Citation: R v Karaali (No 9) [2023] NSWSC 240
Court: Supreme Court of New South Wales
Date: 16 March 2023
Judge: Campbell J
Background
The accused stood trial for murder and had pleaded not guilty. The jury retired to consider its verdict on Monday, 13 March 2023, after a trial that had experienced some delay, including a two-week gap between the last evidence and the jury's retirement.
On Tuesday, 14 March 2023, a juror (referred to as juror O) reported severe abdominal pain and was unable to continue deliberating. She was escorted home early, and the jury was dismissed for the day. She remained unwell on Wednesday, 15 March, requiring a further adjournment.
The Sheriff's office later relayed that juror O was suffering from gastroenteritis. She produced a medical certificate, though it contained no clinical detail or prognosis, leaving the court to assess her condition and likely recovery without specific medical guidance.
Legal Issues
- Whether juror O had become so ill as to be likely unable to serve before the jury delivered its verdict, within the meaning of s 53B(a) of the Jury Act 1977 (NSW)
- Whether juror O's condition constituted a health risk to other jurors if she returned to court
- Whether continuing the trial with eleven jurors under s 22 of the Jury Act would give rise to a risk of a substantial miscarriage of justice, as required by s 53C
Decision
Campbell J found that juror O met the threshold under s 53B(a): given the nature of gastroenteritis as a bacterial, infectious condition of uncertain duration, she had become so ill as to be likely unable to serve before the verdict was delivered. The court also found that her return posed a health risk to the remaining jurors. Both defence and prosecution counsel supported discharge, with defence counsel formally making the application.
On the question of continuing with eleven jurors, Campbell J considered the matter carefully and concluded that no risk of a substantial miscarriage of justice arose. Neither party submitted otherwise. Accordingly, the court discharged juror O alone and did not discharge the full jury.
The court ordered that the trial proceed with eleven jurors under s 22 of the Jury Act. These reasons were delivered ex tempore to explain orders already pronounced earlier that day.
Orders Made
• Discharge of juror O
• Trial to continue with eleven jurors
Key Takeaways
- Under s 53B(a) of the Jury Act 1977 (NSW), a juror may be discharged where the court forms the opinion that the juror has become so ill as to be likely unable to serve before the jury delivers its verdict.
- A juror's illness may independently warrant discharge on the additional ground that returning to court would constitute a health risk to other jurors, even where recovery is possible.
- The absence of clinical detail in a medical certificate does not prevent a court from drawing on general knowledge about the nature and course of a diagnosed condition when assessing fitness to serve.
- Where a juror is discharged mid-deliberation, s 53C requires the court to consider whether continuing with the reduced jury creates a risk of substantial miscarriage of justice before the trial can proceed under s 22.
- Consent or non-opposition from both parties does not relieve the court of its obligation to independently assess the s 53C question; Campbell J expressly noted he considered the matter "earnestly and carefully" for himself.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 22, 53B(a), 53C
Cases:
- R v Karaali (No 8) [2023] NSWSC 232 (earlier judgment in the same proceedings, referenced for context regarding the trial's delayed start)