Summary

In the case of R v Lamb and Thurston, the appellants, Lamb and Thurston, were on trial for the murder of a victim in Tamworth. The dispute centred on several procedural issues that arose during the trial, including the discharge of a juror due to their distant relationship with the victim, and the subsequent availability of a fresh jury panel. Additionally, the appellants sought a change of venue from Tamworth to Sydney, arguing that a fair trial could not be achieved in Tamworth due to the local ties of the victim's family and lay witnesses. The court had to determine whether the trial could proceed with 11 jurors, and whether a change of venue was warranted.

The legal issues before the court were whether the trial should proceed with 11 jurors after one juror was discharged, and whether the trial should be moved from Tamworth to Sydney. The court needed to consider the impact of the discharged juror on the fairness of the trial and the availability of a fresh jury panel. Furthermore, the court had to assess whether there was a real risk of bias due to the local ties of the victim's family and lay witnesses in Tamworth, and whether this risk was sufficient to warrant a change of venue.

The court found that the discharge of the juror did not necessitate the discharge of the entire jury, as a fresh jury panel was available, and the trial was in its early stages. The court emphasised the importance of a fair trial but held that the availability of a new jury panel and the early stage of the trial mitigated against discharging the entire jury. Regarding the change of venue, the court held that there was no real risk of bias that would undermine the fairness of the trial in Tamworth, given that the victim was killed locally and the lay witnesses and victim's family were all local. The application for a change of venue was therefore refused.

The court ordered that the trial would proceed with the available jury panel of 11 jurors, and that the venue of the trial would remain in Tamworth.

Orders