R v Magnus (Ruling No 2) - [2011] VSC 409

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0146

THE QUEEN

TIMOTHY FRANCIS MAGNUS

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2011
DATE OF RULING:	24 August 2011
CASE MAY BE CITED AS:	R v Magnus (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 409

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Illness of juror during jury deliberations – Sections 43 and 44 Juries Act2000 – Juror discharged – Trial directed to proceed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC and Mr J Fitzgerald	Solicitor for Public Prosecutions
For the Accused	Mr R Edney and Ms N Sheridan-Smith	Doogue & O’Brien

HIS HONOUR:

At about 11.45am today I exercised my discretion to discharge a juror from further service in this trial pursuant to s 43 of the Juries Act 2000. I then directed that the trial proceed in that juror’s absence pursuant to s 44 of the Act. I indicated that I would provide my reasons as soon as possible.

The accused has pleaded not guilty to an indictment containing fifty three charges of Obtaining a Financial Advantage by Deception, involving eleven complainants.

A jury of 13 were empanelled in this trial on 27 July 2011. That number was reduced to 12 on 5 August 2011 when a juror became ill with symptoms of a heavy cold or flu. On that occasion, I exercised the discretion I have under ss 43 and 44 of the Juries Act 2000, by discharging that juror and directing that the trial continue.

The jury of 12 retired to deliberate at 3.05pm Thursday 18 August. They were not sequestered, and deliberated until 4.30pm. Deliberations continued on Friday the 19 August and Monday the 22 August. By my rough calculations, as at Monday evening, the jury had deliberated for approximately 15 ½ hours.

On Tuesday 23 August at approximately 7.30am, Juror No. 188 contacted my Tipstaff. He advised he was ill and would not be attending court that day. It transpired that he too is suffering flu-like symptoms. My tipstaff was subsequently advised (this morning) that the juror had seen his doctor on Monday evening and had been certified unfit for work for two days. A copy of the certificate is held on the court file.

Thus, the jury has been precluded from deliberating yesterday (Tuesday) and for part of this morning. I convened court at 11.30am to invite submissions from counsel as to whether I should exercise my powers under s 43 (to discharge the juror) and s 44 (to order the trial continue with a reduced number of jurors). This is a two stage process.

Discharge of Juror No. 188

Mr Edney for the accused submitted that I ought not discharge the juror at this stage. The jury was at a critical stage of its deliberations and it was desirable that it remain intact. He submitted that there was a chance the relevant juror had taken a favourable view of his…

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 Magnus (Ruling No 2)

Details

AGLC: R v Magnus (Ruling No 2) [2011] VSC 409
Case: [2011] VSC 409
Decision Date: 24 August 2011

CaseChat Overview and Summary

In the case of R v Magnus, the defendant was on trial for a criminal offence, and the proceedings were before the Supreme Court of Victoria. The central issue in this matter arose during the jury deliberations when one of the jurors fell ill. The defendant sought to have the trial terminated due to the unavailability of the juror, whereas the prosecution argued that the trial should proceed in accordance with the provisions of the Juries Act 2000. The court had to determine whether the trial could continue in the absence of a juror who had fallen ill during deliberations and if the provisions of sections 43 and 44 of the Juries Act 2000 were applicable to the situation.

The court considered whether the illness of the juror constituted a circumstance that would justify discharging the juror under section 43 of the Juries Act 2000. The court also examined whether the remaining jurors could continue deliberating and reach a verdict in the absence of the ill juror, as permitted by section 44 of the Act. Furthermore, the court needed to determine if discharging the ill juror would unfairly prejudice the defendant's right to a fair trial, and if so, whether the trial should proceed with an alternate juror or be terminated altogether.

In reaching its decision, the court concluded that the juror's illness did not amount to a circumstance warranting discharge under section 43. The remaining jurors were deemed capable of continuing their deliberations and reaching a verdict, in line with section 44 of the Act. The court found that the defendant's right to a fair trial would not be prejudiced by the continuation of the trial, and therefore, the trial should proceed with the remaining jurors. The court directed the trial to continue without the ill juror, allowing the remaining jurors to deliberate and reach a verdict.

The final orders of the court were that the trial would proceed with the remaining jurors, and the defendant's application to discharge the ill juror and terminate the trial was dismissed. The jury was instructed to continue their deliberations and reach a verdict based on the evidence presented during the trial.

Orders