Citation: R v A (No 4) [2015] NSWSC 95
Court: Supreme Court of New South Wales
Date: 19 February 2015
Judge: Bellew J
Background
The accused's criminal trial in the Supreme Court had reached an advanced stage, with both the Crown and defence cases closing on 17 February 2015. Final addresses were scheduled to commence the following morning.
On the morning of 18 February 2015, the jury foreperson telephoned the Sheriff to report illness and an inability to attend. A medical certificate was obtained, indicating the juror suffered from migraine and was unfit for work on 18 February only. This was the foreperson's second absence due to illness during the same trial, having also been absent on 11 February 2015 with viral gastritis.
Despite the certificate suggesting fitness to return on 19 February, the foreperson again contacted the Sheriff that morning to report continued illness. The court was informed, and both parties addressed Bellew J on whether the foreperson should be discharged from the jury.
Legal Issues
- Whether the juror (the foreperson) should be discharged given two days of illness-related absence between the close of evidence and the commencement of final addresses.
- Whether the growing gap in time between the conclusion of evidence and the start of addresses would prejudice either party.
- Whether the jury should proceed with 11 members or wait to preserve its full complement of 12.
Decision
The Crown applied for the foreperson's discharge, arguing there was "no magic" in the number 12 and that an increasing delay between the close of evidence and final addresses would impair the jury's ability to properly analyse the evidence. The Crown also noted that migraine, as a condition, could affect a juror's concentration.
Senior counsel for the accused opposed discharge at that stage, submitting that 12 jurors carried historical and legislative significance. Counsel also noted that a two-day gap was equivalent to a weekend break, and that longer interruptions routinely occur in trials over holiday periods. Counsel further observed that discharging the foreperson would require the jury to elect a new one.
Bellew J refused the application, finding it premature to discharge the foreperson at that point. His Honour considered it preferable to continue with a full jury of 12 where possible, and determined that the delay had not yet reached a level likely to prejudice either party.
His Honour noted, however, that if the foreperson remained unfit the following day, the position would likely change. Senior counsel for the accused indicated he would support the Crown's application in that event. The court adjourned to allow the foreperson a further 24 hours to recover, with the remaining 11 jurors released for the day.
Orders Made
• Refuse the application that the foreperson juror be discharged
• Permit the remaining 11 members of the jury to leave, with trial to resume the following morning
Key Takeaways
- Bellew J confirmed that a court should not discharge an ill juror prematurely where it remains possible to continue with a full jury of 12, particularly at an advanced stage of trial proceedings.
- Preserving the full complement of 12 jurors carries significance, both historically and under the relevant legislation, and is a factor that weighs against early discharge.
- A short delay between the close of evidence and the commencement of final addresses does not automatically prejudice either party; the length and circumstances of the delay matter.
- The prognosis for an ill juror's recovery is a relevant but inherently uncertain consideration, and optimistic self-reporting by a juror does not necessarily resolve the question.
- Where an application to discharge is refused today on the basis that the situation remains remediable, the court signalled that a further period of absence the following day could alter that assessment, particularly where both parties ultimately agreed on discharge in that event.
Legislation and Cases Referenced
Legislation: No specific legislation was cited by name in the judgment, though Bellew J referred to "the provisions of the relevant legislation" in the context of the significance of a 12-person jury.
Cases: No cases were cited in the judgment text provided.