R v We (No.18) - [2020] NSWSC 373

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WE (No.18) [2020] NSWSC 373
Hearing dates: 7 April 2020
Date of orders: 07 April 2020
Decision date: 07 April 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [16]

Catchwords: CRIMINAL LAW – Practice and procedure – Juries – Illness of juror giving rise to a possible absence of one week – Whether juror should be discharged – Accused’s third trial – COVID-19 pandemic – Whether trial should continue with a jury of 10 – Where the trial was in its final stage – Where the jury had already deliberated for six full days – Juror discharged – Order to proceed with a jury of 10.
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: Wu v R (1999) 199 CLR 99; [1999] HCA 52
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
P McGuire SC and B Anniwell – Crown
Accused – Self-represented
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Accused – Self-represented

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

Judgment – EX TEMPORE (REVISED)

The trial of the present accused commenced on 12 February 2020. The Crown case closed on 5 March 2020, following which the case for the accused commenced. The circumstances in which the case for the accused evolved are set out at length in a number of previous judgments and require no further elucidation. It is sufficient for present purposes to note that after four days of evidence in chief, the accused withdrew instructions from his counsel and solicitor and has conducted the balance of the trial himself, including addressing the jury.
The jury commenced their deliberations on 26 March 2020. Since that time, two days have been lost through sickness of individual jurors. In a previous judgment delivered at an early stage of the trial I exercised my discretion to discharge an individual member of the jury. [1] Since that time the jury has been constituted by 11 persons.
1. R v WE (No 11) [2020] NSWSC 92.
Earlier this morning the sheriff provided me with a medical certificate [2] which I was informed had been delivered to court by the member of the jury to whom it relates. It contains a certification in the following terms:

“[The member of the jury] was examined here on 6 April 2020. He has a medical condition and will be unfit for work/school from 6 April 2020 to 10 April 2020 inclusive.”
2. MFI 62.

The certificate, which is dated 6 April 2020, has been issued under the hand of Dr Divya Jammalamadaka. It will be evident from its terms that it is bereft of any detail of the nature of the “medical condition” from which the member of the jury is said to be suffering.
At my direction, the Sheriff made further enquiries of the member of the jury after the certificate was provided to me, and reported that:

the nature of the condition which had…

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.18)

Details

AGLC: R v WE (No.18) [2020] NSWSC 373
Case: [2020] NSWSC 373
Decision Date: 07 April 2020

CaseChat Overview and Summary

The case of R v We (No.18) involved the accused, who was undergoing their third trial, facing criminal charges. The dispute centred around the illness of a juror during the final stages of the trial, which resulted in a potential absence of up to one week. The court had to determine whether the juror should be discharged and if the trial could proceed with a reduced jury of ten members due to the juror's absence. The case was heard in an Australian court and was heavily influenced by the context of the COVID-19 pandemic.

The legal issues that the court needed to address included the potential discharge of the ill juror and the implications of continuing the trial with a reduced jury. The court had to consider whether the absence of one juror, particularly during the final stage of the trial, would compromise the fairness and integrity of the proceedings. The court also needed to assess whether the pandemic's unique circumstances warranted a deviation from the traditional jury composition of twelve members.

In its reasoning, the court acknowledged the gravity of the situation, given that it was the accused's third trial and that the jury had already deliberated for six full days. The court noted that the absence of a juror for a week could significantly delay the proceedings and potentially impact the accused's right to a fair trial. However, the court also considered the broader context of the pandemic, which had necessitated adjustments to normal legal procedures. The court ultimately decided that the juror should be discharged and that the trial should proceed with a jury of ten members, as the trial was in its final stage and the integrity of the proceedings could be maintained with a reduced jury.

The court's order was that the juror be discharged and the trial continue with a jury of ten members. This decision allowed the trial to proceed without further delay, while also acknowledging the unique challenges posed by the COVID-19 pandemic. The court's ruling aimed to balance the need for a fair trial with the practicalities of conducting legal proceedings during an ongoing global health crisis.

Orders