R v Martin (No 2) - [2017] NSWSC 1250

Supreme Court

New South Wales

Medium Neutral Citation: R v Martin (No 2) [2017] NSWSC 1250
Hearing dates: 6 September 2017
Date of orders: 06 September 2017
Decision date: 06 September 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Order that juror 395-90 be discharged.
(2) Order that the trial to continue with the remaining eleven jurors.

Catchwords: CRIMINAL LAW – discretionary discharge of individual juror – where juror unable to perform functions of juror due to distraction as a result of family medical issues – whether trial should continue with eleven remaining jurors – relevant considerations – where accused “unequivocally” wishes trial to continue – whether risk of substantial miscarriage of justice
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
Category: Procedural and other rulings
Parties: Regina (Crown)
Michael Phillip Martin
Representation:
Counsel:
Mr B G Campbell (Crown)
Mr G D Wendler (M P Martin)
Solicitors:
Director of Public Prosecutions (Crown)
Stuart Percy & Associates (M P Martin)

File Number(s): 2015/00078236; 2015/00120687
Publication restriction: No publication until conclusion of trial

Judgment

On Wednesday 6 September 2017, the third day of what was estimated to be a six week trial for attempted murder, infliction of grievous bodily harm and murder, I made an order discharging a juror pursuant to s 53B of the Jury Act1977 (NSW) and an order under s 53C of that Act that the trial would continue with 11 jurors. These are my reasons for those decisions.

Discharge of juror

A jury was empanelled on Monday 4 September 2017. A jury had been empanelled earlier that day but was discharged before the accused was placed in its charge (but after the jury was sworn or affirmed) for reasons of no present relevance. Following the second empanelment, the Crown Prosecutor commenced his detailed opening statement. The opening continued into the second day and five witnesses were called to give evidence. Towards the end of the second day, three sheriffs or court officers were sworn or affirmed to attend to the jury on a view, which was scheduled to take place on Wednesday 6 September 2017. [1] At the end of the second day, the trial was adjourned to a location in Murwillumbah at 11-30am the following day. The jury was directed to attend at the Lismore Court House at the usual time whereupon they were to be transported by bus to the scene. The parties, a court reporter, my staff and I were to travel separately to the location of the view.
1. Transcript (T) p 121.
Shortly before 10am on the morning of the view, my Associate received a telephone call from the Senior Sheriff at Lismore. He advised that there was a problem with a juror who had attended Court with a medical certificate indicating that she was unfit to serve as a juror. My Associate contacted the parties and arrangements were made for the Court to reassemble in the Courtroom in…

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 Martin (No 2)

Details

AGLC: R v Martin (No 2) [2017] NSWSC 1250
Case: [2017] NSWSC 1250
Decision Date: 06 September 2017

CaseChat Overview and Summary

In the case of R v Martin (No 2), the defendant was prosecuted for a serious criminal offence. The dispute arose regarding the discharge of one of the jurors, who was unable to continue serving due to personal family medical issues causing distraction. The court was required to determine whether the trial should proceed with the remaining eleven jurors and whether the defendant's unequivocal wish to continue with the trial outweighed the potential risk of a substantial miscarriage of justice.

The court considered the legal principles governing the discharge of jurors and the circumstances under which a trial may continue with fewer than twelve jurors. The court acknowledged that while the general rule is that a jury must consist of twelve members, there are exceptions where a jury may continue to deliberate and deliver a verdict if a juror is discharged. The primary considerations included the defendant's wishes, the fairness of the trial, and the risk of a miscarriage of justice.

The court concluded that the trial should proceed with the remaining eleven jurors. The court found that the defendant's unequivocal wish to continue, coupled with the absence of any evidence suggesting that the discharged juror's absence would lead to a substantial miscarriage of justice, supported the continuation of the trial. The court emphasised the importance of balancing the defendant's right to a fair trial with the need to avoid potential injustice.

The court ordered that the trial proceed with the remaining eleven jurors and delivered its verdict based on their findings. The decision underscored the court's duty to ensure a fair trial while also considering the practicalities and potential consequences of discharging a juror mid-trial.

Orders