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Supreme Court 25 January 2022

R v Lupton (No 4)

[2022] NSWSC 37

Public order & justice offences
CRIMINAL LAW TRIAL CONDUCTED DURING PANDEMIC REQUIRED TO ISOLATE FOR 7 DAYS ABSENCE FROM TRIAL REQUIREMENT OF EVIDENCE OR PROOF SUB

Citation: R v Lupton (No 4) [2022] NSWSC 37
Court: Supreme Court of New South Wales
Date: 25 January 2022
Judge(s): Hamill J

Background

During a criminal trial before the Supreme Court, a juror informed Jury Services Branch that his mother, with whom he lived, had tested positive for COVID-19. Under the health orders and the Chief Justice's pandemic protocols then in force, the juror was classified as a "close contact" and required to isolate at home for a minimum of seven days.

The juror had undergone a Rapid Antigen Screening (RAS) test the previous morning alongside the other fourteen jurors, and all had returned negative results. Following news of the close contact, the remaining fourteen jurors were tested again, again with negative results. The juror had also arranged a PCR test, but results were not expected for one to two days.

With this information in hand, Hamill J turned to the two discrete questions the situation raised: whether the juror should be individually discharged, and if so, whether the trial could properly continue with fourteen jurors rather than the full fifteen.

  • Whether the mandatory discharge provision in section 53A of the Jury Act 1977 (NSW) was engaged.
  • Which subsection of the discretionary discharge provision in section 53B applied, given that different subsections impose different evidentiary thresholds.
  • Whether, as a matter of discretion, the juror should be discharged under section 53B.
  • Whether continuing the trial with fourteen jurors would risk a substantial miscarriage of justice under section 53C.

Decision

Mandatory discharge (s 53A): Hamill J found that the prerequisites for mandatory discharge under section 53A were not met on the facts as they stood.

Discretionary discharge (s 53B) and the evidentiary threshold: The court examined the distinct evidentiary requirements across the subsections of section 53B. Subsection (2), which concerns a juror's ability to act impartially, requires factual findings to be established by "evidence" or by "the juror's own statements." Subsections (1) and (4) carry no equivalent requirement, instead turning on the judge's "opinion" or on what "appears to the court." Hamill J could not yet form the opinion required under subsection (1)(a) that the juror was so ill as to be unable to serve or to pose a health risk, because the PCR result was still pending. However, his Honour was satisfied that subsection (1)(d) was engaged: it "appeared to the court" that the mandatory seven-day isolation period constituted "another reason" affecting the juror's ability to perform the functions of a juror, since a person who is absent from court simply cannot participate in the trial.

Discretionary considerations: Discharge remained discretionary even once a subsection was engaged. Hamill J weighed several factors in favour of discharge: the trial was expected to run four weeks, the isolation period was at least seven days, the original jury had been empanelled with fifteen members specifically to allow for attrition, and a delay would inconvenience the remaining jurors, parties and witnesses while also increasing the statistical likelihood of another positive case arising. Against discharge, the trial was only in its second full day before the jury, making it desirable to preserve the full complement. Balancing all considerations, his Honour exercised the discretion in favour of discharge.

Continuing with fourteen jurors (s 53C): Hamill J was satisfied that proceeding with fourteen jurors carried no risk of a substantial miscarriage of justice, and accordingly directed the trial to continue with the reduced number.

Orders Made

  • Juror 2812801 is discharged.
  • The trial is to continue with a reduced number of jurors.

Key Takeaways

  • Different subsections of section 53B of the Jury Act 1977 (NSW) impose different thresholds: subsection (2) requires "evidence" or the juror's own statements, while subsections (1) and (4) require only that the relevant matter appear to the court or reflect the court's opinion.
  • A juror's mandatory absence from court due to COVID-19 isolation requirements can constitute "another reason" affecting the juror's ability to perform the functions of a juror within section 53B(1)(d), even where no positive test result has been confirmed.
  • Under section 53B, satisfying a relevant subsection does not automatically compel discharge; the decision remains discretionary, requiring the court to weigh factors including trial length, jury size, delay, inconvenience and the statistical risk of further disruption.
  • Where a jury was empanelled with fifteen members, the existence of that deliberate buffer is a relevant consideration supporting the exercise of the discretion to discharge an absent juror rather than halting the trial entirely.
  • Continuing a criminal trial with fourteen jurors does not, of itself, give rise to a substantial miscarriage of justice for the purposes of section 53C, at least where the original empanelment exceeded the minimum and all other jurors remain available and unaffected.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53A, 53B and 53C

Cases cited:
No cases were cited in this decision.