Citation: R v Patterson (No 1) [2024] NSWSC 394
Court: Supreme Court of New South Wales
Date: 10 April 2024
Judge(s): Dhanji J
Background
The accused stood trial for murder before the Supreme Court. On empanelment, the court seated 13 jurors rather than the standard 12, a course permitted under the Jury Act 1977 (NSW) where the estimated trial length exceeds two weeks.
On the third day of trial, one juror (referred to as Juror A) sent a note to the court advising that her four-year-old son had been diagnosed with hand, foot and mouth disease and sent home from day care. The standard isolation period for the condition is seven to ten days.
The juror's husband could care for the child that day but not beyond, due to work commitments. The juror therefore indicated she would be required to remain at home to care for her son.
Legal Issues
- Whether Juror A's circumstances constituted a ground for discharge under s 53B(d) of the Jury Act 1977 (NSW).
- Whether the trial should continue following the discharge, or whether the entire jury should be discharged under s 53C of the Act.
Decision
Dhanji J found that the juror's need to care for her sick child fell within s 53B(d) of the Jury Act 1977, which permits discharge where a reason affects a juror's ability to perform their functions such that they cannot continue to act. The judge noted there was a natural break approaching in the trial schedule, which might have supported waiting to see if Juror A could return. However, given the standard isolation period of seven to ten days, it was considered optimistic to expect her availability by the following Tuesday.
The judge also observed that, even if the juror recovered in time, the infectious nature of hand, foot and mouth disease could raise concerns among fellow jurors about her returning to the panel after exposure to the virus. Those considerations together made discharge the appropriate course.
On the question of whether the trial should continue, Dhanji J exercised the discretion conferred by s 53C to proceed rather than discharge the whole jury. With Juror A's discharge, 12 jurors remained, which is the minimum required to continue. Given the trial was estimated to conclude within two to three weeks, the court was satisfied that continuing was appropriate.
Orders Made
• Juror A is discharged from the jury
• The trial is to continue with the remaining 12 jurors
Key Takeaways
- Under s 53B(d) of the Jury Act 1977 (NSW), a juror may be discharged where a personal circumstance, such as a childcare obligation arising from a child's illness, affects the juror's ability to perform their functions such that they cannot continue to act.
- A care obligation that extends beyond a single day, combined with the infectious nature of the underlying illness, can weigh against simply waiting for a juror to become available during a scheduled trial break.
- Where a 13-juror trial reduces to 12 following a discharge, the court retains a discretion under s 53C to continue the trial rather than discharge the whole jury.
- The Supreme Court treated the estimated remaining trial duration and the current juror count as relevant factors in deciding whether to exercise the discretion to continue under s 53C.
- Empanelling more than 12 jurors at the outset, where the trial is expected to exceed two weeks, provides a practical buffer against the risk that juror attrition will force a full discharge.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 53B(d), 53C
Cases cited: None cited in the judgment.