JOHNSON J: The trial of the Accused, Sevag Chalabian, upon a charge of money laundering under s.400.3(1) Criminal Code (Cth), commenced before a jury of 15 on 21 February 2022.
A jury of 15 had been empanelled because of the estimate for the trial, which was about five weeks until the jury retired to consider a verdict: s.19(2) Jury Act 1977; Clause 4A Jury Regulation 2015.
On the third day of the trial, two members of the jury were discharged for reasons explained in R v Chalabian (No 5) [2022] NSWSC 174. One of the jurors discharged on that day had tested positive for COVID-19 on rapid antigen testing. The other juror had unrelated health problems. The Court determined to proceed with the trial with a jury of 13.
On 22 March 2022, the Court was informed that a member of a household of a juror had tested positive for COVID-19. Because of the requirement to self-isolate under the Public Health (COVID-19 Self-Isolation) Order 2022, that juror was discharged and the trial continued with a jury of 12: R v Chalabian (No 10) [2022] NSWSC 316.
As noted in R v Chalabian (No. 10) at [14]-[15], the COVID-19 pandemic has had a repeated impact on this trial since its commencement. It has struck the Accused, the Bar table, jurors, and my Tipstaff.
Last Wednesday, 6 April 2022, the jury of 12 retired to consider their verdict.
On Friday 8 April 2022, the Court was informed that a member of the jury had tested positive to COVID-19 on rapid antigen testing. In addition, a second member of the jury had tested negative on rapid antigen testing, but was otherwise feeling unwell, so that the juror did not attend Court.
The Court adjourned the trial from last Friday until today, Monday 11 April 2022. The juror who was unwell (but had tested negative on Friday) provided a medical certificate which indicated that the juror was unfit to attend last Friday, 8 April 2022 (MFI 83). However, this morning the Court has been informed that that juror has, over the weekend, tested positive by way of rapid antigen testing and a PCR test.
In addition, the juror who was absent last Friday and tested positive on rapid antigen testing, has tested positive again on rapid antigen testing and PCR testing.
In addition, a third member of the jury has, over the weekend, tested positive on rapid antigen testing and PCR testing.
Accordingly, there are three members of the jury who have each tested positive so that each is required to self-isolate for a period of at least seven days from the date of notification of testing pursuant to the Public Health (COVID-19 Self-Isolation) Order 2022 (as issued on 2 March 2022 and amended on 28 March 2022). The definition of "diagnosed person" in the Dictionary to that Order includes a person who has been notified by or on behalf of NSW Health or a pathology laboratory that the person has tested positive for COVID-19, or a person who has become aware the person has tested positive for COVID-19 as a result of a rapid antigen test.
It can be seen that the definition of "diagnosed person" encompasses both notification of a positive PCR test as well as awareness of a positive rapid antigen test. Each of the three absent jurors satisfies both requirements.
The nine remaining members of the jury have attended Court today. As it happens, one member of the jury is unwell, although that juror has tested negative on rapid antigen testing. The remaining eight members of the jury have tested negative on rapid antigen testing.
Given these developments, the Court has heard counsel for the parties as to the appropriate way forward. There are three options.
Option one would involve the discharge of the three absent jurors, with the Court considering whether to continue the trial with nine jurors. This would have required consideration of s.53C Jury Act 1977 as to whether that way forward would be appropriate in any event, or whether that course would give rise to the risk of a substantial miscarriage of justice. Further, and importantly, would be the operation of s.22(a)(ii) Jury Act 1977 which provides that a criminal jury trial cannot proceed with a jury reduced below 10 without the written consent of the Crown and the Accused (s.22(a)(iii) has no application as the trial has not been in progress for at least two months).
That was option one, which itself was further complicated by the fact that, on the face of it, one of the nine jurors present was feeling unwell today in any event.
With respect to option one, there was also said to be a potential Constitutional issue as to whether a trial for a federal offence could proceed with a jury of nine in any event, as to which the parties would need to consider their position by reference to Phan v R [2018] NSWCCA 225 and other authorities (see Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36 at [73]; R (Cth) v Petroulias (No. 33) [2007] NSWSC 1447 at [38], [45]; Phan v R at [152]).
The second option is to adjourn the trial until Tuesday 19 April 2022, in the hope that the three jurors presently unwell will be fit to return to the trial.
The third option is to consider discharging the jury today and terminating the trial, having regard to these developments.
The parties both opposed the third option, the discharge of the jury today, having regard to the point that has been reached in the trial.
The parties both submitted that it was not appropriate to consider the first option, the discharge of the three absent jurors today. This option would involve consequential issues as to whether the trial could proceed with a jury of nine for Constitutional reasons, quite apart from the discretionary considerations which would be relevant to that aspect. The point was not reached where the parties indicated whether there was willingness to provide written consent to the trial proceeding with a jury of nine.
