R v Williams (No. 8)

This morning I received a note from a juror which stated the following:

The contents of the note was raised with counsel. The Crown Prosecutor noted that at this stage we have 14 jurors and the reason for empanelling 15 at the beginning in a long trial is to cater for this kind of circumstance. He submitted that sleep apnoea is known to affect a person's ability to concentrate and may also lead to tiredness on arrival in court and so may impact on a juror's ability to assess evidence that he or she has heard.

Ms Carroll suggested that perhaps given the note was not accompanied by a medical certificate that further questions could be asked of the juror including whether the juror was perceiving that he or she was having difficulty concentrating. It seems to me that matter was adequately dealt with in the letter as the reason being cited for discharge was that it had become difficult for that juror to concentrate. Acting to the extent I thought helpful, I asked the juror some questions when he was called into court to confirm the diagnosis and the difficulty he had referred to in the letter.

I am satisfied that the juror's difficulty with concentration because of a diagnosis of sleep apnoea is something that qualifies under s 53B(d) of the Jury Act 1977 (NSW) as a reason for discretionary discharge of the juror. It appears to me that this is a reason affecting the juror's ability to perform the functions of a juror and in those circumstances as provided by subs (d), the juror should not continue to act as a juror and so I discharged that juror. Whilst this now means we have only 13 jurors, it is a late stage of the trial. We are at the stage of calling the last few witnesses before addresses and summing-up.

In the circumstances, I am content under s 22 of the Jury Act that the trial should continue with a jury of 13 persons.