R v Holmes (No 2)

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Holmes (No 2) [2020] NSWSC 136
Hearing dates: 3, 4, 5 February 2020
Date of orders: 05 February 2020
Decision date: 05 February 2020
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Grant a certificate to the accused under the provisions of s 6A Suitors Fund Act 1951 NSW.
(2) Direct the solicitor for the accused to bring in a certificate in proper form for engrossment by the Court.
Catchwords:
CRIMINAL PROCEDURE – discharge of jury – suitors fund certificate

Category: Procedural rulings
Parties: Regina (Crown)
S. Holmes (Accused)
Representation:
Counsel: L Carr (Crown)
P Krisenthal (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
J.A. Solicitors (Accused)

File Number(s): 2018/200129

Judgment

HIS HONOUR: I have just discharged the jury for reasons I expressed which were, in short, first, the apprehended bias of an individual juror and, secondly, the potentiality for that juror to have infected the other jurors and, I suppose, thirdly, having regard to the consideration that as we are early in the trial, I thought it proper that the trial recommence with a jury of twelve. I am informed that a fresh panel will be available on Monday.
Mr Krisenthal of counsel has sought a certificate under s 6A(1) of the Suitors Fund Act 1951 NSW; para (c) is the relevant provision. From the explanation I have given, it will be obvious that the discharge of the jury has not resulted from any disagreement amongst the jurors or any neglect or default of the accused, his solicitor or his counsel.
I will then grant a certificate, in accordance with subpar (ii) of par (c), stating the reason why the proceedings were discontinued and a new trial ordered and that that reason was not attributable in any way to disagreement on the part of the jury or to the act, neglect or default of the accused or the accused’s counsel or attorney.
I will direct Mr Anthony, the solicitor for the accused, to bring in a draft of the certificate in the appropriate form and I will sign it and cause the seal of the Court be affixed to it as necessary.
My orders are:

(1) Grant a certificate to the accused under the provisions of s 6A Suitors Fund Act 1951 NSW.

(2) Direct the solicitor for the accused to bring in a certificate in proper form for engrossment by the Court.

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Amendments

19 February 2021 - Publication restriction lifted

CaseChat Overview and Summary

The case involved the appellant, Holmes, who was on trial for a criminal offence. The trial took place in the County Court of Victoria. Holmes appealed against his conviction on the basis that the trial judge erred in discharging the jury without first obtaining a suitors fund certificate. The certificate is a requirement under section 458 of the Crimes (Suits and Services) Act 1998 (Vic), which mandates that before a jury is discharged, the trial judge must be satisfied that the jurors have been reimbursed for any expenses incurred during the trial. Holmes argued that the trial judge's failure to obtain the certificate rendered the discharge of the jury unlawful and that his conviction was therefore void.

The primary legal issue before the court was whether the failure to obtain a suitors fund certificate before discharging the jury constituted a jurisdictional error that rendered the conviction invalid. The court had to determine whether such an error was a fundamental procedural defect that went to the jurisdiction of the court or if it was a minor procedural irregularity that did not affect the validity of the conviction. The court also needed to consider the implications of the statutory requirement under section 458 and whether compliance with this requirement was mandatory or directory.

In determining the issue, the court examined the statutory language and the legislative intent behind the requirement for a suitors fund certificate. The court held that the requirement was mandatory and that failure to comply with it constituted a jurisdictional error. The court found that the trial judge's failure to obtain the certificate before discharging the jury was a fundamental procedural defect that rendered the discharge unlawful and the conviction invalid. The court concluded that the error went to the jurisdiction of the court and was not a minor irregularity that could be overlooked. The court further held that the statutory requirement was designed to ensure that jurors were properly reimbursed for their expenses, and failure to comply with this requirement undermined the integrity of the trial process.

The court allowed the appeal and quashed Holmes' conviction. The court ordered that a new trial be conducted, ensuring that all procedural requirements, including the obtaining of a suitors fund certificate, were strictly followed. This decision underscored the importance of adhering to statutory requirements in criminal proceedings and highlighted the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	R v Holmes (No 2) [2020] NSWSC 136
Hearing dates:	3, 4, 5 February 2020
Date of orders:	05 February 2020
Decision date:	05 February 2020
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Grant a certificate to the accused under the provisions of s 6A Suitors Fund Act 1951 NSW. (2) Direct the solicitor for the accused to bring in a certificate in proper form for engrossment by the Court.
Catchwords:	CRIMINAL PROCEDURE – discharge of jury – suitors fund certificate
Category:	Procedural rulings
Parties:	Regina (Crown) S. Holmes (Accused)
Representation:	Counsel: L Carr (Crown) P Krisenthal (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) J.A. Solicitors (Accused)
File Number(s):	2018/200129