Citation: R v Diallo & Ors (No 9) [2024] NSWSC 1084
Court: Supreme Court of New South Wales
Date: 21 August 2024
Judge: Hamill J
Background
This decision arose during the fourth week of a criminal trial estimated to run for approximately three months. An expanded jury of 15 had been empanelled on 31 July 2024, but the panel had already been reduced to 14 following the discharge of one juror due to anxiety shortly after empanelment.
In the third week of the trial proper, a juror (designated 5J) notified the court that they were scheduled to undergo ACL reconstruction surgery on 20 August 2024. The juror expressed a willingness to continue serving and requested any available accommodations. The surgery was classified as day surgery, though the juror acknowledged uncertainty about post-operative medication and mobility.
Following the surgery, it emerged that the juror had developed complications, was taking Endone for severe pain, and was resting in bed. A medical certificate indicated a likely recovery period extending to 20 October 2024. Separately, two reluctant witnesses had been brought before the court and their evidence was required on the Thursday and Friday of that week, making it imperative that the trial continue without interruption.
Legal Issues
- Whether the statutory power under s 53B of the Jury Act 1977 (NSW) to discharge an individual juror was enlivened, specifically under paragraphs (a) (incapacity likely to prevent service until verdict) and/or (d) (any other reason affecting ability to perform juror functions)
- Whether, having found that s 53B was enlivened, the court should exercise its discretion to discharge the juror
- Whether, following discharge, the trial should continue with a reduced jury of 13 under s 53C of the Jury Act 1977 (NSW)
Decision
On 19 August 2024, before the surgery, Hamill J declined to discharge the juror at that point. On the information then available, his Honour was not satisfied that the juror was so incapacitated as to be likely unable to serve before the jury delivered its verdicts, nor that any other reason affecting the juror's ability to perform their functions had arisen. The court adjourned for two days to obtain a post-operative update.
After surgery, the position changed materially. The juror was confirmed to be resting at home, taking strong opioid pain relief (Endone), unable to attend court, and subject to a medical certificate suggesting incapacity until 20 October 2024. The court officer confirmed the juror could not attend the following day. All parties were in agreement that discharge was appropriate.
Hamill J was satisfied that both s 53B(a) and s 53B(d) were enlivened. The juror appeared so incapacitated as to be unable to serve until the jury returned its verdicts, and the inability to attend court on the following days was a reason affecting the juror's ability to perform their functions. Importantly, no fault attached to the juror. The discharge was ordered.
On the question of continuing with 13 jurors, Hamill J was satisfied that no risk of a substantial miscarriage of justice would result. Each remaining juror had been randomly selected and was validly empanelled. Although reducing to 13 made the situation "a little uncomfortable, not to say precarious," the court exercised its discretion under s 53C(1)(b) to continue the trial.
Orders Made
- Juror 5J (panel number 03448909) discharged from further jury service pursuant to s 53B(a) and (d) of the Jury Act 1977 (NSW)
- Trial to continue with a reduced jury of 13 jurors pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW)
Key Takeaways
- Under s 53B of the Jury Act 1977 (NSW), a juror may be discharged where they have become so incapacitated as to be likely unable to serve until the jury delivers its verdict (s 53B(a)), or where any other reason affecting their ability to perform juror functions makes continuation inappropriate (s 53B(d)).
- Hamill J declined to discharge the juror before surgery, demonstrating that the threshold for discharge requires sufficient information about likely incapacity rather than a precautionary response to anticipated difficulty.
- Post-operative complications, confirmed inability to attend court, strong opioid medication, and a medical certificate indicating a recovery period of approximately two months collectively satisfied both limbs of s 53B in this case.
- Where no fault attaches to a juror, that factor is relevant to the discretionary exercise under s 53B but does not prevent discharge when the statutory criteria are met.
- A jury reduced to 13 in a lengthy trial may continue under s 53C(1)(b) where the court perceives no risk of a substantial miscarriage of justice, even where further reductions have already occurred during the proceedings.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 53B, 53B(a), 53B(d), 53C, 53C(1)(b)
- Criminal Procedure Act 1986 (NSW), ss 311 and 312
- Bail Act 2013 (NSW)
Cases
- Sun v R (2023) 112 NSWLR 52; [2023] NSWCCA 147