R v Fakhreddine

HIS HONOUR: Fifteen jurors were originally empanelled in these proceedings. One has already been discharged by me due to unanticipated work commitments. A second juror has now indicated that she may wish to be excused by reason of a travel arrangement that she cannot cancel without incurring a financial penalty. The juror in question is booked to fly to Perth on Thursday 23 November 2024. She will be away for a period of one week. The trial is now in its fifth week. The original estimate was four weeks.

I have completed my summing up to the jury and, with the exception of what follows, I anticipate that the jury will retire to consider their verdict tomorrow. Before that occurs it will be necessary to conduct a ballot to select the final 12 jurors. I have expressed concern that if the juror in question is retained until the day before her flight, in the hope that the trial might conclude by then, there is a risk that if it does not, any application by her to be excused as one of the final 12 jurors would potentially reduce the jury number to below 12.

Sections 53B and 53C of the Jury Act 1977 provide relevantly as follows:

I consider that the juror should be discharged. My reasons for that opinion are as follows.

In my experience, it is notoriously difficult to expect jurors to perform their function if there is any unusual or additional pressure upon them to complete their deliberations within a perceived timeframe. It is accepted that to the extent that it is possible to do so, distractions that might otherwise interfere with any juror’s ability to concentrate on the task at hand should be eliminated or reduced. A looming personal deadline, such as in the present case, is in my opinion highly likely to render a juror more susceptible to reaching a decision without proper consideration or more liable hastily to agree with the views of others with whom in different circumstances such agreement might be resisted pending an opportunity in a timely way to consider the issues more fully. Such pressure, real or perceived, would affect any juror's ability to perform the functions of a juror. I consider that it is likely to affect the particular juror’s ability to do so in this trial.

There is an added complication. If the juror in question were to remain following the ballot, but nevertheless made an application to be discharged later in the week, that application would raise the prospect, if successful, of the jury being reduced to only 11 jurors. That potential problem can be entirely avoided by the course that I propose.

I am of the opinion that to continue the trial with the remaining jurors would not give rise to the risk of a substantial miscarriage of justice.