Both the Crown and counsel for the Accused submitted that the appropriate course was to adjourn the trial until Tuesday 19 April 2022. It was submitted that, having regard to the course of the trial, this step should be taken to maximise the prospect that the trial can be kept on foot to a point where a verdict can be reached.
At that point, I indicated to the parties there was a need to ascertain whether the jurors had any difficulty with that proposed course. Information has now been provided that one of the nine jurors presently in attendance has a holiday booked from 15 to 25 April 2022. The remaining eight jurors have discussed the matter and are all available to return on 19 April 2022 to continue the trial (MFI 88).
The jury have quite understandably raised practical questions, seeking clarification concerning their jury service and its continuity over the intervening period. They have as well, for reasons that are again totally understandable, expressed a desire for extra rapid antigen kits to undertake testing between now and 19 April 2022.
The course to be taken remains a matter for the Court. There is no application for discharge of the whole jury. There is, in effect, an application by a member of the jury, who has a planned holiday, to be discharged from the jury so that that juror can be excused from further involvement in this trial. The Crown submits that it is appropriate to discharge that juror ("the applicant juror") and the Accused does not make any contrary submission.
It is appropriate, in my view, to discharge the applicant juror in the circumstances of this case. The demands of service on juries during the COVID-19 pandemic have been substantial. Members of the jury have attended this trial, and no doubt modified their own lives constantly since the trial commenced on 21 February 2022. The fact that the jury are doing their best to see this trial through to its end is a mark in their favour, and exemplifies the dedication of members of the community selected for jury service, in circumstances where many others would have quite simply given up.
That obligation, however, does not extend to, in effect, conscripting the applicant juror and insisting the juror abandon a holiday (no doubt long planned) which was never in danger when this trial commenced, but is only in danger because of COVID-19 striking this trial, as it has once again.
A proper basis has been established for the applicant juror to be discharged under s.53B(d) Jury Act 1977, and I will make such an order.
I have considered whether the adjournment of the trial at this point (when the jury have been deliberating for just over one day, being last Thursday), and where deliberations would not resume until 19 April 2022, would fracture the deliberation process to such an extent that the trial should be abandoned.
It is a not uncommon feature of trials right now that an adjournment for seven days is needed because one or other of the participants in the trial (including in other trials, the Judge) has tested positive for COVID-19.
I have determined that it is not appropriate to discharge the jury in this case. Firstly, the Crown and the Accused both ask that the trial remain on foot. Significant effort and resources have been devoted to this trial by both sides. To determine, at this stage, that the trial should be aborted would be a large step.
Secondly, the jurors are prepared to continue their dedicated service to this trial. They were entitled to be heard on that question and they have indicated their position. The jury wish to continue with their deliberations with a view to this trial being resolved by verdict.
Thirdly, I bear in mind as well that to abort the trial at this stage would have the effect that the trial would proceed at some later time, probably next year.
In the end, the appropriate discretionary outcome is that the Court should allow the trial to remain on foot, and that will involve an adjournment until next Tuesday, 19 April 2022.
I have been conscious of the real risk that COVID-19 will strike other members of the jury between now and then, or members of their households. In a sense, other participants in the trial are not vital at this point. The task of counsel is largely complete, with a capacity to participate in the case in the way that counsel for the Accused is today, by audio-visual link.
My own position is a little different, in that the trial Judge probably needs to be personally present, although if that issue comes to be tested in the context of this trial, it may be necessary to consider whether that is a requirement. That, however, for the moment is hypothetical.
The most important people in this trial at present are the jury. They wish to persist, with a view to reaching a verdict, and I will give them every opportunity to do so. I am conscious though, as I have said, that there is a risk of further health issues concerning the jury, but that risk should not stand in the way of allowing the trial to proceed.
The appropriate course then is to make an order discharging the juror who will be on holidays, and to direct under s.53C Jury Act 1997 that the trial proceed with a jury of 11, with that step to take place next Tuesday 19 April 2022.
Each member of the jury will be provided with at least four rapid antigen test kits for use between now and then, in accordance with their request. In addition, I will be asking them to carry out a rapid antigen test on Thursday morning of this week so that the Court understands the position as at that date. The trial will be listed for mention at 10.00 am on 14 April 2022 to allow the Court and the parties to be informed of the nature of that testing.
[Orders were made subsequently in the presence of the nine jurors:
(a) discharging the applicant juror under s.53B(d) Jury Act 1977;
(b) directing that the trial of the Accused proceed with a jury of 11;
(c) adjourning the trial until 10.00 am on Tuesday, 19 April 2022;
(d) allowing the jury to separate until 10.00 am on Tuesday, 19 April 2022 under s.54 Jury Act 1977].
[Postscript: On the afternoon of 11 April 2022, the Court was informed that the juror who felt unwell, but had tested negative (see [13], [16] above) has also tested positive for COVID-19].
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Amendments
21 March 2023 - Publication restriction lifted - judgment published.
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Decision last updated: 21 March 2023