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Before the court is a notice of motion filed on 25 January 2018 on behalf of the accused seeking an order pursuant to s. 19(2) of the Jury Act 1977 (NSW) ("the Act") that I order that three additional jurors be selected for the purposes of the accused's forthcoming trial. The notice of motion is supported by an affidavit of the accused's solicitor, although that affidavit provides limited evidentiary support for the order which is sought.
The Crown's initial position, as I understood it, was that I would not be satisfied of the matters set out in ss. 19(2)(a)-(c) and would therefore dismiss the motion. However by the conclusion of submissions, that position appeared to alter. It was the Crown's ultimate position that it would be open to me to be satisfied of those matters. That, of course, does not bind me.
Before going to the substance of the application it is appropriate to set out some matters by way of background which, although not the subject of any evidence before me, are not in dispute and are relevant to the determination that I am required to make.
This is the second trial of the accused. The jury in the previous trial, which took place in 2017, was unable to reach a verdict in relation to either of the counts brought by the Crown. Prior to the commencement of the previous trial, both parties were in agreement that as matters then stood, it was likely that the trial would take more than three months to complete. On that basis, a jury of 15 persons was empanelled. In the course of the trial two jurors were discharged. At the conclusion of my summing-up there remained 13 and accordingly, a ballot was conducted to reduce the number to 12.
As events transpired, the evidence was completed in a far lesser period of time than had been envisaged by the parties at the commencement of the trial. Even where various interlocutory applications were determined in the course of the trial, and a number of other issues which arose in relation to particular witnesses had to be resolved, the entirety of the evidence was completed in 33 sitting days, or a little over six weeks. It is relevant to note in this regard that in the course of the trial I delivered 17 interlocutory judgments. In some cases, the arguments and submissions in relation to the issues giving rise to those judgments extended over a period of more than a day. The addresses and my summing-up took place over a period of seven sitting days. Thus, the period between the first day of the trial and the retirement of the jury was eight weeks, or 40 sitting days. The jury deliberated for a period of 12 days before being discharged. Accordingly, from the commencement of the trial until the discharge of the jury, a period of slightly more than 10 weeks elapsed.
The matter was last before me for directions on 24 July 2017. On that occasion I was informed by senior counsel who then appeared for the Crown that the re-trial would likely be completed in six to eight weeks. In reaching that estimate, senior counsel made it clear that she had taken into account the fact that a not inconsiderable amount of time had been taken up in the first trial with arguments in relation to the interlocutory issues to which I referred a moment ago. Counsel appearing for the accused on that occasion expressly agreed with the estimate given by the Crown.
An obvious question therefore arises: What has occurred between July of last year and the present time to give rise to this application? Broadly speaking, the bases of the application appear to be twofold.
Firstly, it appears that the Crown is likely to call additional witnesses. Secondly, it has been put on behalf of the accused that the cross-examination of witnesses who were called at the previous trial is likely to be more lengthy in light of information which has arisen since the last trial, and/or in light of additional material which has been served by the Crown.
As to the first of those matters, as I understand it the Crown proposes to call three witnesses in addition to those who were called at the first trial, the first two of whom are Corrective Services officers, and the third of whom is a Mr Mathieson. It is unnecessary for present purposes to detail the evidence of any of those witnesses. It is sufficient to note that on the basis of the estimates which I have been given, the evidence of the two Corrective Services officers is likely to be completed within a matter of hours in its entirety. The evidence of Mr Mathieson is of far greater importance and will take longer. Again, on the basis of the estimates that I have been given in the course of argument today, his evidence is likely to be completed in one day, or perhaps a little more.
As to the second matter, senior counsel for the accused has informed me that the cross-examination of the witnesses Lucky Gattellari and Frank Gattellari, as well as the cross-examination of one or more police officers, is likely to be longer than was the case in the first trial. Again, it is not necessary for me to articulate why this is said to be so. The more important factor is that in each of these cases, based on the estimates which I have been given today, the additional cross-examination is likely to be completed in hours rather than days.
Senior counsel for the accused has also foreshadowed calling two further "professional witnesses" in the defence case. That, however, was put no higher than being a possibility. Further, as I understood it, even if those witnesses are called their evidence is likely to be completed in hours rather than days.
It is against that background that I am asked to make orders pursuant to s. 19(2) of the Act, which is in the following terms:
19 Numbers of jurors in criminal proceedings
…
(2) Before a jury is selected in criminal proceedings in the Supreme Court or the District Court, the Court may order that up to 3 additional jurors be selected for the jury if the Court is satisfied that:
(a) the trial of the proceedings is of a kind prescribed by the regulations for the purposes of this subsection, and
(b) the selection of the additional jurors is an appropriate means of ensuring that there will be sufficient jurors remaining on the jury when the jury is required to consider its verdict, and
(c) appropriate facilities to accommodate the additional jurors are available.
For the purposes of ss. (2)(a), no regulations have been promulgated and accordingly, I must have regard to ss. (3) which is in the following terms:
…
(3) Until regulations for the purposes of subsection (2) provide otherwise, a trial of proceedings the duration of which is likely to be more than 3 months is taken to be a trial of proceedings of a kind prescribed by the regulations for the purposes of that subsection.
Accordingly, for the purposes of this application and specifically for the purposes of ss. (2)(a), I must be satisfied that the trial of the accused is likely to be more than three months. If I am not so satisfied, the application must be refused.
I was not taken by either party to any authority governing s. 19, nor to any definition of the word "likely" as it appears in s. 19(2)(a). The Macquarie Dictionary (7th Edition) defines "likely" in the following terms:
"probably or apparently going or destined (to be)."
The Collins Dictionary (5th Edition) defines "likely" as "probable".
Bearing in mind those definitions, and also bearing in mind that the estimate of any criminal trial is just that, an estimate, which does not lend itself to precise mathematical calculation, the following observations may be made in the present case.
Firstly, doing the best I can and based upon the estimates which have been given to me, the additional evidence may add days rather than weeks to the length of the trial.
Secondly, to the extent that such a circumstance may arise it is, for want of a better term, "offset" to some extent by the fact that the issues giving rise to the interlocutory judgments which were delivered in the course of the previous trial will not take up any court time in the forthcoming trial. In this regard, it should be specifically noted that both parties have indicated that the trial will be conducted on the basis of the rulings that I have given in the course of the previous trial. Accordingly, it is unlikely that it will be necessary to revisit any of those issues again, their resolution having taken a not inconsiderable period of time in the previous trial.
Thirdly, even if, in arriving at an estimate of the forthcoming trial, I were to take into account the length of the jury's deliberations in the previous trial, that is a matter of limited weight. This is simply because there is no warrant to conclude that the jury in the forthcoming trial will deliberate for a similar lengthy period of time.
Section 19(2) requires, in effect, that I make a forecast of the likelihood of the trial proceeding for more than three months. At the risk of stating the obvious, I can only make that determination on the basis of such material as has been put before me today. Trials which exceed the most earnestly given estimates are not unheard of. Anyone with experience in the conduct of criminal trials knows that they are, in many respects, unpredictable. Almost anything, as they say, is possible. However, s. 19(2) does not speak of possibilities. It speaks of the court being satisfied that a particular event, namely a trial of more than three months, is likely to occur, or in other words, is a probability.
On the basis of the evidence which has been placed before me on the present application, and for the reasons I have given, I find myself unable to reach that degree of satisfaction. Accordingly, the notice of motion will be dismissed.
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Decision last updated: 26 April 2018