R v Sharpe (No 3) - [2021] NSWSC 33

Supreme Court

New South Wales

Medium Neutral Citation: R v Sharpe (No 3) [2021] NSWSC 33
Hearing dates: 2 February 2021
Date of orders: 2 February 2021
Decision date: 02 February 2021
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) Pursuant to s 53B(d) of the Jury Act 1977 (NSW) Juror No 11 from panel 218 is discharged.
(2) I direct the Sheriff to notify the juror in question of that order forthwith.
(3) Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) I order that the trial continue with a jury of 11.

Catchwords:
PRACTICE AND PROCEDURE – Juries – Where juror raised issues about her capacity to serve following empanelment – Consensus between parties that order should be made discharging the juror in question – Where court not satisfied that there would be a risk of a substantial miscarriage of justice if the trial proceeded with 11 jurors – Orders made accordingly

Legislation Cited:
Jury Act 1977 (NSW)

Cases Cited:
Phan v R [2018] NSWCCA 225
R v WE (No 6) [2019] NSWSC 930
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52

Category: Procedural rulings
Parties: Daniel James Sharpe – Accused
Regina – Crown
Representation:
Counsel:
K Ratcliffe – Crown
T D Anderson – Accused
Solicitors:
Director of Public Prosecutions (NSW) – Crown
Jennifer Chalker Lawyer – Accused

File Number(s): 2019/215856
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

The accused in this matter has pleaded not guilty to an indictment alleging an offence of murder. His trial commenced on 1 February 2021 at which time a jury of 12 persons was empanelled.
In the course of the empanelment process I reiterated, on more than one occasion, that in the event that any member of the jury panel foresaw a difficulty, for any reason, in being able to serve as a member of the jury, he or she should approach me to raise the matter. In so doing, I made reference, on more than one occasion, to the necessity to err on the side of caution in that regard. I thereafter heard and determined a number of applications from members of the panel to be excused.
After my opening remarks following empanelment, the members of the jury were allowed to depart for the day. Following the Court’s adjournment, I was informed by the Sheriff of an issue which had arisen in respect of one member of the jury. In order to put that issue in context, it is necessary for me to provide some short background.
Last week the Sheriff oversaw a process by which all members of the jury panel were brought to the Court in defined groups. Part of the purpose of that process was to attend to matters that would normally be addressed on the first day of a trial, but which are impeded to some extent by the current pandemic. Those matters included the members of the panel viewing an introductory video. At that time, the members of the…

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 Sharpe (No 3)

Details

AGLC: R v Sharpe (No 3) [2021] NSWSC 33
Case: [2021] NSWSC 33
Decision Date: 02 February 2021

CaseChat Overview and Summary

The case of R v Sharpe (No 3) arose from a criminal proceeding where the defendant, Sharpe, faced charges that required a jury trial. The dispute centred around the eligibility of a juror to continue serving on the jury following empanelment. A juror raised concerns about her ability to participate effectively in the trial. Both parties agreed that the juror should be discharged; however, the court had to determine whether proceeding with an 11-person jury would result in a substantial miscarriage of justice.

The legal issue before the court was whether it was permissible to discharge a juror after the trial had commenced, and if so, under what circumstances the trial could continue with a reduced jury. The court considered relevant statutory provisions and case law that govern the composition of juries and the potential consequences of discharging a juror mid-trial. It was crucial to balance the rights of the accused to a fair trial with the practicalities of proceeding with an incomplete jury.

The court concluded that while discharging a juror after the trial had commenced was an unusual step, it was not categorically prohibited. The primary consideration was whether proceeding with 11 jurors posed a risk of a substantial miscarriage of justice. In this instance, the court was satisfied that the integrity of the trial could be maintained with an 11-person jury. Therefore, the court made the necessary orders to discharge the juror in question, permitting the trial to continue with the remaining jurors.

No further orders were made by the court in this instance. The trial proceeded as planned with the 11-person jury, ensuring that the defendant's right to a fair trial was upheld within the bounds of the legal framework governing jury composition.

Orders