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Supreme Court 7 April 2020

R v WE (No.18)

[2020] NSWSC 373

Other
CRIMINAL LAW PRACTICE AND PROCEDURE JURIES WHETHER JUROR SHOULD BE DISCHARGED ACCUSED’S THIRD TRIAL COVID

Citation: R v WE (No.18) [2020] NSWSC 373
Court: Supreme Court of New South Wales
Date: 7 April 2020
Judge: Bellew J

Background

The accused was standing trial for the third time, with the jury having commenced deliberations on 26 March 2020. By the time this judgment was delivered, the jury had been deliberating for six full days, with two earlier days lost to individual juror illness. A previous ruling had already reduced the jury from 12 to 11 members.

On 6 April 2020, a juror presented a medical certificate certifying he was unfit for work until 10 April 2020 inclusive, due to a "medical condition." Further enquiries by the Sheriff revealed the condition was a kidney infection, for which antibiotics had been prescribed and an ultrasound referral issued.

The Easter holiday period was set to begin on 10 April 2020, meaning that if the juror were not discharged, deliberations would effectively be suspended for approximately one week. The trial was being conducted against the backdrop of the COVID-19 pandemic.

  • Whether the ill juror should be discharged under section 53B of the Jury Act 1977 (NSW)
  • Whether, following any such discharge, the trial should continue with the remaining 10 jurors under section 53C of the Jury Act 1977, or whether the entire jury should be discharged
  • Whether continuing with a jury of 10 would give rise to a risk of a substantial miscarriage of justice

Decision

Bellew J granted the Crown's application to discharge the juror under section 53B of the Jury Act 1977. The judge noted that, while the medical certificate lacked detail, further inquiries confirmed the juror was ill, had been prescribed antibiotics, and had been referred for an ultrasound. Regardless of whether the circumstances fell under section 53B(a) or the broader ground in section 53B(d), the juror was clearly unfit to perform his functions for at least the remainder of that week.

The accused, who was self-represented, opposed both applications and submitted that the entire jury should be discharged on the basis that his trial had already been unfair. Bellew J rejected the submission that the trial had been unfair, and observed that while a trial commences with 12 jurors, the Jury Act 1977 expressly contemplates that this number can be reduced at a trial judge's discretion.

On the question of whether to continue with 10 jurors, Bellew J directed attention to the precise terms of section 53C: the test is whether continuing would give rise to a risk of a substantial miscarriage of justice, with both qualifications carrying weight. The court found no basis for concluding such a risk existed. All evidence had long concluded, deliberations had been ongoing for a substantial period, and the only remaining step was the completion of those deliberations.

Orders Made

  • Juror number 00290038 discharged pursuant to section 53B of the Jury Act 1977 (NSW)
  • Trial ordered to continue with the remaining 10 members of the jury pursuant to section 53C of the Jury Act 1977 (NSW)

Key Takeaways

  • Under section 53B of the Jury Act 1977, a trial judge has a discretion to discharge an individual juror who is ill and unable to perform their functions for at least the balance of the relevant period, even where the medical certificate provides limited detail about the nature of the condition.
  • The test under section 53C is whether continuing with a reduced jury would give rise to a risk of a substantial miscarriage of justice; both the word "risk" and the qualifier "substantial" are significant, setting a meaningful threshold before a whole-jury discharge is required.
  • Where evidence has concluded and the jury has already deliberated for an extended period, a reduction from 11 to 10 jurors will not necessarily give rise to any risk of substantial miscarriage of justice.
  • The Supreme Court confirmed that the statutory framework in the Jury Act 1977 expressly contemplates reductions below 12 jurors during deliberations, and the accused's argument that there were "meant to be 12 jurors" did not engage with this legislative intention.
  • Contextual factors, including the accused being on his third trial, the impending Easter adjournment, and the COVID-19 pandemic, were noted by the Crown in submissions, though the court's formal reasoning rested on the statutory criteria rather than these factors alone.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), sections 22, 53B, and 53C

Cases
- Wu v R (1999) 199 CLR 99; [1999] HCA 52