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Supreme Court 10 March 2022

R v Nancarrow (No 4)

[2022] NSWSC 283

HomicidePublic order & justice offences
CRIMINAL LAW TRIAL CONDUCTED DURING PANDEMIC WHERE JUROR POSITIVE FOR COVID PRECARIOUS SITUATION OF TRIAL NEED FOR FURTHER LEGISLATIVE REFORM

Citation: R v Nancarrow (No 4) [2022] NSWSC 283
Court: Supreme Court of New South Wales
Date: 10 March 2022
Judge(s): Hamill J

Background

On the seventh day of a murder trial, a juror notified the Sheriff's Office that she had returned a positive rapid antigen test result at 7:30 am and was experiencing a sore throat and headache. Under the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), she was required to self-isolate for seven days as a "diagnosed person." This was the second COVID-related juror discharge in the same trial, the first having occurred just six days earlier and resulting in a reduced jury of 11.

This judgment provides the reasons for two orders made during the trial with the consent of both the prosecution and defence counsel: the discharge of the COVID-positive juror, and the continuation of the trial with a reduced jury of ten. The trial involved an accused charged with murder, and closing addresses had already commenced at the time the orders were made.

  • Whether the individual juror should be discharged under section 53B of the Jury Act 1977 (NSW), given she was both symptomatic and required by public health order to self-isolate
  • Whether the trial should continue with only ten jurors under section 53C, rather than being aborted
  • What consequences the reduction to ten jurors had for the availability of majority verdicts and further juror reductions
  • Whether the existing legislative framework for empanelling additional jurors is adequate during periods of high COVID-19 transmission

Decision

Hamill J discharged the juror under section 53B of the Jury Act 1977 (NSW). Two separate grounds were potentially engaged: the juror's inability to perform her functions due to illness (s 53B(a)), and the mandatory self-isolation requirement (s 53B(d)). The presence of symptoms distinguished this discharge from the earlier one in R v Nancarrow (No 1), where the juror had tested positive but was asymptomatic. Both factors combined made the exercise of the discretion to discharge clearly appropriate.

The more difficult question was whether to continue with ten jurors. His Honour acknowledged that the concerns about departing from the traditional jury of twelve, as discussed by the High Court in Wu v The Queen (1999) 199 CLR 99, were "more potent" at this stage given the jury had already been reduced once. Nonetheless, Hamill J was satisfied that continuing the trial posed no risk of a substantial miscarriage of justice, and both parties' concurrence in that course fortified the exercise of the discretion under section 53C.

The reduction to ten jurors carried two significant statutory consequences. First, any further reduction would require written approval from both parties under section 22(a)(ii) of the Jury Act 1977. Second, a majority verdict under section 55F became unavailable, as that provision only permits majority verdicts where a jury of twelve returns an 11-juror verdict, or a jury of eleven returns a 10-juror verdict. A ten-person jury deliberating toward verdict falls outside those definitions.

Hamill J also took the opportunity to observe that the legislative framework for empanelling additional jurors, currently limited to trials estimated to run four weeks or more under Regulation 4A of the Jury Regulation 2015, is insufficient in a high-transmission pandemic environment. He expressed the view that consideration should be given to extending judicial discretion to empanel additional jurors across a broader range of trials.

Orders Made

  • The individual juror (juror 578-8 02848112) was discharged.
  • The trial was ordered to continue with a reduced jury of ten persons.

Key Takeaways

  • Under section 53B of the Jury Act 1977 (NSW), a juror who tests positive to COVID-19 and is symptomatic may engage multiple discharge grounds simultaneously, including incapacity to perform juror functions (s 53B(a)) and a mandatory public health self-isolation requirement (s 53B(d)).
  • Continuing a trial with a reduced jury under section 53C is a discretionary decision requiring the court to be satisfied that no substantial miscarriage of justice will result; the agreement of both parties is a relevant, though not determinative, consideration.
  • Once a jury in a criminal trial is reduced to ten persons, a majority verdict under section 55F of the Jury Act 1977 is no longer available, as the majority verdict provisions do not apply to a ten-person jury.
  • A further reduction below ten jurors requires written approval from both parties under section 22(a)(ii), making the trial's continuation increasingly fragile with each COVID-related discharge.
  • Hamill J identified a gap in the current legislative framework: judicial discretion to empanel additional jurors is confined to trials of four weeks or more, a threshold his Honour considered inadequate given the high and unpredictable rates of COVID-19 transmission at the time.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 19(2), 22(a)(ii), 53B, 53C, 55F
- Jury Regulation 2015 (NSW), reg 4A
- Public Health (COVID-19 Self-Isolation) Order 2022 (NSW), cl 6, sch 1

Cases
- R v Nancarrow (No 1) [2022] NSWSC 243
- Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52