R v Dunbar (No 6)

Yesterday the Court received a medical certificate via the Sheriff's Office saying that a juror had a respiratory virus infection and he would be unfit to attend yesterday and today.

In the accompanying email from that juror received yesterday it was stated that he may be okay the following day (being today), but he would only be able to confirm that with a test today. It has recently been confirmed that he is not here today.

I note that it is the cold and flu season and there is a potential for other jurors to be made unwell if the juror did decide to return.

I also note that we are at the stage of the trial that, although we are well-advanced, there is still a significant amount of evidence to be adduced. I am of the view, in all of the circumstances, that I should exercise my discretion, pursuant to s 53B(a) of the Jury Act 1977 (NSW) to discharge the sick juror on the basis that he has become so ill as to be likely to become unable to serve as a juror before the jury delivers their verdict, and is a potential health risk to other jurors.

I note that I am not of the opinion under s 53C(1)(a) of that Act that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. Indeed, I am of the opinion that there is no such risk.

I also note that not only is the number of jurors not reduced below 10 under s 53C(1)(b) of the Jury Act, but indeed we will still have 13.

Accordingly I formally discharge juror number [REDACTED].