R v Ronald Edward Medich (No. 23)

An application has been made on behalf of the accused pursuant to s. 53B(d) of the Jury Act 1977 (NSW) (“the Act”), which the Crown does not oppose, that I make an order discharging one of the members of the jury in this trial. I agree that this course should be taken. It is appropriate that I set out my reasons for coming to that conclusion.

Yesterday morning my Associate received an email from junior counsel for the Crown, the relevant part of which was in the following terms:

In response to receiving that email I advised the parties that I would hear any submission or application when the proceedings resumed this morning. In so advising the parties, I indicated that the Crown Prosecutor in question should be present at court in the event that he or she was required to give evidence.

When the proceedings resumed this morning, the Crown indicated to me that there may be more to the matter than was initially envisaged. The collective view of counsel, with which I agreed, was that the Crown Prosecutor to whom the juror’s spouse spoke should give evidence on oath as to what occurred, so as to clarify the nature and extent of the conversations which had apparently taken place.

The following evidence was then given by that Crown Prosecutor in response to questions asked by me (commencing at T2080 L12):

The original communication made to the Crown Prosecutor by her friend, who I emphasise is a Solicitor of this Court, concerned an ongoing trial. Such a communication was entirely inappropriate. It reflects poorly on the Solicitor in question (who has not been identified). The subsequent comment made by the Solicitor to the Crown Prosecutor during the course of that lunch concerning aspects of this trial was even more inappropriate. Indeed, the arrangements which were made between the two practitioners to meet for lunch were, to say the least, both unfortunate and ill-advised in all of the circumstances.

On the basis of the Crown Prosecutor’s evidence, it appeared that a member of the jury was the source of the statements made by the Solicitor. Accepting that to be the case, it followed that such information had been imparted by the member of the jury in defiance of my repeated direction to the jury that they not discuss the evidence, or the case, with any person other than their fellow jury members.

In all of these circumstances, it was the collective view of the parties (with which I agreed) that the member of the jury should be identified, and that he or she should be questioned pursuant to the power contained in s. 55DA of the Act which is in the following terms:

Relevant to the provisions of that section are those of s. 68C which are in the following terms:

The member of the jury was identified, his name having been provided to me confidentially by the Crown with the consent of senior counsel for the accused. He then gave evidence. To preserve his anonymity, I directed that his evidence be given in closed Court. That evidence was as follows (commencing at T2087 L36):

In light of all of the evidence which has been given before me in relation to this matter, I found the juror’s denials, to say the least, difficult to accept. I have grave misgivings about whether that evidence is truthful. There is, at the very least, a concern that he has failed, perhaps on more than one occasion, to act in accordance with directions that I have given, and has in fact acted in complete defiance of them. That is not, by definition, a proper exercise of his functions as a member of the jury.

In all of those circumstances, I am satisfied that he should not continue to act as a juror in these proceedings and I propose, in due course, to make an order discharging him. Needless to say, I do not propose to articulate the reasons for doing so to the remaining 13 members of the jury. I will caution them against speculating as to why this action has been taken and I will direct them that they are to have no contact with the jury member who has been discharged so long as the trial continues. I will also have the jury member brought back into court for the purposes of informing him of my decision, and cautioning him against having any contact with any of the remaining members of the jury.

For these reasons, I make the following orders: