R v Williams

This morning I have received three notes via the court officer from three individual jurors. One note was in a sense heralded yesterday, when a jury member advised the court officer that there was a concern that he or she had university exams coming up and this would mean that juror could not continue. That juror was asked to specify the dates and times of the exams. The note currently MFI 5 specifies a full week of exams from 16 to 20 September 2025, just a couple of weeks away, and exams of a length of three hours.

The second jury note that also arrived this morning (MFI 6) discloses a request to be dismissed because the juror's partner is not well, there are “other problems at home”, and this person says that they cannot sit down for a long time. I do observe that that was one of the specific reasons I articulated in the opening remarks to the jury panel as being a good reason why one should ask to be excused from serving on the jury.

The third note enclosed a letter from an employer (MFI 7). The juror note simply states that the letter has been received from the CEO of the company by which she is employed, without expressing any particular attitude or opinion about the letter, and noting that letter had only been received by the juror this morning at 7:00am.

The letter contains material which seems to me to be in breach of the Jury Act 1977 (NSW) and may need to be referred to the Sheriff's Office for further investigation. It is in essence a letter from the employer, being the CEO of what seems to be a small company, requesting that the juror be exempted from serving jury duty “at this time”, observing that it is too hard to fill her role at short notice, that they are a small organisation, and that previously this person had not been selected on other occasions when she had attended in response to her jury notice, and that now “this company cannot accommodate an absence of up to eight weeks”, which is the current assessed time for this trial that I provided yesterday to the jury panel.

All that has occurred in this trial so far is the Crown and Defence openings which were provided yesterday afternoon. No evidence has yet been called. Counsel for the accused has submitted that the individual jurors ought to be discharged and the Crown Prosecutor takes the same view, although both observed that the situation in relation to the employer pressure might fall into a different category.

I accept from what I have read, and what I have heard from counsel, that the appropriate course in respect of these three jurors is to discharge each of them pursuant to s 53B(d) of the Jury Act.

That leaves us with only 12 jurors after only one day of what is to be, at conservative estimate, a six-week trial and maybe up to an eight-week trial. The very reason for empanelling 15 jurors is so that the odds of the accused being tried by a jury of 12 of his peers is protected to the extent possible. Unfortunately, the discharge of these three jurors leaves us with only 12 jurors and evidence has not even begun in this trial. The possibility of losing another juror or potentially jurors during the next six to eight weeks is real.

For that reason I accept the submissions made by both counsel for the accused and the Crown Prosecutor that I should exercise my discretion under s 53C to now discharge the whole jury. I accept Ms Carroll's submission under s 53C(1)(a) that the risk of a substantial miscarriage of justice is the very matter I have just referred to, that is, a real risk that Mr Williams may not in end result be judged by a jury of 12.

In those circumstances I am satisfied, pursuant to s 53C(1)(a) that I should discharge the entire jury.