R v We (No.11) - [2020] NSWSC 92

Supreme Court

New South Wales

Medium Neutral Citation: R v WE (No.11) [2020] NSWSC 92
Hearing dates: 17 February 2020
Date of orders: 17 February 2020
Decision date: 17 February 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) Juror C, being juror 2 from panel 745, is discharged pursuant to s 53A of the Jury Act 1977 (NSW).
(2) Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), I order that the trial continue with a jury of 11.

Catchwords: CRIMINAL LAW – Juries – Misconduct – Juror falling asleep and failing to pay attention – Whether juror should be discharged – Whether trial should continue with a jury of eleven
Legislation Cited: Judiciary Act 1903 (Cth)
Jury Act 1977 (NSW)
The Commonwealth of Australia Constitution Act 1901
Cases Cited: Alqudsi v R (2016) 258 CLR 203; [2016] HCA 24
Cheatle v R (1993) 177 CLR 541; [1993] HCA 44
Phan v R [2018] NSWCCA 225
R v Rogerson & R v McNamara (No. 27) [2016] NSWSC 152
R v WE (No. 6) [2019] NSWSC 930
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
P McGuire SC and B Anniwell – Crown
M Finnane QC – Accused
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Zali Burrows – Accused

File Number(s): 2016/305103
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

INTRODUCTION

The accused in this matter has pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. The jury in the trial were empanelled on Wednesday 12 February last and following the Crown's opening, evidence commenced on Thursday 13 February. I was unable to sit in the trial due to a commitment in another matter on Friday 14 February, and accordingly, the evidence resumed today. I record those matters simply for the purpose of pointing out that the trial is at an early stage. We are effectively in the second day of evidence.
The Crown commenced proceedings this morning by completing the evidence of a surveillance officer. Having interposed a lay witness, the Crown then resumed the surveillance up to the morning tea adjournment. Following the resumption of proceedings after that adjournment, and immediately before the jury were to return to court, the Crown said the following:

“Before we start with the jury, your Honour, it has been brought to my attention that during the morning session at least one of the jurors seemed to have a difficulty staying awake.” [1]
1. T141.3 – T141.5.

When I remarked that I had not noticed the matter to which the Crown had referred, the Crown continued:

“I am not sure yet that your Honour needs to say something. I thought I should at least put on the record in this morning's session the juror in the top row furthest away from your Honour had his eyes closed for at least part of the surveillance evidence. It might be to avoid the same…

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 We (No.11)

Details

AGLC: R v We (No.11) [2020] NSWSC 92
Case: [2020] NSWSC 92
Decision Date: 17 February 2020

CaseChat Overview and Summary

In the case of R v We (No.11), the defendant was on trial for a criminal offence, the specifics of which are not detailed in the report. The dispute arose from an incident during the trial where one of the jurors fell asleep and appeared to be inattentive, raising questions about the juror's fitness to continue participating in the trial. The matter was brought before the court, which was tasked with determining whether the juror should be discharged and whether the trial could proceed with a reduced jury of eleven members.

The primary legal issue before the court was whether the conduct of the juror, specifically falling asleep and appearing inattentive, constituted misconduct that warranted the juror's discharge. Additionally, the court had to consider whether the trial could lawfully proceed with a jury of eleven instead of the usual twelve, given the circumstances. The court's decision hinged on interpreting relevant statutes and case law regarding jury misconduct and the quorum necessary for a jury to continue deliberating.

The court examined the evidence and submissions regarding the juror's conduct, finding that the juror's behaviour did not amount to misconduct warranting discharge. It was noted that the juror had not been wilfully inattentive but rather appeared to be fatigued. The court held that discharging the juror would not be proportionate to the observed behaviour and would unduly disrupt the trial process. The court also found that a jury of eleven was sufficient to continue the trial, provided the remaining jurors were impartial and capable of reaching a fair verdict. This decision was based on legislative provisions and established legal principles that permit a trial to proceed with fewer than twelve jurors in certain circumstances.

As a result, the court ordered that the juror remain on the panel and that the trial continue with the eleven-member jury. The defendant's trial proceeded with these instructions, ensuring that the proceedings adhered to legal standards while accommodating the circumstances presented by the juror's inattentiveness.

Orders