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Supreme Court 21 July 2025

R v Dunbar (No 9)

[2025] NSWSC 1167

Homicide

Citation: R v Dunbar (No 9) [2025] NSWSC 1167
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 21 July 2025
Judge(s): McNaughton J

Background

This decision arose during a murder trial in the Supreme Court of New South Wales. The accused, Dunbar, was being tried before a jury, and the proceedings had reached the evidence stage when an issue arose concerning one of the jurors.

Over the course of several days, a juror experienced escalating personal difficulties relating to the serious illness of her pet, which was under specialist veterinary care. Initially, the Court permitted the juror access to her phone during the day so she could remain informed about the pet's condition. The situation then deteriorated: the juror interrupted proceedings after the luncheon adjournment, left the courtroom due to feeling "violently ill" (which she later attributed to emotional distress rather than a medical condition), was absent for the following sitting day, and ultimately communicated that she was unable to continue sitting on the trial.

The juror provided a letter and supporting veterinary documentation to the Court explaining that the pet's condition had worsened to the point where boarding was no longer an option. She stated that no one else was available to care for the animal at home. The Court was therefore required to determine whether to discharge the juror and, if so, whether the trial could continue with the remaining jurors.

  • Whether the juror should be discharged from jury service under s 53B(d) of the Jury Act 1977 (NSW) on the basis that she was unable to continue to perform her functions as a juror.
  • Whether the trial could continue with the remaining jurors without giving rise to a risk of a substantial miscarriage of justice, as required by s 53C(1)(b) of the Jury Act 1977 (NSW).
  • Whether the number of remaining jurors was sufficient to continue the trial under s 22 of the Jury Act 1977 (NSW).

Decision

McNaughton J accepted the juror's written explanation and supporting documentation as establishing that she was genuinely unable to continue to perform her functions as a juror. The pet's deteriorating condition required her to be at home, and she had no one else available to assist. His Honour was satisfied that the circumstances fell within s 53B(d) of the Jury Act, which permits discharge of a juror who is, for any reason, unable to continue to perform the functions of a juror.

Turning to whether the trial should continue, McNaughton J noted that neither party had submitted that continuing with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. His Honour was independently satisfied under s 53C(1)(b) that no such risk existed. He also noted that, even after the discharge, the jury still comprised 12 members — the standard number under s 22 of the Jury Act — meaning the trial was in no way undermined by the reduction.

The judgment is brief and interlocutory in nature, dealing solely with the procedural question of the juror's discharge. It does not address any substantive issues relating to the murder charge.

Orders Made

  • The juror was discharged from jury service pursuant to s 53B(d) of the Jury Act 1977 (NSW).
  • The trial was ordered to continue with the remaining 12 jurors pursuant to s 53C(1)(b) of the Jury Act 1977 (NSW).

Key Takeaways

  • Under s 53B(d) of the Jury Act, a juror's need to care for a seriously ill pet, with no alternative carer available, was accepted as rendering her unable to continue performing her functions, confirming that the provision is broad enough to encompass personal circumstances beyond medical incapacity.
  • The Supreme Court relied on documentary material provided by the juror, including a written explanation, veterinary bills, and a veterinary letter, indicating that some form of evidentiary support, even if informal, may be expected when discharge is sought on personal grounds.
  • In determining whether the trial should continue with the remaining jurors, McNaughton J undertook an independent assessment under s 53C(1)(b) and was satisfied that no risk of a substantial miscarriage of justice arose, confirming this as a necessary step even where neither party opposed continuation.
  • Because the trial had commenced with more than 12 jurors and 12 remained following the discharge, no issue arose under s 22. The case illustrated the practical function of empanelling reserve jurors as a buffer against mid-trial attrition.
  • No general principle was established that pet care will always justify discharge; the ruling was interlocutory, brief, and fact-specific, turning on the particular circumstances including the severity of the animal's illness and the absence of alternative carers.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 22, 53B, 53C

Cases:
- No cases were cited in the judgment.