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Supreme Court 22 August 2022

R v Kilincer (No. 5)

[2022] NSWSC 1732

Homicide
CRIME TRIAL MURDER JUROR INFECTED BY COVID WHETHER JUROR SHOULD BE DISCHARGED

Citation: R v Kilincer (No. 5) [2022] NSWSC 1732
Court: Supreme Court of New South Wales
Date: 22 August 2022
Judge: Wilson J

Background

On the 14th day of a murder trial, the court received information that one of the 12 jurors (referred to as Juror S) had returned a positive rapid antigen test result for COVID-19. The juror was required to isolate for seven days, with the earliest possible return to jury duty being Monday, 29 August 2022.

The Crown sought the discharge of Juror S and a continuation of the trial with the remaining 11 jurors under s 22 of the Jury Act 1977 (NSW). The accused took the opposite position, arguing that the trial should be adjourned for one week to allow Juror S to recover and return.

The accused's senior counsel submitted that a one-week delay would cause minimal disruption, given the trial was tracking well within its estimated eight-week duration. The accused's position was that proceeding with 12 jurors was preferable, as a larger jury increases the prospect of at least a hung verdict rather than a unanimous adverse verdict.

  • Whether Juror S should be discharged under s 53B(a) of the Jury Act 1977 (NSW) on the basis of illness posing a health risk to others in the courtroom.
  • Whether the trial should instead be adjourned for approximately one week to allow Juror S to recover and resume duties.
  • How to weigh the accused's interest in a jury of 12 against the interests of justice in expeditious proceedings, in the context of an ongoing pandemic.

Decision

Wilson J acknowledged that both courses of action involved an element of speculation. It was impossible to know whether proceeding immediately might result in further jurors becoming ill, or whether an adjournment might still leave the court short of 12 jurors if other jurors contracted the virus during the break.

Her Honour accepted that a jury of 12 does offer a marginal benefit to an accused person, in that more deliberating voices increase the prospect of at least a disagreement rather than a unanimous guilty verdict. However, this benefit was not absolute.

Wilson J weighed that benefit against the Parliament's clear intention, reflected in the statutory provisions permitting trials to continue with fewer than 12 jurors, that jury trials should not be halted simply because the panel falls below 12. The ongoing pandemic context, the interests of expeditious justice, and the cost of delay were also relevant considerations.

Ultimately, her Honour concluded that the interests of justice were best served by proceeding without delay. Juror S was discharged pursuant to s 53B(a) of the Jury Act 1977, which addresses the discharge of a juror who has become ill so as to pose a health risk to others in the courtroom.

Orders Made

  • Juror S discharged pursuant to s 53B(a) of the Jury Act 1977 (NSW).
  • The trial to continue with the remaining 11 jurors under s 22 of the Jury Act 1977 (NSW).

Key Takeaways

  • There is no absolute entitlement to a jury of 12 in New South Wales. The Jury Act 1977 expressly permits trials to continue with fewer than 12 jurors, and Parliament's enactment of that provision reflects a deliberate policy choice.
  • Under s 53B(a) of the Jury Act 1977, a juror who is ill and poses a health risk to others in the courtroom may be discharged. This provision applied directly to a juror isolating due to a COVID-19 infection.
  • Where the consequences of adjournment versus proceeding are equally uncertain, the principle that justice should proceed as expeditiously as possible can tip the balance in favour of discharging an ill juror and continuing the trial.
  • An accused person's interest in retaining a larger jury, while recognised as a genuine consideration, must be weighed against the statutory framework and the broader interests of the justice system, particularly in a pandemic context.
  • Speculative arguments about what might happen to remaining jurors in the coming week do not, without more, justify delaying a criminal trial that is otherwise proceeding well within its estimated timeframe.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 22 (continuation of trial with reduced jury)
- Jury Act 1977 (NSW), s 53B(a) (discharge of juror who is ill and poses a health risk)

Cases cited: No cases were cited in the judgment.