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District Court 12 March 2021

R v Sun

[2021] NSWDC 574

Public order & justice offences

Citation: R v Sun [2021] NSWDC 574
Court: District Court of NSW
Date: 12 March 2021
Judge: Bennett SC DCJ

Background

The accused was standing trial in the District Court before a jury of 15, empanelled on the basis that the trial was estimated to run for at least four weeks. The selection of up to three additional jurors (beyond the standard 12) is permitted under the Jury Act 1977 for longer trials, provided appropriate facilities are available to accommodate them.

A problem arose at lunchtime the day before this judgment was delivered, when it came to light that the jury room at the relevant court complex lacked sufficient floor space to accommodate 15 people under the COVID-19 social distancing requirements then in force. All jury rooms in the complex were the same size, and no alternative jury room was available due to the number of concurrent trials.

The court had previously used off-site premises with larger rooms, but that accommodation had been withdrawn. The question became how the trial should proceed with 15 jurors when the physical facilities could only lawfully accommodate 12 under the applicable health restrictions.

  • Whether the court was bound by COVID-19 gathering restrictions given that courts and tribunals are expressly exempt under Schedule 2 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2021
  • Whether the judge had power under the Jury Act 1977 to discharge three individual jurors (reducing the jury to 12) without an application from either party
  • Whether, if individual discharge was not appropriate or consented to, the entire jury would need to be discharged
  • What procedural steps were required if the whole jury were to be discharged, including whether a stay should be granted to allow an appeal to the Court of Criminal Appeal

Decision

The court noted a tension between two legislative schemes: the Jury Act 1977, which authorised the empanelment of 15 jurors, and the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2021, which limited occupancy of the available jury rooms. The judge acknowledged that courts appeared to be exempt from those restrictions under Schedule 2 of the Order. However, an administrative agreement between the heads of jurisdiction across NSW courts to observe the restrictions regardless of the exemption meant the judge was administratively bound to comply.

The defence argued that the court was not legally obliged to follow the restrictions, that no prejudice to the jury's deliberations had been demonstrated, and that a new jury would face exactly the same room constraints. The Crown had anticipated a full jury discharge followed by re-empanelment the following Monday, though it noted that simply removing three of the 15 jurors was not straightforward.

The judge considered section 53B of the Jury Act 1977, which allows discretionary discharge of an individual juror where the juror has become unable to continue service. The court expressed the view that the width of the discretion in section 53B(d) was broad enough to permit the discharge of three jurors by ballot, using the mechanism in section 55G to reduce the jury to 12. This was considered the most efficient and attractive option in the circumstances.

The judgment made clear that if the parties did not consent to or accept that approach, the only remaining course would be to discharge the entire jury and stay the proceedings to allow a possible appeal under section 5G of the Criminal Appeal Act 1912. That course was considered inefficient. The court flagged the principle from Barber v The Queen; Zraika v The Queen [2016] NSWCCA 125, that where a judge is minded to discharge a juror or jury over a party's opposition, the decision should ordinarily be stayed to permit an application to the Court of Criminal Appeal.

Orders Made

• Three jurors to be excused from further service by ballot

Key Takeaways

  • The District Court recognised that while NSW courts are expressly exempt from COVID-19 gathering restrictions under Schedule 2 of the Public Health Order, an administrative agreement among heads of jurisdiction to observe those restrictions regardless of the exemption was binding on the court administratively.
  • A conflict between the Jury Act 1977 (authorising empanelment of up to 15 jurors) and subordinate public health legislation (restricting room occupancy) created a procedural impasse that required the court to identify a workable solution within existing powers.
  • Under section 53B(d) of the Jury Act 1977, the court took the view that the discretion to discharge individual jurors is broad enough to encompass a situation where physical facilities prevent jurors from continuing to serve, not merely cases of personal illness or incapacity.
  • Where a judge proposes to discharge a juror or an entire jury over a party's objection, the principle from Barber v The Queen; Zraika v The Queen [2016] NSWCCA 125 requires the decision ordinarily be stayed to allow an application to the Court of Criminal Appeal.
  • Discharge of the entire jury, followed by a stay pending appeal under section 5G of the Criminal Appeal Act 1912, remained available but was characterised as an inefficient course compared to reducing the jury to 12 by ballot under sections 53B and 55G of the Jury Act.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 19(2), 42, 53B, 55G
- Criminal Appeal Act 1912 (NSW), s 5G
- Public Health Act 2010 (NSW)
- Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2021 (NSW), Sch 2, item 7

Cases:
- Barber v The Queen; Zraika v The Queen [2016] NSWCCA 125
- R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135