R v Niguidula (No 9)

[2023] NSWSC 620

Supreme Court

New South Wales

Medium Neutral Citation:	R v Niguidula (No 9) [2023] NSWSC 620
Hearing dates:	2 June 2023
Date of orders:	2 June 2023
Decision date:	02 June 2023
Jurisdiction:	Common Law - Criminal
Before:	Dhanji J
Decision:	Certificate under Suitors’ Fund Act 1951 (NSW) issued to the accused.
Catchwords:	CRIMINAL PROCEDURE – trial – murder – application for certificate under Suitors’ Fund Act 1951 – application following discharge of jury - discharge was not attributable to the act, neglect or default of the accused or her counsel or solicitors – application allowed
Legislation Cited:	Suitors' Fund Act 1951 (NSW)
Cases Cited:	R v Niguidula (No 8) [2023] NSWSC 593
Category:	Procedural rulings
Parties:	Rex (Crown) Jenny Niguidula (Accused)
Representation:	Counsel: C Taylor (Crown) A Boe with G Boe (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Murphy’s Lawyers (Accused)
File Number(s):	2019/390005
Publication restriction:	Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: In circumstances described in R v Niguidula (No 8) [2023] NSWSC 593, a judgment delivered today, on 16 May 2023, I discharged the jury which had been previously empanelled in the accused's trial. It will be clear from that judgment, which should be read in conjunction with the present judgment, that the discharge was as a result of the Crown having opened the case and, in that opening, making reference to evidence of a witness who, overnight, it was learnt, would in fact not be called. As a result of reference to material in the Crown’s opening that would not be in evidence, the jury was discharged and a new jury empanelled the following day.

2. Application is made on behalf of the accused for a certificate under the Suitors' Fund Act 1951 (NSW) arising from those circumstances. Section 6A(1)(c) of the Suitors' Fund Act 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 is ordered by the presiding judge for a reason not attributable in any way to disagreement on the part of the jury, and where the reason was not attributable to the act, neglect or default of the accused, or the accused's counsel or attorney. 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 only just commenced.

3. It is also clear that the reason for the discharge was not attributable to the act, neglect or default of the accused or her counsel or solicitors. On that basis, I am satisfied that foundation has been established for the issue of a Suitors' Fund Act certificate in favour of the accused.

4. I have been provided with a draft certificate and, subject to amendments made by me apparent on the face of the document, I am satisfied that that certificate should issue from the Court. The version which I will sign, in my view, satisfies the requirements under the Suitors' Fund Act as to the contents of a certificate. I will execute two copies of that certificate and those copies will be sealed by my Associate. One will be retained by the Court and one will be provided to the accused's solicitor, who may then take the relevant action on behalf of the accused with respect to that certificate.

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