R v Martinez; R v Tortell (No. 2)

[2019] NSWSC 1618

Supreme Court

New South Wales

Medium Neutral Citation:	R v Martinez; R v Tortell (No. 2) [2019] NSWSC 1618
Hearing dates:	12 November 2019
Date of orders:	12 November 2019
Decision date:	12 November 2019
Before:	Johnson J
Decision:	The juror seeking to be discharged is discharged from the jury and the balance of the jury is also discharged.
Catchwords:	CRIMINAL PROCEDURE – joint application to discharge juror – where juror belatedly raises mental health issues following empanelment of jury – application allowed – balance of jury discharged
Legislation Cited:	Jury Act 1977
Cases Cited:	---
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Wade Martinez and Jake Tortell (Accused)
Representation:	Counsel: Mr M Barr (Crown) Mr C Watson (Accused Martinez) Mr J Trevallion (Accused Tortell)   Solicitors: Director of Public Prosecutions (Crown) McGowan Lawyers (Accused Martinez) Alexanders Lawyers (Accused Tortell)
File Number(s):	2015/251812 (Martinez)2015/251805 (Tortell)
Publication restriction:	---

Judgment

1. JOHNSON J: The trial of the Accused, Wade Martinez and Jake Tortell, commenced yesterday with the empanelment of a jury and with the Crown undertaking his opening address at the conclusion of the proceedings yesterday.

2. Before Court today, I was provided with a note from a member of the jury which indicates that the juror is concerned because of significant mental health issues as to the ability of the juror to remain in the trial until its conclusion. The note states some additional matters with respect to the mental health of the juror and treatment being received. The juror apologises for not raising this matter yesterday.

3. It is, indeed, regrettable that this information was not revealed yesterday. A very large jury panel was available and, if the juror’s concerns were revealed to the Court, that juror would have undoubtedly been excused. The matters raised by the Court with the panel yesterday foreshadowed the possibility of applications to be excused because of health issues, but unfortunately no application was made by the juror.

4. The Crown and counsel for each Accused jointly apply for the discharge of this juror and the discharge of the balance of the jury, with a fresh commencement of the trial to take place before another panel. As it happens, another panel is available today, so it is possible for that process to proceed without any significant delay.

5. I am satisfied for the purpose of s.53B Jury Act 1977 that the juror seeking to be excused ought be discharged from the jury because of the health issues raised. I am likewise satisfied for the purpose of s.53C Jury Act 1977 that the balance of the jury should be discharged with the trial to commence again before a fresh panel.

6. I make an order that the juror seeking to be discharged is discharged from the jury. I make a further order that the balance of the jury is discharged.

7. I propose to bring the jury in so that they can be informed of this development and then release them. It is hoped that the Court will be in a position to receive the next panel at about 12 noon.

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Decision last updated: 18 December 2019