R (Commonwealth) v Mark William Standen

JUDGMENT - On application by the defence for a discharge of the jury - see page 3553 of the transcript 1HIS HONOUR: Today, on the sixty-eighth day of the trial counsel for the accused has made an application for a discharge of the jury. The application has been opposed by the Crown. 2The application was made as a result of a note received from the jury yesterday, which became MFI 35. The note was in the following terms "Dear Sirs, We write with extreme concerns about our current situations in relation to how the length of this trial is impacting our lives. Prior to being empanelled each of us was given varying time frames of between 8 to 14 weeks. To date we're sitting in the 15th week and have received no communications from the court regarding this time line. As we go through evidence of telecommunication intercepts, some in greater detail than when initially presented over 8 weeks we can only assume at least another 7 weeks will be spent on these documents. This trial is having a serious effects on our lives emotionally, physically and financially, and additional stress is being placed in the current knowledge of being here for an infinite period of time. We have outlined some of the issues we're facing below: Many of us are forced to work nights and weekends to maintain roles that could not be replaced with one day's notice. We understand our rights when it comes to employment however we're sure you can appreciate the reality is another matter. Pressure from employers when we have no end in sight is increasing. Many of us have been denied bonuses, and promotions by not physically being there many of us have been denied bonuses and promotions by not physically being there. One juror is unable to maintain the rent on her apartment on the salary paid by the court and is being forced to move. As with two other jurors, she was made redundant prior to this trial and for 4 months each of them have been denied the opportunity to seek/accept employment, are not applicable for unemployment benefits and are only applicable to the lowest rate paid by the court. Two of the above were unable to accept job offers when empanelled and one was denied the opportunity to attend a second interview, it was not considered a valid excuse at the selection time. One self-employed juror has had to turn down 4 months of work and is now having to cancel work rescheduled for the supposed end of this trial. He is severely financially affected as a result, and is having to support 3 children on the court salary. One juror is having to pay for before and after school care that was not previously required or planned for financially. One juror suffers chronic back injuries that have been inflamed and requires physiotherapy 1 to 2 times weekly. One juror has been denied a vacation booked in 2010 and presented to the court at the time of being summoned but was rejected as an excuse. The commitments involving other family members have meant that the holiday will continue in her absence and faces additional pressure managing her daughter with one less adult. Morale is low among all jurors and concerns are held for holidays booked in August with more information to come. The above concerns have been difficult to maintain for 15 weeks but we have done so without complaint and offered above and beyond support to see this trial conclude as quickly as possible including longer sitting hours and sitting through illness. These issues cannot be sustained for an indefinite period. We do not deny the accused has a right to a fair trial but ask that our rights to earn a living, seek employment, look after our families, go on vacation and plan our lives are taken into equal consideration. This trial should never have been speculated as being completed in 14 weeks and our lives cannot continue to be put on hold. Had we been prepared for a longer period from the beginning we wouldn't feel this way. Our lives would have been adjusted to accommodate. Sincerely The jury" 3In the first paragraph of their note the jurors speak of their "extreme concerns" about how the length of the trial is affecting their lives. They say that individual jurors, before the jury was empanelled, were given varying estimate of the length of the trial, of between 8 and 14 weeks. The trial is now in its fifteenth week so that the maximum estimate of the length of the trial given to any juror has now been exceeded. 4In their note the jury say that they have not received any information from the court about how much longer the trial will last. They say that they assume that the further taking of evidence from the accused concerning the telecommunications intercepts will last at least another 7 weeks. The jury have some basis for making an assessment, because they are aware of the extent of the telecommunications intercepts and can see how much of that material has so far been dealt with and how much remains to be dealt with by the accused in his evidence in chief. 5In the second paragraph of their note the jurors say that serving on the jury at this trial is having a serious effect on their lives, emotionally, physically and financially, and "additional stress is being placed in the current knowledge of being here for an infinite period of time". 6In succeeding paragraphs of the note the jury outline the hardship, and often severe hardship, that individual members of the jury are experiencing from being members of the jury in this trial. 7The note states that morale is low among all jurors. In the note the jurors indicate that they have "maintained" the matters causing them concern without complaint for 15 weeks but "these issues cannot be sustained for an indefinite period." 8In the note the jury acknowledge that the accused is entitled to a fair trial but ask that their own rights to earn a living, seek employment, look after their families, go on holidays and plan their lives be given consideration. 9The jury conclude by saying that, if they had been told from the beginning that the trial would last longer than 14 weeks, they would have adjusted their lives to accommodate such a longer period, and "we wouldn't feel this way". 10I accept without reservation the truth of the assertions made by the jury in their note. 11In his submissions in support of the application for a discharge of the jury counsel for the accused referred to the length of the Crown case, which lasted 58 days (ending in the thirteenth week of the trial) and pointed out that only a relatively small amount of that time had been occupied by the cross-examination of Crown witnesses. Counsel for the accused also pointed out that the defence case is now only in its eighth day. 12In his submissions in support of the application counsel for the accused said that his concern arising from the jurors' note was two-fold and he made two principal submissions. These submissions can be summarised as follows.