Citation: R v Rogerson; R v McNamara (No 4) [2015] NSWSC 988
Court: Supreme Court of New South Wales
Date: 21 July 2015
Judge(s): Bellew J
Background
Two accused were arraigned for a criminal trial initially estimated by their legal representatives to take eight weeks. On that basis, the trial was not expected to exceed three months, and no order for additional jurors was sought or made at the outset.
Following unsuccessful applications by each accused for a separate trial (dealt with in the preceding judgment, R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965), the parties reassessed the likely length of proceedings. In particular, the matters ventilated during the separate trial applications prompted counsel for the accused Rogerson to revise the estimate of the defence cases upward.
The revised position, shared by both sets of defence representatives, was that the trial was now more realistically expected to run to three months or more. The Crown, noting the defence was better placed to estimate the length of its own cases, did not contest that revised assessment.
Legal Issues
- Whether the court was satisfied, within the meaning of s 19(2) of the Jury Act 1977 (NSW), that the trial was likely to take more than three months, so as to warrant an order selecting up to three additional jurors.
Decision
Issue: Application of s 19(2) of the Jury Act 1977
Section 19(2) of the Jury Act 1977 (NSW) empowers the court to order that up to three additional jurors be selected when satisfied that certain conditions are met, relevantly that the trial is likely to exceed three months in duration (at [1]).
When the trial was first estimated at eight weeks, the threshold was not met and the power under s 19(2) was not engaged. However, following the separate trial applications, defence representatives for the accused Rogerson indicated that a more realistic estimate was three months or more, and the accused McNamara's counsel did not dissent from that view (at [3]-[4]).
Bellew J accepted the revised estimate. His Honour was satisfied that there was a likelihood the trial would exceed three months, and accordingly ordered that three additional jurors be selected at the time of empanelment, increasing the jury pool to 15 (at [5]).
Orders Made
- Pursuant to s 19(2) of the Jury Act 1977 (NSW), three additional jurors to be selected at the time of selecting the jury, bringing the total to 15.
- The Registrar to be informed immediately of the order.
Key Takeaways
- Under s 19(2) of the Jury Act 1977 (NSW), the court's power to order selection of up to three additional jurors is engaged when the court is satisfied there is a likelihood the trial will exceed three months in duration (at [1], [5]).
- A revised estimate provided by the parties after arraignment can be sufficient to satisfy the court of that likelihood, even where the original estimate fell below the threshold (at [1], [4]-[5]).
- The Supreme Court treated the defence representatives as being in the best position to assess the length of their own cases, and gave weight to their upward revision of the trial estimate when applying s 19(2) (at [4]).
- Procedural developments during a trial, such as the ventilation of issues at a separate trial application, can cause the court to revisit earlier assumptions about trial length and prompt action under the Jury Act (at [3]).
- The judgment contains no point of general principle; it is a brief procedural ruling responding to changed circumstances on the facts of this case.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW)
Cases
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965