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Supreme Court 24 May 2021

R v Krivosic

[2021] NSWSC 583

Other
CRIMINAL LAW J URY TRIAL S ICK JUROR A PPLICATION TO DISCHARGE JUROR L OST DAYS W HETHER FURTHER DELAYS WOULD OCCUR

Citation: R v Krivosic [2021] NSWSC 583
Court: Supreme Court of NSW
Date: 24 May 2021
Judge: Harrison J

Background

A criminal trial, originally scheduled for three weeks, had already stretched into its fifth week by the time this judgment was delivered. The trial had suffered repeated hearing days lost to juror illness, a matter Harrison J had addressed in an earlier decision. The jury had been deliberating for seven days and had already received a majority verdict direction the previous Friday.

On the Monday morning, the sheriff informed the court that another juror had called in sick. This was not that juror's first absence due to illness. No medical certificate had yet been provided to indicate either the nature of the illness or when the juror might return.

The Crown applied to discharge the absent juror under s 53B(d) of the Jury Act 1977. The accused opposed the application.

  • Whether the absent juror should be discharged under s 53B(d) of the Jury Act 1977
  • What weight should be given to the accused's right to be tried by 12 jurors, particularly where discharge would reduce the jury to 11 and expose the accused to a potential majority verdict of only 10
  • How the court should balance convenience to the remaining jurors against the accused's rights during deliberations

Decision

Harrison J refused the Crown's application to discharge the juror. His Honour's central concern was that discharging the juror would reduce the jury from 12 to 11, confronting the accused with the loss of a long-standing common law right to be tried by a jury of 12. The situation was further complicated because, at 11 jurors, a majority verdict could be reached by only 10, compounding the erosion of that right.

His Honour drew on the High Court's reasoning in Wu v The Queen, where McHugh J had emphasised that the death or discharge of a juror does not automatically justify continuing with fewer than 12. Some positive reason, beyond the mere absence itself, must exist before such an order is made.

The defence submitted that, since evidence and addresses were complete and summing-up had been given, the preferable course was to wait out what was hoped to be only a single additional lost day. Harrison J accepted this reasoning. He also noted that the jury had not responded to the majority verdict direction by indicating that even an 11-person majority verdict was beyond reach, suggesting deliberations remained live.

The absence of any medical certificate describing the juror's condition or likely return date was characterised as unsatisfactory, but did not alter the outcome. The court considered that maintaining the 12-person jury was preferable, and the Crown's application was rejected.

Orders Made

• The Crown's application to discharge the absent juror should be rejected.

Key Takeaways

  • The Supreme Court refused to discharge a sick juror during deliberations where doing so would have reduced the jury to 11 and exposed the accused to a potential majority verdict of only 10, compounding the loss of the right to a 12-person jury.
  • Under the High Court's reasoning in Wu v The Queen, some positive reason beyond the mere fact of absence or discharge must exist before a trial continues with fewer than 12 jurors; the inconvenience to remaining jurors does not automatically supply that reason.
  • Where evidence, addresses, and summing-up are complete, a court may favour waiting through a short further delay rather than reducing jury numbers at a late stage of deliberations.
  • The stage of proceedings at which a discharge application is made is a relevant consideration: the closer the trial is to conclusion, the stronger the case for preserving the jury's composition.
  • A jury's silence following a majority verdict direction, without any indication that a majority outcome is equally unattainable, is a factor that can weigh against discharge.

Legislation and Cases Referenced

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

Cases
- Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
- R v Krivosic [2021] NSWSC 535 (earlier judgment in the same trial concerning a prior juror discharge application)