Citation: R v Ronald Edward Medich (No. 27) [2018] NSWSC 16
Court: Supreme Court of New South Wales
Date: 29 January 2018
Judge: Bellew J
Background
This decision arises from the second criminal trial of the accused, following a 2017 trial in which the jury was unable to reach a verdict on either count. Before the first trial commenced, both parties agreed it would likely exceed three months, and a jury of 15 was empanelled under s 19(2) of the Jury Act 1977 (NSW). In the event, the evidence was completed in approximately six weeks, with addresses and summing-up adding a further seven sitting days, and the jury deliberated for 12 days before being discharged.
At a directions hearing in July 2017, senior Crown counsel estimated the retrial would be completed in six to eight weeks, expressly accounting for the time consumed by interlocutory arguments in the first trial. Counsel for the accused agreed with that estimate.
The accused then filed a notice of motion seeking an order that three additional jurors be selected for the retrial. The motion was supported by an affidavit from the accused's solicitor, which Bellew J noted provided only limited evidentiary support.
Legal Issues
- Whether the court was satisfied, for the purposes of s 19(2)(a) of the Jury Act 1977 (NSW) read with s 19(3), that the retrial was likely to last more than three months, so as to permit the empanelling of up to three additional jurors.
- What the word "likely" means in s 19(3) of the Act.
Decision
The threshold question was whether the retrial was "likely" to last more than three months. No regulations have been made under s 19(2)(a), so the court applied the default rule in s 19(3): a trial is of the kind prescribed if its duration is "likely" to exceed three months. Bellew J construed "likely" by reference to its ordinary dictionary meaning, treating it as synonymous with "probable" rather than merely possible.
The accused pointed to two developments since the July 2017 estimate: the Crown intended to call three additional witnesses, and cross-examination of certain key witnesses was expected to be more extensive due to new material served by the Crown. Bellew J accepted these factors but found their cumulative effect was measured in days rather than weeks.
The court also noted a countervailing consideration: all interlocutory rulings from the first trial were agreed to stand, meaning the considerable time consumed by those 17 interlocutory judgments would not be repeated. That factor substantially offset any anticipated lengthening of the retrial.
Bellew J acknowledged that criminal trials are inherently unpredictable and that exceeding estimates is not unusual, but emphasised that s 19(2) requires satisfaction that a trial exceeding three months is a probability, not merely a possibility. On the evidence before the court, that level of satisfaction could not be reached, and the motion was dismissed.
Orders Made
• Three additional jurors be selected for the accused's forthcoming trial
Key Takeaways
- Under s 19(3) of the Jury Act 1977 (NSW), a court may only order additional jurors where it is satisfied the trial is "likely" to exceed three months; Bellew J held that "likely" means probable, not merely possible.
- A notice of motion for an enlarged jury must be supported by sufficient evidence: the court noted the supporting affidavit in this case provided only limited evidentiary assistance.
- Where interlocutory rulings from a previous trial are agreed to carry over to a retrial, the time saved by not revisiting those issues is a relevant factor weighing against a finding that the retrial will be unusually lengthy.
- The inherent unpredictability of criminal trials does not, of itself, satisfy the statutory threshold: the court must find that a duration exceeding three months is a probability on the material actually placed before it.
- The Crown's concession that the court could be satisfied of the statutory requirements did not bind Bellew J, who conducted an independent assessment of the evidence.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), s 19(2) and s 19(3)
Cases
No cases were cited in the judgment.
Other references
- Macquarie Dictionary (7th edition), definition of "likely"
- Collins Dictionary (5th edition), definition of "likely"