R (Cth) v Petroulias

PARTIES : Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)

COUNSEL : Mr P Hastings QC; Mr C Hoy (Crown) Mr G Walsh (Accused)

SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2002/93 Regina (Cth) v Nikytas Nicholas Petroulias (No. 26)

JUDGMENT (on application by a juror to be discharged from the jury - see T1490) 1 JOHNSON J: On 25 July 2007, the thirty-first day of the trial, a note was received from a juror ("the applicant juror"), seeking discharge from the jury.

The Present Application 2 The note (MFI 51) stated that the applicant juror had been trading on the Australian share market for some nine months as a day trader and that, since being empanelled on the jury, the applicant juror could "not trade as often as before...so I lose some money". The note stated that this had upset the applicant juror's husband and had led to quarrelling. The note observed that this state of affairs had given rise to significant emotional suffering and that the applicant juror had experienced "quite a lot of sleepness nights" and that this "distracts [her] focus on the evidence and affects [her] fair judgment on the case". The applicant juror asks to be excused from the trial. 3 The contents of the note, and the applicant juror's application, have been brought to the attention of counsel and the parties. It was accepted by counsel that sworn evidence from the applicant juror in support of the application was not necessary, and that the Court should accept the factual matters recited in the note. I have approached the application in this way. 4 The Crown opposes the application for discharge. The Accused did not seek the discharge of the applicant juror. The submissions of counsel in this respect are recorded in the transcript (T1481-1488), and need not be repeated in this judgment.

Commencement of the Trial 5 This trial commenced on 13 June 2007 with the empanelment of the present jury. The earlier history of the proceedings may be found in my judgment, R (Cth) v Petroulias (No. 22) [2007] NSWSC 692 at [13] to [18]. 6 The applicant juror made no application on 13 June 2007 to be excused from the jury panel. Section 38 Jury Act 1977 provides for the Sheriff or the Court to excuse a person who has been summoned "for good cause". The Act does not define this term, but a common reason for persons seeking to be excused from jury service is employment and, in particular, self employment or employment in a small business. In this respect, see Issues Paper 28, New South Wales Law Reform Commission, "Jury Service", November 2006, paragraphs 3.19-3.20. 7 The jury panel for this trial was informed by the Sheriff that the trial had a four months estimate. I reminded the panel of this estimate before the empanelment process commenced. A number of persons were excused from the panel for employment-related reasons. As I have noted, the applicant juror made no such application.

Applicable Legal Principles 8 The principles which are applicable on an application such as this are clear:

(a) s.22 Jury Act 1977 does not expressly confer upon the Court a power or discretion to discharge an individual juror, however, that is assumed as a common law or implied or inherent power: Wu v The Queen [1999] 199 CLR 99 at 114 [46], 118 [54]; R v Radju [2001] 53 NSWLR 471 at 475 [17]; Petroulias v The Queen [2007] NSWCCA 134 at [17], [58];

(b) s.22 relieves the Court of the common law mandatory obligation to discharge the entire jury and permits continuation of the trial with a jury of eleven if the Court so orders: Wu v The Queen at 106 [21], 107 [27], 112 [42], 114 [46]; R v Radju at 475 [17];

(c) there are two separate steps to the process - firstly, whether the juror should be discharged and, if that occurs, whether the trial should continue with a jury of eleven: Wu v The Queen at 103 [8], 107 [26]; R v Radju at 475 [18];

(d) there is no closed category of circumstances which may warrant the discharge of a juror during a trial. Usual circumstances involve illness on the part of a juror or some event or revelation which otherwise impacts upon the appropriateness of the juror continuing to serve (such as an event which affects the impartiality of the juror: R v Czajkowski [2002] 137 A Crim R 111). 9 In Wu v The Queen, Gleeson CJ and Hayne J, at 103 [9] observed that the decision to discharge a juror may require consideration of difficult questions of fact and degree. At 103 [6], their Honours observed that the conduct of, or circumstances affecting, a single juror may require that juror's discharge, although that conduct or those circumstances may not affect the other members of the jury or suggest that they cannot perform their task satisfactorily. 10 As Simpson J (Hodgson JA and Barr J agreeing) observed in R v Reardon (2002) 186 FLR 1, at 23 [96], s.22 Jury Act 1977 envisages a very broad power or discretion in relation to the discharge of individual jurors, as reference is made to discharge where a juror is "through illness incapable of continuing to act" but broadens that scope by addition of the words "or for any other reason". I will return to R v Reardon later in this judgment.

