Citation: R v Fesus (No 7) [2015] NSWSC 1975
Court: Supreme Court of NSW
Date: 18 December 2015
Judge: Wilson J
Background
The accused was on trial for murder. The trial had run for approximately five weeks, involving more than 100 exhibits and a significant number of witnesses. The jury had been sent out to deliberate on 27 November 2015 and had been in deliberations for approximately three weeks by the date of this decision.
One juror, identified by number as Juror 77, had been absent from proceedings on multiple occasions. His absences fell at critical points: once during the judge's summing-up and twice during the deliberation period. On each occasion, he provided a medical certificate in identical "tick-a-box" format from the same suburban practice, stating only that he was "unfit for work."
On the morning of 18 December 2015, the juror phoned the Sheriff's office to say he was unwell and would not attend. When specifically asked by the Sheriff to obtain a certificate detailing why he was unfit to attend court and deliberate, he responded, "But it's only one day," and mentioned he had attended a community meeting about asbestos damage in his street following a tornado. The court received a certificate in exactly the same inadequate format as the previous ones.
Legal Issues
- Whether Juror 77 should be discharged under section 53B(d) of the Jury Act on the basis that he was "unavailable" for jury service.
- Whether, if discharged, the trial should continue with eleven jurors or whether doing so would create a substantial risk of a miscarriage of justice.
Decision
Wilson J was not satisfied that the certificates provided by Juror 77 established a genuine incapacity to attend court and deliberate. The certificates were identical across three occasions, in a tick-a-box format, and did not specify the nature of the illness or explain why the juror was unfit to perform jury duties specifically. Despite being expressly asked by the Sheriff to obtain a certificate addressing those matters, the juror produced one that failed entirely to do so.
The court found that the juror's conduct raised real doubt about whether he was giving sufficient priority to his obligations. His comment that it was "only one day," his reference to attending a community meeting on the same day, and the pattern of absences at critical junctures each contributed to that concern. Wilson J was not satisfied the juror was genuinely incapacitated within the meaning of section 53B(d), and discharged him accordingly.
On whether to continue with eleven jurors, Wilson J found no substantial risk of miscarriage of justice. The views of the discharged juror were entirely unknown. It was speculative to assume his absence would favour either party. The remaining eleven jurors had demonstrated consistent engagement throughout the trial, and the legislature's provision for majority verdicts confirmed that an eleven-person jury was capable of returning a sound and lawful verdict.
The court also noted the broader interests of justice: the trial had run for many weeks, numerous witnesses had testified, the accused had travelled daily from the South Coast, and prolonging the proceedings as Christmas approached risked placing unnecessary pressure on the remaining jurors.
Orders Made
- Juror 77 discharged pursuant to section 53B(d) of the Jury Act.
- The trial to continue with eleven jurors.
Key Takeaways
- Under section 53B(d) of the Jury Act, a court may discharge a juror who is unavailable, but a generic "tick-a-box" medical certificate stating only "unfit for work" may be insufficient to establish genuine incapacity, particularly where the juror was specifically asked to obtain more detailed certification and failed to do so.
- A pattern of absences at critical trial junctures, combined with conduct suggesting insufficient regard for juror obligations, can support a finding that a juror should be discharged.
- Where a discharged juror's deliberation views are entirely unknown, it is impermissibly speculative to infer that continuing without them would cause a substantial miscarriage of justice in favour of the accused.
- The existence of majority verdict provisions in the Jury Act (eleven from twelve, or ten from eleven) is consistent with an eleven-person jury being capable of returning a verdict that is sound in law and acceptable to the community.
- In assessing whether to discharge a juror and continue with a reduced panel, the Supreme Court applied the principles discussed in Le v R [2012] NSWCCA 202, giving weight to the length of the trial, the burden on witnesses and the accused, and the public interest in an expeditious verdict.
Legislation and Cases Referenced
Legislation:
- Jury Act (NSW), sections 22, 53B, 53B(d), 53C
Cases:
- BG v R [2012] NSWCCA 139
- Le v R [2012] NSWCCA 202