R v Martin (No 2)

1. [1]

   On Wednesday 6 September 2017, the third day of what was estimated to be a six week trial for attempted murder, infliction of grievous bodily harm and murder, I made an order discharging a juror pursuant to s 53B of the Jury Act 1977 (NSW) and an order under s 53C of that Act that the trial would continue with 11 jurors. These are my reasons for those decisions.

Discharge of juror

1. [2]

   A jury was empanelled on Monday 4 September 2017. A jury had been empanelled earlier that day but was discharged before the accused was placed in its charge (but after the jury was sworn or affirmed) for reasons of no present relevance. Following the second empanelment, the Crown Prosecutor commenced his detailed opening statement. The opening continued into the second day and five witnesses were called to give evidence. Towards the end of the second day, three sheriffs or court officers were sworn or affirmed to attend to the jury on a view, which was scheduled to take place on Wednesday 6 September 2017. [1] At the end of the second day, the trial was adjourned to a location in Murwillumbah at 11-30am the following day. The jury was directed to attend at the Lismore Court House at the usual time whereupon they were to be transported by bus to the scene. The parties, a court reporter, my staff and I were to travel separately to the location of the view.

2. [3]

   Shortly before 10am on the morning of the view, my Associate received a telephone call from the Senior Sheriff at Lismore. He advised that there was a problem with a juror who had attended Court with a medical certificate indicating that she was unfit to serve as a juror. My Associate contacted the parties and arrangements were made for the Court to reassemble in the Courtroom in Lismore as soon as possible. The Court was reconstituted at around 10:45am.

3. [4]

   Very little detail was provided in the medical certificate, which was redacted (to obscure the identity of the juror) and marked as MFI 7. The original document was placed in a sealed envelope to maintain the anonymity of the juror. The Sheriff informed me, and I informed the parties, that the information provided to him was that the juror’s daughter was in the advanced stages of pregnancy and that, overnight, the baby (or mother) had gone into “foetal distress”. The juror had suffered similar symptoms in an earlier pregnancy and was greatly distressed and wanted to be with her daughter.

4. [5]

   The parties each submitted and agreed that the information was sufficient to satisfy the requirements for the discharge of the juror under s 53B(d) which allows for the discretionary discharge of a juror if:

5. [6]

   I agreed with the parties’ joint position. It was clear from the information provided by the Sheriff, and from his description of the juror’s state of distress, that the juror would be unable to focus on the evidence and that she would be preoccupied by the condition of her daughter and the unborn child. This would affect her ability to perform the functions of a juror and satisfied me that she should not continue to act as a juror.

6. [7]

   Accordingly, pursuant to s 53B(d), juror number 395-90 was discharged.

7. [8]

   Initially, counsel for the accused foreshadowed an application that the balance of the juror be discharged pursuant to s 53C(1) of the Jury Act. [2] That section provides:

8. [9]

   It was not surprising that counsel took that initial approach given the observations of various members of the High Court in Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52, an important case in which Mr Wendler (representing the accused in the present trial) appeared nearly 20 years ago. I adjourned briefly to consider the terms of the Jury Act and any cases decided on the issue, and to allow the parties to formulate their positions. With the consent of the parties, I also obtained information as to when it would be possible for the Sheriff to arrange for jury panels to attend so that the trial could be relisted quickly.

9. [10]

   When I returned, Mr Wendler indicated that his instructions were that the accused wished to the proceed with 11 jurors: [3]

10. [11]

    I indicated that this was an important consideration but that the accused’s consent did not relieve me from performing the task under s 53C, a proposition with which counsel agreed.

11. [12]

    As the judgments in Wu v The Queen make clear, the parties in a criminal trial are prima facie entitled to a decision made by a jury consisting of twelve members of the community randomly selected. McHugh J at [27] noted that “[f]or hundreds of years, the common law has insisted that no person be convicted of serious crime without the unanimous verdict of twelve jurors”. The common law required the whole jury to be discharged if an individual juror was discharged. Even allowing for legislative amendment McHugh J stressed at [28]:

12. [13]

    Kirby J referred to the historical significance of the “magic” number of twelve jurors. [4]

13. [14]

    I considered the considerable force in the statements of the High Court in Wu v The Queen. I also took into account the provision in s 22 of the Jury Act, allowing for a trial to continue with a jury of less than twelve. I considered the fact that the reasons for the juror’s discharge did not concern any matter relevant to the facts of the trial itself and, accordingly, there was no chance that the juror’s discharge had a capacity to affect the ability of the remaining eleven jurors properly to perform their function. I considered the estimated length of the trial and the risk that if another juror is discharged, the jury would be reduced to ten, the number below which the trial cannot continued in the absence of the written consent of the parties. [5] I also gave significant weight to the seriousness of the charges faced by Mr Martin and his clearly stated position that, with the benefit of his lawyers’ advice, he wished to continue with the remaining eleven jurors.

14. [15]

    Having considered all relevant matters I formed the opinion that there was no risk of a substantial miscarriage of justice as a result of the discharge of the individual juror and the continuation of the trial with the remaining eleven jurors.

15. [16]

    Accordingly, pursuant to s 53C(b) of the Jury Act, I ordered that the trial continue with the remaining eleven jurors.