Citation: R v Lupton (No 2) [2022] NSWSC 34
Court: Supreme Court of New South Wales
Date: 19 January 2022
Judge: Hamill J
Background
This decision concerned the empanelment of 15 jurors (rather than the standard 12) in a criminal trial before the Supreme Court. Before empanelment could proceed on 21 January 2022, Hamill J was required to determine whether the statutory and regulatory conditions for selecting additional jurors had been satisfied.
The trial was estimated by both parties to run for approximately four weeks. Complicating that estimate were the effects of the COVID-19 pandemic, including a surge in Omicron and Delta variant cases, two lawyers having already tested positive and been required to isolate during pre-trial argument, and a number of witnesses who had declined to be tested or vaccinated and would therefore give evidence by audiovisual link.
The core question was whether the trial satisfied each of the three conditions in section 19(2) of the Jury Act 1977 (NSW) so as to authorise the empanelment of additional jurors.
Legal Issues
- Whether the trial was of a kind prescribed by the regulations for the purposes of section 19(2)(a) of the Jury Act 1977, specifically whether it was likely to run for four weeks or more.
- Whether selecting additional jurors was an appropriate means of ensuring sufficient jurors would remain when the jury was required to reach a verdict: section 19(2)(b).
- Whether appropriate facilities to accommodate the additional jurors were available: section 19(2)(c).
Decision
On the prescribed duration (s 19(2)(a)): The Jury Amendment (Additional Jurors) Regulation 2020 (NSW) had lowered the threshold for empanelling additional jurors from a three-month minimum estimate to a four-week minimum, in direct response to the disruption caused by the pandemic. Both parties agreed the trial would run at least four weeks. Hamill J accepted that estimate, noting that delays caused by COVID-19 isolations and the logistical difficulties of receiving evidence by audiovisual link made a trial exceeding four weeks probable. The first condition was satisfied.
On the appropriateness of additional jurors (s 19(2)(b)): Given the realistic possibility of jurors testing positive and being required to isolate during a four-week trial, Hamill J was satisfied that selecting additional jurors was an appropriate mechanism to protect against the risk of the jury falling below the minimum lawful number required to return a verdict.
On facilities (s 19(2)(c)): The courtroom had been physically reconfigured to seat additional jurors across the jury box and into the public gallery. The jury had also been allocated a separate room (Courtroom 2 in the King Street and St James complex) for deliberations, allowing adequate social distancing. Hamill J concluded that appropriate facilities were available and that all three conditions in section 19(2) were met.
Orders Made
- An order was made pursuant to section 19(2) of the Jury Act 1977 (NSW) for the empanelment of additional jurors, resulting in 15 jurors being empanelled on 21 January 2022.
Key Takeaways
- Under section 19(2) of the Jury Act 1977 (NSW), a court may empanel up to three additional jurors where three cumulative conditions are satisfied: the trial is of a prescribed kind, additional jurors are an appropriate safeguard against jury depletion, and appropriate facilities are available.
- The Jury Amendment (Additional Jurors) Regulation 2020 (NSW) reduced the prescribed minimum trial duration from three months to four weeks, a change expressly designed to address the disruption that COVID-19 posed to the completion of jury trials.
- Estimating trial length is inherently uncertain in criminal proceedings; pandemic conditions, including anticipated isolations, testing requirements, and the need for audiovisual evidence, legitimately inform that estimate.
- Where counsel and the prosecution agree on a likely duration of four weeks or more, the Supreme Court treated that agreement as a relevant and weighty consideration in assessing the first condition.
- Physical modifications to a courtroom, including reconfiguring seating across the jury box and public gallery and allocating a separate deliberation room, can satisfy the facilities requirement even where social distancing must be maintained.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 19(2)
- Jury Amendment (Additional Jurors) Regulation 2020 (NSW)
- Jury Act Regulations 2015 (NSW)
Cases cited: No cases were cited in the judgment.