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Supreme Court 8 April 2022

R v Batak (No 3)

[2022] NSWSC 426

Public order & justice offences

Citation: R v Batak (No 3) [2022] NSWSC 426
Court: Supreme Court of New South Wales
Date: 8 April 2022
Judge(s): R A Hulme J

Background

The accused was standing trial in a criminal proceeding estimated to run for four weeks. The trial had been underway for two days when two jurors became unable to continue, reducing the jury from fifteen to thirteen members.

The first juror's partner had tested positive for COVID-19, triggering a mandatory seven-day self-isolation requirement under the applicable Public Health Orders. The second juror raised two concerns: anxiety about being recognised by witnesses from her former neighbourhood, and an indirect personal connection to a friend of the deceased that gave rise to a reasonable apprehension of partiality.

With thirteen jurors remaining at an early stage of a lengthy trial, the court had to determine whether to press on or discharge the entire jury.

  • Whether the first juror should be discharged due to her COVID-19 close-contact isolation obligations affecting her ability to perform jury duties
  • Whether the second juror should be discharged due to apprehended bias and personal anxiety
  • Whether the remaining jury of thirteen should be discharged in its entirety given the risk of losing further jurors before the trial could be completed

Decision

Hulme J discharged the first juror under section 53B(d) of the Jury Act 1977 (NSW), finding that the mandatory seven-day isolation period affected her ability to perform her functions as a juror. The trial's arrangements made a seven-day adjournment impractical, particularly at such an early stage.

The second juror was discharged under sections 53B(b) and (d) of the same Act. The court accepted that her growing anxiety about being recognised by witnesses, combined with an indirect connection to a friend of the deceased, justified discharge. Both the defence and the prosecution effectively supported this course.

The court then turned to whether the remaining thirteen jurors should be discharged entirely. Hulme J observed that the NSW courts had been losing jurors with considerable frequency since criminal trials resumed in January 2022, due to COVID-19 infections and close-contact isolation requirements. Starting a four-week trial with only thirteen jurors created a real and serious risk that the trial could not be completed.

His Honour concluded that allowing the trial to continue in those circumstances would risk a substantial miscarriage of justice if the jury eventually fell below the minimum required number after weeks of evidence. Pursuant to section 53C(1)(a) of the Jury Act 1977, the entire jury was discharged.

Orders Made

  • The first juror was discharged pursuant to section 53B(d) of the Jury Act 1977 (NSW)
  • The second juror was discharged pursuant to sections 53B(b) and (d) of the Jury Act 1977 (NSW)
  • The entire jury was discharged pursuant to section 53C(1)(a) of the Jury Act 1977 (NSW)

Key Takeaways

  • A juror's mandatory COVID-19 isolation obligations can constitute a matter affecting that juror's ability to perform jury functions, warranting discharge under section 53B(d) of the Jury Act 1977 (NSW).
  • Discharge of a juror is appropriate where an indirect personal connection to the proceedings gives rise to an apprehension of partiality, even without a direct relationship to a party.
  • Under section 53C(1)(a) of the Jury Act 1977, the Supreme Court discharged an entire jury at an early stage of a four-week trial where the prospect of retaining sufficient jurors to its conclusion was assessed as bleak.
  • The court's reasoning reflects the broader operational reality of NSW criminal trials during the COVID-19 pandemic: courts had been losing jurors frequently, making large jury panels more precarious in lengthy proceedings.
  • Proceeding with an already-reduced jury from an early point in a long trial was found to risk a substantial miscarriage of justice, justifying wholesale discharge rather than continuation.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53B(b), 53B(d), 53C(1)(a)
- Applicable NSW Public Health Orders relating to COVID-19 close-contact isolation requirements

Cases cited: No cases were cited in the judgment.