Citation: R v LN; R v AW (No. 8) [2017] NSWSC 331
Court: Supreme Court of New South Wales
Date: 29 March 2017
Judge: Johnson J
Background
Two accused were on trial for murder before a jury of 12. By day 20 of the trial, all evidence had been completed and closing addresses were due to begin. The trial was running ahead of its estimated schedule.
On the morning of day 20, one juror was absent due to illness. A medical certificate confirmed the juror was unfit for work from 29 to 31 March 2017 inclusive. Communications with the absent juror through Sheriff's Officers revealed a stomach complaint that had begun the day before, with the juror indicating he did not expect to return to jury service that week.
The Crown applied to discharge the absent juror and proceed with the remaining 11. Counsel for both accused opposed the application, arguing the statutory test for discharge was not satisfied and that adjourning until Monday 3 April 2017 was the appropriate course.
Legal Issues
- Whether the absent juror met the threshold for discharge under section 53B(a) of the Jury Act 1977 (NSW), specifically whether the juror was "so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers a verdict"
- Whether, in the exercise of the court's discretion, it was appropriate to discharge the juror and proceed with 11 jurors rather than adjourn until the juror recovered
Decision
Johnson J declined to discharge the absent juror. His Honour found difficulty in concluding that the statutory formula in section 53B(a) of the Jury Act 1977 was satisfied on the facts. The medical certificate and the juror's own indication described a passing illness expected to resolve with rest over the coming days, not a condition likely to prevent the juror from returning before a verdict was delivered.
His Honour also considered the broader discretionary factors. The default position in New South Wales is that criminal trials proceed before a jury of 12, and departure from that position requires a proper basis within the Act. Both accused had an entitlement to a full jury of 12, as did the community in the proper administration of criminal justice.
Practical considerations reinforced the decision. The trial was ahead of schedule, and the time lost to adjournment was significant but not excessive. Some of that time would in any event be consumed by outstanding legal argument on jury directions. The intervening weekend further supported the view that the juror would be fit to return by Monday morning.
His Honour also noted that the adjournment gave counsel additional preparation time, which the court expected would result in closing addresses that were better prepared, delivered with appropriate expedition, and free of unnecessary repetition.
Orders Made
• The absent juror will not be discharged
• The remaining 11 members of the jury will be required at 10.00 am on Monday, 3 April 2017, for the continuation of the trial
• The 11 members of the jury will be brought into Court to be informed of this decision and reminded of the need to avoid discussion with other persons about issues in the trial
Key Takeaways
- Under section 53B(a) of the Jury Act 1977 (NSW), a juror may only be discharged for illness where the condition is likely to prevent the juror from serving before the jury delivers a verdict. A short-term, passing illness that is expected to resolve before the trial resumes does not readily satisfy that threshold.
- The default principle in New South Wales criminal trials is that the jury should consist of 12 persons, and departure from that norm requires a proper statutory basis, not merely convenience or the Crown's preference to proceed.
- Both accused persons and the community share an interest in the trial proceeding before the full jury of 12 where circumstances permit.
- A trial running ahead of schedule weighs against discharging a temporarily absent juror, since the loss of time may be modest relative to the broader importance of maintaining the full jury.
- Where an adjournment is granted to accommodate a sick juror, the Supreme Court indicated it would expect the additional preparation time available to counsel to be reflected in more focused and efficient closing addresses.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), section 53B(a)
Cases:
- No cases were cited in this judgment.