Citation: R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773
Court: Supreme Court of New South Wales
Date: 7 June 2016
Judge: Bellew J
Background
The accused in these proceedings were on trial before a jury. The jury retired to deliberate in the early afternoon of Thursday 2 June 2016, and had been deliberating for several days (including an intervening weekend) when the events giving rise to this application occurred.
On the morning of 7 June 2016, the Sheriff notified the court that one juror had telephoned to say he was ill and could not attend. The juror subsequently visited a medical practitioner and produced a certificate stating he was unfit for jury duty that day due to acute viral gastritis. The certificate made no mention of the juror's separately reported anxiety condition and gave no indication that the illness would extend beyond that day.
The Crown applied for the juror to be discharged and for deliberations to continue with the remaining eleven jurors. Both accused opposed the application.
Legal Issues
- Whether the court should exercise its discretion under the Jury Act 1977 (NSW) to discharge the ill juror during deliberations
- Which provision of s 53B of the Jury Act applied: the specific illness-based ground under s 53B(a), or the broader residual ground under s 53B(d)
- Whether the circumstances, including the length of the trial and the interruption to deliberations, justified discharge at this point in time
Decision
Bellew J declined to discharge the juror. His Honour noted that the medical certificate was limited in scope: it stated only that the juror was unfit for that particular day, and contained nothing to suggest the incapacity would extend further. In those circumstances, refusing the application would result in the loss of one day of deliberations, no more.
His Honour acknowledged the relevance of several discretionary factors drawn from the High Court's decision in R v Wu (1999) 199 CLR 99, including the length of the trial, the potential hardship to the accused, the accused's right to trial by a jury of twelve, and the desirability of proceeding without undue delay. Although the trial had already run considerably longer than originally anticipated, causing real inconvenience to jurors, none of those factors tipped the balance in favour of discharge on the available evidence.
His Honour also noted some uncertainty as to whether s 53B(a) applied at all, because that provision appears to contemplate a juror who is currently able to discharge their duties but is likely to become unable to do so, rather than a juror who is presently unable to attend. That question was left open because the outcome was the same under either s 53B(a) or the broader s 53B(d) discretion.
The Crown's submission that preserving the integrity of the trial process supported discharge was accepted in principle, but Bellew J was not satisfied that integrity would be compromised by allowing the juror one day to recuperate, with deliberations to resume the following day.
Orders Made
No orders were made in this decision.
Key Takeaways
- Refusing an application to discharge an ill juror, the Supreme Court held that a medical certificate limited to a single day's incapacity, with no indication of ongoing illness, was insufficient to justify discharge during deliberations.
- Under s 53B(a) of the Jury Act 1977 (NSW), there is at least an arguable question as to whether the provision applies where a juror is currently unable to attend (as distinct from a juror who is presently able to serve but likely to become unable to do so); the point was left unresolved.
- Where s 53B(a) may not apply on its terms, the broader discretionary ground in s 53B(d) remains available and encompasses illness affecting a juror's ability to perform their functions.
- Relevant factors in exercising the discharge discretion include the length of the trial, hardship to the accused, the accused's right to a jury of twelve, and the public interest in avoiding undue delay, as confirmed by the High Court in R v Wu (1999) 199 CLR 99.
- A short, time-limited interruption to deliberations caused by a juror's illness does not, of itself, compromise the integrity of the trial process so as to warrant discharge.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 22, 53B(a), 53B(b), 53B(c), 53B(d)
Cases
- R v Wu [1999] HCA 52; (1999) 199 CLR 99 (High Court)
- Wu v R (1998) 103 A Crim R 416 (NSW Court of Criminal Appeal)