Regina v Kurukulasuriya Fernando

[2007] NSWDC 274

CITATION:	Regina v Kurukulasuriya Fernando [2007] NSWDC 274 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 February 2007
JUDGMENT DATE:	14 February 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Application granted, juror discharged due to illness. Trial to contiue with a jury of 11.
CATCHWORDS:	Discharging a juror due to illness - Trial to continue with a jury of 11
LEGISLATION CITED:	s22 Jury Act 1977
CASES CITED:	Wu v the Queen (1999) 199 CLR
PARTIES:	Regina Kurukulasuriya Fernando
FILE NUMBER(S):	06/21/3181
COUNSEL:	Ms McSpedden for the accused
SOLICITORS:	Mr D Williams for the Crown

JUDGMENT

1. In this matter it became obvious this morning that a juror was ill. She left the jury box in a hurry, clearly exhibiting signs of nausea. I have since been informed that she remained ill and has in fact, a short time ago, been taken home by sheriff’s officers.

2. A question arises for me under s 22 of the Jury Act 1977 as to whether or not I exercise a power or discretion, whatever it might be, to discharge that juror through illness. Such a course, that is discharging that juror, is supported by Ms McSpedden who appears for the accused and also by the Crown.

3. I have had an opportunity to consider the High Court’s Judgment in Wu v the Queen (1999) 199 CLR page 99. I note in the joint Judgment of the Chief Justice and Hayne J at [19] that their Honours say:

“Delay in a trial can work hardship on an accused as well as to witnesses and to jurors. No doubt some persons accused of crime will gladly put off the day of judgement, but delay in the trial of any accused leaves the accused uncertain of his or her fate. That has long been recognised to be a considerable burden upon an accused. And the courts cannot and must not shut their eyes to the consequences of delay upon others - not only to witnesses and jurors but also to all others who seek access to the courts and cannot have their cases tried because of what is happening in cases that are being tried. The fact that the juror was absent (for whatever reason) meant that the trial would be delayed. If the trial did not go ahead, the delay would affect the accused, the witnesses who would otherwise have given their evidence and the other members of the jury. It would also have delayed the start of the trial of some other accused waiting for trial (perhaps on bail, perhaps remanded in custody). All of those considerations taken together could properly found ‘any other reason’ for discharging the absent juror.”

4. There are two decisions which need to be made by me pursuant to s 22 of the Jury Act. One is whether or not to discharge the juror through illness and the second is whether or not to order the trial to continue with fewer than twelve jurors. Clearly the decision whether or not to discharge a juror will be affected by considerations relevant to the second decision, that is whether the matter should proceed.

5. It seems to me to be the matters which the Chief Justice and Hayne J drew attention to are also referred to by Ms McSpedden. This is not a case where her client is wanting to delay the day of judgement, in fact he is anxious that the matter proceed. She points out that her client is not on Legal Aid. She wishes to call character evidence, one of them is interstate. There is no hardship occasioned to her client insofar as the matter proceeding with eleven jurors and she made the application specifically on instructions.

6. The learned Crown Prosecutor indicated that, having heard that the course proposed of discharging the juror and proceeding with eleven was consented to by the accused, he regarded it as appropriate not to oppose that course.

7. Turning to the first decision as to whether or not to discharge the juror, the juror is clearly ill. It is clearly apparent to me that through that illness she is incapable of continuing to act for today. To my mind delaying this trial until tomorrow to see whether she might recover would have undesirable consequences so far as this accused is concerned and for the wider community insofar as other cases are concerned.

8. For those reasons, in my opinion, it is appropriate that the juror who is incapable of performing her duties today through illness ought to be discharged and I so order.

9. I consider in the circumstances that there is no significant disadvantage to the accused being tried by the remaining eleven jurors. It is a course which he agrees to and which also meets his own needs, so far as the calling of witnesses, and financial needs, so far as instructing his lawyers in this trial, are concerned.

10. Accordingly being satisfied that the absence of one juror will not reduce the jurors below eleven, I order that the jury shall be considered as remaining for all purposes, for purposes of this trial, as property constituted by the remaining eleven.

oOo

10/01/2008 - NA - Paragraph(s) NA