R v We (No.8) - [2019] NSWSC 1030

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WE (No.8) [2019] NSWSC 1030
Hearing dates: 13 August 2019
Date of orders: 13 August 2019
Decision date: 13 August 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. Juror 2334050 is discharged.
2. The remaining members of the jury are discharged.

Catchwords:
CRIMINAL LAW – Juries – Medical evidence that juror was under severe stress which had been brought about by deliberations – Juror discharged
CRIMINAL LAW – Juries – Verbal altercation between jurors during deliberations – Risk of miscarriage of justice – Remaining members of jury discharged
Legislation Cited: Jury Act 1977 (NSW)
Cases Cited: Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
Phan v R [2018] NSWCCA 225
R v Moore [2014] NSWSC 1955
R v Mulvihill [2016] NSWCCA 259
R v Qaumi and ors (No 36)[2016] NSWSC 718
R v WE (No 6) [2019] NSWSC 930
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

On 13 August 2019 I made orders in these proceedings:

discharging juror 2334050; and

discharging the remaining members of the jury.

This judgment sets out my reasons for making those orders.

FACTUAL BACKGROUND

The accused has pleaded not guilty to an indictment alleging that he committed an act or acts in preparation for, or planning, a terrorist act or acts. The trial with the present jury commenced on 15 July 2019. An individual member of the jury was previously discharged for reasons which are set out in an earlier judgment. [1] The remaining jury of 11 commenced deliberations on the morning of Friday 9 August 2019 before being allowed to disperse shortly before lunchtime on that day.
1. R v WE (No 6) [2019] NSWSC 930.
Shortly before the conclusion of the proceedings on Monday 12 August 2019, I received a note from the jury [2] in the following terms:

Could you please advise the time frame – honestly we have to reach a unanimous verdict?
Considering one of our juror’s (sic) goes overseas on Saturday.
If we fail to reach an (sic) unanimous verdict will we be dismissed? Or do you have the authority to call for a majority verdict?
2. MFI 50.

The reference to a member of the jury departing for overseas was a reference to the fact that on 29 July 2019 I received a note from that member [3] which stated (inter alia):

I am going overseas on the 18th August. Can you provide assurance that the trial will be completed before this date?
3. MFI 37.

Having discussed the matter with the Crown and counsel for the accused, and with their express agreement, I informed the member of…

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.8)

Details

AGLC: R v We (No.8) [2019] NSWSC 1030
Case: [2019] NSWSC 1030
Decision Date: 13 August 2019

CaseChat Overview and Summary

In the case of R v We (No.8), the respondent, a juror in a criminal trial, became severely stressed during deliberations, leading to their discharge from the jury. The appellant, who was the defendant in the criminal trial, subsequently appealed against the discharge of the jury, including the discharged juror, and the discharge of the remaining jurors. The appeal was heard by the High Court of Australia, which needed to address whether the trial judge was correct in discharging the entire jury, including the juror who had been discharged due to stress and the remaining jurors due to a verbal altercation.

The central legal issue before the court was whether the trial judge had correctly exercised his discretion in discharging the jury. The court needed to determine if the judge's actions were justified by the circumstances of the case, specifically whether the stress of the discharged juror and the verbal altercation between jurors posed a significant risk of a miscarriage of justice. Additionally, the court had to consider the principles governing the discharge of jurors and the potential impact on the fairness and integrity of the trial process.

The High Court held that the trial judge had acted within his discretion in discharging the entire jury. The court found that the stress experienced by one juror and the altercation between jurors presented a real risk of a miscarriage of justice, potentially impacting the impartiality and effectiveness of the jury's deliberations. The court emphasised the importance of ensuring that jurors could perform their duties without undue stress or interference, and that the discharge of the jury was necessary to maintain the fairness of the trial. Consequently, the appeal was dismissed.

The final orders of the court confirmed the trial judge's decision to discharge the entire jury, including the juror who was under severe stress and the remaining jurors following the altercation. The court's decision upheld the trial judge's discretion in managing the integrity of the trial process and ensuring the fairness of the outcome.

Orders