Citation: R v Walmsley-Hume; R v Walmsley (No 4) [2024] NSWSC 1693
Court: Supreme Court of New South Wales
Date: 22 July 2024
Judge: Wright J
Background
Two accused are standing trial in the Supreme Court on murder charges, with the prosecution alleging an intention to kill or cause grievous bodily harm and, in relation to one accused, participation in a joint criminal enterprise. The trial is being heard before a jury that, prior to this ruling, comprised 14 jurors.
During the trial, one juror (identified as juror 458-12) contacted the Sheriff's Office by telephone to report that they were ill with gastroenteritis and were unlikely to be able to return to court that week. The juror did not attend on the day the matter came before Wright J.
The court was required to determine whether the ill juror should be discharged and, if so, whether the entire jury should also be discharged or whether the trial could continue with the remaining jurors.
Legal Issues
- Whether juror 458-12 should be discharged under s 53B(a) of the Jury Act 1977 (NSW) on grounds of illness or incapacity
- Whether the discharge of that juror would give rise to a risk of a substantial miscarriage of justice requiring discharge of the whole jury under s 53C(1)(a) of the Jury Act 1977 (NSW)
- Whether the remaining jury size satisfied the requirements for continuation of the trial under s 22 of the Jury Act 1977 (NSW)
Decision
Wright J accepted the information provided by juror 458-12 to the Sheriff's Office and found that the juror was so ill or incapacitated as to be likely unable to continue serving before the jury delivered its verdict. The juror's condition also presented a health risk to the other jurors. These circumstances engaged the discretion to discharge under s 53B(a), and no party opposed the discharge.
Having discharged the individual juror, Wright J turned to whether the jury as a whole should be discharged. Section 53C(1)(a) of the Jury Act requires a whole-jury discharge if continuing with the remaining jurors would give rise to a risk of a substantial miscarriage of justice. No party submitted that such a risk existed, and Wright J could identify no basis on which continuation would give rise to any miscarriage of justice, let alone a substantial one.
Wright J also considered s 22 of the Jury Act, which governs the minimum jury size required for a trial to continue. With 13 jurors remaining, the jury was not reduced below 10, satisfying the condition in s 22(a)(i). No party submitted that the whole jury should be discharged given the number remaining, and Wright J declined to do so.
Orders Made
- Juror 458-12 is discharged.
- The trial is to continue with 13 jurors.
Key Takeaways
- Under s 53B(a) of the Jury Act 1977 (NSW), a trial judge has a discretion to discharge an individual juror who is so ill or incapacitated as to be likely unable to serve before the verdict is delivered, particularly where the illness also poses a health risk to fellow jurors.
- Section 53C(1)(a) of the Jury Act imposes a threshold of "substantial miscarriage of justice" before a court is required to discharge the entire jury following the discharge of an individual juror; the bar is not met simply because one juror is excused.
- Compliance with s 22 of the Jury Act requires only that the jury not fall below 10 members; where 13 jurors remain, that statutory floor is satisfied and the trial may lawfully proceed.
- The absence of any objection from the parties is a relevant consideration in the exercise of these discretions, though the court independently assessed whether the statutory tests were met.
- Interlocutory rulings of this kind address discrete procedural questions and carry no implications for the substantive charges being tried.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 22, 53B(a), 53C(1)(a)
Cases: No cases were cited in this decision.