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Supreme Court 4 March 2022

R v Nancarrow (No 1)

[2022] NSWSC 243

HomicidePublic order & justice offences
CRIMINAL LAW TRIAL CONDUCTED DURING PANDEMIC WHERE JUROR POSITIVE FOR COVID DEFINITION OF “DIAGNOSED PERSON” PUBLIC HEALTH ORDERS MAGIC

Citation: R v Nancarrow (No 1) [2022] NSWSC 243
Court: Supreme Court of New South Wales
Date: 4 March 2022
Judge: Hamill J

Background

A murder trial had been empanelled on 2 March 2022, with opening addresses delivered and evidence commencing the following day. On the morning of 4 March 2022, the Sheriff informed Hamill J that one of the twelve jurors had returned two positive rapid antigen test (RAT) results for COVID-19. The juror had arrived late that day and had not come into contact with the other eleven jurors before being separated.

The central procedural question was what the trial should do next. The options were to adjourn the trial for at least seven days to allow the diagnosed juror to potentially return, or to discharge that juror and then decide whether the trial could safely continue with eleven jurors. The trial was expected to be brief, with the prosecution case likely to conclude the following Monday.

  • Whether the COVID-positive juror, who was asymptomatic and subject to mandatory self-isolation under the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), qualified as a "diagnosed person" under that Order.
  • Whether the juror's inability to attend court due to mandatory self-isolation engaged the discretion to discharge an individual juror under s 53B of the Jury Act 1977 (NSW), specifically the ground that the juror's ability to perform the functions of a juror was affected.
  • Whether continuing the trial with eleven jurors would give rise to the risk of a substantial miscarriage of justice, within the meaning of s 53C of the Jury Act 1977 (NSW).

Decision

Juror classification under the Public Health Order

Hamill J held that the positive RAT result meant the juror was a "diagnosed person" within the definition in the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW). Where any tension existed between information published on the NSW Government website and the Order itself, the Order took precedence. As a diagnosed person, the juror was required to self-isolate for a minimum of seven days, and then until testing negative and asymptomatic.

Discharge of the individual juror

The court found that the juror's mandatory self-isolation, in the context of a short trial, rendered him unable to perform the functions of a juror. The applicable ground under s 53B was paragraph (d): that "for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act." The ill-health ground under s 53B(a) was not engaged because the juror was asymptomatic and there was no evidence he was sick. Hamill J discharged the juror in the exercise of his discretion.

Continuation with eleven jurors

Applying the two-stage process confirmed by the High Court in Wu v The Queen (1999) 199 CLR 99, Hamill J separately considered whether the trial should continue. Both parties agreed that continuing with eleven jurors posed no risk of a substantial miscarriage of justice, and the court accepted that position. The court acknowledged the long common law tradition attaching significance to a jury of twelve, but confirmed that the Jury Act 1977 (NSW) permits reduction in jury numbers in appropriate circumstances. Hamill J ordered the trial to continue with eleven jurors, adjourned to Monday 7 March 2022, with RAT testing of remaining jurors to be conducted before resumption.

Orders Made

  • The individual juror (578-8 02937677) was discharged pursuant to s 53B of the Jury Act 1977 (NSW).
  • Pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW), the trial was to continue with the remaining eleven jurors.
  • The trial was adjourned until Monday, 7 March 2022.

Key Takeaways

  • A juror who returns a positive RAT result is a "diagnosed person" under the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), and mandatory self-isolation requirements engage the discretion to discharge under s 53B(d) of the Jury Act 1977 (NSW), even where the juror is asymptomatic.
  • The ill-health and infirmity ground in s 53B(a) is distinct from s 53B(d): asymptomatic COVID-positive status did not constitute illness or incapacity, but did constitute a circumstance affecting a juror's ability to perform their functions.
  • Under Wu v The Queen, the discharge of an individual juror and the decision whether to continue with a reduced jury are two separate steps, each requiring independent consideration and a separate order.
  • Long-standing common law significance attached to a jury of twelve does not prevent continuation with fewer jurors where the Jury Act 1977 (NSW) permits it and no risk of substantial miscarriage of justice is established.
  • Where the Public Health Order and government website information appear to conflict, the Order itself governs.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 53B, 53C
- Public Health (COVID-19 Self-Isolation) Order 2022 (NSW)

Cases
- Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
- R v Brownlee (1997) 41 NSWLR 139
- R v Martin (No 2) [2017] NSWSC 1250
- R v Qaumi & Ors (No 36) [2016] NSWSC 718