Duties and Burdens Arising from Jury Service 11 A jury has now been empanelled in this trial. The point has passed where the applicant juror could have sought to be excused from the panel on employment-related grounds under s.38 of the Act "for good cause". 12 The purpose of trial by jury is itself an important consideration on an application such as this. The jury in a criminal trial is to consist of twelve persons: s.19 Jury Act 1977. The jury is a body of persons representative of the wider community: Cheatle v The Queen [1993] 177 CLR 541 at 560. The constitutional guarantee of trial by jury in Commonwealth matters exists for the benefit of the community as a whole, as well as for the benefit of the particular accused: Brown v The Queen [1986] 160 CLR 171 at 201. As the New South Wales Law Reform Commission observed in Issues Paper 28, at paragraph 1.42: "Jury service is seen as an important point of contact between the court system and the public at large".

13 Citizens who are empanelled as jurors exercise an important function in the criminal justice system. They are judges of the facts. The law requires twelve jurors for a criminal trial (subject to the operation of s.22 Jury Act 1977). A range of experiences and backgrounds in the wider community are drawn together in this way as part of the process whereby a jury judges the facts of the case. Thus, jurors exercise an important duty, on behalf of the community. 14 A measure of hardship is to be expected on the part of those chosen to serve as jurors. If there are particular factors which may impact upon ability to serve, especially related to employment, then application may be made under s.38 to be excused from the panel. The hardships to which jurors are subject include removal from employment, possible stresses on the domestic front and the need to attend on a daily basis until the trial is over. The level of payment to jurors is not great and itself is the subject of further comment by the New South Wales Law Reform Commission: Issues Paper 28, paragraph 9.53 and following. 15 All of these factors, however, form part of the duty of citizens chosen to serve as jurors, being a duty to the community. These hardships are a consequence of the process of trial by jury for serious criminal matters, which is a cornerstone of the criminal justice system.

Resolution of Application 16 I return to the present application. At its commencement, the trial was given a four months estimate, which remains the outer limit estimate for the trial. Some fourteen witnesses have given evidence in the Crown case. The fifteenth witness, Mr Chow, is well advanced in cross-examination. The Crown case itself is, in my view, well advanced. 17 The application is based upon financial hardship and associated domestic stress which has flowed from disruption to the applicant juror's work. This consequential stress is said to have affected the applicant juror's sleep. No medical evidence has been advanced by the applicant juror. 18 In R v Reardon, Simpson J observed at 23 [96] that it may be "that a stated dislike of performing jury service, with no more, would be inadequate to justify the exercise of the discretion" to discharge a juror.

19 In R v Reardon, a juror was discharged at an early point in a trial with a three-month estimate. There was material before the trial judge pointing to the detrimental effect which a lengthy period of absence for jury duty would have upon a business in which the juror was employed, together with medical evidence of an illness triggered by stress. A medical certificate was presented (and not challenged) which stated that the juror was unfit to serve as a juror for a two-week period. The juror was discharged by the trial judge, and the Court of Criminal Appeal held that there was no error in the exercise of discretion. 20 In delivering the leading judgment of the Court on this issue, Simpson J at 23-24 [97], made some general observations which are pertinent when an application such as this is made. Her Honour said: "Occasionally it will happen that an individual, such as (perhaps) this juror, will confront the system. It is one thing to maintain that it is the duty of every citizen to perform jury duty and it is no doubt tempting, at times, to seek to enforce that principle. But it is equally important never to lose sight of the important function that jurors are called upon to perform. Inherent in that function is a willingness to forgo, or put to one side, personal interest. Where a juror cannot or will not do that, he or she cannot be compelled. Only physical attendance can be compelled; the heart and mind cannot. The reality here was that this juror was not suited to the task, and no amount of compulsion was going to make her turn her mind to the task. Unpalatable as it may be to see the disrespect for the system implicit in the juror's conduct, justice mandated that the juror be released from service in the trial. Any other course would potentially have worked unfairness to one party or another. In my opinion the judge had no alternative other than to act as she did." 21 As I have observed, there was a body of material including medical evidence in R v Reardon, which is not present in this case. 22 I am not unsympathetic to the applicant juror. The starting point, however, must be her duty to the community to serve as a juror. Interruption of employment is a consequence of that duty. Financial hardship flowing from jury service is not uncommon. A level of domestic stress resulting from jury service is also likely to be experienced from time to time. 23 The Crown submitted that I should be mindful of information concerning another juror's condition which may possibly affect that juror in the future (T1482.20). In effect, the Crown submits that I should have an eye to the possibility of a future application in determining whether to discharge the applicant juror: R v Ronen [2005] NSWSC 319 at [11]. I agree that this is a relevant factor in the circumstances of this case. 24 The applicant juror has made an application to the Court to be discharged. I do not propose to accede to the application. The applicant juror will be in a position to inform her partner that she has made application to the Court which has been refused, and that it is necessary for her to continue to fulfil her legal duty to the community through service as a juror. This information may serve to alleviate, to some extent, the pressure on the applicant juror to allow her to attend to her duty as a juror in this trial. 25 I have given careful consideration to the matters raised on this application. Having done so, however, I decline the application by the applicant juror to be discharged from the jury.

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