R v Tangi (No 11)
[2020] NSWSC 546
•02 January 2020
Supreme Court
New South Wales
Medium Neutral Citation: R v Tangi (No 11) [2020] NSWSC 546 Hearing dates: 20-21, 25-29 November, 2-6, 9-13, 18-20, 23-24 December 2019, 2 January 2020 Date of orders: 02 January 2020 Decision date: 02 January 2020 Jurisdiction: Common Law Before: Rothman J Decision: Application to discharge jury dismissed.
Catchwords: CRIMINAL PROCEDURE – break in jury deliberations between Christmas and New Year – break at request of jury – no party objected – no unfairness or appearance of unfairness – application rejected Legislation Cited: Jury Act 1977 (NSW) Category: Procedural and other rulings Parties: Regina (Crown)
Abraham Ryan Tangi (Accused)Representation: Counsel:
Solicitors:
P Hogan (Crown)
G Wendler (Accused)
Director of Public Prosecutors (NSW) (Crown)
Universal Lawyers (Accused)
File Number(s): 2017/242644 Publication restriction: Not to be published until the conclusion of the trial
ex tempore Judgment
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HIS HONOUR: Before the Court is an application for the discharge of the jury. It seems, on the face of it, that the Jury Act 1977 (NSW) does not expressly deal with the application for discharge currently before the Court, but I am reminded that it is part of the inherent jurisdiction of this Court and, indeed, probably of any Court but certainly of a Court of superior court of record, to ensure that the trial is fair to the accused in particular but certainly to both parties. And I am comforted in that approach by the proposition that the Jury Act does provide for the discharge of the jury as a result of challenges where, in the opinion of the Court, it has resulted in a jury whose composition is such that the trial might be or might appear to be unfair and that is the test that it seems to me I should apply, that is, is the jury’s continuation of deliberations unfair or does it appear to be unfair because of the delay?
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I accept fully that which Mr Wendler says as to the fact that the issue of it running into Christmas and the New Year was a matter raised at the arraignments prior to the matter coming before the Court as presently constituted. Nevertheless, when the matter came before the Court and we were dealing with preliminary matters in the week before the empanelment of the jury, the issue of the timing of the proceedings was a matter that was the subject of some discussion.
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On one analysis of the timing, it was said that the trial would take six to eight weeks. The Crown estimated that the evidence would conclude in about four weeks. The evidence did conclude in about four weeks. The Court, once the jury was empanelled, inquired of the jury as to their convenience, given the time of year and the occurrence of Christmas, Boxing Day and New Year’s Day holidays. The jury replied that they would prefer to sit the half day on the 24th, which was an offer that I put to them and then come back on the 2nd. The effect of that offer is that, apart from the public holidays, the jury has been not sitting on Friday the 27th, Monday the 30th and the half day Tuesday the 31st. That is approximately two and a half days that they were not sitting. Of course, when one adds that time into the public holidays and/or half day sittings, it is an unfortunate aspect that there has been a break since the 24th of December until today, the 2nd of January.
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Notwithstanding that break, it has clearly been in the contemplation of the parties and the Court that the trial would continue, if it were necessary and if a verdict had not been announced, after the 24th of December on 2 January, and the jury have been together this morning since approximately 9.30. As the parties are already aware, the jury has in fact sent another note asking for the transcript of the answer to the last note for their own reminder. As earlier indicated to the parties, I intend to remind them of some of the major salient factors and ask them if there are any issues associated with the facts that they are, of course, able to ask and have those questions answered.
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It seems to me, while the break is not optimal, it is not such that there appears to be an unfairness in all of the circumstances, nor one that is in fact unfair. I put that totally out of the issue, particularly in light of the note that has been given. In all of the circumstances, the application for the discharge is rejected.
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Decision last updated: 13 May 2020
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