Citation: R (Cth) v Petroulias (No. 27) [2007] NSWSC 838
Court: Supreme Court of New South Wales
Date: 2 August 2007
Judge(s): Johnson J
Background
This decision arose during a lengthy Commonwealth criminal trial before Johnson J in the Supreme Court of New South Wales. The accused faced serious charges, and by the time of this judgment the Crown case was well advanced, with the fifteenth witness giving evidence.
One juror (referred to throughout as "the applicant juror") had previously applied to be discharged from the jury on grounds of financial hardship and associated stress. That earlier application, decided in R (Cth) v Petroulias (No. 26), was refused because no medical evidence had been provided in support.
The applicant juror then obtained a report from a consultant psychiatrist and renewed her application. The court was required to consider that fresh evidence and determine whether she should be discharged, and if so, whether the trial should continue before the remaining eleven jurors.
Legal Issues
- Whether the applicant juror should be discharged on the basis of medical evidence of mental illness that rendered her incapable of continuing to serve
- Whether, if discharged, the trial should proceed with a jury of eleven under section 22(a) of the Jury Act 1977 (NSW)
Decision
On the discharge question, Johnson J noted that the basis for the renewed application had changed markedly from the earlier one. The applicant juror's consultant psychiatrist provided two reports confirming she suffered from chronic schizophrenia, was on antipsychotic and antidepressant medication, and persistently experienced psychotic symptoms including auditory hallucinations and delusions of persecution. The psychiatrist stated expressly that it would be "quite inappropriate" for her to continue jury service given her mental illness and the agitation she was already experiencing. Members of the defence legal team had also observed repetitive, unusual hand movements that appeared to distract other jurors, and Johnson J himself had observed similar behaviour during evidence on 31 July 2007.
The court was satisfied that the applicant juror was, through illness, incapable of continuing to act as a juror, and granted her application for discharge. Johnson J noted that no oral evidence from either the juror or the psychiatrist was required in the circumstances, a conclusion reinforced by the agreement of both parties.
On the continuation question, Johnson J treated the decision to continue with eleven jurors as a separate and independent step, not an automatic consequence of discharge. The court drew on the High Court's decision in Wu v The Queen, which confirmed that a fair and lawful trial can proceed despite the discharge of a juror. Johnson J also had regard to the advanced state of the Crown case, the long procedural history of the proceedings (including a previous aborted trial), and the fact that numerous Crown witnesses had given lengthy evidence on multiple occasions across committal proceedings and earlier trials. Both the Crown and the defence submitted that the trial should continue with eleven jurors. The court was satisfied the appropriate course was to make the order accordingly.
Orders Made
- The applicant juror was discharged from the jury.
- Under section 22(a) of the Jury Act 1977, the remaining eleven jurors were ordered to be considered as remaining for all purposes of the trial and to be properly constituted as the jury.
Key Takeaways
- A renewed juror discharge application may succeed where fresh medical evidence is adduced, even after an earlier application on different grounds was refused without medical support.
- The decision to continue a trial before a reduced jury is a distinct and separate step from the decision to discharge an individual juror, requiring its own independent assessment by the court.
- Under section 22(a) of the Jury Act 1977, a trial may lawfully proceed before a jury of eleven, and the section's purpose is precisely to enable continuation despite the loss of a juror during proceedings.
- A jury of twelve is the statutory ideal, but as Wu v The Queen (1999) 199 CLR 99 confirms, that ideal can be departed from without compromising the fairness or lawfulness of the trial.
- Observed behaviour of a juror in court, reported by counsel and independently noted by the trial judge, can form part of the material assessed on a discharge application, alongside formal medical evidence.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), section 22(a)
Cases
- R (Cth) v Petroulias (No. 26) [2007] NSWSC 819
- R (Cth) v Petroulias (No. 22) [2007] NSWSC 692
- Wu v The Queen (1999) 199 CLR 99