Qaumi and Ors (No 17) (Additional Jurors)

On Thursday, 24 March 2016. I refused an application by the five accused who sought an order under section 132 of the Criminal Procedure Act 1986 (NSW) for a trial by judge alone. The application for a trial by judge alone came somewhat late and followed an indication by the Learned Crown Prosecutor that he would seek an order under section 19 of the Jury Act 1977 (NSW) for the selection of additional jurors.

The Crown Prosecutor confirmed that he sought such an order. After the judgment was delivered refusing the application for a trial by judge alone.

Section 19(2) of the Jury Act provided that the court may order that up to three additional jurors be selected if satisfied that:

I am unaware of any regulations that have been made for the purpose of ss (2). Section 19(3) provides:

In the course of the pre-trial hearing, which has proceeded from November 2015 until March 2016, I have become familiar with some – although not all – of the material in the prosecution case. Tendered on the various voir dires is a total of around 14 lever arch folders of material. I am told by counsel that this is only a proportion of the material available to the Crown and that there are in fact around 40 or 50 such volumes in the brief. They are 13 informant witnesses whose evidence is expected to be quite lengthy. There is also evidence of doctors and forensic experts as well as what I understand to be a large volume of what is sometimes referred to as “telephone cell tower” evidence. Much of this evidence is contentious. There are five accused facing a total of 24 charges. Each is represented by counsel.

Based on the amount of material and the number of lawyers involved in the case, I would estimate that the trial is likely to exceed three months in length. Further, I have been provided with an estimate of “four months plus.” By the Learned Crown Prosecutor, and estimates of four months by four of the five defence counsel. The remaining defence counsel provided an estimate of around six months, “including time for deliberation”.

For those reasons I am satisfied that this is a trial to which ss 3 of s 19 applies.

I am also satisfied, in accordance with ss 2(b) that selecting additional jurors “is an appropriate means of ensuring that there will be sufficient jurors remaining of the jury when the jury is required to consider its verdict”. Experience tells us that with the best intentions in the world a trial of such lengths is likely to result in one or more of the jurors becoming ill or some other reason unable to continue.

The court in which the trial will proceed is one that is specifically designed to accommodate additional jurors. The jury box itself has 15 chairs to accommodate three additional jurors. I have also inspected the jury deliberation room and, again, it is designed to accommodate 15 jurors.

Having considered those matters, I am satisfied that an order pursuant to s 19(2) of the Jury Act should be made and that three additional jurors should be selected for the jury in this trial.