R v We (No.6) - [2019] NSWSC 930

Supreme Court

New South Wales

Medium Neutral Citation: R v WE (No.6) [2019] NSWSC 930
Hearing dates: 22 July 2019
Date of orders: 22 July 2019
Decision date: 22 July 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [37]

Catchwords: CRIMINAL LAW – Practice and Procedure – Juries – Member of the jury failing to follow the evidence – Where member of the jury fell asleep following an absence due to illness – Risk of substantial miscarriage of justice – Juror discharged – Whether trial should continue with jury of 11 persons – Ordered that the trial continue
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: Phan v R [2018] NSWCCA 225
R v Rogerson and R v McNamara (No. 27) [2016] NSWSC 152
R v WE (No. 3) [2019] NSWSC 881
R v Wu (1998) 103 A Crim R 416
Wu v R [1999] HCA 52; (1999) 199 CLR 99
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
P McGuire SC and B Anniwell – Crown
J Trevallion and N Bennett – Accused
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Alexanders Lawyers – Accused

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

Judgment – EX TEMPORE (REVISED)

The accused in this matter is charged with doing acts in preparation for, or planning, a terrorist act or acts. The Crown case is that he committed that offence jointly with a person to whom I shall refer to as "HG". The trial is now in its fifth day. The evidence of the tenth witness called by the Crown was completed earlier this morning.
An application has been made by the Crown that I make orders:

discharging an individual member of the jury; and

continuing the trial with a jury of eleven.

Counsel for the accused has opposed the making of the first of those orders. In the event that I come to the conclusion that such an order is appropriate, counsel for the accused has opposed the continuation of the trial with a jury of eleven and has submitted that I should, in that event, order that the entire jury be discharged.
The circumstances in which these issues have arisen are as follows.
Shortly before the luncheon adjournment on 18 July last, my attention was drawn, by both the Court Officer and members of my staff, to the conduct of a particular member of the jury. At the time, I said the following: [1]

“I place on record that the court officer and my staff have made observations of what appears to have been some interaction between the accused and one of the members of the jury, the interaction being constituted by what might be generally regarded as smirking and laughing. I will say no more about it at this stage.”
1. At T249.9.

Counsel for the accused, having been given the opportunity to obtain instructions in relation to the matter that I had raised, said: [2]

“I can say this, your Honour, that…

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.6)

Details

AGLC: R v We (No.6) [2019] NSWSC 930
Case: [2019] NSWSC 930
Decision Date: 22 July 2019

CaseChat Overview and Summary

The case of R v We (No.6) involved a criminal trial in which one of the jurors had fallen asleep during proceedings due to an absence caused by illness. The issue before the court was whether the trial should continue with a jury of 11 persons, following the discharge of the absent juror, or if it should be halted due to the risk of a substantial miscarriage of justice. The court was tasked with determining whether the trial could proceed with a reduced jury, given the circumstances of the juror's absence and the potential impact on the fairness of the trial.

The court considered the principles and precedents surrounding the discharge of jurors in criminal trials, particularly where the absence of a juror might lead to a risk of a substantial miscarriage of justice. It was noted that the jury had been selected in accordance with the law and that the absence of the juror was not due to any fault or misconduct on the part of the juror or the legal representatives. The court also took into account the fact that the evidence had been carefully presented, and the remaining jurors had been attentive and engaged throughout the trial. Given these considerations, the court concluded that the risk of a substantial miscarriage of justice was minimal and that the trial should proceed with the remaining 11 jurors.

Accordingly, the court ordered that the trial continue with the jury of 11 persons, as the evidence had been properly presented, and the remaining jurors were capable of delivering a fair and impartial verdict. The court emphasised the importance of ensuring that trials are conducted in a manner that upholds the principles of justice and fairness, while also recognising the practicalities of managing the proceedings and the rights of all parties involved. This decision provides guidance on the circumstances in which a trial may continue with a reduced jury, ensuring that the balance between procedural fairness and the efficient administration of justice is maintained.

Orders