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Supreme Court 28 November 2025

R v Williams (No. 10)

[2025] NSWSC 1446

Other
CRIMINAL LAW JURY DISCRETIONARY DISCHARGE OF JURORS

Citation: R v Williams (No. 10) [2025] NSWSC 1446
Court: Supreme Court of New South Wales
Date: 28 November 2025
Judge: Lonergan J

Background

This decision arises from a lengthy criminal trial that, by the time of the ruling, had run to approximately 13 weeks. At the outset, the jury had been told the trial would take around eight weeks. Fifteen jurors were empanelled to maximise the prospects of returning a verdict by a jury of twelve.

During week eleven, two jurors submitted notes disclosing pre-booked overseas family holidays, both departing on 30 November 2025, one for four weeks and one for seven weeks. Both jurors indicated they had mentioned these holidays to Sheriff's staff before empanelment and had been reassured, given the eight-week estimate, that the bookings would not be a problem.

By the time the issue was formally addressed, two other jurors had already been discharged for health reasons, reducing the jury from fifteen to thirteen. The question before the court was whether to discharge the two jurors with travel commitments before the jury retired to deliberate.

  • Whether the court should exercise its discretion under s 53B(d) of the Jury Act 1977 (NSW) to discharge each of the two jurors with pre-booked overseas holidays.
  • Whether proceeding to verdict with a jury of eleven, following those discharges, would give rise to a substantial miscarriage of justice.

Decision

Lonergan J discharged both jurors under s 53B(d) of the Jury Act 1977 (NSW). The court found that each juror's family obligations, long-standing bookings, and the involvement of multiple overseas family members meant their ability to perform the functions of a juror would be so seriously affected that they could not effectively continue, even if ordered to do so. The court also reasoned that forcing jurors to abandon pre-arranged family holidays would likely produce disgruntled and distracted jurors, which in turn would compromise the functioning of the remaining jury.

The court considered but rejected two alternatives: compelling the jurors to cancel their holidays, or adjourning the proceedings for up to seven weeks to accommodate them. Given that the evidence had already concluded, and the trial had already been disrupted by other jurors' obligations and emergencies, either course was regarded as utterly impractical.

The court separately concluded that proceeding with a jury of eleven did not give rise to a substantial miscarriage of justice in all the circumstances. The original empanelment of fifteen jurors reflected a deliberate protective measure for the accused's right to be tried by twelve peers, and that protection had now been substantially, if not fully, expended through attrition.

Orders Made

• Discharge of two jurors under s 53B(d) of the Jury Act 1977 (NSW) due to overseas holiday obligations, reducing the jury from 13 to 11 jurors

Key Takeaways

  • Under s 53B(d) of the Jury Act 1977 (NSW), a juror may be discharged where personal circumstances would so affect their ability to perform juror functions that they cannot effectively continue, even if formally directed to remain.
  • Lonergan J found that compelling jurors to abandon pre-booked, non-refundable overseas family holidays would not merely be impractical but would risk producing disaffected jurors whose presence could undermine the remaining panel's deliberations.
  • The court distinguished between the question of whether to discharge individual jurors and the separate question of whether proceeding on a reduced jury constitutes a substantial miscarriage of justice, treating each as a distinct inquiry.
  • Empanelling more than twelve jurors at the outset serves the protective function of absorbing attrition; once that buffer is exhausted, the court must weigh the risks of proceeding on a reduced jury against the disruption of further adjournment.
  • Reassurances given by Sheriff's staff to prospective jurors about trial length do not bind the court's management of the jury, though the circumstances surrounding those reassurances formed part of the factual context considered in this ruling.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 53B(d) (discretionary discharge of individual jurors)

Cases cited: None referenced in the judgment.