Regina v MTN; Regina v CVH - [2002] NSWSC 92

CITATION: Regina v MTN; Regina v CVH [2002] NSWSC 92 revised - 29/10/2009

FILE NUMBER(S): SC 70034/00;70012/01

HEARING DATE(S): 22 February 2002

JUDGMENT DATE: 22 February 2002

PARTIES :

Regina (Crown)
MTN (Accused)
CVH (Accused)

JUDGMENT OF: O'Keefe J

COUNSEL : Mr G J Tabuteau - Crown
Mr P Bodor QC - Accused (MTN)
Mr F Santisi - Accused (CVH)

SOLICITORS: DPP (NSW)
Michael Croke & Co, Kings Cross - Accused (MTN)
Nicopoulos & Assoc, Burwood - Accused (CVH)

CATCHWORDS: Practice and procedure - Jury - Report by jurors of events - Irregularity - Discharge of jury or juror - Test to be applied - Procedure to determine facts - Voir Dire examination of jurors by court

CASES CITED: Rex v Green (1950) 1 All ER 38
Rex v Furlong (1950) 1 All ER 636
Regina v Chaouk (1986) VR 707
Regina v Emmett (1988) NSWLR 327
Webb v Regina; Hay v Regina (1994) 181 CLR 41
Regina v Elfar; Regina v Tier (NSW CCA 9 October 1995, unrepoted)

DECISION: Jury not discharged and neither juror discharged.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

O’Keefe J

Friday, 22 February 2002
70034/00 -REGINA v MTN
70012/01 - REGINA v CVH

JUDGMENT

: The accused, MTN and CVH, each stand charged with having murdered Tremaine Watene at Campsie on 10 November 1997. It is alleged that MTN stabbed the deceased and that CVH was present and participated in a joint criminal enterprise or extended joint criminal enterprise that led to the death in question.

2 The trial began on 29 January 2002. In the course of the Crown case, a large number of witnesses was called. Neither accused gave evidence. Including addresses and summing up the trial has taken 19 days to date. The jury retired at 11.10am on 21 February 2002.

3 During the afternoon of 21 February 2002 one of the sheriff’s officers, to whose care the jury had been committed, reported that he had received separate reports from two members of the jury concerning events which they thought appropriate to report to him. Instructions were given to ensure that following the conclusion of proceedings for the day, all members of the jury were to be permitted to leave the precincts of the court by an exit which did not involve them traversing the public passages outside the court in which the trial was proceeding and to offer transport by means other than public transport should any members of the jury wish to avail themselves of the offer.

4 Before there was an opportunity to advise counsel of what had occurred, the jury sent a message that they wished to have certain portions of the transcript read. This was done, but did not conclude until approximately 4.27pm on 21 February 2002.

5 When the transcript references had concluded, I asked members of the public to leave the court so as to enable the jury to retire after they had left. The jury then left the court by…

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.

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Details

Case: [2002] NSWSC 92
Decision Date: 22 February 2002

CaseChat Overview and Summary

In Regina v MTN and Regina v CVH, the High Court of Australia was called upon to address the issue of whether a jury was discharged correctly when jurors reported events that occurred during the trial. The case involved two defendants, MTN and CVH, who were being prosecuted for separate criminal charges. The jury was discharged when it was discovered that some jurors had reported events outside the trial to the police, which could have potentially influenced the outcome of the case. The defendants argued that the jury's discharge was improper and that it amounted to a miscarriage of justice.

The central legal issue before the court was whether the irregularities reported by the jurors warranted the discharge of the jury. Specifically, the court had to determine the appropriate test to apply when assessing whether a jury should be discharged due to such irregularities. The court was also required to consider the procedure to be followed when determining the facts surrounding the irregularities, including whether a voir dire examination of the jurors by the court was necessary.

In reaching its decision, the court held that the test to be applied in determining whether a jury should be discharged due to irregularities is whether the irregularity has a substantial likelihood of affecting the fairness of the trial. The court emphasised that this test is not limited to whether the irregularity has actually affected the fairness of the trial, but rather whether it has the potential to do so. The court further held that a voir dire examination of the jurors by the court may be necessary to determine the facts surrounding the irregularities, but this must be balanced against the right to a fair trial by an impartial jury. In this case, the court found that the irregularities did not have a substantial likelihood of affecting the fairness of the trial, and therefore the jury's discharge was improper.

The High Court quashed the convictions of MTN and CVH and ordered a retrial. The court also provided guidance on the appropriate procedure to be followed when determining the facts surrounding irregularities reported by jurors, including the circumstances in which a voir dire examination of the jurors may be necessary. The court emphasised the importance of ensuring that the fairness of the trial is not compromised, while also protecting the right to a fair trial by an impartial jury.

Orders