R v Khan (No 5)

On 6 February 2018 the accused pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. Following his arraignment, and in accordance with my general practice, I addressed the jury panel for the purposes of providing them with further information in an effort to assist them in their understanding of the process of selecting a jury. Amongst other things, I said (commencing at T5.41):

Having then dealt with a number of other matters, I returned to this general subject (at T7.28):

I then proceeded to empanel a jury.

This morning, to my astonishment, I was handed a document by the Sheriff which is now MFI3. It is a medical certificate under the hand of Dr Saiful Choudhury. It certifies that a member of the jury, to whom I shall refer as Juror R, "has been (sic) from anxiety and depression from the recent loss of her father. She is unfit for jury duty.”

When the matter was drawn to the attention of counsel, it was the Crown's position that the entire jury should be discharged and that we should start afresh with a new panel. The basis of that submission was that it was, to say the least, undesirable to commence a trial with only eleven members of the jury. Mr Anderson, who appears on behalf of the accused, was instructed to proceed, notwithstanding the fact that we would be starting a trial of several weeks duration with a jury of eleven, not twelve. However, in making that submission, Mr Anderson acknowledged the general undesirability of commencing a trial in those circumstances.

The provisions of the Jury Act 1977 (NSW) (“the Act”) recognise the important right of a person to be tried by a jury of twelve persons. In R v Wu (1998) 103 A Crim R 416, the Court of Criminal Appeal made a number of observations to the effect that an accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons, and that the discharge of a single member deprives an accused of the voice of one juror in the consideration of the verdict.

Section 53B of the Act confers a power to discharge an individual juror. In particular, s 53B(a) confers a power to discharge a juror if the juror has, in the Judge's opinion, become so ill, infirmed or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict, or has become so ill as to be a health risk to other jurors or persons present at the trial. The contents of MFI 3, although expressed in language which might be described as imperfect, satisfy me that the discretionary power in s 53B(a) ought be exercised. Why it was that Juror R did not draw this matter to my attention when given the opportunity to do so, and when reminded of the importance of doing so, remains a mystery.

That then gives rise to whether I should exercise the power under s 53C of the Act to discharge the remainder of the jury. Bearing in mind the observations made in Wu, it is my view that the entire jury should be discharged. I am informed that a panel can be assembled quickly and a new jury selected almost immediately.

In those circumstances, I make the following orders: