Citation: R v Kilincer (No. 6) [2022] NSWSC 1733
Court: Supreme Court of New South Wales
Date: 22 August 2022
Judge: Wilson J
Background
The accused stood trial for murder in the Supreme Court. The trial had been subject to significant delay, given that the accused was not charged until approximately 24 to 25 years after the alleged victim's death.
During the trial, one juror from the original panel of 12 contracted COVID-19 and was required to isolate for seven days. The Court had already discharged that juror on the grounds of unavailability.
Following that discharge, senior counsel for the accused applied to have the remaining 11 jurors also discharged. The purpose was to allow the trial to recommence before a fresh jury of 12, giving the accused the benefit of a full 12-person jury to determine the question of guilt.
Legal Issues
- Whether the remaining 11-person jury should be discharged following the COVID-related discharge of a single juror
- Whether an accused person is entitled, in the context of an ongoing pandemic, to the benefit of a full 12-person jury
Decision
Wilson J refused the application to discharge the full jury, delivering an ex tempore (on-the-spot, oral) judgment. Her Honour applied the same reasoning used when discharging the individual juror who had fallen ill.
The Court noted that discharging the full jury and restarting the trial with a fresh panel of 15 jurors would not guarantee that the same situation would not recur. Given the ongoing pandemic, there was no assurance that any retrial would ultimately proceed to verdict with a full complement of 12 jurors. Many juries over the preceding two and a half years had already returned verdicts with fewer than 12 members.
Her Honour also weighed the significant delay the case had already experienced and noted that further postponement served no party's interests. The 11 remaining jurors were characterised as attentive and diligent, and capable of returning a verdict absent any further misfortune.
Accordingly, the Court declined to discharge the jury and directed the trial to continue with 11 jurors.
Orders Made
- The application to discharge the jury of 11 was refused.
- The trial was directed to continue with 11 jurors.
Key Takeaways
- Refusing to discharge a reduced jury mid-trial, the Supreme Court found that the pandemic context made a retrial before a full jury of 12 an uncertain prospect rather than a guaranteed outcome.
- No automatic entitlement arises for an accused to have a retrial simply because a jury has been reduced below 12 members during an ongoing public health emergency.
- Where a full jury cannot be guaranteed even upon retrial, the interests of justice may favour continuing with the reduced panel, particularly where the remaining jurors are capable of discharging their function.
- Significant pre-trial delay is a relevant consideration when assessing whether to discharge a jury and restart proceedings.
- Under the Jury Act 1977 (NSW), trials may lawfully proceed with fewer than 12 jurors following the discharge of one or more jurors during the course of a trial.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW)
Cases
No cases were cited in the judgment text.