Citation: R v Macdonald; R v Maitland (No 6) [2017] NSWSC 724
Court: Supreme Court of New South Wales
Date: 20 March 2017
Judge(s): Adamson J
Background
The accused Macdonald and Maitland were being tried by jury in a matter that had reached its seventh week. The trial was at an advanced stage, with senior counsel for the accused Macdonald part-way through his closing address, leaving only the remainder of that address, closing submissions for the accused Maitland, and the judicial summing-up before the jury would retire to deliberate.
On 15 March 2017, while the trial was adjourned for an afternoon to allow a juror to attend a funeral, a second juror was admitted to St Vincent's Hospital with community-acquired pneumonia. Medical certificates placed before the court confirmed the juror was an inpatient from 15 to 17 March and was certified unfit for jury duty until at least 23 March, with further uncertainty about fitness after discharge.
All parties, including the Crown and counsel for both accused, accepted that discharging the ill juror and continuing with the remaining eleven jurors was the most appropriate course, even if not ideal.
Legal Issues
- Whether the ill juror should be discharged under s 53B(a) of the Jury Act 1977 (NSW) on grounds of incapacity through illness
- Whether the trial should continue with the remaining eleven jurors under s 53C(1)(b) of the Jury Act 1977 (NSW), and whether doing so would risk a substantial miscarriage of justice
Decision
Adamson J was satisfied that the medical evidence warranted discharging the juror under s 53B(a) of the Jury Act 1977 (NSW). The juror had been certified unfit until at least 23 March, with no guarantee of fitness thereafter, and the court noted that pneumonia is a debilitating illness requiring a standard of physical and mental fitness that jury duty demands.
The court weighed the risk of continuing with a reduced jury against the risk of further delay. Adamson J expressed concern that if the trial were paused to await the ill juror's recovery, one or more of the remaining jurors might themselves become unavailable, or that prolonged delay could place undue stress on those jurors when the time came to deliberate.
Given the advanced stage of the proceedings, the estimated overall trial length of six to eight weeks, and the consent of all parties, the court was satisfied that continuing with eleven jurors would not give rise to a substantial miscarriage of justice. Under s 22 of the Jury Act 1977 (NSW), a jury of eleven is a sufficient jury to return a verdict.
Orders Made
- Order pursuant to s 53B of the Jury Act 1977 (NSW) that the juror identified in medical certificate MFI 91 be discharged.
- Order pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW) that the trial continue with a reduced jury of eleven.
Key Takeaways
- Under s 53B(a) of the Jury Act 1977 (NSW), a juror may be discharged mid-trial where medical evidence establishes incapacity through illness, even where recovery within a defined timeframe is certified but not guaranteed beyond that period.
- Section 22 of the Jury Act 1977 (NSW) provides that eleven jurors constitute a sufficient jury, enabling a trial to proceed lawfully after one juror is discharged.
- Continuation with a reduced jury under s 53C(1)(b) requires the court to be satisfied that doing so would not give rise to a substantial miscarriage of justice. Here, that threshold was met given the advanced stage of the trial and the parties' consent.
- The risk that remaining jurors may themselves become unavailable, or experience undue stress from prolonged delay, is a factor a court may weigh when deciding whether to continue with a reduced jury rather than adjourn.
- Agreement among all parties, while not determinative, formed part of the court's reasoning that the reduced-jury course was appropriate in the circumstances.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 22, 53B, 53C
Cases cited: None cited in the judgment.