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Supreme Court 26 June 2025

R v Dunbar (No 6)

[2025] NSWSC 1164

Homicide

Citation: R v Dunbar (No 6) [2025] NSWSC 1164
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 26 June 2025
Judge(s): McNaughton J

Background

This decision arose during an ongoing murder trial in the Supreme Court of New South Wales. The accused, Dunbar, was being tried before a jury, and the trial was described as "well-advanced" but with a significant amount of evidence still to be heard.

A juror provided a medical certificate via the Sheriff's Office indicating that he had contracted a respiratory virus infection and would be unfit to attend court for at least two days. The juror had indicated he might be able to return the following day but could only confirm after further testing. When that day arrived, the juror was still absent.

McNaughton J was required to determine whether it was appropriate to discharge the individual juror and, if so, whether the trial could continue with the remaining jurors without risk of a substantial miscarriage of justice.

  • Whether the sick juror should be discharged under s 53B(a) of the Jury Act 1977 (NSW) on the basis that he had become so ill as to be likely to become unable to serve before the jury delivered its verdict.
  • Whether continuing the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice under s 53C(1)(a) of the Jury Act 1977 (NSW).
  • Whether the number of remaining jurors would fall below the statutory minimum of 10 under s 53C(1)(b) of the Jury Act 1977 (NSW).

Decision

McNaughton J exercised the discretion under s 53B(a) of the Jury Act 1977 to discharge the unwell juror. His Honour identified two key reasons supporting the discharge: first, the juror's respiratory virus infection made it likely he would remain unable to serve before the jury delivered its verdict; and second, given the cold and flu season, there was a real risk that the juror's return could expose other jurors to illness, potentially compounding the disruption to the trial.

His Honour also noted that the trial still had a significant amount of evidence to be heard. This factor weighed in favour of discharge, as it increased the likelihood that the juror's illness would prevent him from serving through to verdict.

Turning to the question of whether the trial could continue, McNaughton J was satisfied that there was no risk of a substantial miscarriage of justice in proceeding without the discharged juror. Importantly, the jury panel remained at 13 members even after the discharge — well above the statutory minimum of 10 jurors required under s 53C(1)(b). The trial was therefore ordered to continue with the remaining jurors.

Orders Made

  • Juror number [redacted] was formally discharged pursuant to s 53B(a) of the Jury Act 1977 (NSW).
  • The trial was to continue with the remaining 13 jurors.

Key Takeaways

  • Under s 53B(a) of the Jury Act 1977, a juror need not be permanently incapacitated to warrant discharge; the relevant test is whether the juror has become so ill as to be likely unable to serve before the verdict is delivered, with the anticipated duration of the remaining proceedings being a relevant consideration.
  • The Supreme Court treated the risk of contagion to other jurors as a factor supporting discharge, particularly during cold and flu season, reflecting a practical approach to jury management that incorporates public health considerations.
  • With 13 jurors remaining on the panel (comfortably above the statutory minimum of 10), the question of whether to continue the trial was straightforward, illustrating the practical buffer provided by empanelling larger juries in lengthy trials.
  • No risk of a substantial miscarriage of justice was identified under s 53C, consistent with circumstances where the remaining jury panel was large and no prejudice was apparent, confirming that the threshold is assessed on a case-specific basis.
  • As the sixth procedural interlocutory ruling in the Dunbar trial, this decision illustrates the range of issues that can arise during a complex criminal matter and the ongoing role of the trial judge in managing jury composition.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53B, 53C

Cases:
- Nil cited