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Supreme Court 11 December 2007

R (Cth) v Petroulias (No. 33)

[2007] NSWSC 1447

Public order & justice offences
CRIMINAL LAW TRIAL BY JURY JURY DELIBERATIONS COMMENCED JUROR UNABLE TO DELIBERATE PROPERLY JUROR DISCHARGED APPLICATION REFUSED

Citation: R (Cth) v Petroulias (No. 33) [2007] NSWSC 1447
Court: Supreme Court of New South Wales
Date: 11 December 2007
Judge(s): Johnson J

Background

The accused faced a lengthy criminal trial that commenced on 13 June 2007, with an estimated duration of four months. By the time the jury retired to deliberate on 4 December 2007, the trial had already seen one juror discharged earlier in proceedings, reducing the jury from 12 to 11.

Two separate applications arose on 6 December 2007, after deliberations had begun. One juror (referred to as "the employment juror") applied to be discharged, citing stress caused by imminent new employment. Separately, the accused applied for the discharge of another juror (referred to as "the pregnant juror"), whose advanced pregnancy was by then evident.

This judgment sets out Johnson J's reasons for the orders made on 6 December 2007, including a further application by the accused to discharge the entire jury following those rulings.

  • Whether the employment juror's stress arising from new employment obligations constituted sufficient grounds for discharge during deliberations
  • Whether the pregnant juror should be discharged on the application of the accused
  • Whether the trial should continue with a reduced jury of 10 under s 22 of the Jury Act 1977 (NSW)
  • Whether the entire jury should be discharged and the trial aborted, given a four-day break in deliberations

Decision

Johnson J discharged the employment juror. The juror's stress arose from time pressure associated with imminent new employment, and the court was satisfied that this juror was unable to deliberate properly. Although the Victorian Court of Appeal in R v Ousley had upheld a trial judge's refusal to discharge a juror under similar employment-related stress, the critical distinction in that case was that the juror had stated her ability to act was unaffected. Here, the circumstances crossed the threshold warranting discharge.

The court refused to discharge the pregnant juror. That juror had served throughout the trial, had made no application to be discharged, and there was no sufficient basis to conclude she was unable to continue deliberating. The accused's application on this point was rejected.

Johnson J then ordered that the trial continue before a jury of 10 under s 22 of the Jury Act 1977. Section 22 relieves the court of the common law obligation to discharge the entire jury when a juror is removed, provided a minimum of 10 jurors remain. The judge noted this was the second occasion the provision had been invoked in these proceedings and that a fair and lawful trial can proceed with a reduced jury.

The accused's subsequent application to discharge the entire jury was refused. Johnson J found that a four-day break in deliberations, including a weekend, did not justify aborting a lengthy trial that had already reached the verdict stage. The court weighed the interests of both the accused and the community in obtaining verdicts, noting the history of two earlier trials in 2005 and 2007 that had ended without verdict.

Orders Made

  • The juror described as "the employment juror" is discharged
  • The application by the accused to discharge "the pregnant juror" is refused
  • Under s 22 of the Jury Act 1977, the trial continues before a jury of 10
  • The application by the accused to discharge the entire jury is refused
  • Under s 54(1)(b) of the Jury Act 1977, the jury is permitted to separate until deliberations resume on 10 December 2007

Key Takeaways

  • The power to discharge an individual juror during a trial is a common law, implied, or inherent power assumed to exist alongside s 22 of the Jury Act 1977, even though that section does not expressly confer it.
  • Employment-related stress affecting a juror's capacity to deliberate can, depending on the circumstances, warrant discharge; the key distinction from R v Ousley was whether the juror remained able and willing to perform the task without distraction.
  • Under s 22 of the Jury Act 1977, a trial may continue with a reduced jury of 10, relieving the court of the common law obligation to discharge the entire jury when an individual juror is removed.
  • Two separate steps govern the process: first, whether the individual juror should be discharged; second, whether the trial should continue with a reduced jury. These are distinct exercises of discretion.
  • A short break in deliberations, including a weekend, does not of itself provide a basis for discharging the entire jury and aborting a lengthy trial, particularly where earlier proceedings have already concluded without verdict.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 22, 54(1)(b)

Cases
- R (Cth) v Petroulias (No. 26) [2007] NSWSC 819
- R (Cth) v Petroulias (No. 27) [2007] NSWSC 838
- R (Cth) v Petroulias (No. 31) [2007] NSWSC 1213
- R (Cth) v Petroulias (No. 32) [2007] NSWSC 1302
- Petroulias v The Queen [2007] NSWCCA 134
- Wu v The Queen [1999] 199 CLR 99
- R v Radju (2001) 53 NSWLR 471
- Brownlee v The Queen (2001) 207 CLR 278
- R v Reardon (2002) 186 FLR 1
- R v Ousley (1996) 87 A Crim R 326
- Ousley v The Queen (1997) 192 CLR 69
- Black v The Queen (1993) 179 CLR 44