R v Keli LANE [No 12] [2010] NSWSC 1539 (22 September 2010)

Last Updated: 15 March 2011

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Keli LANE [No 12] [2010] NSWSC 1539


JURISDICTION:


FILE NUMBER(S):
2009/256171

HEARING DATE(S):
09/08/2010 - 13/12/2010

JUDGMENT DATE:
22 September 2010

PARTIES:
Regina (Crown)
Keli LANE (Accused)

JUDGMENT OF:
Whealy J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):


LOWER COURT JUDICIAL OFFICER:




COUNSEL:
M Tedeschi QC / H Baker (Crown)
K Chapple SC / S Sloane (Accused)

SOLICITORS:
Director of Public Prosecutions (Crown)
K Laurie, Archbold Legal Solutions (Accused)


CATCHWORDS:


LEGISLATION CITED:


CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:




JUDGMENT:

- 3 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

WHEALY J

FRIDAY 22 SEPTEMBER 2010

2009/256171 REGINA v Keli LANE

JUDGMENT – Re discharge of juror – see page 2088 of transcript

1 HIS HONOUR: In this matter it is my unhappy task to record that I have received a note, MFI 92, from juror number 82/042, who indicates that he or she has been diagnosed with a serious hernia which requires an urgent operation. It appears that there is an appointment at hospital today and surgery is indicated for Monday the 25th, which is the Monday following this weekend.

2 The juror’s medical advisors have indicated that a week will be required away from the panel and that he or she would be unable to return until Monday 1 November. The juror has indicated that he or she is aware that the court may take the view that a discharge order should be made.

3 When the matter was raised, I indicated to counsel that my immediate reaction was I should discharge the juror. The Crown supported this interim indication and I then gave Mr Chapple an opportunity to get some instructions from his client. Mr Chapple has obtained those instructions and has told me that the accused does not agree that the juror should be discharged. The reason advanced by Mr Chapple is that his client believes that the diminution of the pool of jurors at this stage would not be in her interests.

4 Both parties agree that the Court has to make a decision in the matter and that that decision should be made forthwith.

5 I have turned my mind to the matters raised with me by Mr Chapple, but regrettably I am unable to conclude that any sound basis has been placed before me to persuade me that I should withhold my hand from discharging juror 82/042. When this trial was set down for hearing, it was recognised that it could take more than three months. That has proved to be the case. We are now approaching the end of our third month and there is some way to go.

6 Looking at the way in which the trial has developed, it is fair to say that the jury have been in attendance on a very regular basis until the last few weeks. Since then there has been, for numerous reasons, a number of interruptions to the sitting days available with the jury.

7 In my opinion, it would not be in the interests of justice for a further week to be lost at this stage. I cannot see that any prejudice flows to the accused if I were to discharge this juror. After all, it will be my task in a few weeks' time to conduct a ballot, as a result of which two of the 14 jurors will be balloted off. That is the situation that arises because of the legislation that allows reserve jurors to be used. It is to meet contingencies such as the present one that the legislation was introduced.

8 It seems to me, therefore, that I am really fulfilling the object of the legislation by recognising that in the circumstances which have arisen a discharge order is required.

9 I have given anxious consideration to the position of the accused. I am unable to see, as presently advised, that there is any matter of real prejudice flowing to her if I discharge this juror. There are good reasons for preventing a situation developing where the trial is further delayed. Indeed, there are many reasons for endeavouring to bring the trial to a conclusion at the earliest possible time. That matter, the prospect of delay, is, as Mr Chapple freely concedes, a matter that has concerned his client throughout the trial, the very length of it. I think it would in fact be contrary to the interests of the accused to delay the trial unnecessarily at this stage.

10 For all those reasons, I have come to the conclusion that I should discharge the juror and I will simply ask that juror be brought into court so I can explain the reasons for the decision I have made.

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LAST UPDATED:
22 February 2011