Citation: R v Niguidula (No 9) [2023] NSWSC 620
Court: Supreme Court of New South Wales
Date: 2 June 2023
Judge(s): Dhanji J
Background
The accused stood trial for murder. On 16 May 2023, the trial had only just commenced when the Crown opened its case and referred in that opening to evidence from a witness who, it was learned overnight, would not in fact be called.
Because the Crown's opening had placed before the jury material that would never form part of the evidence, Dhanji J discharged the jury. A new jury was empanelled the following day, and the trial proceeded from scratch.
The accused's legal representatives then applied for a certificate under the Suitors' Fund Act 1951 (NSW). Such a certificate can entitle an accused to reimbursement of costs thrown away by the aborted hearing.
Legal Issues
- Whether the circumstances of the jury discharge satisfied the requirements for a certificate under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW).
- Specifically, whether the discharge was attributable to jury disagreement, or to any act, neglect or default of the accused or her legal representatives.
Decision
Section 6A(1)(c) of the Suitors' Fund Act 1951 permits a certificate to issue where criminal proceedings are discontinued and a new trial is ordered for a reason not attributable to jury disagreement, and where the reason is also not attributable to any act, neglect or default of the accused or her counsel or solicitors.
Dhanji J found that both conditions were plainly satisfied. The jury was discharged almost immediately after the trial began, so no question of jury disagreement arose. The discharge resulted entirely from the Crown's opening referring to a witness who would not be called, a matter in no way connected to any conduct by the accused or her legal team.
On that basis, the court was satisfied the statutory foundation for issuing a certificate had been established. Dhanji J executed two copies of the certificate, which were sealed by his Associate. One copy was retained by the court and one was provided to the accused's solicitor.
Orders Made
- A certificate under the Suitors' Fund Act 1951 (NSW) was issued in favour of the accused.
- Two sealed copies of the certificate were executed: one retained by the court, one provided to the accused's solicitor.
Key Takeaways
- Under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW), a certificate may issue where a jury is discharged and a new trial ordered, provided the discharge was not caused by jury disagreement and was not attributable to any act, neglect or default of the accused or her legal representatives.
- A discharge arising from the Crown's opening referencing a witness who was subsequently not called satisfies the "not attributable to the accused" requirement in s 6A(1)(c).
- No jury disagreement is required for the provision to apply; the section expressly contemplates situations where the jury was discharged for reasons entirely separate from any deadlock.
- The Supreme Court confirmed that the certificate procedure under the Suitors' Fund Act is available at the trial level following a mid-trial jury discharge, not only on appeal.
- Where a certificate issues, one sealed copy is retained by the court and one is provided to the accused's solicitor for the purpose of taking action under the Act.
Legislation and Cases Referenced
Legislation
- Suitors' Fund Act 1951 (NSW), s 6A(1)(c)
Cases
- R v Niguidula (No 8) [2023] NSWSC 593 (companion judgment, delivered the same day, setting out the circumstances of the jury discharge)