R v McNeill (Ruling No 3) - [2007] NFSC 4

SUPREME COURT OF NORFOLK ISLAND
R v McNeill (Ruling No 3) [2007] NFSC 4
CRIMINAL LAW — juries — discharge of juror by reason of illness — decision to proceed with fewer than 12 jurors — exercise of discretion pursuant to Juries Act 1960 (NI) s 5D
Crimes Act 1958 (Vic) ss 391, 391A
Juries Act 1960 (NI) ss 5, 5(2), 5D, 5E, 23, 23(3)(b)
Jury Act 1977 (NSW) s 22
Juries (Amendment) Act 2007 (NI) s 2
Brownlee v The Queen (2001) 207 CLR 278 discussed
Cicchino v R (1991) 54 A Crim R 358 cited
Maxwell v Murphy (1957) 96 CLR 261 cited
Newell v The King (1936) 55 CLR 707 discussed
Petroulias v R [2007] NSWCCA 134 cited
R v Beere (1843) 2 Mood & R 472 cited
R v Hambery [1977] 1 QB 924 cited
R v Nicolaidis (1994) 33 NSWLR 364 cited
R v Ousley (1996) 87 A Crim R 326 cited
R v Panozzo (2003) 8 VR 548 discussed
R v Radju (2001) 53 NSWLR 471 discussed
R v Radley (1973) 58 Cr App R 394 cited
R v Reardon (2002) 186 FLR 1 discussed
R v Talia [1996] 1 VR 462 cited
Rodway v The Queen (1990) 169 CLR 515 discussed
Wu v The Queen (1999) 199 CLR 99 cited
THE QUEEN v GLENN PETER CHARLES MCNEILL
SCC1 OF 2006
WEINBERG J
7 FEBRUARY 2007
NORFOLK ISLAND

IN THE SUPREME COURT OF NORFOLK ISLAND

CRIMINAL JURISDICTION

SCC1 OF 2006

BETWEEN:

THE QUEEN

AND:

GLENN PETER CHARLES MCNEILL

JUDGE:

WEINBERG J

DATE:

7 FEBRUARY 2007

PLACE:

NORFOLK ISLAND

RULING RE DECISION TO PROCEED WITH FEWER THAN TWELVE JURORS

On 5 February 2007 a jury was empanelled in this trial. That process took the best part of a day. Out of 100 potential jurors summoned for jury duty more than seventy sought to be excused. After considering and ruling upon each individual application to be excused, 35 individuals were available to serve on the jury. The normal ballot then took place. After challenges and “stand asides” a jury of 12 was empanelled. No evidence was led on that day, and the jurors were told to return on 7 February 2007, when the Crown would open its case.
On 6 February 2007 I was informed by the Sheriff that he had had a communication from one of the jurors who had been empanelled the previous day. She was one of those who had sought, unsuccessfully, to be excused. She had initially produced a brief note from her doctor which indicated that she suffered from sciatica. However, her condition had not seemed to me to be sufficiently serious to warrant excusing her from jury service.
Overnight she obtained a second, more detailed, medical report from her general practitioner. In that report, the doctor went much further than he had in his initial note, and expressed the opinion that the juror would not be able to serve on this jury not only because of the sciatica, but also…

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 McNeill (Ruling No 3)

Details

AGLC: R v McNeill (Ruling No 3) [2007] NFSC 4
Case: [2007] NFSC 4
Decision Date: 7 FEBRUARY 2007

CaseChat Overview and Summary

In this case, the Supreme Court of Norfolk Island considered whether a criminal trial could proceed with fewer than twelve jurors. The trial had commenced, and a juror had fallen seriously ill, necessitating her discharge. The issue was whether the trial should be adjourned, or whether the trial could proceed with eleven jurors, in accordance with a new statute. The court considered the statutory and common law background to the question, and concluded that the trial should proceed with eleven jurors. The reasoning of the court was that the trial was of great importance to the accused, who had been in custody for some time, and it was in the interests of justice to proceed with the trial, rather than adjourn it for an indefinite period. The court also considered the difficulties that would be involved in empanelling a new jury on Norfolk Island, and concluded that these weighed in favour of proceeding with eleven jurors. The court considered the submissions of counsel, and ultimately concluded that the trial should proceed with eleven jurors. The reasoning of the court was that the accused preferred to proceed with eleven jurors, rather than have the trial adjourned, and there were other factors that weighed in favour of proceeding with eleven jurors, rather than adjourning the trial.

Orders