R v Rogerson; R v McNamara (No 55)

I am presently approximately halfway through my summing-up to the jury. At the conclusion of yesterday's proceedings, I had indicated to the jury that I expected that they would be asked to commence their deliberations either late today or tomorrow. Before proceedings commenced today I received, through the Sheriff's Officer, a note from one of the members of the jury (MFI 206) which is in the following terms:

When I raised the content of that note with counsel, I expressed the tentative view that if it were simply the case that the member of the jury was seeking to, as it were, “dismiss himself” in order to "save everyone the hassles of a ballot", I had some doubt as to whether or not my power to discharge a member of the jury extended to those circumstances. However, as matters have transpired, it is not necessary for me to resolve that question.

It was generally agreed between counsel that it would be necessary to obtain further information from the juror about the nature of the work commitment to which he referred. That request produced a second note (MFI 207) which is in the following terms:

When I raised the contents of that note with counsel, it was the Crown's position, as well as that of Mr Thomas, that there existed a basis upon which I could exercise the discretion contained in s 53B(d) of the Jury Act 1977 (NSW) (“the Act”) to discharge the juror.

Mr Wendler, whilst to some extent embracing that position, submitted that I should make an enquiry about whether there was any other person who could take the juror’s place in his business for such time as the jury deliberations might continue. The Crown had no objection to that course being taken. Mr Thomas' position was that there was a sufficient basis to discharge the juror in the absence of any further enquiry being undertaken. However, I sought further information which was contained in a third note (MFI 208) which was in the following terms:

As I observed in the course of discussing the issue with counsel, if the juror remained, and assuming that he was not eliminated by ballot, and assuming further that the jury's deliberations continued into early next week, he would be required to work for very long hours in his business, until 4am each day. He would then be required to attend court only a matter of hours later to participate in what are, on any view, very serious deliberations.

If those circumstances came to pass they would obviously not be conducive to the juror being able to discharge his functions and obligations properly. It would not be fair to any of the parties in this trial to allow such a situation to eventuate. Over and above that, there is a risk that if the juror is not discharged he may simply conform to, and adopt, a particular view in the course of deliberations, purely for the purpose ensuring that he is free to conduct his business. The significance of that risk requires no further comment.

The terms of s 53B(d) of the Act are wide. They confer a discretion on the Court to discharge a member of a jury if it appears to the Court that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. There are a series of matters which would affect the juror's ability to perform his functions if he were required to remain.

In those circumstances, and noting that all counsel were in agreement with the course that I propose to adopt, I make an order discharging juror number 01436073 and I further order that the trial proceed with the remaining 12 jurors.

As I indicated to counsel, I propose to have the juror brought into court and indicate to him personally that I have made that order. This is essentially for two reasons. Firstly, as a matter of courtesy to a member of the public who has invested more than four months of his life in service to the community in this trial, the juror deserves to be thanked for his efforts. Secondly, it is important that he be reminded that having been discharged, he is to have no contact whatsoever with any of the remaining jurors in the period between now and the delivery of the verdicts. I will remind him that the Act creates offences relating to the disclosure of information emanating from any aspect of the jury's functions. When the remaining 12 jurors are brought into court, I will remind them that they too are to have no contact with the juror who has been discharged. In this regard, I note that I have directed the Sheriff to ensure that once the juror in question leaves the court room, he is to be escorted from the premises without having any further contact with any one of the twelve remaining jurors.