Complex Trial Allowed to Continue with 10 Jurors

In a complex and lengthy trial, the court allowed the trial to continue with 10 jurors instead of the standard 12, citing the trial's complexity and length as exceptional circumstances.

New South Wales [NAME] v [NAME] & Ors [2005] NSWSC 320 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE : 20 January 2005

JUDGMENT OF : Whealy J at 1

DECISION : I make an order that the remaining 10 jurors be considered as remaining for all purposes of the trial properly constituted as the jury

CATCHWORDS : Jury Act s 22 - Discharge of juror - reasons continuation of trial with less than 12 jurors

LEGISLATION CITED : Jury Act

CASES CITED : [NAME] v Wu (1999) 199 CLR 99at 107 per McHugh J

[NAME] v [NAME] : [NAME] v [NAME] v [NAME](S) : SC 70222/03; 70032/03; 70223/03

Mr T. [NAME] SC; [NAME] Mr R. [NAME] QC; [NAME] COUNSEL : [redacted] SOLICITORS : [redacted] OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

WHEALY J

THURSDAY 20 January 2005

70222/03 - [NAME] v [NAME] 70032/03 - [NAME] v [NAME] 70223/03 - [NAME] v [NAME] page 638 of summing-up

1 HIS HONOUR: I shall proceed on the basis I have to now determine whether I should allow the remaining jurors to be considered as remaining for all the purposes of the trial. I refer again to the principles that are set out in R v Wu (1999)199 CLR 99. Again, the principles are well understood and clearly expressed. I have reached the conclusion that, in the exercise of my discretion, I should make an order to allow the trial to continue with the 10 remaining jurors. First, there is no opposition to the trial continuing. Indeed, the Crown has made the application that it should continue and counsel for the accused have consented to it continuing. Secondly, there are these significant facts: this is a trial that began in May 2004; it was hoped that it would conclude within a period of four months. It has been now nearly nine months since the jury were empanelled. It has been a very, very long trial and a complex one; but complex only in relation to its particular facts and circumstances. 2 Thirdly, the very complexity of the factual issues in the trial and the enormous amount of work that, no doubt, the jury have had to perform to keep abreast of these complex factual and accounting matters seems to me to be, quite apart from the length of the trial, an important matter in relation to exercising a discretion to continue on with ten jurors. 3 Fourthly, the trial is likely to conclude within a week or so of today's date. That is my present estimate. 4 On the other hand, I appreciate and take into account that an order on my part that the trial should continue will bring about a situation where the accused will have a verdict from the jury arrived at by less than twelve persons. As McHugh J said in Wu at page 107: "For hundreds of years the common law has insisted that no person be convicted of a serious crime without the unanimous verdict of the twelve jurors. Even if one juror died or had to be discharged the common law required that the rest of the jury, be discharged, and the trial had to recommence with a new jury of twelve."

5 His Honour said that it does not follow if a juror dies or is discharged the trial should automatically continue with the remaining jurors and his Honour explained why that was so. His Honour also said that one reason, indeed the usual reason, for exercising the [NAME] under s 22 is that the trial has proceeded for some time and that it would cause significant expense to begin again with a new jury. Having made that observation his Honour considered that in relation to particular cases there may be valid reasons nevertheless why a new jury should be empanelled. 6 In my view, in the wholly unusual circumstances of this trial as to its length, its complexity, its expense and the inordinate expense that would be occasioned for the community and for the accused were it to start afresh, it seems to me that I should make an order that the remaining ten jurors be considered as remaining for all purposes of the trial properly constituted as the jury. 7 That is the order I make and I do so bearing in my and conscious of the fact that I have already discharged one juror some months ago and made at that time an order that the trial should nevertheless continue before the then remaining eleven jurors.

**********

18/04/2005 - Counsels' name omitted - Paragraph(s) Cover Sheet - no paragraph numbers

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.