R v Sun - [2021] NSWDC 574

District Court

New South Wales

Medium Neutral Citation: R v Sun [2021] NSWDC 574
Date of orders: 12 March 2021
Decision date: 12 March 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
In the exercise of the discretion given by s 53B(c) Jury Act 1977 for the discharge of three jurors from the empanelled expanded jury,
There shall be a ballot for a jury of 12, by
(a) Placing in the ballot box provided for that purpose, the cards provided under s 28(3) Jury Act 1977 for all of the members of the expanded jury, and
(b) Drawing out of that box those cards, one after another, and calling out the identification numbers on those cards, until 12 persons are selected

Catchwords:
CRIMINAL PROCEDURE — Trial — Jury — Discharge of jurors

Legislation Cited:
Criminal Appeal Act 1912
Jury Act 1977
Public Health Act 2010
Public Health (COVID‑19 Restrictions on Gathering and Movement) Order 2021

Cases Cited:
Barber v The Queen;Zraika v The Queen [2016] NSWCCA 125
R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135

Category: Principal judgment
Parties: Regina (Crown)
Young Hoon Sun (accused)
Representation:
Kay Marinos (Crown Prosecutor)
Mahmoud Mando (Counsel for the accused)
Director of Public Prosecutions (NSW) (Crown)
Mitry Lawyers (solicitors for the accused)

File Number(s): 2018/00294866

REVISED EX TEMPORE JudgEment

Yesterday, at lunchtime, it was brought to my attention by the people responsible for managing the juries, notwithstanding that nothing had been said to gainsay the selection of 15 jurors upon the anticipated length of the trial, and that the whole process undertaken was facilitated, that someone brought to the attention of someone else that the jury room has a square meterage which does not allow for more than 12 people to occupy that space.
I sought inquiries for solutions about other locations where the jury could be held when not in the courtroom, and ultimately was told that the jury rooms are identical floor to floor, and all of the same dimensions, obviously, designed before the COVID‑19 pandemic.
It was thought perhaps using a courtroom that was not being occupied as a jury room would be an option, since it would clearly be big enough, but we do not have that facility due to the number of trials that are running, the number of judges deployed here, and the fact the Sydney registry is sending other work out here. Plus a Supreme Court trial is coming to begin here shortly. So that option was not available.

The Legislation

The Public Health (COVID‑19 Restrictions on Gathering and Movement) Order 2021 is subordinate and under the Public Health Act 2010. I have not gone back to the empowering legislation. The order includes in Part 2 restriction on gatherings and use of premises, which presently confines the number of persons in premises to one person per two square metres or 25 persons, which is the upper limit. This has been modified to 1.5 metres, I think, but in any event, when 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 Sun

Details

AGLC: R v Sun [2021] NSWDC 574
Case: [2021] NSWDC 574
Decision Date: 12 March 2021

CaseChat Overview and Summary

The case before the court involved the respondent, Sun, who was on trial for criminal charges. The court was required to address an issue regarding the discharge of jurors during the trial process. Specifically, the court had to determine whether it was appropriate to discharge three jurors from the empanelled expanded jury, as permitted under section 53B(c) of the Jury Act 1977. The court was also tasked with deciding on the appropriate procedure for selecting a new jury of 12 members, as outlined in section 28(3) of the same act.

In considering the matter, the court examined the provisions of the Jury Act 1977 and determined that the discretion to discharge jurors was indeed available in this instance. The court concluded that the appropriate course of action was to conduct a ballot for a jury of 12 members, following the procedure outlined in section 28(3). This involved placing the cards for all members of the expanded jury into a designated ballot box and then drawing out the cards one by one, calling out the identification numbers until 12 persons were selected. The court found that this approach was in line with the statutory requirements and provided a fair and impartial method of selecting the new jury.

Consequently, the court exercised its discretion under section 53B(c) of the Jury Act 1977 to discharge the three jurors and ordered that a new jury of 12 members be selected by the specified ballot procedure. This decision ensured that the trial could proceed with a properly constituted jury, in accordance with the legal provisions governing the selection and discharge of jurors in criminal trials.

Orders

Orders of the court

In the exercise of the discretion given by s 53B(c) Jury Act 1977 for the discharge of three jurors from the empanelled expanded jury,

There shall be a ballot for a jury of 12, by

(a) Placing in the ballot box provided for that purpose, the cards provided under s 28(3) Jury Act 1977 for all of the members of the expanded jury, and

(b) Drawing out of that box those cards, one after another, and calling out the identification numbers on those cards, until 12 persons are selected

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Sun [2021] NSWDC 574
Date of orders:	12 March 2021
Decision date:	12 March 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	In the exercise of the discretion given by s 53B(c) Jury Act 1977 for the discharge of three jurors from the empanelled expanded jury, There shall be a ballot for a jury of 12, by (a) Placing in the ballot box provided for that purpose, the cards provided under s 28(3) Jury Act 1977 for all of the members of the expanded jury, and (b) Drawing out of that box those cards, one after another, and calling out the identification numbers on those cards, until 12 persons are selected
Catchwords:	CRIMINAL PROCEDURE — Trial — Jury — Discharge of jurors
Legislation Cited:	Criminal Appeal Act 1912 Jury Act 1977 Public Health Act 2010 Public Health (COVID‑19 Restrictions on Gathering and Movement) Order 2021
Cases Cited:	Barber v The Queen;Zraika v The Queen [2016] NSWCCA 125 R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135
Category:	Principal judgment
Parties:	Regina (Crown) Young Hoon Sun (accused)
Representation:	Kay Marinos (Crown Prosecutor) Mahmoud Mando (Counsel for the accused) Director of Public Prosecutions (NSW) (Crown) Mitry Lawyers (solicitors for the accused)
File Number(s):	2018/00294866