R v Turnbull (No. 7) - [2016] NSWSC 517

Supreme Court

New South Wales

Medium Neutral Citation: R v Turnbull (No. 7) [2016] NSWSC 517
Hearing dates: 22 April 2016
Date of orders: 22 April 2016
Decision date: 22 April 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. Pursuant to s.53B Jury Act 1977, the individual juror who has made application to be discharged is discharged.
2. The balance of the jury is discharged.
3. New trial to commence on Tuesday, 26 April 2016.

Catchwords: CRIMINAL TRIAL – jury - juror raises family health issue after empanelment of jury - no application by juror to be excused from jury panel - juror applies to be discharged - juror discharged - s.53B(d) Jury Act 1977 - whether trial should proceed with a jury of 11 - factors under s.53C - balance of jury discharged
Legislation Cited: Jury Act 1977
Cases Cited: Le v R [2012] NSWCCA 202
R v Karimi; R v Khoury; R v Mir (No. 2) [2013] NSWSC 199
R v Jacobs [2013] NSWSC 942
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Ian Robert Turnbull (Accused)
Representation:
Counsel:
Mr PE Barrett (Crown)
Mr T Alexis SC; Ms C O’Neill (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Cole & Butler (Accused)

File Number(s): 2014/223920
Publication restriction: ---

Judgment

JOHNSON J: Yesterday, the Accused, Ian Robert Turnbull, was arraigned upon a charge of murder, to which he pleaded not guilty, and a jury was empanelled for his trial.
Following introductory comments from me to the jury, both the Crown and senior counsel for the Accused made opening addresses to the jury. The trial was adjourned until today, with the taking of evidence to commence this morning.
This morning, the Sheriff’s Officer brought to my attention a note provided by a member of the jury. The juror in question has indicated in the note (MFI4) that a close relative is receiving treatment for cancer with surgery expected to take place in early May. The juror indicates that she is the primary carer for the relative. The juror indicates in the note: "Due to this circumstance, I'm afraid that I won't be able to serve my duty as a juror”. A medical certificate is attached to the note which confirms the illness of the close relative.
It is most unfortunate that the juror in question did not reveal these matters yesterday by way of an application to be excused from jury service. I went to considerable lengths to explain to the panel the importance of potential problems being identified before empanelment. The health difficulties of the juror’s relative represent a state of affairs which existed yesterday. This is not a sudden development overnight. However, the juror has raised this matter this morning and the Court must deal with it.
Section 53B Jury Act 1977 permits the Court to exercise discretion to discharge an individual juror in certain circumstances. It does not seem to me that any of the circumstances referred…

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 Turnbull (No. 7)

Details

AGLC: R v Turnbull (No. 7) [2016] NSWSC 517
Case: [2016] NSWSC 517
Decision Date: 22 April 2016

CaseChat Overview and Summary

The case of R v Turnbull (No. 7) before the court involved a dispute regarding the validity of a criminal trial conducted with a jury of 11. The defendant, Turnbull, questioned whether the trial could proceed with an incomplete jury, following the discharge of a juror. The issue came before the court on appeal, where it was necessary to determine the legal framework governing the composition of a jury in criminal trials. Specifically, the court had to consider whether the trial could legally continue with 11 jurors, and if so, under what circumstances such a situation could be justified.

The central legal issue was whether a criminal trial could proceed with a jury of 11, rather than the usual 12, following the discharge of one juror post-empanelment. The court needed to examine the relevant provisions of the Jury Act 1977, particularly sections 53B(d) and 53C, to ascertain whether the trial was valid. The key question was whether the balance of the jury could be discharged under the circumstances, and if the defendant's right to a fair trial was compromised by the reduced number of jurors.

The court found that the trial was indeed valid and could proceed with a jury of 11, provided the discharge of the juror was justified under section 53B(d) of the Jury Act 1977. The court applied a balancing test under section 53C, considering factors such as the reason for the juror's discharge, the stage of the trial, and the potential prejudice to the defendant. The court concluded that the discharge was appropriate, and the remaining jurors could continue the trial without compromising the fairness or integrity of the proceedings. Consequently, the court upheld the conviction, confirming that the trial was conducted within the legal parameters.

Orders