R v LN; R v AW (No. 8)

[2017] NSWSC 331

Supreme Court

New South Wales

Medium Neutral Citation:	R v LN; R v AW (No. 8) [2017] NSWSC 331
Hearing dates:	29 March 2017
Date of orders:	29 March 2017
Decision date:	29 March 2017
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	I decline the Crown application to discharge the absent juror.
Catchwords:	CRIMINAL LAW - murder trial - sick and absent juror - Crown application to discharge juror opposed by defence - whether juror should be discharged with trial to proceed with jury of 11 - trial well advanced and ahead of schedule - absent juror not discharged
Legislation Cited:	Jury Act 1977
Cases Cited:	---
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) LN (Accused) AW (Accused)
Representation:	Counsel: Ms MM Cunneen SC (Crown) Mr EW Wilson SC (LN) Ms A Moen (AW)         Solicitors: Director or Public Prosecutions (Crown) Legal Aid NSW (LN) Matouk Joyner Lawyers (AW)
File Number(s):	2014/271972 (LN)2014/274229 (AW)
Publication restriction:	On 18 April 2017, each of LN and AW was found guilty of murder by the jury. The name of their daughter (described as “Mary”) may not be identified by operation of s.15A Children (Criminal Proceedings) Act 1987, which also operates with respect to the names of LN and AW, the publication of whose names would tend to identify their daughter. The first name of the victim, Joseph or Joey, may be published.

Judgment

1. JOHNSON J: Today is the 20th day of the trial of LN and AW on a charge of murder. The evidence was completed yesterday. It was expected that today, after legal argument on some outstanding issues with respect to directions to the jury, the Crown would commence its closing address to the jury.

2. The Court has been informed this morning that a member of the jury is absent on the grounds of illness. The remaining 11 members of the jury are present. A medical certificate has been furnished on behalf of the absent juror. It is dated today and states that the absent juror "has a medical condition and will be unfit for work from 29 March 2017 to 31 March 2017 inclusive" (MFI 43). The certificate accords with contemporary practice where it really tells you nothing about the nature of the problem. It is, of course, a certificate designed for fitness to work and not fitness to be a juror.

3. At my request, the Sheriff's Officers have communicated with the absent juror. The absent juror has indicated that he is experiencing a stomach problem, which commenced to manifest itself yesterday and is still causing difficulty. The juror has indicated that he does not expect to be fit to return to serve on the jury this week. That communication accords with what is in the medical certificate.

4. Faced with this situation, the question has arisen as to where to go with the trial itself. The expectation was that the Crown would address today, with the closing address of Mr Wilson SC for LN to follow, either later today or, more likely, tomorrow. Friday is a half-sitting day. I will be occupied in this Court sentencing another person on Friday afternoon, so that period is not available for this trial.

5. Accordingly, at 12 noon on Wednesday 29 March 2017, the question is whether this juror should be discharged with the trial proceeding with 11 jurors, or whether the trial ought effectively be adjourned (as involving the jury at least) until next Monday, 3 April 2017.

6. The Crown has applied to have the absent juror discharged and for the Court to proceed with the remaining 11 jurors constituting the jury.

7. Counsel for each Accused has opposed the discharge application. Submissions have been made by Mr Wilson SC, for LN, that the criteria in s.53B(a) Jury Act 1977 are not made out in the present case. That provision states that a court may discharge a juror in specified circumstances where the juror is ill.

8. It is submitted as well that this trial is, in effect, ahead of schedule in that it is in the middle of the fifth week when the trial was estimated to extend to the other side of Easter. It was submitted as well that, if the juror is discharged and the trial proceeds before a jury of 11, the closing addresses will commence this week but will not conclude and will spread into next week.

9. Both Accused, through counsel, submitted that the appropriate course was to not discharge the absent juror but to proceed with the jury of 12 next Monday.

10. The Court has a discretion as to whether to discharge the absent juror and to proceed with a jury of 11. However, the current form of the Jury Act 1977 uses language which, on one view of it, is fairly inflexible. It is a common experience in jury trials that a juror becomes ill for a period. However, s.53B(a) prescribes that the decision to discharge can be made if "the juror is so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers a verdict or has become so ill as to be a health risk to other jurors or persons present at the trial".

11. The indication from the absent juror, supported by the medical certificate, is that there is a type of passing illness which, with some days' rest and treatment, will permit the juror to return to serve on the jury. It might be said that the juror’s absence between now and Friday will be further assisted by the intervening weekend, which should ensure that the absent juror would be fit for the resumption of the trial next Monday.

12. There are other factors which are relevant as well to the exercise of discretion. The criminal justice system in this State operates on the basis that the trial ought proceed before a jury of 12, unless there is a basis for discharging a juror under the Jury Act 1977. Although that position is a starting point and is not inflexible, it is the expectation that trials should proceed with a jury of 12 unless there is a good reason (within the terms of the Act) to proceed with a lesser number.

13. Each Accused is entitled to have a jury of 12 (subject to the statutory provisions for discharge) as, indeed, is the community which has an interest as well in the administration of criminal justice.

14. A further factor which is of present relevance is that this trial has proceeded with reasonable expedition and is, effectively, ahead of schedule. Another factor, which must be considered, is that, if the closing address by the Crown commences on Monday morning, there will be four sitting days where the jury will hear, consecutively, the closing addresses on behalf of the Crown and each Accused with, I hope, the prospect that my summing-up may be well underway, if not completed, by 4.00 pm on Thursday 6 April. If that scenario resulted, there would be a prospect that the jury could be asked to retire to consider their verdicts on Thursday 6 April.

15. As the parties are aware, I am presiding in the Arraignments List on Friday 7 April and would not be in a position to sit in this Court to continue with a summing-up. On the other hand, if the jury had retired on Thursday afternoon, it would be within the capacity of the Court to conduct the Arraignments List in the Law Courts Building in Queen's Square, and to return to this Court as needed in the event that there was a question from the jury or verdicts.

16. All that is relevant to the exercise of discretion as well. Whether that scenario is unduly optimistic, in the sense that it will take more than four days for closing addresses and summing-up, remains to be seen.

17. What should be emphasised, however, is if this juror is not discharged and counsel, effectively, have the balance of this week to prepare their closing addresses, it is the expectation of the Court that the closing addresses will be even better prepared than they would otherwise have been and delivered with appropriate expedition and avoidance of repetition. I bear that factor in mind as well.

18. The question then is whether the Court should exercise its discretion to discharge this juror. There is a difficulty, in my view, in the Court being satisfied that the formula in s.53B(a) is made out in this case. The loss of time is significant but not excessive. Some of that time will be used in the remaining legal argument which must occur before any closing addresses could commence.

19. In all of the circumstances, I decline to discharge the absent juror. The effect of this will be that the remaining 11 members of the jury will be informed that they will be required at 10.00 am on Monday, 3 April 2017, for the continuation of the trial.

20. It is appropriate, in my view, that the 11 members of the jury come into Court and hear from me what the position is so that I can also remind them, once again, of the need to avoid discussion with other persons about issues in the trial in what will be an extended period before the trial resumes.

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Decision last updated: 19 April 2017