Citation: R v Gatt (No 2) [2018] NSWSC 426
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge(s): Schmidt J
Background
During a criminal trial in the Supreme Court, one of the twelve jurors was discharged on 6 April 2018 under s 53B of the Jury Act 1977 (NSW). The circumstances surrounding that discharge are dealt with separately in the companion decision, R v Gatt (No 1) [2018] NSWSC 425, which Schmidt J directed should be read together with this judgment.
Following the discharge, the court was required to determine whether the trial should continue with the remaining 11 jurors or whether the entire jury should be discharged. Neither the prosecution nor the defence opposed the trial proceeding with 11 jurors.
Legal Issues
- Whether the trial should continue with 11 jurors following the discharge of one juror under s 53B of the Jury Act 1977 (NSW)
- Whether continuing with 11 jurors would give rise to a risk of a substantial miscarriage of justice, as contemplated by s 53C of the Jury Act 1977 (NSW)
Decision
Section 22 of the Jury Act 1977 (NSW) permits a criminal trial to continue with 11 jurors. Section 53C gives the court a discretion to allow the trial to proceed after one juror is discharged, unless the court forms the opinion that doing so would give rise to a risk of a substantial miscarriage of justice.
Schmidt J was satisfied that the circumstances that led to the juror's discharge had not affected the remaining members of the jury, and that those members retained the capacity to perform their function satisfactorily. Neither party suggested the relevant circumstances posed any risk of a substantial miscarriage of justice.
On that basis, Schmidt J concluded that no such risk existed and formally ordered the trial to continue with 11 jurors.
Orders Made
- The remaining 11 jurors were not discharged.
- The trial was formally ordered to continue with 11 jurors.
Key Takeaways
- Under s 53C of the Jury Act 1977 (NSW), a trial court retains a discretion to continue a trial with 11 jurors after one is discharged, provided it does not form the opinion that doing so would risk a substantial miscarriage of justice.
- The Supreme Court found that the circumstances causing the juror's discharge had not affected the other jurors or impaired their ability to fulfil their role, making continuation appropriate.
- Agreement between the parties that no miscarriage of justice risk existed was a relevant consideration, though the ultimate judgment remained with the court.
- No error was identified in allowing the trial to proceed with a reduced jury where the statutory threshold for concern, a risk of substantial miscarriage of justice, was not met.
- This decision illustrates the operation of ss 22 and 53C together as a practical framework for managing mid-trial juror discharge without necessarily aborting the entire proceeding.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 22, 53B, 53C
Cases
- R v Gatt (No 1) [2018] NSWSC 425