Citation: R v Fakhreddine [2023] NSWSC 1425
Court: Supreme Court of New South Wales
Date: 21 November 2023
Judge: Harrison CJ at CL
Background
The accused stood trial for murder in the Supreme Court of New South Wales. The trial had reached its conclusion, with the judge having completed his summing up the previous day. The jury was due to retire that morning to deliberate, following a ballot to determine the final jury composition.
Shortly before court resumed at 10am, a juror contacted the court through the Sheriff's officer to say she was at her doctor's rooms. A medical certificate followed, stating she suffered from adjustment disorder with anxiety and atypical chest pain, and that she would be unfit for court from 21 to 24 November 2023 inclusive.
The court also noted that the same juror had submitted a lengthy jury note the previous day, complaining that the jury room was claustrophobic and that she was finding it difficult to cope in the confined space with her fellow jurors. This history informed the judge's assessment of the likelihood of her return.
Legal Issues
- Whether the juror should be discharged under ss 53B and 53C of the Jury Act 1977 (NSW) on the basis of illness or incapacity affecting her ability to perform juror functions
- Whether continuing the trial with the remaining jurors would give rise to a risk of substantial miscarriage of justice
Decision
Harrison CJ at CL concluded, after consulting with counsel for both parties, that adjourning the proceedings until the following Monday, when the juror might theoretically be fit to return, would not be in the interests of justice. The judge expressed doubt that the juror's recovery and return by that date could be assumed with any confidence, particularly given her behaviour the previous day.
Applying s 53B of the Jury Act 1977, the judge found that the juror's condition, for all practical purposes, rendered her unable to discharge her duties as a juror. Even if that conclusion were considered premature, the judge was satisfied that it was highly likely she would become unable to serve before the jury delivered its verdict. The alternative ground under s 53B(d), concerning any other reason affecting a juror's ability to perform their functions, was also engaged on the facts.
Turning to s 53C, the judge found that continuing the trial with the remaining jurors would not give rise to any risk of a substantial miscarriage of justice. The critical reason was that twelve jurors would remain following the discharge, satisfying the requirement for a full deliberating jury under s 22 of the Jury Act 1977.
Orders Made
• The juror is discharged
• The trial continues with the remaining jurors (twelve jurors)
Key Takeaways
- Under s 53B of the Jury Act 1977 (NSW), a juror may be discharged where their condition, while not rendering them entirely unable to serve in a technical sense, for all practical purposes prevents them from discharging their duties, or where it is highly likely they will become unable to serve before the verdict is delivered.
- A preceding pattern of distress, such as a jury note complaining of claustrophobia and difficulty coping in the jury room, is relevant context when assessing the likelihood of a juror's recovery and return.
- Where twelve jurors remain following a discharge, the court retains a clear basis for finding no risk of substantial miscarriage of justice under s 53C, allowing the trial to continue with a reduced number.
- The decision confirms that the interests of justice can weigh against adjourning a trial to await a juror's possible recovery, particularly when the trial is at the point of jury retirement.
- Both the medical certificate and the juror's recent conduct in the jury room formed part of the factual matrix the Supreme Court considered when exercising the discretion to discharge.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 22, 53B, 53C
Cases cited: None cited in the judgment.