Citation: R v Krivosic [2021] NSWSC 535
Court: Supreme Court of NSW
Date: 14 May 2021
Judge: Harrison J
Background
The accused stood trial before a jury of twelve in proceedings that were originally scheduled to run no longer than fifteen days. The trial commenced on 26 April 2021 but suffered repeated interruptions due to juror illness. One juror (juror A) was absent for three consecutive days in the first week and then a further three days at the start of the third week. Two further jurors fell ill on the same day in that third week.
By Friday 14 May 2021, eight trial days had been lost in total. Juror C remained unwell on that day but had notified the sheriff he expected to return on Monday 17 May 2021. That notification prompted the Crown to apply for juror C's discharge under s 53B(d) of the Jury Act 1977 (NSW).
The accused opposed the application. He argued that the anticipated return of juror C by Monday made discharge unnecessary, and that he had a legitimate interest in retaining a full jury of twelve.
Legal Issues
- Whether juror C should be discharged under s 53B(d) of the Jury Act 1977 (NSW) on account of illness given the cumulative delays already experienced in the trial
- What weight, if any, the accused's opposition to discharge and his preference for a twelve-person jury should carry in the exercise of the court's discretion
- Whether the accumulation of lost trial days from multiple jurors' absences could properly inform the decision to discharge a particular juror whose own absence was likely to be brief
Decision
Harrison J refused the application to discharge juror C. The central question, drawn from the High Court's reasoning in Mei Qin Wu v The Queen, was not simply whether a juror was absent but why the juror was absent and how long that interruption would last. In this case, that question had a clear answer: juror C had indicated he would return by the next sitting day.
The court acknowledged the Crown's frustration with the cumulative loss of eight trial days as entirely understandable. However, Harrison J held that a discharge order must rest on principled grounds specific to the juror in question, and cannot properly be driven by generalised exasperation at delays caused by the absences of other jurors. The circumstances attending juror C's particular situation did not justify cutting across the accused's entitlement to be tried by a jury of twelve.
The accused's own opposition to the discharge was a relevant, though not necessarily decisive, consideration. Harrison J noted the accused had a reasonable desire to retain a full jury, and that a different position might arise if juror C failed to return as anticipated on the Monday.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 53B(d) of the Jury Act 1977 (NSW), the discharge of an ill juror requires a principled assessment of that juror's specific circumstances, not a reaction to the cumulative delays caused by other jurors' absences.
- The Supreme Court confirmed the approach in Mei Qin Wu v The Queen: once it is established that a juror is absent, the critical inquiry is the likely duration of the interruption, not the mere fact of absence.
- An accused person's opposition to discharge is a relevant consideration in the exercise of the court's discretion, reflecting the entitlement to be tried by a jury of twelve.
- Declining to discharge a juror does not foreclose the issue permanently. Harrison J expressly flagged that the position could change if the juror's anticipated return did not eventuate.
- A court's sympathy for the practical difficulties posed by trial delays cannot substitute for a principled legal basis for making a discharge order.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 53B(d), 53C
Cases
- Mei Qin Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
- Huu Hong Le v R [2012] NSWCCA 202
- R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773