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District Court 4 March 2021

R v Kaivelota

[2021] NSWDC 46

Sexual offences

Citation: R v Kaivelota [2021] NSWDC 46
Court: District Court of New South Wales
Date: 4 March 2021
Judge: Bennett SC DCJ

Background

The accused faced four counts of sexual assault against two child complainants. A first jury had already been discharged earlier in the proceedings for unrelated reasons. A second jury was empanelled and the trial commenced on 3 March 2021.

Before the judge had even delivered opening remarks to the new jury, one juror sent a handwritten note requesting to be excused. The juror explained that his wife had booked a Professional Teaching English (PTE) academic examination for 5 March 2021, which she needed to complete to obtain her nursing qualification. The juror stated he had twin five-year-old children and no family support in New South Wales to assist with childcare.

The following morning, the juror provided a further note accompanied by a printed booking confirmation, elaborating on the family's financial hardship and the difficulty they had experienced in securing the examination booking. The Crown applied to discharge the juror. The accused did not consent to the application.

  • Whether the circumstances disclosed in the juror's notes justified discharge under s 53B of the Jury Act 1977 (NSW)
  • Which specific paragraph of s 53B applied to the juror's situation
  • Whether the trial could lawfully continue with a reduced jury of 11 members under s 22 of the Jury Act 1977
  • Whether discharging the juror would risk a substantial miscarriage of justice

Decision

The court considered s 53B of the Jury Act 1977, which confers a discretion to discharge an individual juror on several grounds, including where "for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror" (s 53B(d)). Bennett SC DCJ was satisfied that this provision applied, accepting the juror's representations as true for the purposes of the application.

Central to the reasoning was the nature of the trial itself. The complainants were children aged seven and eight at the time of the alleged offences, and the first complainant was already giving evidence and showing signs of distress. The court emphasised that credibility was the central issue, making close and undistracted attention to witness evidence critical. The judge concluded that a juror preoccupied with significant family and financial concerns could not realistically give that level of attention.

The court also rejected the alternative of simply requiring the juror to arrange for his wife to rebook the exam. Bennett SC DCJ reasoned that even if rescheduling were possible, the juror would remain distracted, and compelling him to continue in those circumstances could itself generate adverse dynamics within the jury room.

Having regard to the principles stated in R v Sharpe (No 3) [2021] NSWSC 33, the court found no evidence of a risk of substantial miscarriage of justice. The trial was therefore permitted to continue with 11 jurors pursuant to s 22 of the Jury Act 1977.

Orders Made

  • The individual juror was discharged from further service in the trial.
  • The Sheriff's representatives were directed to remove the juror from the jury and notify him of his discharge.
  • The trial was to proceed with a jury of 11.
  • The Sheriff was left to make further inquiries if the veracity of the juror's representations came into question.

Key Takeaways

  • Under s 53B(d) of the Jury Act 1977, a court may discharge a juror where, for any reason affecting that juror's ability to perform jury functions, continued service is inappropriate. This provision is broad enough to encompass personal and domestic circumstances that risk distracting a juror from the task at hand.

  • The District Court treated the juror's personal preoccupations as a real impediment to participation, not merely an inconvenience. The distraction created by unresolved family obligations can itself constitute a reason affecting a juror's functional capacity.

  • Where a trial turns principally on the credibility of vulnerable witnesses, the need for juror attentiveness carries particular weight. The court considered the vulnerability of child complainants already giving evidence as a significant factor against allowing any disruption.

  • A court is not required to exhaust all intermediate measures (such as directing a juror to reschedule a personal commitment) before exercising the discharge discretion. The judge may account for the risk that compelled continuation could itself affect jury dynamics.

  • Consistent with R v Sharpe (No 3) [2021] NSWSC 33, discharging an individual juror and proceeding with 11 members does not of itself establish a risk of substantial miscarriage of justice, provided no such evidence is before the court.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 22 (continuation of trial with reduced jury)
- Jury Act 1977 (NSW), s 53B (discharge of individual juror)

Cases:
- R v Sharpe (No 3) [2021] NSWSC 33