Citation: R v Lupton (No 7) [2022] NSWSC 157
Court: Supreme Court of New South Wales
Date: 17 February 2022
Judge(s): Hamill J
Background
This decision arose during the criminal trial of the accused, which by mid-February 2022 had entered its fourth week. The trial was conducted against the backdrop of the COVID-19 pandemic, and the jury had been empanelled with 15 members partly to guard against attrition through COVID-related disruptions.
On the morning of 17 February 2022, one juror contacted the court to advise that their partner had returned a positive PCR test for COVID-19. Under NSW Health Regulations at the time, the juror was required to self-isolate for seven days as a household contact.
A similar situation had arisen earlier in the trial on 25 January 2022, dealt with in a separate judgment (R v Lupton (No 4) [2022] NSWSC 37). This was therefore the second COVID-related juror discharge application during the same trial.
Legal Issues
- Whether the affected juror should be discharged under the Jury Act 1977 (NSW), specifically under s 53B(d), which permits discharge where a juror is unable to perform their functions for "any other reason"
- Whether continuing the trial with 13 jurors (rather than the then-current 14) was likely to occasion a substantial miscarriage of justice, for the purposes of s 53C
- Whether further delaying the trial was consistent with the interests of justice at this advanced stage of proceedings
Decision
Hamill J held that the juror was unable to perform their functions within the meaning of s 53B(d) of the Jury Act 1977, given the mandatory self-isolation requirement under NSW Health Regulations. Consistent with his earlier approach in Lupton (No 4), the judge exercised the discretion to discharge the individual juror. Both parties consented to this course.
The court was also satisfied that continuing with 13 jurors would not occasion a substantial miscarriage of justice to either the prosecution or the accused. The trial had reached an advanced stage: the prosecution had completed its address, defence counsel was mid-address, and the jury was expected to retire the following day.
Hamill J noted that the original empanelment of 15 jurors was specifically designed to absorb this kind of attrition. With one juror already discharged for similar reasons earlier in the trial, this discharge reduced the panel from 14 to 13. Further delay at such a late stage was found to be contrary to the interests of justice.
The court also noted that, at the conclusion of the summing-up the following day, a ballot under s 55G(1) of the Jury Act would reduce the panel to 12, forming the "verdict jury" as defined by the Act.
Orders Made
- Juror 01441009 was discharged.
- The trial was to continue with a reduced number of jurors, namely 13.
Key Takeaways
- Under s 53B(d) of the Jury Act 1977 (NSW), a juror who is required to self-isolate as a COVID-19 household contact under NSW Health Regulations is unable to perform their functions for "any other reason," justifying individual discharge.
- A substantial miscarriage of justice does not automatically arise from continuing a trial with a reduced jury panel where both parties consent and the trial has reached an advanced stage.
- Empanelling a larger jury at the outset (here, 15 members) serves the purpose of accommodating COVID-related attrition without derailing long-running trials.
- The interests of justice weigh against further delay where closing addresses have been delivered and the jury is days from retiring to consider its verdict.
- Where a reduced panel will itself be subject to a further ballot under s 55G(1) to reach the 12-person verdict jury, the temporary composition of 13 raises no additional concern about the integrity of the verdict.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 53B, 53C, and 55G
Cases:
- R v Lupton (No 4) [2022] NSWSC 37