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Supreme Court 13 March 2018

R v Ronald Edward Medich (No. 37)

[2018] NSWSC 313

Homicide
CRIMINAL LAW JURIES PRINCIPLES TO BE APPLIED

Citation: R v Ronald Edward Medich (No. 37) [2018] NSWSC 313
Court: Supreme Court of New South Wales
Date: 13 March 2018
Judge: Bellew J

Background

The accused was standing trial for murder, a lengthy and complex proceeding that had already seen one jury fail to reach a unanimous verdict. During the morning adjournment, the Sheriff informed Bellew J that a juror had reported a concerning incident on her way to court that morning.

The juror had been speaking Greek on her mobile phone while travelling by train when she noticed a man standing in front of her appear to raise his phone as if to photograph her. She could not confirm whether a photograph was actually taken, and she told fellow jurors about the incident, who were largely dismissive. Despite describing herself as unafraid for her safety, the juror indicated she intended to take precautions going forward, including having her husband drive her to court, and potentially altering her appearance with different clothing and dark glasses.

Senior counsel for the accused applied for the discharge of the juror. The application did not seek discharge of the entire jury. The Crown opposed the application.

  • Whether the incident on the train gave rise to a reasonable apprehension that the juror could not discharge her duties impartially, satisfying the test in Webb v R (1994) 181 CLR 41.
  • Whether the juror should be discharged under section 53B of the Jury Act 1977 (NSW).
  • Whether, if the juror were discharged, the trial should continue with the remaining eleven jurors pursuant to section 22(a) of the Jury Act 1977 (NSW).

Decision

Bellew J acknowledged that the juror had acted entirely responsibly by reporting the incident, having done exactly what she was directed to do at the start of the trial. However, the court noted that the juror's commendable conduct was not itself determinative of the discharge application.

Applying the test from Webb v R, his Honour considered whether the incident was such that, notwithstanding any warning by the trial judge, a fair-minded and informed member of the public would reasonably apprehend that the juror would not discharge her role impartially. The defence argued that in the context of this particular trial, including evidence that the accused had previously engaged persons to conduct surveillance of his former wife, the juror would inevitably speculate that the accused was responsible for the incident, thereby compromising his right to a fair trial.

The court accepted that argument and found the juror should be discharged. The combination of the specific trial context, the nature of the evidence already before the jury, and the juror's apparent shift in behaviour (expressed willingness to change her appearance and travel arrangements) supported the conclusion that a reasonable apprehension of partiality arose.

On the question of whether to continue with eleven jurors, Bellew J noted the extended and difficult history of the proceedings, including the length of time since the alleged murder, the prior failed trial, and numerous pre-trial applications. The court also found that the remaining jurors showed no sign of similar concern and had largely dismissed the reported incident as the juror's imagination. Those factors collectively supported continuing the trial with eleven jurors.

Orders Made

  • Juror number 976-4 was discharged.
  • Pursuant to section 22(a) of the Jury Act 1977 (NSW), the trial was ordered to continue with a reduced number of jurors (eleven).

Key Takeaways

  • The test for discretionary discharge of a juror following an irregularity, drawn from Webb v R (1994) 181 CLR 41, asks whether a fair-minded and informed member of the public would reasonably apprehend that the juror would not discharge their role impartially, even after a judicial warning.
  • A juror's reassurances about her own sense of safety, and her compliant reporting of the incident, were relevant but not determinative of whether the discharge threshold was met.
  • Specific trial context matters: the court found that evidence already before the jury about the accused's prior surveillance activities heightened the risk that the juror would attribute the incident to the accused, increasing the potential prejudice to a fair trial.
  • The Supreme Court confirmed it may order a trial to continue with a reduced jury under section 22(a) of the Jury Act 1977 (NSW), particularly where the history of the proceedings is lengthy and the remaining jurors are unaffected by the irregularity.
  • Where a juror is discharged, the court may direct both the discharged juror and remaining jurors not to speculate about the reasons for the discharge and not to communicate with each other while the trial continues.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 22(a), 53B

Cases:
- Webb v R (1994) 181 CLR 41; [1994] HCA 30
- Elomar v R [2014] NSWCCA 303; 316 ALR 208
- R v Petroulias (No 26) [2007] NSWSC 819
- R v Petroulias (No 27) [2007] NSWSC 838
- Wu v R (1999) 199 CLR 99; [1999] HCA 52