R v Martinez; R v Tortell (No. 3)

[2019] NSWSC 1619

Supreme Court

New South Wales

Medium Neutral Citation:	R v Martinez; R v Tortell (No. 3) [2019] NSWSC 1619
Hearing dates:	15 November 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Before:	Johnson J
Decision:	Certificates under Suitors’ Fund Act 1951 issued to each Accused.
Catchwords:	CRIMINAL PROCEDURE – application for certificate under Suitors’ Fund Act 1951 – application following discharge of jury – where discharge was not attributable to disagreement of jury or act, neglect or default of the accused or accused’s solicitor or counsel – application allowed
Legislation Cited:	Jury Act 1977 Suitors’ Fund Act 1951
Cases Cited:	R v Tortell; R v Martinez (No 2) [2019] NSWSC 1618
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: In circumstances described in a judgment delivered on Tuesday 12 November 2019 (R v Tortell; R v Martinez (No 2) [2019] NSWSC 1618), I discharged a juror and then discharged the balance of the jury which had been empanelled in the trial of the Accused the previous day.

2. It will be clear from that judgment, which should be read in conjunction with the present judgment, that the jury having been empanelled on Monday, a member of the jury on Tuesday morning indicated a problem with remaining a member of the jury for health reasons.

3. In those circumstances, I discharged that juror under s.53B Jury Act 1977 and I was likewise satisfied, for the purpose of s.53C of that Act, that the balance of the jury should be discharged with the trial to commence again before a fresh panel, as it did later that day.

4. Application is made on behalf of each Accused for a certificate under the Suitors' Fund Act 1951 arising from those circumstances. Section 6A(1)(c) Suitors' Fund Act 1951 provides for the Court to make an order for the issue of a certificate if the hearing of criminal proceedings is discontinued, and a new trial ordered by the presiding Judge, for a reason not attributable in any way to disagreement on the part of the jury, and that the reason was not attributable to the act, neglect or default of the Accused or the Accused's counsel or attorney.

5. It is clear from what I have said that the jury was discharged and that the discharge was in no way attributable to disagreement on the part of the jury, the trial having barely begun. It is clear, as well, that the reason for the discharge was not attributable to the act, neglect or default of either Accused or their counsel or solicitors.

6. Accordingly, a clear foundation has been established for the issue of a Suitors' Fund Act certificate in the case of each Accused. I have been provided with a draft certificate on behalf of each Accused. I am satisfied that the certificates, as provided in draft, should issue from the Court. I note that each certificate satisfies the requirements under the Suitors’ Fund Act as to the contents of a certificate.

7. I have executed two copies of the certificate in each case. I will have my Associate seal the two signed copies. One will be retained by the Court and one will be furnished to the solicitor for the relevant Accused for further action on behalf of that Accused.

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Decision last updated: 18 December 2019