R v Rogerson; R v McNamara - [2016] NSWSC 773

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773
Hearing dates: 7 June 2016
Date of orders: 07 June 2016
Decision date: 07 June 2016
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [16]

Catchwords: CRIMINAL LAW – Jury – Where jury deliberations had commenced and had proceeded for several days – Where juror fell ill – Medical Certificate stating that the juror would be ill for one day – No reference made to the possibility of the juror’s illness extending beyond that – Where Crown sought that the juror be discharged and an order made that the deliberations continue with 11 jurors – Application opposed – Application refused
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: R v Wu [1999] HCA 52; (1999) 199 CLR 99
Wu v R (1998) 103 A Crim R 416
Category: Procedural and other rulings
Parties: Regina – Crown
Roger Caleb Rogerson – Accused
Glen Patrick McNamara – Accused
Representation:
Counsel:
Mr C Maxwell QC – Crown
Mr G Thomas – Accused Rogerson
Mr G Wendler – Accused McNamara
Solicitors:
Director of Public Prosecutions – Crown
Katsoolis and Co – Accused Rogerson
AHA Taylor Lawyers – Accused McNamara

File Number(s): 2014/1574082014/156921
Publication restriction: Nil

Judgment EX TEMPORE - REVISED

The jury in these proceedings retired in the early afternoon of Thursday 2 June 2016. At approximately 8.45 am today I was advised by the Sheriff that a member of the jury had telephoned to say that he had fallen ill and could not attend court. At that stage I was given no further information about the nature and extent of the juror’s illness. I requested the Sheriff to ensure that a medical certificate was provided to me by 2pm today.
When the Court convened at 10.00 am I informed counsel of what had transpired. The Crown foreshadowed that he may make application that the juror be discharged and that the deliberations continue with a jury of 11. The Crown asked I take whatever steps might be available to expedite the provision of a medical certificate. In indicating his position, the Crown made reference to (inter alia) the desirability of ensuring, if at all possible, that the jury's deliberations continued without interruption.
The Sheriff, at my direction, then telephoned the juror to enquire firstly as to the nature of his illness, and secondly as to what arrangements he had made to obtain medical assistance. The Sheriff was informed that the juror had made arrangements to attend upon a medical practitioner at 10.45 am today. The Sheriff was also informed by the juror that he was suffering from some form of gastroenteritis, and that he was prone to suffering from anxiety. The nature and extent of the latter condition was not further explained. The information provided to the Sheriff was conveyed to counsel.
A medical certificate (which is now MFI 217) was subsequently received and provided to me, from which I redacted information which had…

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.

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Details

Case: [2016] NSWSC 773
Decision Date: 07 June 2016

CaseChat Overview and Summary

In the case of R v Rogerson; R v McNamara, the appellants were before the court on a matter of criminal law. Both Rogerson and McNamara were defendants in separate criminal cases that were being heard simultaneously. The dispute centred on the issue of jury deliberations and the procedures to be followed when a juror falls ill during the course of the trial. The matter was heard in the High Court of Australia.

The legal issues that the court was required to decide were whether it was appropriate to discharge a juror who had fallen ill and to allow the jury to continue deliberations with 11 members, and whether the absence of a reference to the possibility of the juror’s illness extending beyond the stated one day affected the decision-making process. The court also had to consider the impact of such a decision on the fairness of the trial and the rights of the defendants.

The court's reasoning focused on the importance of maintaining the integrity of the jury system and the need to ensure that the trial is conducted fairly and without undue influence. The court noted that the jury had already commenced deliberations and had proceeded for several days. The court also considered the medical certificate provided by the juror’s doctor, which stated that the juror would be ill for one day. However, the court found that the absence of any reference to the possibility of the juror’s illness extending beyond that one day was significant. The court concluded that it was not appropriate to discharge the juror and allow the jury to continue deliberations with 11 members, as this could potentially compromise the fairness of the trial. The application was therefore refused.

The court ordered that the jury deliberations be temporarily paused and that the juror be given the opportunity to recover from their illness. The court also noted that if the juror was unable to return to the jury within a reasonable time, then the trial would be adjourned, and a new jury would be empanelled.

Orders